Luke Waid v. Darnell Earley

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 20a0170p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

IN RE: FLINT WATER CASES. ┐

___________________________________________ │

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LUKE WAID, Parent and Next-Friend of SR, a minor; │

et al., > No. 20-1352

Plaintiffs, │

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ELNORA CARTHAN, et al., │

Plaintiffs-Appellees, │

│

│

v.

│

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DARNELL EARLEY, et al., │

Defendants, │

│

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RICHARD DALE SNYDER, former Governor of │

Michigan; ANDY DILLON, former Treasurer of

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Michigan, │

Defendants-Appellants, │

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VEOLIA NORTH AMERICA, INC., VEOLIA NORTH │

AMERICA, LLC, VEOLIA NORTH AMERICA OPERATING │

SERVICES, LLC, │

Intervenors-Appellees. │

│

┘

Appeal from the United States District Court

for the Eastern District of Michigan at Ann Arbor.

Nos. 5:16-cv-10444; 5:16-cv-11247—Judith E. Levy, District Judge.

Decided and Filed: June 2, 2020

Before: MERRITT, MOORE, and MURPHY, Circuit Judges.

No. 20-1352 Waid, et al. v. Earley, et al. Page 2

_________________

COUNSEL

ON MOTIONS: Richard S. Kuhl, Margaret Bettenhausen, Nathan A. Gambill, OFFICE OF

THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellants.

ON RESPONSE: Emmy L. Levens, COHEN MILSTEIN SELLERS & TOLL PLLC,

Washington, D.C., Paul Novak, Gregory Stamatopoulos, WEITZ & LUXENBERG, P.C.,

Detroit, Michigan, for Plaintiffs-Appellees. James M. Campbell, CAMPBELL CONROY &

O’NEIL, P.C., Boston, Massachusetts, for Veolia Appellees.

_________________

OPINION

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KAREN NELSON MOORE. Former State of Michigan Governor Richard Dale Snyder

and former State Treasurer Andy Dillon claim that they cannot be deposed as non-party fact

witnesses with respect to claims against other defendants in the litigation stemming from the

Flint Water Crisis. In their view, they are immune from all discovery until they have exhausted

every opportunity for appeal from the district court’s denial of their motions to dismiss based on

qualified immunity. Meanwhile, other defendants and certain plaintiffs are pursuing discovery

on wholly separate claims and have noticed Snyder and Dillon for non-party fact witness

depositions. Snyder and Dillon moved for a protective order in the district court to stop the

depositions from going forward. When their request was denied, they appealed the district

court’s discovery order to this court and shortly thereafter requested a stay of the depositions

until we resolve their appeal from the denial of a protective order. We DENY Snyder’s and

Dillon’s request for a stay of non-party depositions pending resolution of their appeal from the

district court’s order denying their request for a protective order, and we DISMISS for lack of

jurisdiction their appeal from the denial of a protective order.

No. 20-1352 Waid, et al. v. Earley, et al. Page 3

I. BACKGROUND

This appeal derives from the consolidated putative class action in the In re Flint Water

Cases litigation.1 It is one of dozens of ongoing actions brought by individuals, businesses, and

putative classes in state and federal court challenging the actions of state and private actors in

creating, sustaining, and covering up the Flint Water Crisis. Defendants include government

officials from the State of Michigan, the City of Flint, and state agencies. R. 620-3 (Fourth Am.

Compl. at 1–2, ¶ 2) (Page ID #17804–05). Defendants also include private engineering

companies like Veolia that are facing claims of professional negligence for failing to explain the

need to treat the water properly for corrosion and for lying to the public about the existence and

extent of the crisis. Id. at 1–3, ¶ 2 (Page ID #17804–06). While government officials like

Snyder and Dillon have been litigating the issue of qualified immunity, discovery against private

parties like Veolia has proceeded.

On April 1, 2019, the district court ruled on the defendants’ motions to dismiss. R. 798

(Op. & Order) (Page ID #21103). The district court granted the government officials’ motions to

dismiss plaintiffs’ claims alleging 42 U.S.C. § 1983 equal-protection violations, § 1985(3)

conspiracy, Michigan’s Elliott Larsen Civil Rights Act (“ELCRA”), § 1983 state-created danger,

and gross negligence. Id. at 128 (Page ID #21230). The district court denied, however,

defendants’ motions to dismiss plaintiffs’ § 1983 bodily-integrity claim on the bases of qualified

and absolute immunity. Id. at 127 (Page ID #21229). Thus, the only surviving claim against the

state defendants, including Snyder and Dillon, is plaintiffs’ bodily-integrity claim.

After deciding defendants’ motions to dismiss based on qualified immunity, the district

court entered a comprehensive case management order (“CMO”) on April 30, 2019, to direct the

course of discovery. R. 827 (Case Management Order 4/30/19) (Page ID #22804). The order

distinguished between discovery as to parties and non-parties. See id. Then, on May 20, 2019,

the district court ruled on the state defendants’ motion for a stay of discovery pending final

resolution of their motions to dismiss based on qualified immunity. R. 861 (Discovery Order

5/20/19) (Page ID #23407).

1

The facts alleged in the derivative case are set out in our opinion in In re Flint Water Cases (Waid v.

Snyder), – F.3d –, 2020 WL 2611546, at *2–12 (6th Cir. 2020).

No. 20-1352 Waid, et al. v. Earley, et al. Page 4

As context, the district court noted in its May 20, 2019 discovery order that other

defendants with no claim to immunity had begun discovery pursuant to the CMO. Id. at 1, 7–8

(Page ID #23407, 23413–14). The state defendants, however, sought a stay of “all discovery

across the Flint Water Cases until their claims of immunity have been decided by this Court, the

Sixth Circuit, and the United States Supreme Court, if necessary.” Id. at 1–2 (Page ID #23407–

08) (emphasis added). The district court granted in part and denied in part the state defendants’

request. Id. at 2 (Page ID #23408).

The district court recognized that the state defendants must be treated as though they are

immune from the claims brought against them until they have exhausted their opportunities to

appeal the district court’s denial of their motions to dismiss based on immunity. Id. at 6–7 (Page

ID #23412–13). Accordingly, the district court issued a stay with respect to “discovery on

claims for which they continue to litigate the issue of immunity.” Id. at 2 (Page ID #23408).

Thus, the court ruled, “the state and MDEQ defendants will not be subjected to discovery with

respect to the sole allegation against them, which is that they violated plaintiffs’ right to bodily

integrity, until they have exhausted their opportunities to pursue their qualified immunity claim

on appeal.” Id. at 6–7 (Page ID #23412–13).

The state defendants’ request for a stay of discovery was partly denied in the sense that

the state defendants would “be treated as non-parties pending the outcome of their qualified

immunity appeals.” Id. at 5 (Page ID #23411). That meant that they could be subject to

discovery requests only as non-party fact witnesses regarding wholly separate claims against

other defendants. The district court explained that, “[i]f the state and MDEQ defendants are

eventually dismissed as a result of their pending appeals, they will still be required to respond to

discovery as a non-party.” Id. at 8 (Page ID #23414). Discovery from the state defendants as

non-party fact witnesses therefore was “inevitable.” Id.

Eventually, Snyder, Dillon, and other state defendants received deposition notices from

the Veolia defendants and certain plaintiffs. The state defendants promptly moved for a

protective order in the district court to stay non-party fact witness depositions until after they

exhausted their appeals from the denial of their motions to dismiss on the issue of qualified

immunity. See R. 1047 (Mot. for Protective Order) (Page ID #26634). The district court denied

No. 20-1352 Waid, et al. v. Earley, et al. Page 5

their request for a protective order and reiterated that they are required to comply with discovery

requests as non-parties. R. 1100 (Protective Order Ruling 4/9/20 at 2) (Page ID #27458).

Presently, certain plaintiffs seek to depose former Governor Snyder starting on June 25,

2020, and the Veolia defendants seek to depose former Treasurer Dillon starting on July 7, 2020.

When the district court denied their request for a protective order, Snyder and Dillon appealed

the denial of a protective order to this court. They informed the district court of their appeal and

obtained a statement from the district court that an additional request for a stay of the non-party

depositions would be futile. R. 1130 (Conference 5/8/20 at 10–11) (Page ID #27846–47). They

then requested a stay from us to stop the depositions from going forward while we decide their

appeal from the district court’s denial of their request for a protective order against taking the

non-party depositions.

We note at the outset that we recently affirmed the district court’s denial of qualified

immunity as to Snyder, and we remanded for the district court to consider whether to dismiss

Dillon in light of the district court’s decision in Brown v. Snyder (In re Flint Water Cases), No.

18-cv-10726, 2020 WL 1503256, at *9 (E.D. Mich. Mar. 27, 2020). In re Flint Water Cases

(Waid v. Snyder), – F.3d –, 2020 WL 2611546, at *2 (6th Cir. May 22, 2020). We recognize, as

the district court did, that our resolution of the qualified immunity issue does not exhaust

Snyder’s and Dillon’s opportunities for review by the Supreme Court on the qualified immunity

issue and, thus, does not render these proceedings moot.

II. REQUEST FOR A STAY

We have authority over Snyder’s and Dillon’s request for a stay of the district court’s

discovery ruling because they have shown that filing an initial motion for a stay in the district

court would be futile. See FED. R. APP. P. 8(a). We balance four interrelated factors when

considering whether to grant a stay: “(1) the likelihood that the party seeking the stay will

prevail on the merits of the appeal; (2) the likelihood that the moving party will be irreparably

harmed absent a stay; (3) the prospect that others will be harmed if the court grants the stay; and

(4) the public interest in granting the stay.” Michigan State A. Philip Randolph Inst. v. Johnson,

No. 20-1352 Waid, et al. v. Earley, et al. Page 6

833 F.3d 656, 661 (6th Cir. 2016) (quoting Mich. Coal. of Radioactive Material Users, Inc. v.

Griepentrog, 945 F.2d 150, 153 (6th Cir. 1991)).

First, Snyder and Dillon are not likely to succeed on appeal from the district court’s order

denying their request for a protective order. They claim that they cannot be deposed on any

matter pending resolution of their qualified-immunity appeal. That is incorrect.

Snyder and Dillon stress that qualified immunity protects them from discovery until their

claim of entitlement to immunity has been conclusively denied on their motions to dismiss. The

Supreme Court requires that civil-rights actions brought under § 1983 play out in stages to shield

government officials from the “burdens of litigation.” Kennedy v. City of Cleveland, 797 F.2d

297, 299–300 (6th Cir. 1986) (citing Mitchell v. Forsyth, 472 U.S. 511, 527 (1985)). If the

defendant files a motion to dismiss based on qualified immunity, the court must “stay discovery

until that issue is decided.” Id. at 299. If the defendant is denied qualified immunity on the

motion to dismiss, then “the plaintiff ordinarily will be entitled to some discovery.” Crawford-El

v. Britton, 523 U.S. 574, 598 (1998).

Yet, qualified immunity protects government officials from “unnecessary and

burdensome discovery or trial proceedings” only. Id. at 597–98; see also Mitchell, 472 U.S. at

526 (explaining that qualified immunity relieves defendants of “the burdens of broad-reaching

discovery” (quoting Harlow v. Fitzgerald, 457 U.S. 800, 817–18 (1982)) (emphasis added))).

The “right to immunity is a right to immunity from certain claims, not from litigation in general

. . . .” Behrens v. Pelletier, 516 U.S. 299, 312 (1996) (emphasis added). “Granting qualified

immunity on only one of the claims may reduce discovery but it does not eliminate it.”

McLaurin v. Morton, 48 F.3d 944, 949 (6th Cir. 1995); see also Alice L. v. Dusek, 492 F.3d 563,

565 (5th Cir. 2007) (“To the extent that [the defendant] is subject to discovery requests on claims

for which she does not or cannot assert qualified immunity, such discovery requests do not

implicate her right to qualified immunity.”).

Here, the district court granted the state defendants effective immunity pending the final

resolution of their motions to dismiss based on qualified immunity. In other words, the district

court recognized that no discovery may be sought from the state defendants on the claims against

No. 20-1352 Waid, et al. v. Earley, et al. Page 7

them unless and until they are conclusively denied qualified immunity on their motions to

dismiss. The district court carefully sculpted a discovery plan that afforded the state defendants

their full entitlement to immunity, while permitting other parties to seek discovery from them as

fact witnesses on wholly separate claims. The discovery plan would permit state defendants to

be deposed as non-party fact witnesses to events regarding separate claims brought against

different defendants to prevent the litigation from stalling out for all defendants during the

pendency of these state defendants’ appeals of the denial of their motions to dismiss based on

qualified immunity. See R. 827 (Case Management Order 4/30/19 at 1) (Page ID #22804);

R. 861 (Discovery Order 5/20/19 at 5, 8–10) (Page ID #23411, 23414–16). The state defendants

obtained a broad stay from discovery that treats them as though they had already proven their

immunity and were dismissed from the case. The district court’s exception to that stay was

limited, and it was necessary for discovery to proceed for other parties in the sprawling litigation.

Doing so was well within the district court’s discretion.

Discovery rulings, no doubt, are high stakes, but we usually leave decisions on how best

to manage discovery to the district court’s discretion. See Criss v. City of Kent, 867 F.2d 259,

261 (6th Cir. 1988) (“[I]t is well established that the scope of discovery is within the sound

discretion of the trial court.” (quotation omitted)). It is up to the district court to take qualified

immunity into account when developing its discovery plan. See Crawford-El, 523 U.S. at 597–

98 (“[T]he trial court must exercise its discretion in a way that protects the substance of the

qualified immunity defense. It must exercise its discretion so that officials are not subjected to

unnecessary and burdensome discovery or trial proceedings.”). And, in fact, the district court did

so here.

The district court refrained from issuing its discovery plan until after it resolved

defendants’ motions to dismiss asserting qualified immunity. See R. 827 (Case Management

Order 4/30/19) (Page ID #22804); R. 861 (Discovery Order 5/20/19 at 5) (Page ID #23411).

Then, recognizing that its ruling on qualified immunity was subject to appeal, the district court

ordered a stay of discovery regarding the sole remaining claim against the state defendants—

plaintiffs’ bodily integrity claim. R. 861 (Discovery Order 5/20/19 at 6–7) (Page ID #23412–

13). “[T]he state and MDEQ defendants,” the district court ruled, “will not be subjected to

No. 20-1352 Waid, et al. v. Earley, et al. Page 8

discovery with respect to the sole allegation against them, which is that they violated plaintiffs’

right to bodily integrity, until they have exhausted their opportunities to pursue their qualified

immunity claim on appeal.” Id. In the same order, the district court made a limited exception to

the stay to permit discovery from state defendants as non-party fact witnesses to events relevant

to entirely separate claims brought against different defendants. Id. at 7–8 (Page ID #23413–14).

The district court explained that “[p]laintiffs have counts pending against other defendants that

have filed answers and are ready to defend their positions.” Id. “It follows that the Court can

order discovery to proceed with respect to these other defendants.” Id. at 8 (Page ID #23414).

The key Supreme Court cases that Snyder and Dillon cite for us—Mitchell, Crawford-El,

and Harlow—feature prominently in the district court’s order delineating the state officials’

discovery obligations. The district court recognized that Mitchell “established that qualified

immunity grants ‘immunity from suit rather than a mere defense to liability.’” Id. at 6 (Page ID

#23412) (quoting Mitchell, 472 U.S. at 526). “[C]ourts must take care,” the district court wrote,

“to ensure that government officials are not subjected to unnecessary and burdensome discovery

until issues of immunity have been resolved at the earliest opportunity.” Id. (citing Crawford-El,

523 U.S. at 597). Accordingly, the district court struck a balance between the discovery needs of

other defendants and the state defendants’ immunity interest: “If the state and MDEQ

defendants are eventually dismissed as a result of their pending appeals, they will still be

required to respond to discovery as a non-party. So in the interim, this litigation will go forward

and the state and MDEQ defendants are required to respond to discovery requests as if they were

already dismissed from the case.” Id. at 8 (Page ID #23414).2

2

The district court’s decision to permit discovery from government officials as non-party fact witnesses to

events related to claims against other defendants is not out of the ordinary. See, e.g., Mendia v. Garcia, No. 10-cv-

03910-MEJ, 2016 WL 3249485, at *5 (N.D. Cal. June 14, 2016) (“While discovery directed to Defendants as to the

Bivens claims against them is inappropriate given their pending qualified immunity appeal, . . . limited discovery as

to these Defendants is appropriate because regardless of whether they are entitled to qualified immunity, they will

still need [to] participate in discovery as percipient witnesses related to the FTCA claims against the United

States.”); Harris v. City of Balch Springs, 33 F. Supp. 3d 730, 733 (N.D. Tex. 2014) (“The court can think of no

legal reason why discovery and pretrial matters may not proceed with respect to [the counts not being appealed on

qualified-immunity grounds]. . . . [E]ven if the Fifth Circuit were to grant [him] qualified immunity . . . he would

necessarily be required to testify on behalf of the City regarding [those counts]. . . . Whether [he] is subjected to

discovery on these counts now or after the resolution of qualified immunity is quite beside the point.”).

No. 20-1352 Waid, et al. v. Earley, et al. Page 9

We disagree with Snyder and Dillon that the district court’s “non-party” versus “party”

distinction is meaningless, or that it permits an end-run around their entitlement to immunity.

The district court was clear that no party may seek discovery from the state defendants on the

particular claim that they continue to litigate with respect to immunity. See id. at 2 (Page ID

#23408) (“The state and MDEQ defendants are entitled to a stay of discovery on claims for

which they continue to litigate the issue of immunity.”). If these non-party depositions turn out

to be a ruse—as Snyder and Dillon assert that they are—Snyder and Dillon are free to object and

move for a protective order at the district court level as issues arise. It is inappropriate for us,

however, to issue a prophylactic order to stop these depositions from going forward based on

hypothetical horrors before a single problematic question has been asked.

For all these reasons, we conclude that Snyder and Dillon are not likely to succeed on

their appeal from the district court’s order denying them a protective order.

Second, and for the same reason, Snyder and Dillon will not suffer irreparable harm

absent a stay. The district court forbade the noticing parties from using depositions to probe

Snyder and Dillon regarding the sole surviving claim against them, which is that they violated

plaintiffs’ right to bodily integrity. See id. at 5, 8–10 (Page ID #23411, 23414–16). Snyder and

Dillon will not be effectively denied their “entitlement not to stand trial or face the other burdens

of litigation” if we deny their request for a stay of the district court’s denial of their protective

order pending their appeal from that denial. Mitchell, 472 U.S. at 526. Even if Snyder and

Dillon ultimately should be granted qualified immunity, the noticing parties would still request

these depositions because, in their view, Snyder and Dillon are key factual witnesses regarding

other claims. The discovery at issue is not only suitably tailored to the situation, but also

inevitable.

We further emphasize that our decision does not leave Snyder and Dillon without a

remedy. They may file for a protective order in the district court if they object to the noticing

parties’ line of questioning. What they cannot do is ask us to resolve a run-of-the-mill discovery

dispute on an interlocutory appeal.

No. 20-1352 Waid, et al. v. Earley, et al. Page 10

For each of these reasons, Snyder and Dillon will not suffer any irreparable harm absent a

stay of the district court’s discovery order.

Third, the noticing parties will be harmed if we grant a stay. The plaintiffs have alleged

ongoing serious health injuries that continue to worsen over time. See In re Flint Water Cases

(Waid v. Snyder), – F.3d –, 2020 WL 2611546, at *10 (6th Cir. 2020). Thus, the progress of the

litigation has a real effect on plaintiffs’ ability to secure a meaningful remedy. A delay also

could interfere with the scheduled start of the bellwether trials, presently set to begin in January

2021. R. 1150 (Order 5/21/20 at 3) (Page ID #28167). A delay similarly would prejudice the

Veolia defendants, who are also invested in the efficient resolution of this case.

Finally, the public interest favors the development of the facts and the expeditious

resolution of this case. And as described above, Snyder’s and Dillon’s immunity interest—and

the public’s accompanying interest in their immunity—is not at stake in this limited non-party

fact witness discovery. We conclude that all four factors weigh against granting a stay of the

district court’s order allowing the non-party depositions to proceed. We accordingly DENY

Snyder’s and Dillon’s motion for a stay of non-party depositions pending resolution of their

appeal from the district court’s order denying their motion for a protective order.

III. MOTION TO DISMISS

The Veolia Defendants-Appellees have filed a motion to dismiss this appeal No. 20-1352.

They assert that we lack jurisdiction under either 28 U.S.C. § 1291 or the collateral order

doctrine to review a discovery order. Snyder and Dillon have filed a response, contending that

the district court’s discovery order is an implicit denial of their qualified immunity. We

conclude that we do not have jurisdiction to entertain Snyder’s and Dillon’s appeal from the

district court’s order denying their request for a protective order.

Section 1291 vests us with jurisdiction over appeals from “final decisions of the district

courts.” 28 U.S.C. § 1291. When a party appeals something other than “the last order possible

to be made in a case,” “a decision of a district court is appealable if it falls within ‘that small

class which finally determine claims of right separable from, and collateral to, rights asserted in

the action, too important to be denied review and too independent of the cause itself to require

No. 20-1352 Waid, et al. v. Earley, et al. Page 11

that appellate consideration be deferred until the whole case is adjudicated.” Mitchell, 472 U.S.

at 524–25 (quotations omitted). This is known as the collateral order doctrine, and it entitles

government officials to an immediate appeal from the denial of qualified immunity. Id. at 525–

27.

Because discovery orders generally are non-final, non-appealable orders, even under the

collateral order doctrine, see Coleman v. Am. Red Cross, 979 F.2d 1135, 1138 (6th Cir. 1992),

Snyder and Dillon want us to construe the district court’s order denying their request for a

protective order as an implicit order denying them qualified immunity. We do not think that the

collateral order doctrine stretches so far.

“[T]here can be two appeals based upon claims of immunity and which can be taken prior

to final judgment: first, after denial of a motion to dismiss on the pleadings and, second, after

denial of a motion for summary judgment following discovery.” Sinclair v. Schriber, 834 F.2d

103, 104 (6th Cir. 1987). Orders regarding discovery do not fit either of these categories and, for

that reason, are not independently appealable under the collateral order doctrine. Neither our

court nor the Supreme Court has endorsed the extension of the collateral order doctrine that

Snyder and Dillon ask for here. We acknowledge that the rationale for permitting government

officials to take an immediate appeal from the denial of a motion to dismiss based on qualified

immunity rests in part on the concern that forcing officials to wait for a final judgment on the

merits would subject them to potentially unwarranted discovery. See Harlow, 457 U.S. at 816–

18; Mitchell, 472 U.S. at 526. But these cases simply do not establish an entitlement to an

interlocutory appeal from a discovery order itself.

Snyder and Dillon have not pointed to a single case in which we permitted an immediate

appeal from a discovery order like the one at issue here. They have, however, pointed to a

couple of cases that they claim are close enough. See Skousen v. Brighton High Sch., 305 F.3d

520, 525–26 (6th Cir. 2002); Everson v. Leis, 556 F.3d 484, 490–93 (6th Cir. 2009). In Skousen

and Everson, for example, we held that we had jurisdiction over the district court’s decisions to

hold in abeyance summary judgment motions based on qualified immunity pending completion

of discovery. Skousen, 305 F.3d at 525–26; Everson, 556 F.3d at 490–93. There was a question

as to whether we had jurisdiction over the orders holding the summary judgment motions in

No. 20-1352 Waid, et al. v. Earley, et al. Page 12

abeyance because we may entertain an appeal from the denial of summary judgment only if it

presents issues solely of law. Skousen, 305 F.3d at 525 (citing Mitchell, 472 U.S. at 526–28).

We decided that we had jurisdiction to entertain the appeals because, even though the district

courts denied summary judgment so that the parties could conduct more discovery, the decisions

did not turn on the existence of a genuine issue of material fact. Id. at 526; Everson, 556 F.3d at

493. We explained that it did not matter that the order denying summary judgment was styled as

an order holding disposition of the motion for summary judgment in abeyance. “If a district

court can thwart interlocutory appeal by refusing to address qualified immunity through

abeyance rather than dismissal, then the district court can effectively ignore this court’s directive

that district courts address qualified immunity promptly.” Everson, 556 F.3d at 492. Snyder and

Dillon assert that the district court’s discovery order at issue here similarly is tantamount to a

denial of qualified immunity. We disagree.

The critical difference between Skousen/Everson and this case is that Skousen and

Everson concerned a district court’s delay in ruling on a motion for summary judgment on the

issue of qualified immunity. The district courts temporarily denied the defendants’ summary

judgment motions to permit additional discovery—but we authorized the appeal because that

decision operated, for our purposes, as a denial of summary judgment on the question of

qualified immunity. Thus, the orders at issue in Skousen and Everson fall into Sinclair’s second

bucket for the types of rulings that are eligible for immediate interlocutory appeal. The orders in

those cases were not discovery orders. The collateral order doctrine is already an exception to

the general finality rule. Snyder and Dillon are not entitled to appeal any number of discovery

matters that they believe have some impact on their immunity interest. We can only imagine the

deluge of appeals that would descend upon us if standard discovery orders could so easily be

rebranded as final judgments.

Finally, we underscore that the district court’s discovery order fully takes into account the

need for a pause in discovery regarding the claim on which Snyder and Dillon assert qualified

immunity, and it orders limited discovery as non-party fact witnesses regarding other claims in

the litigation. The district court took the state defendants’ immunity seriously. If the noticing

parties fail to comply with the district court’s order by pressing an inappropriate line of

No. 20-1352 Waid, et al. v. Earley, et al. Page 13

questioning, Snyder and Dillon may assert their objections in the district court. But ordering

Snyder and Dillon to comply with discovery requests as non-party fact witnesses to events

regarding wholly separate claims against different defendants does not, in the abstract, interfere

with their immunity.

We reject Snyder’s and Dillon’s attempt to dress up the district court’s discovery order as

an implicit denial of qualified immunity. We accordingly DISMISS for lack of jurisdiction their

appeal No. 20-1352.