Martin v. Turnipseed

Case: 21-30475 Document: 00516378091 Page: 1 Date Filed: 06/30/2022

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

FILED

June 30, 2022

No. 21-30475 Lyle W. Cayce

Clerk

Jennifer Leonard,

Plaintiff,

versus

Tyler Martin; Wadena Insurance Company,

Defendants—Appellees,

versus

Joseph W. Turnipseed, M.D.; The Spine Diagnostic &

Pain Treatment Center,

Interested Parties—Appellants.

Appeal from the United States District Court

for the Middle District of Louisiana

USDC No. 3:19-CV-827

Case: 21-30475 Document: 00516378091 Page: 2 Date Filed: 06/30/2022

No. 21-30475

Before Jones, Haynes, and Costa, Circuit Judges.

Edith H. Jones, Circuit Judge:

This appeal relates to a Fed. R. Civ. Pro. 45 subpoena issued to third

party Dr. Joseph Turnipseed requiring him to perform patient record audits

and generate data about how frequently he recommends a particular course

of treatment. Turnipseed moved to quash the subpoena on undue burden

grounds. The district court denied his motion to quash. He appealed. In the

alternative, he sought a writ of mandamus ordering the district court to quash

the subpoena. With misgivings about the district court’s substantive ruling,

we DISMISS Turnipseed’s appeal for lack of jurisdiction and DENY his

alternative petition for a writ of mandamus.

I.

This is a run-of-the-mill personal injury lawsuit arising out of a car

accident. Plaintiff Jennifer Leonard alleges that Tyler Martin rear-ended her

when she stopped in traffic. She sued Martin and his insurer, Wadena

Insurance Company, in Louisiana state court seeking damages for injuries she

allegedly sustained during the accident. Martin removed the lawsuit to

federal court based on the existence of diversity jurisdiction.

Turnipseed, an anesthesiologist and pain management specialist,

treated Leonard for neck and back pain allegedly caused by the accident.

Among other treatments, Turnipseed performed a cervical radiofrequency

neurotomy on Leonard. A cervical radiofrequency neurotomy is a procedure

done to reduce chronic back and neck pain that has not “improved with

medications or physical therapy, or when surgery [is not] an option.” 1

According to Turnipseed, Leonard responded favorably to the cervical

neurotomy and he recommended that she undergo the procedure annually

1

Radiofrequency Neurotomy, Mayo Clinic (Feb. 25, 2022), https://www.mayo

clinic.org/tests-procedures/ radiofrequency-neurotomy/about/pac-20394931 (last visited

April 12, 2022).

2

Case: 21-30475 Document: 00516378091 Page: 3 Date Filed: 06/30/2022

No. 21-30475

for the next five to six years. These future treatments make up a large

percentage of Leonard’s life care plan and alleged damages.

The defendants dispute the medical necessity of those expensive,

future treatments. They suggest that Turnipseed frequently recommends

annual cervical radiofrequency neurotomies over the course of several years

but that few patients follow through with the treatments. The subtext, of

course, is that Turnipseed’s recommendation is simply a means of inflating

the amount of damages in personal injury litigation. The defendants

therefore subpoenaed Turnipseed and his medical practice, The Spine

Diagnostic & Pain Treatment Center, under Rule 45, seeking: (1) all records

of patients in the past ten years who Turnipseed recommended undergo

cervical neurotomies for ten years, twenty years, and life; and (2) bills for

services rendered and records produced in connection with (1). The

subpoena specified that all patient health information should be redacted.

Turnipseed moved to quash the original subpoena. He argued that it

was overly broad, unduly burdensome, and sought privileged information.

The magistrate judge granted his motion in part and denied it in part. He

agreed that the subpoena was overly broad because it requested the entirety

of patient records and targeted patients that Turnipseed recommended

cervical neurotomies for periods of ten years, twenty years, and life, even

though Turnipseed only recommended that Leonard undergo annual

neurotomies for five to six years. The magistrate judge likewise agreed that

the subpoena was overbroad in seeking ten years of data.

The magistrate judge, however, approved a narrower version of the

subpoena that required production of only (1) the number of patients in the

last five years that Turnipseed recommended get annual cervical

neurotomies over the course of five to six years; and (2) the number of known

patients who actually underwent the procedures. That information is

3

Case: 21-30475 Document: 00516378091 Page: 4 Date Filed: 06/30/2022

No. 21-30475

sufficiently relevant, the magistrate judge reasoned, because it bears on

Turnipseed’s credibility. Moreover, the magistrate judge rejected

Turnipseed’s objection, as he concluded that producing the information

targeted by the narrower subpoena—raw numbers, rather than patient

files—would not be unduly burdensome.

Turnipseed filed a Rule 72(a) motion to review the magistrate judge’s

ruling in the district court. The district court held that the magistrate judge

expressly considered the relevant factors—the scope of the information

requested, the importance of that information, the burden to Turnipseed,

and the privacy rights of Turnipseed’s patients—and tailored his ruling

accordingly and, as a result, did not clearly err. Turnipseed appealed. He

contends that district court abused its discretion in allowing the discovery to

go forward.

II.

This court cannot reach the question whether the district court abused

its discretion until we first “assure ourselves of our own federal subject

matter jurisdiction.” Keyes v. Gunn, 890 F.3d 232, 235 n.4 (5th Cir. 2018).

We requested supplemental briefing addressing the basis for appellate

jurisdiction to review an order denying a nonparty’s motion to quash.

Turnipseed posits that this court has jurisdiction under the collateral order

doctrine. Alternatively, Turnipseed suggests that the court may treat his

appeal as a petition for a writ of mandamus. Martin, by contrast, disagrees

that we have jurisdiction and contends that, even if the court were to treat

this appeal as a petition for a writ of mandamus, the criteria for mandamus

relief are not satisfied. We conclude that an order denying this nonparty’s

motion to quash is not reviewable under the collateral order doctrine and

that, although we may treat Turnipseed’s appeal as a petition for a writ of

mandamus, he fails to meet the requirements for such extraordinary relief.

4

Case: 21-30475 Document: 00516378091 Page: 5 Date Filed: 06/30/2022

No. 21-30475

A. Collateral Order Doctrine

With few exceptions not applicable here, appellate jurisdiction is

statutorily confined to review of “final decisions.” 28 U.S.C. § 1291. The

archetypal final decision is one that “ends the litigation on the merits and

leaves nothing more for the court to do but execute the judgment.” Digit.

Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867, 114 S. Ct. 1992, 1995

(1994) (quoting Catlin v. United States, 324 U.S. 229, 233, 65 S. Ct. 631, 633

(1945)). Nevertheless, the Supreme Court “has long given” § 1291 a

“practical rather than a technical construction.” Cohen v. Beneficial Indus.

Loan Corp., 337 U.S. 541, 546, 69 S. Ct. 1221, 1226 (1949). Section 1291

encompasses not only the final decisions that terminate an action, “but also

a ‘small class’ of collateral rulings that, although they do not end the

litigation, are appropriately deemed ‘final.’” Mohawk Indus., Inc. v.

Carpenter, 558 U.S. 100, 106, 130 S. Ct. 599, 605 (2009) (quoting Cohen,

337 U.S. at 545-46, 69 S. Ct. at 1225-26).

To fit within the small class of immediately appealable collateral

rulings, the order must “(1) conclusively determine the disputed question,

(2) resolve an important issue completely separate from the merits of the

action, and (3) be effectively unreviewable on appeal from a final judgment.”

Vantage Health Plan, Inc. v. Willis-Knighton Med. Ctr., 913 F.3d 443, 448 (5th

Cir. 2019) (quoting Henry v. Lake Charles Am. Press, L.L.C., 566 F.3d 164,

171 (5th Cir. 2009)). For an order to be appealable under the collateral order

doctrine, the “justification for immediate appeal must . . . be sufficiently

strong to overcome the usual benefits of deferring appeal until litigation

concludes.” Mohawk Indus., 558 U.S. at 107, 130 S. Ct. at 605. Critically, the

Supreme Court has repeatedly admonished lower courts that the collateral

order doctrine must “never be allowed to swallow the general rule that a

party is entitled to a single appeal, to be deferred until final judgment has been

5

Case: 21-30475 Document: 00516378091 Page: 6 Date Filed: 06/30/2022

No. 21-30475

entered.” Digit. Equip. Corp., 511 U.S. at 868, 114 S. Ct. at 1996 (citation

omitted).

An order is not “effectively unreviewable” just because it “may

burden litigants in ways that are only imperfectly reparable by appellate

reversal of a final district court judgment.” Digit. Equip. Corp., 511 U.S. at

872, 114 S. Ct. at 1998. The “decisive consideration is whether delaying

review until the entry of final judgment ‘would imperil a substantial public

interest’ or ‘some particular value of a high order.’” Id. (quoting Will v.

Hallock, 546 U.S. 345, 352-53, 126 S. Ct. 952, 959 (2006)); see also Lauro

Lines S.R.L. v. Chasser, 490 U.S. 495, 202, 109 S. Ct. 1976, 1980 (1989)

(Scalia, J., concurring) (“The importance of the right asserted has always

been a significant part of our collateral order doctrine.”). Generally, this is

only the case “where the order at issue involves ‘an asserted right the legal

and practical value of which would be destroyed if it were not vindicated

before trial.’” Midland Asphalt Corp. v. United States¸489 U.S. 794,

109 S. Ct. 1494 (1989) (quoting United States v. MacDonald, 435 U.S. 850,

860, 98 S. Ct. 1547, 1552 (1978)). A court must make this determination “on

a categorical basis, looking only at whether ‘the class of claims, taken as a

whole, can be vindicated by other means’ than immediate appeal.” Martin

v. Halliburton, 618 F.3d 476, 483 (5th Cir. 2010) (quoting Mohawk Indus.,

558 U.S. at 107, 130 S. Ct. at 605).

Turnipseed posits that collateral order appeals are necessary to ensure

effective review of orders requiring nonparty physicians to conduct patient

audits and generate statistical materials. He claims that the only alternative

means of review is to disobey the discovery order and risk being held in

contempt; and risking contempt is an intolerable alternative for physicians,

he suggests, because a contempt citation may have collateral professional

consequences. Turnipseed makes this collateral-consequences assertion

without providing any support. Moreover, he suggests that allowing this sort

6

Case: 21-30475 Document: 00516378091 Page: 7 Date Filed: 06/30/2022

No. 21-30475

of discovery will chill physicians’ willingness to treat patients involved in

litigation. Finally, Turnipseed points out that complying with similar

patient-audit discovery orders will further overburden physicians.

Turnipseed concludes that the justification for allowing immediate appeals

far outweighs the usual benefits of deferring review.

A comparison of the types of orders that do and do not fall under the

collateral order doctrine is instructive. On one hand, courts routinely allow

immediate appeal from orders that reject absolute or qualified immunity,

Mitchell v. Forsyth, 472 U.S. 511, 525-27, 105 S. Ct. 2806, 2815-16 (1985),

deny a state’s Eleventh Amendment immunity, Puerto Rico Aqueduct & Sewer

Authority v. Metcalf & Eddy, Inc., 506 U.S. 139, 141, 113 S. Ct. 684, 686 (1993),

or, in the criminal context, deny a defendant’s double jeopardy defense,

Abney v. United States, 431 U.S. 651, 659, 97 S. Ct. 2034, 2040 (1977).

Moreover, in the discovery context, this court allows immediate appeal of

orders that unseal a nonparty’s confidential business documents, Vantage

Health Plan, 913 F.3d at 449-50, or allow discovery against a nonparty with

substantial First Amendment implications, Whole Woman’s Health v. Smith,

896 F.3d 362, 368 (5th Cir. 2018). Each of these cases implicates “some

particular value of a high order” or “substantial public interest” that would

be imperiled or destroyed if review were delayed until after entry of an

archetypal final judgment. Mohawk Indus., 558 U.S. at 107, 130 S. Ct. at 605

(quoting Will, 546 U.S. at 352-53, 126 S. Ct. at 959).

On the other hand, courts do not permit immediate appeal from orders

denying motions to enforce a forum selection clause, Lauro Lines, 490 U.S.

at 496, 109 S. Ct. at 1977, refusing to effectuate a settlement agreement,

Digit. Equip., 511 U.S. at 865, 114 S. Ct. at 1994, denying motions to

disqualify counsel, Firestone Tire, 449 U.S. at 370, 101 S. Ct. at 671, or

declining to apply the judgment bar of the Federal Tort Claims act, Will,

546 U.S. 345, 347, 126 S. Ct. 952, 956 (2006). Furthermore, cases are legion

7

Case: 21-30475 Document: 00516378091 Page: 8 Date Filed: 06/30/2022

No. 21-30475

that deny immediate appeals under the collateral order doctrine in an array

of discovery contexts. 2 Indeed, this court and every other circuit court hold

that the collateral order doctrine does not provide jurisdiction over a

nonparty’s appeal from a discovery order because nonparties have alternative

avenues for appellate review. A-Mark Auction Galleries v. Am. Numismatic

Ass’n, 233 F.3d 895, 898-99 (5th Cir. 2000) (holding that the court lacked

jurisdiction over appeal from discovery order against nonparty because

nonparty may disobey the order, be cited for contempt, and challenge the

discovery order in appealing the contempt citation). 3

Turnipseed’s appeal falls decidedly into the latter category of cases.

As a threshold matter, Turnipseed paints the relevant class of orders too

narrowly. Turnipseed posits that the relevant class is orders that require

nonparty physicians to conduct patient audits and generate statistical

materials. Collateral-order theory, however, does not depend on such

2

See, e.g., Mohawk Indus., 558 U.S. at 103, 130 S. Ct. at 603 (discovery order

implicating attorney-client privilege); Cunningham v. Hamilton Cty., Ohio, 527 U.S. 198,

204 n.4, 119 S. Ct. 1915, 1920 n.4 (collecting cases); United States v. Ryan, 402 U.S. 530,

531-32, 91 S Ct. 1580, 1581-82 (1971) (order denying motion to quash subpoena); Sealed

Appellees v. Sealed Appellants, 112 F.3d 173, 174 (5th Cir. 1997) (discovery order compelling

production over attorney work-product objection); see also 15B Charles Alan

Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice

and Procedure § 3914.23 (“[T]he rule remains settled that most discovery rulings are

not final.”).

3

See Ott v. City of Milwaukee, 682 F.3d 552, 555 (7th Cir. 2012); United States v.

Acad. Mortg. Corp., 968 F.3d 996, 1006-07 (9th Cir. 2020); Drummond Co. v. Terrance P.

Collingsworth, Conrad & Scherer, LLP, 816 F.3d 1319, 1325-27 (11th Cir. 2016); Corporacion

Insular de Seguros v. Garcia, 876 F.2d 254, 256-57 (1st Cir. 1989); Nat. Super Spuds, Inc. v.

New York Mercantile Exchange, 591 F.2d 174, 177 (2d Cir. 1979); In re Flat Glass Antitrust

Litigation, 288 F.3d 83, 88 (3d Cir. 2002); MDK, Inc. v. Mike's Train House, Inc., 27 F.3d

116, 122 (4th Cir. 1994); U.S. ex rel. Pogue v. Diabetes Treatment Centers of America, Inc.,

444 F.3d 462, 471 (6th Cir. 2006); In re Burlington N. Inc., 679 F.2d 762, 768 (8th Cir.

1982); F.T.C. v. Alaska Land Leasing, Inc., 778 F.2d 577, 578 (10th Cir. 1985); U.S. v.

Anderson, 464 F.2d 1390, 1391 (D.C. Cir. 1972).

8

Case: 21-30475 Document: 00516378091 Page: 9 Date Filed: 06/30/2022

No. 21-30475

“individualized jurisdictional inquir[ies].” See Mohawk Indus., 558 U.S. at

107, 130 S. Ct. at 605 (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463,

98 S. Ct. 2454, 2460 (1978)). Thus, the class of orders should be defined at

a higher level of generality. In our view, the class of orders at issue here is

those denying a nonparty’s motion to quash a subpoena on undue burden

grounds. Cf. Mohawk Indus., 558 U.S. at 108, 130 S. Ct. at 606 (defining the

class of claims as “orders adverse to the attorney-client privilege”).

Under this broader view, Turnipseed’s contention that the relevant

class of orders is effectively unreviewable falls apart. Where a district court

denies a nonparty’s motion to quash on undue burden grounds, the nonparty

has several potential avenues of review apart from a collateral order appeal.

For one, the nonparty may disobey the district court’s order, be cited for

contempt, and then challenge the underlying discovery order in appealing the

contempt citation. See A-Mark Auction Galleries, 233 F.3d at 233. Indeed,

the contempt route is broader for nonparties than it is for parties. Unlike a

party, who may only appeal a criminal contempt citation, a nonparty may

appeal either a criminal or a civil contempt order. See Texas v. Dep’t of Labor,

929 F.3d 205, 209 n.9 (5th Cir. 2019). Alternatively, a nonparty may request

that the district court certify a § 1292(b) appeal or, in extraordinary cases,

seek a writ of mandamus. Mohawk Indus., 558 U.S. at 110-11, 130 S. Ct. at

607. Finally, where, as here, the thrust of the motion to quash concerns the

burdens of complying with the subpoena, a nonparty may comply and seek

reimbursement for costs. 15B Charles Alan Wright, Arthur R.

Miller & Edward H. Cooper, Federal Practice and

Procedure § 3914.23 (citing United States v. Columbia Broad. Sys., Inc.,

666 F.2d 364 (9th Cir. 1982)). If the district court denies those costs, the

nonparty may immediately appeal. Id.

Because these alternative means of review exist, Turnipseed cannot

show that collateral order appeals are necessary to ensure effective review of

9

Case: 21-30475 Document: 00516378091 Page: 10 Date Filed: 06/30/2022

No. 21-30475

orders denying motions to quash on undue burden grounds. Accordingly,

this court lacks jurisdiction under the collateral order doctrine.

B. Mandamus

Even though this court lacks jurisdiction under § 1291 to review the

district court’s order, a writ of mandamus may still be appropriate. 4 A writ

of mandamus is “a ‘drastic and extraordinary’ remedy ‘reserved for really

extraordinary causes.’” Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 380,

124 S. Ct. 2576, 2586 (2004) (quoting Ex parte Fahey, 332 U.S. 258, 259-60,

67 S. Ct. 1559, 1559 (1947)). Mandamus is appropriate only where: (1) the

petitioner shows a “clear and indisputable right to the writ”; (2) the

petitioner has “no other adequate means to attain the relief he desires”; and

(3) the court is “satisfied that the writ is appropriate under the

circumstances.” Defense Distributed v. Bruck, 30 F.4th 414, 426 (5th Cir.

2022) (quoting Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 380-81,

124 S. Ct. 2576, 2587 (2004)); see also In re JPMorgan Chase & Co., 916 F.3d

494, 499 (5th Cir. 2019). Although we are concerned that the district court

may have erred in denying Turnipseed’s motion to quash, Turnipseed

nevertheless fails to demonstrate a clear and indisputable right to a writ of

mandamus. 5

4

Although Turnipseed did not formally seek a writ of mandamus under Federal

Rule of Appellate Procedure 21, this court may, in its discretion, treat an appeal as a petition

for a writ of mandamus. In re Deepwater Horizon, 793 F.3d 479, 491 n.12 (5th Cir. 2015)

(quoting In re Grand Jury Subpoena, 190 F.3d 375, 389 n.16 (5th Cir. 1999)); see also Jefferson

v. Delgado Cmty. Coll. Charity Sch. of Nursing, 602 F App’x 595, 598-99 (5th Cir. 2015)

(unpublished).

5

In mandamus cases, this court often holds “that a district court erred, despite

stopping short of issuing a writ of mandamus.” In re Dupuy Orthopaedics, 870 F.3d at 347

n.4 (collecting cases).

10

Case: 21-30475 Document: 00516378091 Page: 11 Date Filed: 06/30/2022

No. 21-30475

Demonstrating a clear and indisputable right to a writ of mandamus

“require[s] more than showing that the district court misinterpreted the law,

misapplied it to the facts, or otherwise engaged in an abuse of discretion.” In

re Lloyd’s Reg. N. Am., Inc., 780 F.3d 283, 290 (5th Cir. 2015). Rather,

Turnipseed must show a “clear abuse[] of discretion that produce[s] patently

erroneous results,” Lloyd’s Reg., 916 F.3d at 290 (quoting In re Volkswagen of

Am., Inc., 545 F.3d 304, 310 (5th Cir. 2008)), or “exceptional circumstances

amounting to a judicial usurpation of power,” In re Dupuy Orthopaedics, Inc.,

870 F.3d 345, 350 (5th Cir. 2017) (quoting Cheney, 542 U.S. at 380, 124 S. Ct.

at 2587). In other words, Turnipseed “must show not only that the district

court erred, but that it clearly and indisputably erred” in denying his motion to

quash. In re Occidental Petroleum Corp., 217 F.3d 293, 295 (5th Cir. 2000).

Under Rule 45, a court must modify or quash a subpoena that subjects

a person to undue burden. Fed. R. Civ. P. 45(d)(3)(A)(iv). To determine

whether a subpoena presents an undue burden, this court weighs the

following factors: “(1) [the] relevance of the information requested; (2) the

need of the party for the documents; (3) the breadth of the document request;

(4) the time period covered by the request; (5) the particularity with which

the party describes the requested documents; and (6) the burden imposed.”

Wiwa v. Royal Dutch Petroleum Co., 392 F.3d 812, 818 (5th Cir. 2004).

Moreover, where a subpoena requests information from a nonparty, as it does

here, the court must be sensitive to the nonparty’s compliance costs. Id. In

our estimation, two salient factors here, relevance and burdens, weigh in

Turnipseed’s favor. 6

6

Turnipseed does not seriously challenge the subpoena under the second, third,

fourth, and fifth elements of the undue burden test articulated in Wiwa.

11

Case: 21-30475 Document: 00516378091 Page: 12 Date Filed: 06/30/2022

No. 21-30475

First, relevance. For purposes of the undue burden test, relevance is

measured according to Fed. R. Civ. Pro. 26(b)(1). Under that rule,

information is relevant if it “bears on, or that reasonably could lead to other

matters that could bear on, any issue related to the claim or defense of any

party.” Coughlin v. Lee, 946 F.2d 1152, 1159 (5th Cir. 1991) (internal

quotation omitted). The defendants posit that how often Turnipseed

recommends repeated cervical neurotomies for a period of five to six years

and the number of patients that follow through with that treatment course

bear on Turnipseed’s credibility. Such information could show, for instance,

that Turnipseed regularly recommends recurring cervical neurotomies but

few patients ever undergo treatment. Turnipseed counters that the

requested information has no bearing on his credibility. He emphasizes that

his records do not accurately reflect the number of patients that follow his

recommended course of treatment. For example, patients may undergo

treatment at different facilities because of a change in residence or another

facility’s greater scheduling flexibility. At best, he concludes, the

information that he must produce will present a misleading view of his

credibility. We agree that, for the reasons Turnipseed articulates, the

requested information is only tenuously relevant.

Second, the burden imposed. The defendants’ subpoena, as modified

by the district court, requires Turnipseed to audit his patient records and

generate new information about how often he has recommended repeated

cervical neurotomies and how many of those patients underwent the

procedures. A Rule 45 subpoena may require a nonparty to produce

“designated documents, electronically stored information, or tangible things

in that person’s possession, custody, or control.” Fed. R. Civ.

P. 45(a)(1)(A)(iii). By the terms of the Rule, these are items that already

exist. Rule 45 does not contemplate a subpoena requiring a nonparty to

analyze documents in the nonparty’s possession and generate new

12

Case: 21-30475 Document: 00516378091 Page: 13 Date Filed: 06/30/2022

No. 21-30475

information. 7 Accordingly, to the extent that the subpoena requires

Turnipseed to do more than simply produce documents already in existence,

it imposes an undue burden on him.

Finally, the cost of complying with the subpoena. Turnipseed alleges

that complying with the modified subpoena would be costly and burdensome.

Based on a sample review, Turnipseed estimates that it will take him

approximately three hours to review twenty patient files. Further, he

estimates that complying with the district court’s order would require him to

review about four hundred patient files, which if accurate would require at

least sixty hours of work. At Turnipseed’s typical $1,000/hour rate, the cost

of complying with the subpoena is excessive, particularly because the amount

in dispute here is only about $120,000. In our view, even if Turnipseed

somewhat overstates the cost of compliance, it is nevertheless

disproportionate to any value that the information has with respect to

Turnipseed’s credibility.

Based on the above-articulated circumstances, it appears that the

subpoena, even as modified by the district court, imposes an undue burden

on Turnipseed. Nevertheless, district courts are afforded wide discretion in

discovery matters, and as the district court here found, the magistrate judge

7

See, e.g., McGlone v. Centrus Energy Corp., No. 2:19-cv-2196, 2020 WL 4462305,

at *3 (S.D. Ohio Aug. 4, 2020) (collecting cases); Taylor v. Kilmer, No. 18-cv-7403,

2020 WL 606781, at *3 (N.D. Ill. Feb 7, 2020) (same); Mir v. L-3 Commc’ns Integrated Sys,

L.P., 319 F.R.D. 220, 227 (N.D. Tex. 2016) (same); 9 James W. Moore et. al.,

Moore’s Federal Practice § 45.10 (Matthew Bender 3d ed. 2021) (“A command

to produce may be made only for documents, electronically stored information, or things

already in existence; accordingly, although a subpoena may compel a person to produce a

document or thing, it may not compel the person to create the document or thing in the first

instance.”).

13

Case: 21-30475 Document: 00516378091 Page: 14 Date Filed: 06/30/2022

No. 21-30475

purported to apply the relevant law. Thus, Turnipseed fails to show a clear

and indisputable right to the writ, and we must deny mandamus relief. 8

III.

For the foregoing reasons, Turnipseed’s appeal is DISMISSED for

lack of jurisdiction and his petition for a writ of mandamus is DENIED.

8

Rule 45(d)(2)(B)(ii) states that, when a court orders a nonparty to comply with a

subpoena over an objection, “the order must protect” the nonparty “from significant

expense resulting from compliance.” In other words, Rule 45 requires a district court to

shift a nonparty’s cost of complying with a subpoena if those costs are significant. In re

Modern Plastics Corp., 890 F.3d 244, 252 (6th Cir. 2018); Legal Voice v Stormans Inc.,

738 F.3d 1178, 1184 (9th Cir. 2013); Linder v. Calero-Portocarrero, 251 F.3d 178, 182 (D.C.

Cir. 2001). If, in fact, Turnipseed’s cost of complying with the subpoena is significant, the

district court should shift those costs to the defendants. Given the value of Turnipseed’s

time and the number of patient files he may have to review, it seems almost certain that the

cost of complying will be significant. Cf. Legal Voice, 738 F.3d at 1185 (“[W]e have no

trouble concluding that $20,000 is ‘significant’”); Linder, 251 F.3d at 182 (suggesting that

even $9,000 may be sufficient significant to justify shifting costs under Rule

45(d)(2)(B)(ii)).

14

Case: 21-30475 Document: 00516378091 Page: 15 Date Filed: 06/30/2022

No. 21-30475

Haynes, Circuit Judge, dissenting:

I agree with much of the majority opinion’s discussion, but not its

conclusion. For example, the majority opinion correctly determines that the

district court erred by denying Turnipseed’s motion to quash a subpoena for

an entirely irrelevant and overly burdensome request for documents.

Unfortunately, it then holds that it is powerless to grant Turnipseed the relief

to which it tacitly agrees he is entitled. That is where we differ. As a

preliminary matter, I disagree as to the conclusion that we lack jurisdiction

under the collateral order doctrine. But, even assuming arguendo we lack

appellate jurisdiction, I conclude we have the authority to grant mandamus

relief and Turnipseed is entitled to that relief from the district court’s clearly

and indisputably erroneous discovery order. I respectfully dissent.

I.

The majority opinion “decidedly” concludes that Turnipseed’s claim

is not reviewable on appeal under the collateral order doctrine. I’m not so

sure. That determination turns on one question: whether Turnipseed’s

claim is “effectively unreviewable on appeal from a final judgment.” See

Vantage Health Plan, Inc. v. Willis-Knighton Med. Ctr., 913 F.3d 443, 448 (5th

Cir. 2019). Per the majority opinion, Turnipseed’s claim is not effectively

unreviewable because he actually “has several potential avenues of review.”

Majority Op. at 9. For one, Turnipseed can simply disobey the district

court’s order, be charged with contempt, and then appeal the contempt

citation. The majority opinion is unpersuaded by the fact that this option

forces Turnipseed to violate his code of ethics and put his license to practice

medicine at risk. 1

1

The majority opinion’s lack of concern about this issue seemingly stems from the

erroneous conclusion that Turnipseed’s adverse professional consequences claim lacks

15

Case: 21-30475 Document: 00516378091 Page: 16 Date Filed: 06/30/2022

No. 21-30475

I recognize that we have previously endorsed this path for nonparties

who wish to challenge discovery orders. See A-Mark Auction Galleries, Inc. v.

Am. Numismatic Ass’n, 233 F.3d 895, 898–99 (5th Cir. 2000). However,

recognizing that “[t]hird parties have no power to control the course of

litigation nor any influence over an appeal from a final judgment,” we have

also held that such an extreme avenue is not always required for nonparties.

See, e.g., Vantage Health Plan, 913 F.3d at 449–50; Whole Woman’s Health v.

Smith, 896 F.3d 362, 368 (5th Cir. 2018). In Vantage Health Plan, for

example, we did not force the nonparty seeking review to first defy the

court’s order and face contempt because “incurring sanctions is risky.” 913

F.3d at 449. More notably, in Whole Woman’s Health, we concluded that the

relevant discovery order was “effectively unreviewable” on appeal in part

because it was directed at a third party. 896 F.3d at 367–68. 2 Our analysis in

that case was replete with concern about the nonparty’s inability to benefit

from a party’s appeal of a final judgment. See id. at 367–68, 375. That

concern is mysteriously absent from the majority opinion’s analysis here.

support given his brief discussion of the same. See Majority Op. at 7. But as a physician

practicing in Louisiana, Turnipseed is governed by state law protecting against, inter alia,

physicians engaging in “unprofessional conduct.” See La. Rev. Stat. Ann. § 37:1261.

Because the statute does not define “unprofessional conduct,” Louisiana courts look to the

Louisiana Rules of Professional Conduct governing “professional misconduct” of a lawyer

for guidance. Doe v. La. State Bd. of Med. Exam’rs, 788 So. 2d 1234, 1239–40 (La. Ct. App.

2001) (citing La. R. Pro. Conduct 8.4(a)–(h)). Louisiana case law makes clear that failure

to comply with a court order constitutes “professional misconduct” in violation of Rule

8.4(d) and can result in the suspension of a law license. In re Robinson, 819 So. 2d 280, 284–

85 (La. 2002) (per curiam) (“A review of our jurisprudence of this court indicates we have

considered an attorney’s knowing failure to comply with the orders of a tribunal to be a

serious professional violation.”). Accordingly, Turnipseed’s concern that he risks losing

his professional license by violating the district court’s discovery order is hardly

unsupported.

2

We also held that the standards of the collateral order doctrine were met because

the case was “practically sui generis from the standpoint of the type of discovery sought and

the issues raised by [the nonparty].” Whole Woman’s Health, 896 F.3d at 368.

16

Case: 21-30475 Document: 00516378091 Page: 17 Date Filed: 06/30/2022

No. 21-30475

Tellingly, neither Vantage Health Plan nor Whole Woman’s Health discusses

(let alone cites) A-Mark, a fact the majority opinion overlooks.

The majority opinion concludes that Vantage Health Plan and Whole

Woman’s Health are different because they “implicate[] ‘some particular

value of a high order’ or ‘substantial public interest’ that would be imperiled

or destroyed if review were delayed.” Majority Op. at 7–8. Stated

differently, the importance and sensitivity of the potentially discoverable

material qualified the orders for immediate appellate review and excused the

third parties from being required to defy the orders and seek contempt. See

Vantage Health Plan, 913 F.3d at 449; Whole Woman’s Health, 896 F.3d at

368. But in Vantage Health Plan, we questioned “whether third-party status

alone, absent some constitutional or other issue that calls into question the

‘general familiarity of courts with standards governing [the dispute],’ may

suffice to invoke the collateral order doctrine.” 913 F.3d at 450 n.2

(alteration in original) (quoting Whole Woman’s Health, 896 F.3d at 368).

Importantly, the Supreme Court case that took us down this path was

about a party appealing a discovery order as a collateral order, noting the

general rule that “a party is entitled to a single appeal.” See Mohawk Indus.

v. Carpenter, 558 U.S. 100, 101, 106 (2009). But no one argues that

Turnipseed has “an appeal” in this case; even Martin does not claim that. In

the “ordinary case” between parties there can be dozens of discovery

disputes and rulings, and the Supreme Court understandably (and correctly)

did not approve of a back and forth between the district courts and the

appellate courts over these issues. But this is not the situation here where a

non-party was ordered to create documents.

Even if Mohawk’s general rule applies across the board, in my view,

the majority opinion’s holding here does implicate a high order—it requires

a licensed professional to violate his code of ethics (which requires following

17

Case: 21-30475 Document: 00516378091 Page: 18 Date Filed: 06/30/2022

No. 21-30475

court orders). Our core as judges is ethics: would we think it is okay to violate

our rules of ethics to protest an order as a non-party in a case? Would we

want to throw our positions and our reputations as highly ethical judges out

the window just so we could appeal a completely erroneous order? I cannot

agree with that notion.

In addition to that point, forcing physicians to perform burdensome

patient population audits that yield information immaterial to an underlying

litigation—and potentially chilling physicians’ willingness to treat patients

involved in litigation—implicates a “value of a high order” and a

“substantial public interest” particularly in this pandemic era where doctors

are being placed to the test every day. See Mohawk, 558 U.S. at 107 (quotation

omitted). At the very least, it seemingly calls into question district courts’

“general familiarity” with the standards governing the scope of permissible

discovery from third party physicians. 3 In any event, we have not foreclosed

the possibility that third-party status alone, in certain circumstances, is

enough to invoke the collateral order doctrine. See Vantage Health Plan, 913

F.3d at 450 n.2. Forcing Turnipseed to defy the discovery order, violate his

code of ethics, spend wasted time on an improper order, and risk losing his

medical license is an extraordinary and unacceptable result. I accordingly

urge that the circumstances present here warrant immediate appealability.

II.

For this section I will assume arguendo that we do not have appellate

jurisdiction under the collateral order doctrine. In that circumstance, given

that the untenable disobey-and-seek-contempt route is the only path forward

3

A motion to quash a discovery order is a routine district court ruling. However,

no circuit court has yet to opine on whether this type of information from a treating

physician is discoverable.

18

Case: 21-30475 Document: 00516378091 Page: 19 Date Filed: 06/30/2022

No. 21-30475

for an appeal, then a writ of mandamus is all the more appropriate here, as

Turnipseed is left without “adequate means to attain relief.” In re

Volkswagen of Am., Inc., 545 F.3d 304, 318 (5th Cir. 2008) (en banc); see also

16 Charles Alan Wright, Arthur R. Miller & Edward H.

Cooper, Federal Practice and Procedure § 3935.3 (3d ed.

Supp. 2022) (“Writ review, indeed, may be specifically justified on the

ground that the alternative of disobedience and contempt is not a suitable or

adequate remedy.”).

I recognize that the writ is an “extraordinary remedy” and that its

requirements are difficult to satisfy. See In re Volkswagen, 545 F.3d at 311.

But the writ’s high hurdles “are not insuperable.” Id. (quotation omitted).

Indeed, a writ of mandamus is a useful “safety valve for promptly correcting

serious errors.” Mohawk Indus., 558 U.S. at 111 (internal quotation marks,

citation, and brackets omitted). That’s especially true where, as here,

“unfettered discovery” that “otherwise might elude appellate review” is an

overwhelming burden. See generally Wright & Miller § 3935.3. Cf. In

re Burlington N., Inc., 822 F.2d 518, 522 (5th Cir. 1987) (“[T]he difficulty of

obtaining effective review of discovery orders, the serious injury that

sometimes results from such orders, and the often recurring nature of

discovery issues support use of mandamus in exceptional cases.”). It seems

clear that the order in question is “truly irremediable on ordinary appeal.”

See, e.g., In re A&D Ints., Inc., 33 F.4th 254, 256 (5th Cir. 2022), pet. for reh’g

en banc filed, May 17, 2022.

The majority opinion concedes that the discovery order at issue here

is both irrelevant and unduly burdensome, but nevertheless concludes that

Turnipseed has failed to show a clear and indisputable right to the writ

because “district courts are afforded wide discretion in discovery matters”

and the magistrate judge here “purported to apply the relevant law.”

Majority Op. at 14. But a district court’s discretion is not unlimited, see

19

Case: 21-30475 Document: 00516378091 Page: 20 Date Filed: 06/30/2022

No. 21-30475

Munoz v. Orr, 200 F.3d 291, 305 (5th Cir. 2000), nor is it a talisman

precluding otherwise appropriate mandamus relief, see In re Volkswagen, 545

F.3d at 311–12. Mandamus is warranted when the circumstances demand as

much. 4

In In re Volkswagen, for example, our en banc court granted a writ to

review a district court’s forum non conveniens transfer even though “[t]here

[is] no question” that “district courts have broad discretion in deciding

whether to order a transfer.” Id. at 307, 311 (internal quotation marks and

citation omitted). Despite that discretion, we concluded that a writ in that

case was appropriate because the “district court’s errors resulted in a

patently erroneous result.” Id. at 318–19.

That is true here as well. The majority opinion outlines the problems

with the discovery order, see Majority Op. at 12–14, so I merely reemphasize

the major issues. I start with the discovery order’s complete lack of

relevance. Defendants argue that the number of patients who follow through

with Turnipseed’s recommended treatment bears on his credibility. But a

doctor’s credibility turns on whether a recommended treatment plan works,

not on whether a patient decides to follow it. A person’s decision not to quit

smoking or their refusal to eat healthy and exercise doesn’t mean their

doctor’s recommendation to do so is unsound; it just means that (for a

myriad of potential reasons) the person has trouble quitting smoking or opts

not to eat healthy and exercise. 5

4

I deeply respect the work of magistrate and district judges, and I recognize and

appreciate the amount of work that has to be expended on discovery issues. While most of

what they do is well within discretion, the reality is that mistakes, including severe ones,

can be made, and that is what we are addressing here.

5

Turnipseed lists other reasons why a patient may not undergo a recommended

treatment—a patient may have limited financial resources and may not be able to afford the

procedure; or the patient may have developed a more pressing health concern. There are

20

Case: 21-30475 Document: 00516378091 Page: 21 Date Filed: 06/30/2022

No. 21-30475

The magistrate judge inexplicably concluded otherwise, asserting that

“other courts” have recognized the relevance of such information. Those

“other courts,” however, are two district courts that issued unpublished

orders discussing topics only tangentially related to the relevant inquiry. In

Fusco v. Levine, No. 16-cv-1454 (W.D. La. Feb. 21, 2019) (order denying

motion to quash), for example, a magistrate judge considered a subpoena

issued on a nonparty treating physician seeking a wide array of statistical

information concerning his treatment of other patients. Id. at 2–3. But the

relevant motion to quash was dismissed for procedural reasons. Id. at 10.

The magistrate judge opined (in dicta) that the requested information could

be “potentially relevant” to the doctor’s credibility but also stated that “the

number of procedures undergone by other patients is not, in and of itself,

directly relevant to plaintiff’s need for future procedures.” Id. Importantly,

the Fusco court never decided if the information was discoverable—the case

settled shortly after the order issued.

Furthermore, in Chauppette v. Northland Insurance Co., No. 08-4193,

2009 WL 3447291, at *1 (E.D. La. Oct. 21, 2009), a magistrate judge stated

that a motion to quash a subpoena and limit it only to “areas involving the

plaintiff, her medical bills, and her medical treatment” swept too broadly. Id.

But the magistrate judge concluded the relevant information was the

nonparty physician’s financial interest arising from his previous relationship

with plaintiff’s counsel, as fees earned by experts in previous cases speak to

credibility and possible bias. Id. Those facts are inapplicable to the instant

matter. In short, the magistrate judge’s conclusion here regarding the

also valid reasons why a patient might not undergo the procedure with the recommending

physician—they may have moved to a different city or been referred to another provider.

21

Case: 21-30475 Document: 00516378091 Page: 22 Date Filed: 06/30/2022

No. 21-30475

relevance of the requested materials—supported only by irrelevant,

unpublished, and non-binding authority—was clearly erroneous.

In terms of the burden this discovery order places on Turnipseed, I

emphasize that a Rule 45 subpoena requires a nonparty to “produce

designated documents, electronically stored information, or tangible things

in that person’s possession, custody, or control”—i.e., material that already

exists. See Fed. R. Civ. P. 45(a)(1)(A)(iii) (emphasis added). Conversely,

the discovery order at issue here forces Turnipseed to audit his patient’s files

and create new data reflecting how often he recommends repeated cervical

neurotomies and how often patients follow that recommendation. Such a

request goes beyond the bounds of Rule 45. See also Majority Op. at 13 n.7.

Worse, it does so for entirely irrelevant information.

In sum, I highlight two important conclusions. First, the flaws in the

district court’s discovery order and in its “decision making process” created

a “patently erroneous result.” See In re Volkswagen, 545 F.3d at 312 (internal

quotation marks and citation omitted). Second, forcing Turnipseed to seek

sanctions and risk his medical license for relief from that clearly erroneous

order is an unacceptable obstacle that renders such relief “effectively

unobtainable.” See In re Lloyd’s Reg. N. Am., Inc., 780 F.3d 283, 289 (5th Cir.

2015). Taking these two considerations in tandem, we are left with the

extraordinary circumstance where Turnipseed is “without adequate means

to review” a clear and indisputable error. See id. at 288. Assuming arguendo

that we cannot hear this case as a collateral order and grant relief that way,

22

Case: 21-30475 Document: 00516378091 Page: 23 Date Filed: 06/30/2022

No. 21-30475

Turnipseed is entitled to a writ of mandamus, and I respectfully dissent from

the majority opinion’s conclusion to the contrary. 6

6

For the reasons articulated in this dissenting opinion, I am also “satisfied that the

writ is appropriate under the circumstances.” See Cheney v. U.S. Dist. Ct. for D.C., 542

U.S. 367, 381 (2004).

23