Opposition Brief — Redbud Community Hospital v. United States District Court for the Northern District of California

| Supreme Court, UM

| ots Bie

la 8m

In The OFFICE OF THE QLERM

Supreme Court of the United States

o¢-—-—

REDBUD COMMUNITY HOSPITAL,

ADVENTIST HEALTH, INC.,

Vs. Petitioners,

UNITED STATES DISTRICT COURT, NORTHERN DISTRICT

OF CALIFORNIA, DAVID BURROWS, RHODA THOMAS,

Respondents,

and

WOLFGANG SCHUG, M.D.,

vs. Petitioner,

DAVID BURROWS, successor-in-interest to Cody Burrows,

deceased; DAVID BURROWS and RHODA THOMAS individually

and as heirs and surviving parents of Cody Burrows,

Respondents.

e

On Petitions For Writ Of Certiorari To The

United States Court Of Appeals For The Ninth Circuit

' «

RESPONDENTS’ CONSOLIDATED BRIEF IN OPPOSITION

TO BOTH PETITIONS FOR WRITS OF CERTIORARI

e

James M. BrADEN

Law Orrices or JAMes M. BRADEN

44 Montgomery Street, Suite 1210

San Francisco, California 94104

Phone: (415) 398-6865

Fax: (415) 788-5605

KiCHARD J. Massa

Massa & ASSOCIATES

120 North Forbes Street

Lakeport, California 95453

Phone: (707) 262-0230

Fax: (707) 262-1028

Attorneys for Respondents

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

COUNTER-STATEMENT OF

QUESTIONS PRESENTED

The district court issued an interlocutory discovery

order for production of hospital records, names of wit-

nesses, and other evidence that petitioners wish to con-

ceal. The court effectively denied petitioner Schug’s

request to certify the order for immediate appeal pur-

suant to 28 U.S.C. Sec. 1292. The order as to documents

was directed not to Schug, but only to the hospital peti-

tioners, because only they had custody of the supposedly

privileged materials.

Petitioner Schug nevertheless filed a purported

appeal as of right, ignoring the general rule against

uncertified interlocutory appeals in civil cases. The

appeal was, therefore, summarily dismissed based on

controlling Ninth Circuit authority, which is consistent

with Supreme Court and other circuits’ authority, that

parties to a civil case may not have automatic interlocu-

tory appeals of discovery orders, unlike third-party wit-

nesses served with grand jury subpoenas.

Both Schug’s and the Hospitals’ separate petitions for

writs of mandamus also were summarily denied by the

9th Circuit, based on authority in that Circuit, which

again is consistent with authority of the U.S. Supreme

Court, that mandamus will not lie unless the district

court abused its discretion by issuing a clearly erroneous

ruling. Accordingly, the Ninth Circuit’s rulings on both

the appeal and the mandamus petitions were contained

in a single one-page, unpublished order.

Based on this history, the actual questions presented,

which would have to be decided favorably to petitioners

il

COUNTER-STATEMENT OF

QUESTIONS PRESENTED - Continued

before this Court could consider the questions of substan-

tive “privilege” law they present, are:

(1) Should the Court of Appeals for the Ninth Cir-

cuit have issued a writ of mandamus to overturn an

interlocutory district court civil discovery order on the

ground of a purported state (not federal) law medical

peer review “privilege,” where no showing was made

that the order was clearly erroneous and hence an abuse

of discretion, in light of the admissions in the briefs

beiow and in both petitions here that applicability of this

state “privilege” under federal law has been rejected by

numerous federal courts and thus is at best a debatable

proposition?

(2) Does a party in civil litigation who claims he

would be irreparably harmed by release of documents

held by another party in the case have the right to auto-

matic interlocutory appeal, after being denied discretion-

ary leave to appeal, to challenge the discovery order on

the ground that the materials are “privileged”?

Respondents submit that the answers to both ques-

tions are well settled in the negative and are unworthy of

review by this Court. First, petitioners do not come even

close to meeting the high standard for the extraordinary

remedy of mandamus. Second, the purported interlocu-

tory appeal is conclusively barred by longstanding stat-

ute, case law, and judicial policy.

Respondents submit that the petitions should be

summarily denied on that basis and that the tendentious

questions posed by petitioners cannot and need not be

t

:

|

COUNTER-STATEMENT OF

QUESTIONS PRESENTED - Continued

reached given the procedural posture of this interlocutory

proceeding.

Moreover, the questions in both petitions as to

whether the purported privilege should apply to respon-

dents’ state law claims for medical malpractice as well as

to their federal claims for EMTALA violations are red

herrings. The district court’s order pertains solely to dis-

covery of the records from the hospital and does not

reach the admissibility of the records in the trial of the

State or federal law claims; thus it is not accurately

described as a ruling on “privilege” at all. As only release

is at issue, it would make absolutely no difference at this

stage whether this case contained only the federal

EMTALA claim or, as it does, both state law and federal

claims. In either event, the only two possible outcomes

are that the records are either released to respondents or

they remain concealed.

iV

PARTIES TO THE PROCEEDINGS

The two petitions accurately list the parties to the

sroceedings.

a4

TABLE OF CONTENTS

Page

COUNTER-STATEMENT OF QUESTIONS PRESENTED

PARTIES TO THE PROCEEDINGS ................. iV

TASLE. OF CONTENTS. cies A ee v

SENSI. END PRU W EI ic ck cee eee be vi

SAGLE SP AISI ok bikes Vii

I. COUNTER-STATEMENT OF THE CASE....... l

Il. LEGAL ARGUMENTS FOR DENYING THE

WEREED p08 ss ise Cabkeh Chelona 8

A. Neither Petition Even Attempts to Argue

That Any Novel Issue of Mandamus Law Is

Presented By The Ninth Circuit’s

Unpublished Summary Denial of Writs of

Mandamus Against An Interlocutory Dis-

covery Order. The Petitions, In Fact, Dem-

onstrate Effectively, and Thus Concede,

That There Is Sufficient Conflicting Author-

ity That The District Court’s Discovery

Order Cannot Possibly Meet the Abuse of

Discretion/Clearly Erroneous Standard for

ispecies connie cothesoes: TT te Oy eee 8

B. There Is No Intercircuit Split On the Ques-

tion Whether A Party Who is Not the Target

of Discovery In a Civil Case Has The Right

to Automatic Appeal Of An Interlocutory

Discovery Order Directed At Another Party,

Particularly Where the Other Party Is Able

and Motivated to Contest the Discovery

Order Itself, Whether By Petition for Man-

damus, as Has Already Occurred Here, Or

Subsequently By Suffering Contempt and

Then Appealing the Contempt Ruling..... 19

Babs COCEATIINs ocak sede ca oan Ce ee ak 29

INDEX TO APPENDICES

Page

Appendix A Certificate of Record From United

States District Court Containing

Docket Entries Regarding Dr.

Schug’s Interlocutory and Direct

ADDGAL PURINE, 56 05065 ee Venda e's A-1

Appendix B_ Declaration of Respondents’ Coun-

sel Richard Massa Regarding Dis-

trict Court Judge’s Statements on

Dr. Schug’s Attempted Interlocu-

TOEY AADDGR ios ia esis ca cous re ress B-1

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Allied Chemical Corp. v. Daiflon, Inc., 437 U.S. 659

CRIP DP CSch sv Sis bb 244 Pete Dee isos TRIE ees 10

Bankers Life Co. v. Holland, 346 U.S. 379 BL. SS Gai eerie )

Bauman v. United States District Court, 557 F.2d 650

tole Be Gf OUR RE Os Te Ae Reale oe ke eae 11

Boughton v. Cotter Corp., 10 F.3d 746 (10th Cir.

eg PE Oe OR ee Gna Aig Mcrae ir npllee, SB oc ree 26, 27

Branch v. Phillips Petroleum Co., 638 F.2d 873 (5th

eA GEIR UMD AY? See nei Ta Ad ah a i UA 28

Burdeau v. Powell, 256 U.S. 465 by fe | BOG ee 22

Calderon v. United States District Court, 98 F.3d

RA APNE Ge BO ie eee e ori Cece te 13

Corporacion Insular De Seguros v. Garcia, 876 F.2d

POUR Fats BOs ho is 1 dees be wa cb wih cs oc ON

Covey Oil Co. v. Continental Oil Co., 340 F.2d 993

Sh See AE patie ee ee ne hol ea os 28

Doe v. St. Joseph's Hospital, 133 F.R.D. 677 (N.D.

WA: BOOT PERK PW Fh yy s LER CRET AChE BEL Ca 17

Dorsten v. Lapeer County General Hospital, 88 F.R.D.

Pe er , AP oe as eee ieee 17

Dowling v. American Hawaii Cruises, Inc., 971 F.2d

OE SHE MME SER ak oun ees bahia et chk kx 17

Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491

MOOT SRUCA SETS VESTN GSGNN RC EEMET OCU oko, 22

Equal Employment Opportunity Commission v. IIli-

nois Dep't of Employment Security, 995 F.2d 106

gS OMS: DARIN RESET pin po ty rh ce Rane eee 17

Vill

TABLE OF AUTHORITIES - Continued

Page

Ex parte Bradley, 7 Wall. 364 (1863).............-+4 10

Ex parte Fahey, 332 U.S. 258 (1947) ........--eeeeeeeee 9

Ex parte Parker, 120 U.S. 737 (1887) ................. 10

FTC v. TRW, 628 F.2d 207 (D.C. Cir. 1980) .......... 17

Go-Bart Importing Co. v. United States, 282 U.S. 344

CSGSE Ty iinccs bs choca PAA k aS eR ee ek ee 22

Gravel v. United States, 408 U.S. 606 (1972) .......... 22

Hancock v. Dodson, 958 F.2d 1367 (6th Cir. 1992)..... 17

Harris v. United States, 413 F.2d 316 (9th Cir. 1969) .... 22

Heathman v. United States District Court, 503 F.2d

OR2 CO a TF oa ia oo oe kee ae eh eee see 14

In re Attorney General of the United States, 596 F.2d

SS 7G Che. TOTS) ove cs cede ce ve ae eee ea nuey 25

In re Faltico, 561 F.2d 109 (8th Cir. 1977) ............ 27

In re Grand Jury Investigation of Ocean Transporta-

tion, 604 B.2a@ 672 (DG. Cit. 1979). a ass cs cee ns 27

In re Grand Jury Proceedings, 5 F.3d 397 (9th Cir.

a RMB LPS Nay ny CERO EME Gn ARNE OE CON Png 17

In re Grand Jury Proceeding (Schofield), 721 F.2d

er we Ae Rep or rer pe ee er 22

In re Grand Jury Subpoena Duces Tecum (Marger),

695 F.2d. 363 (90s Cir. 1982). oi as ccevieseeveccens 22

In re Grand Jury Subpoena Issued to Bailin, 51 F.3d

2S TPN ADs sik eis ew Coc aes caw ep nekans 14

In re Gren, 633 F.2d 825 (9th Cir. 1980).............. 22

In re International Horizons, Inc., 689 F.2d 996 (11th

hn FE ea ii es is ON ie ea ao eb 17

In re National Mortgage Equity Corp., 857 F.2d 1238

(OG UE. SR ho hecho o nc Kish ae Ores eee Ply dhs 20

—

ix

TABLE OF AUTHORITIES - Continued

Page

Jaffee v. Redmond, 518 U.S. 1 (1996)............ ae

Jiricko v. Coffeyville Memorial Hospital Medical Cen-

ter, 700 F. Supp. 1559 (D. Kan. 1988).............. 17

Kerr v. United States District Court, 426 U.S. 394

Eo,” SN nO Roe aig Giga te eR Ta ipR ol gt Deep 10

King v. United States District Court, 16 F.3d 992 (9th

Oke RON R es eC ees So tae rere 14

LeMasters v. Christ Hospital, 791 F.Supp. 188 (S.D.

MPR BOE 69S ead w ise tok a eee ek 16

Linde Thomason Langworthy Kohn & Van Dyke, P.C.

v. Resolution Trust Corporation, 5 F.3d 1508 (D.C.

Ril OE eb ace e Gu anda ATS Ot kk te 17

Manthe v. Vanbolden, 133 F.R.D. 497 (N.D. Tex.

| RMR PORG US la areas wa Uae ets Gn sie Ser gl eam ne RD 16

Memorial Hospital for McHenry County v. Shadur,

OE FAG Te CO Cr SO) coi sceevie ven: 16, 17

National Super Spuds, Inc. v. New York Mercantile

Exchange, 591 F.2d 174 (2d Cir. 1979).............. 24

Nixon v. Sirica, 487 F.2d 700 (D.C. Cir. 1973) ........ 25

Ott v. St. Luke Hospital, 522 F.Supp. 706 (E.D. Ky.

PE iid CHENG CN EU Ea I RUREN UD ED Re ek be we 16

Pagano v. Oroville Hospital, 145 F.R.D. 683 (E.D.

Ge Sa dic d dia ss we Ces ek ko ae si Uh PUA 16

Parr v. United States, 351 U.S. 513 (1956) .......... 9, 10

Perlman v. United States, 247 U.S. 7 (1918)

10 VENCES EME ERDAS Ea aden cous es ah, 24, 23, 24, 25, 27

Quinn v. Kent General Hospital, 617 FSupp. 1226

ROM Soe di chn ne nk yat vind iweean es eon Lok ce 17

I.

COUNTER-STATEMENT OF THE CASE

The petitions should be denied because, very simply,

this is the wrong case for the United States Supreme

Court to consider what might otherwise be interesting

questions of privilege law (or, more accurately, of civil

discovery law). There are three decisive reasons for this.

(1) Petitioners fail to appreciate, or at least to point

out for this Court, that the interlocutory nature of the

challenged discovery order is fatal to their campaign for

appellate review. It is no accident that the Ninth Circuit,

after full briefing and oral argument, issued an

unpublished order summarily denying both the Hospitals’

and Dr. Schug’s petitions for mandamus and summarily

dismissing Dr. Schug’s separate appeal. There is no rea-

son to believe the Ninth Circuit failed to understand from

the lengthy briefs (two rounds per side) and oral argu-

ment that the issues presented were of potentially signifi-

cant legal interest. But that Court, like this Court, is not

inclined to ignore equally important legal doctrines that

bar the type of piecemeal, interlocutory delay of civil case

discovery orders that these petitioners have so far cre-

ated.

Thus, the Ninth Circuit summarily disposed of this

matter because the separate appeal was barred under

clear authority against the very type of interlocutory

derailment of ongoing civil litigation Dr. Schug improp-

erly perpetrated by filing it, and has exacerbated by

bringing to this Court. And the mandamus petitions were

flawed because petitioners’ presentation to the Ninth Cir-

cuit, like the one they make here, proved that the district

court could not have abused its discretion — needed to

justify reversal by that extraordinary writ — because the

existence of the purported privilege under federal law

was, at best, debatable.

(2) This also is the wrong case on the facts for the

seminal review of federal privilege (or discovery) law

that petitioners want this Court to undertake. They pre-

sent the case as though it involved nothing more than a

discovery attempt by respondents, approved by the dis-

trict court, to strike at California’s protection for doctors

to express their candid opinions of medical services ren-

dered by other doctors, or even for an accused doctor to

be candid about his own work. But that is not the thrust

of respondents’ discovery effort and that was not the fact

situation as it appeared to the district court.

Rather, the district court did not rule that respon-

dents are entitled to the so-called peer review documents,

witness names, and other information because it thought

plaintiffs in every case ought to be allowed to see what

other doctors thought of a defendant doctor’s work.

Rather, the court based its decision on evidence that the

peer review process had been corrupted by misconduct

separate from the underlying EMTALA violations or

medical malpractice Dr. Schug committed. The hospital

petitioners, though not petitioner Schug, note this in

passing (at p. 6 of Hospitals’ petition), but breezily dis-

miss it.

But these facts, as the district court itself said, were

crucial to its decision because the apparent corruption

within the peer review process itself brings this case

closer to numerous federal cases, including antitrust and

LT

tne

employment discrimination complaints, as well as Cali-

fornia state cases involving alleged criminal violations,

where the state privilege has been overridden due to

similar process corruption facts. Such cases, like this one,

are quite unlike petitioners’ model of doctors being

forced to reveal what they said about other doctors. That

is, respondents are not seeking opinions, but ratlier facts,

documents and the identity of witnesses that would

prove the process was corrupted.

Respondents contend that principal defendant Schug,

perhaps aided and abetted by others at the Hospital, vio-

lated the California Penal Code by fraudulently creating a

false medical record to cover up gross misconduct. Schug

indeed admitted under oath the bizarre act of burning his

original notes in a bonfire at his home. Such violation of

law would not entitle the hospital to the privilege even

under California state law, contrary to petitioners’ false

assertion that it is “undisputed” the state privilege would

bar the discovery if there were no federal claims in this

case. And even if there were no criminal violation, proof of

such independent spoliation of evidence would also

arguably eliminate the state privilege, even if state law

instead of federal law were to apply.

The district court thus wrote: “[T]o the extent plain-

tiffs allege that Dr. Schug may have been instructed to

create the [false] addendum and burn his notes at the

peer review meeting, plaintiff's claims for spoliation of

evidence and EMTALA depend on communications made

during the peer review proceedings. Thus, this case is

more like the antitrust cases than medical malpractice

cases, since part of the claims arise out of peer review

meetings.” Hospital Pet. App. 16 (emphasis added).

Although the Hospital petitioners do quote this passage

in their brief, they give it a misleading spin by imme-

diately adding that the district court “did not state why it

would not delay discovery until plaintiffs explained in

greater detail how the Hospital’s peer review process was

involved in the claims plaintiffs were asserting, nor did it

say why it would not conduct an in camera review of the

documents.” Hospital Pet. 6.

But respondents provided the district court as much

explanation as they could — without actually seeing the

withheld evidence — of how the Hospital’s peer review

process apparently was corrupted. Whether the district

court needed to make an in camera review of the con-

cealed evidence is within that court’s zone of discretion

and surely cannot be an appropriate matter for review by

the United States Supreme Court. The discovery record in

this case already includes at least 25 depositions, four

volumes of grand jury testimony in criminal proceedings

against Dr. Schug, and hundreds of documents that con-

tain thousands of pages. All this material was available to

the district court prior to its determination that respon-

dents had presented a sufficiently plausible allegation of

direct corruption of the peer review process to justify

discovery of relevant records, and some of it was

reviewed by that court.

It borders on the absurd for petitioners to invite the

United States Supreme Court to intervene, on an inter-

locutory basis in this civil proceeding, to upset the district

court’s determination of whether and to what extent this

evidence supports the discovery sought by respondents

under the well-recognized exception, even when a state

privilege is otherwise applicable, for situations where the

peer review process is, itself, corrupt or otherwise impli-

cated in the predicate facts of the case.

(3) Both petitions present a purported legal ques-

tion that was not the primary basis for the district court’s

decision. That question, therefore, is not properly before

this Court. That is, even if this Court were to accept it for

review and decide it favorably to petitioners, the district

court’s ruling would still have to stand based on that

court’s primary — and independent — ground for deci-

sion.

Petitioners argue that this case presents a proper

vehicle for decision of a question purportedly left open

by this Court in Jaffee v. Redmond, 518 U.S. 1 (1996), which

they describe as being whether “state law claims that are

pendent to federal question cases are governed by federal

privilege law.” Hospital Pet. 11 (quoting Hosp. Pet. App.

14). The district court did opine that respondents’ state

law claims against Dr. Schug and the Hospital would be

ae

governed” by federal privilege law.

But that opinion was presented by the district court

merely as an alternative ground for its ruling “assuming

arguendo that the [peer review] evidence was relevant

only to the [state law] spoliation claim.” (Hospital Pet.

App. 14.) Both petitioners overlook, however, that the

court had just given its primary ground for decision that

rendered the alternative ground mere surplusage:

“Defendants first argue that plaintiff’s

request for the peer review records only applies

to the state law claim of spoliation, and thus

state privilege law should apply to this claim.

However, defendants’ arguments fail for two

reasons. First, plaintiffs contend that that the

records are relevant because the defendants, and

other unknown persons who may be members

of the Peer Review committee, conspired to

alter, destroy, and falsify Cody [Burrows’] medi-

cal records with regard to the care and treatment

he received during his stay at Redbud [Hospi-

tal]. This contention is common to all causes of

action, including the federal cause of action under

EMTALA. As such federal privilege law governs.”

(Hospital Pet. App. 14, emphasis added.)

That ruling alone is sufficient to justify the district court's

order granting respondents discovery of the alleged peer

review information. Nothing the court went on to gratu-

itously add “arguendo” about purported applicability of

the privilege to the state law claims can add or subtract

anything from the adequate basis for that ruling. Even if

there were no state law claims in this case at all, the

district court’s discovery order would stand on its own

purely federal law foundation based on that court’s study

of the facts of this case which is inappropriate for inter-

locutory review by the Supreme Court.

Moreover, the district court’s “arguendo” separate

ground refers to the information’s potential relevance to

state law spoliation claims, but not to the separate state

law claims for medical malpractice. But as Petitioner

Schug mentions in passing in a footnote not linked to

discussion of the purported Jaffee v. Redmond issue, the

state law spoliation claim no longer exists. On May 11,

1998, just six days after the district court’s opinion just

quoted, the California Supreme Court abolished that as a

valid state law cause of action. Cedars-Sinai Medical Center

v. Superior Court (Bowyer), 18 Cal.4th 1, 954 P.2d 511, 74

Cal.Rptr.2d 248 (1998), cited in Schug Pet. 3 n.2.

In essence, therefore, petitioners are seeking a merely

advisory opinion by this Court pertaining to an issue that

was not even necessary to the district court’s decision in

the first place and which, in any event, was effectively

mooted by the California Supreme Court just a few days

afterwards.

We emphasize that both petitioners’ presentations of

this case as one concerning “privilege” is misleading.

While California Evidence Code Sec. 1157 could be

viewed as establishing a form of privilege by implication,

the statute in terms refers only to discovery of documents.

It does not determine whether documents, once discov-

ered, would be admissible as evidence at trial. See Alex-

ander v. Superior Court, 5 Cal.4th 1218, 1223 n.4, 23

Cal.Rptr.2d 397, 859 P.2d 96 (1993) (“Evidence Code Sec.

1157 creates only a privilege against discovery from med-

ical staff committees; it does not create a bar against

introduction of evidence.”) The district court has made

no ruling on whether any peer review information, once

released to respondents, would be admitted.

Thus, while the state law claims of malpractice do

remain in this case, the potential Jaffee v. Redmond issue of

whether federal “privilege” law would govern their

admissibility as to those state claims is not yet ripe for

decision. That is because, of course, the district court has

not yet had occasion to rule on that question.

This is yet another reason why petitioners’ persi5-

tence in interlocutory delay of this civil case is so obvi-

ously improper. If and when purportedly privileged

documents are admitted into evidence in support of

respondents’ state malpractice claims, and an adverse

judgment is rendered against one or both petitioners,

their Jaffee v. Redmond questions might at least arguably

(without conceding the point) be worthy of certiorari

review by this Court.

Il.

LEGAL ARGUMENTS FOR DENYING THE WRITS

A. Neither Petition Even Attempts to Argue That

Any Novel Issue of Mandamus Law Is Pre-

sented By The Ninth Circuit’s Unpublished

Summary Denial of Writs of Mandamus

Against An Interlocutory Discovery Order. The

Petitions, In Fact, Demonstrate Effectively, and

Thus Concede, That There Is Sufficient Con-

flicting Authority That The District Court’s

Discovery Order Cannot Possibly Meet the

Abuse of Discretion/Clearly Erroneous Stan- .

dard for Mandamus Relief.

Petitioners would have this Court leap over the pro-

cedural posture of this case and conduct a plenary exam-

ination of federal medical “privilege” (discovery) law as

though the Ninth Circuit had already done that in a

published opinion in a case properly before it on appeal

from a final judgment. This, of course, is not the case.

The reason the Ninth Circuit summarily declined

petitioners’ invitation is the same reason this Court

should do so: The district court’s opinion is light-years

short of the clearly erroneous/abuse of discretion that is

necessary for the extraordinary remedy of mandamus to

reverse an interlocutory discovery order. Indeed, this

Court's strictures against mandamus in such situations

appear to be materially stronger even than those uni-

formly applied followed by the courts of appeal.

Petitioners cannot escape the decisive threshold issue

of mandamus law merely by alleging, as they do, that this

Court has jurisdiction of their petitions under the general

certiorari statute, 28 U.S.C. Sec. 1254(1), rather than

under the separate statute, 28 U.S.C. Sec. 1651, that gives

this Court power to issue “all writs necessary or appro-

priate.” Although petitioners are not asking the Supreme

Court directly to issue writs of mandamus to the district

court, their request for reversal of the Ninth Circuit’s

summary action is that this Court order the Ninth Circuit

to issue those writs of mandamus. That, obviously, is

tantamount to the Supreme Court’s directly issuing the

writs.

It is well settled that this Court will not issue (or

order the issuance of) writs of mandamus against inter-

locutory district court orders absent truly extraordinary

circumstances. Orders that are not appealable by reason

of their interlocutory nature may not ordinarily be

reviewed by mandamus, even though the hardship of a

prolonged trial “is imposed on parties who are compelled

to await the correction of an alleged error at an interlocu-

tory stage by an appeal from a final judgment.” United

States Alkali Association v. United States, 325 U.S. 196, 202

(1945); Roche v. Evaporated Milk Association, 319 U.S. 21,

25-32 (1943); Bankers Life Co. v. Holland, 346 U.S. 379,

382-83 (1953); Will v. United States, 389 U.S. 90, 96-98

(1961); Parr v. United States, 351 U.S. 513, 520 (1956).

Mandamus writs “are drastic and extraordinary remedies

[to be] reserved for really extraordinary causes.” Ex parte

Fahey, 332 U.S. 258, 259 (1947); Will, supra, 389 U.S. at

10

106-07. “The power to issue [the writs] is discretionary

and it is sparingly exercised.” Parr, supra, 351 U.S. at 520.

This Court has repeatedly emphasized that man-

damus, which can have “the unfortunate consequence of

making the [district court] judge a litigant” — as is the

case here at least with the Hospitals’ petition — should

be restricted to extraordinary situations in order to imple-

ment the long-standing congressional policy against

piecemeal appellate litigation, “particularly in an era of

excessively crowded lower court dockets.” Kerr v. United

States District Court, 426 U.S. 394, 402-03 (1976) (unani-

mously upholding Ninth Circuit’s summary denial of

petition for writ of mandamus on alleged ground, as

here, that district court’s discovery order violated pur-

ported privilege). To that end, the party seeking the writ

must show that his right to it is “clear and indisputable.”

Id.

The Supreme Court has long refused to issue, or

order lower courts to issue, writs of mandamus to control

or reverse the discretionary acts of district courts. Ex parte

Bradley, 7 Wall. 364 (1863); Ex parte Parker, 120 U.S. 737

(1887). Because the district court was exercising power

within its zone of discretion, the Supreme Court more

recently went out of its way to reverse the issuance of

writs of mandamus by courts of appeal in Will v. Calvert

Fire Insurance Co., 437 U.S. 659 (1978), and Allied Chemical

Corp. v. Daiflon, Inc., 437 U.S. 659 (1978). These cases

underscore the important policy against using mandamus

and other extraordinary writs as a means to obtain appel-

late review of non-appealable interlocutory orders.

pA RL is

1]

The Ninth Circuit followed its own case law, which is

to similar effect as the foregoing Supreme Court cases,

when it summarily refused to overturn the district court's

interlocutory discovery by writ of mandamus. It was

clear enough even under the Circuit’s law that petitioners

did not even come close to making a case for the extraor-

dinary relief they sought.

The U.S. Supreme Court’s even stronger statements

of reluctance to use or order use of the writ adds a further

barrier that petitioners cannot possibly overcome. For

these petitions to be worthy of Supreme Court consider-

ation, they would have to make a plausible case not

merely that the district court was clearly erroneous and

abused its discretion in ordering discovery, but that the

Ninth Circuit was, itself, clearly erroneous and abused its

discretion by not using mandamus to reverse the district

court.

Petitioners have not made such showing — on either

level of inquiry. Their presentation here and below of the

apparent division of authority concerning the legal issue

they want this Court to leap to decide constitutes a con-

clusive admission that their petitions do not present even

an arguable case for mandamus to be ordered by this

Court after full review.

The Ninth Circuit’s order summarily denying man-

damus cited, without comment, Bauman v. United States

District Court, 557 F.2d 650, 654 (9th Cir. 1977), which

holds, inter alia, that mandamus will not lie unless the

district court’s decision (a) was “clearly erroneous as a

matter of law”; and (b) involved an important issue of

first impression. Petitioners admit that they cannot satisfy

12

the first prong of this test, and they come close to admit-

ting that they cannot satisfy the second prong.

Thus petitioners admit there is ample authority,

albeit they disagree with it, supporting the district court’s f

refusal to apply the California “privilege” (discovery pro-

hibition) in federal question cases such as this one. This

presumptively means the district court’s decision cannot

have been clearly erroneous as a matter of law. See cases

discussed in Hospital Pet. 17-18; 20-23 (privilege “has had

an ambiguous existence, neither uniformly adopted nor

rejected” — at p. 21)) and Schug Pet. 13-16 (“the circuit

courts have not treated the medical peer review privilege

uniformly” — at p. 13).

Petitioners’ presentations of pro and con cases in

these sections of their brief are not as even-handed as

they appear because the actual weight of federal on the

medical peer review privilege tilts substantially further

against it than petitioners’ skewed case selection sug-

gests. Nevertheless, petitioners have presented enough

federal authority contra the privilege to foreclose the

argument that the district court’s order was clearly erro-

—e

neous or an abuse of discretion.

Of course, the only reason petitioners were even- Y

handed to any extent was their understandable desire to

convince this Court that there is a sufficiently material

difference of opinion in the lower courts to warrant

Supreme Court review under the “conflict” criterion for

certiorari. But, again, they have tried to leap a vast can-

yon in two successive jumps. The primary issue pre-

sented by this case, as opposed to the theoretical case

SSS eT ee Ee Cem Tn ee

13

petitioners would like to generate for the Court’s consid-__

eration, is whether the district court abused its discretion

and whether the Ninth Circuit further abused its own

discretion in not ruling, by mandamus, that the district

court abused its discretion.

Petitioners are apparently correct that none of the

published privilege cases to date (the instant district

court opinion is unpublished just like the Ninth Circuit's

order) has arisen under the particular federal law —

EMTALA — at issue here. But that does not indicate that

any truly novel issue of first impression is presented that

would justify the extraordinary remedy of mandamus. In

light of the breadth of federal question cases in which the

purported peer review privilege has been discussed —

and mostly denied application — no particular novelty or

new analysis is required merely because EMTALA is the

federal law involved here. Indeed, the claimed privilege

under EMTALA is on all fours with a similar privilege

claim under another federal statute, the Health Care

Quality Improvement Act of 1986, which has been

definitively rejected by at least six federal courts (indi-

cated by parenthetical references to HCQIA in case list

below).

Under Ninth Circuit authority, the absence of clear

legal error was, alone, fatal to their request for man-

damus. Calderon v. United States District Court, 98 F.3d

1102, 1105 (9th Cir. 1996); Survival Systems of Whittaker

Corp. v. United States District, 825 F.2d 1416, 1418 n.1 (9th

Cir. 1987) (the novelty or first impression test is irrelevant

where no showing that court below was clearly erro-

neous). As Ninth Circuit Judge Dorothy Nelson points

out in the leading Ninth Circuit practice guide: “[E]ven in

14

privilege cases, the court usually will intercede by man-

damus only where petitioner can demonstrate clear error.

See Heathman v. United States District Court, 503 F.2d 1032,

1035 (9th Cir. 1974) (petition denied where no clear error);

In re Grand Jury Subpoena Issued to Bailin, 51 F.3d 203, 206

(9th Cir. 1995)...” Nelson, Goelz & Watts, Ninth Circuit

Civil Appellate Practice, Sec. 13:168, p. 13-22.

That the district court’s refusal, in this EMTALA case,

to accord petitioners the benefit of California’s peer

review privilege is contrary to no published precedent by

itself indicates, under Ninth Circuit authority, that the

court’s action cannot have been clearly erroneous. See

Wilson v. United States District Court, 103 F.3d 828, 830 (9th

Cir. 1996). Particularly when there is no contrary Ninth

Circuit authority, and the ruling is consistent with deci-

sions in other circuits, as the district court’s was, the clear

error standard cannot be met. King v. United States District

Court, 16 F.3d 992, 993 (9th Cir. 1994).

While petitioners’ effective admissions that the dis-

trict court’s order was neither an abuse of discretion nor

clearly erroneous should be sufficient to foreclose man-

damus and thus require denial of certiorari, we emphas-

ize that petitioners’ briefs present a misleading

impression that the weight of legal authority pro and

contra their position is more or less the same. In fact,

federal privilege law is overwhelmingly hostile in general

to new privileges not recognized as part of the common

law in the original draft of the Federal Rules of Evidence

and, specifically, to the purported peer review privilege.

In University of Pennsylvania v. Equal Employment

Opportunity Commission, 493 U.S. 182, 110 S.Ct. 577 (1990),

15

a unanimous Supreme Court refused to recognize a state

law peer review privilege with regard to university fac-

ulty evaluations. The Court strongly reiterated the long-

standing rule that privileges are disfavored in federal

practice, and that any privilege must be strictly con-

strued, because “testimonial exclusionary rules and privi-

leges contravene the fundamental principle that ‘the

public... has a right to every man’s evidence.’ ” 493 U.S.

at 189.

The Court considered all the arguments that peti-

tioners here present, i.e., that their interest in protecting

the confidentiality of sensitive peer review materials out-

weighs plaintiffs’ need for the evidence, that the evidence

sought can be obtained through other means, that doctors

(professors there) have relied on the privilege, and that it

is unlikely they would honestly evaluate their colleagues

in its absence. Id. at 192-93. The Court acknowledged that

these concerns have some merit, but bluntly decided that

the federal interest in remedying discrimination, and

revealing evidence related to that purpose, is more

important. Id.

Similarly, Congress’ concern, under EMTALA, to cur-

tail abuse of patients at hospital emergency rooms also is

presumptively more important. Indeed, this Court was

concerned that acceptance of the peer review privilege

for faculty evaluations “would also lead to a wave of

similar privilege claims by other employers who play

significant roles in furthering speech and learning in

society,” id. at 585 — a group that obviously includes

hospitals and doctors.

16

That Supreme Court decision both reflects, and fur-

ther encourages, the overwhelming tide of federal court

hostility to recognition both of the medical peer review

privilege specifically and, generally, of new privileges

that were unknown to prior federal common law but

which were sought to be imported from state law or even

from general legal scholarship. This true picture of the

landscape of the case law refutes petitioners’ hyperbolic

rhetoric that the district court’s unpublished order here

has caused some sui generis breach in the sanctity of a

universally-recognized (all 50 states, as both put it) peer

review privilege that doctors have, supposedly, long com-

fortably counted upon to exist and be enforced.

A partial list of federal cases refusing to apply the

medical peer review privilege to bar discovery follows.

(Cases, referred to above, that refuse to recognize the

peer review privilege under the Health Care Quality

Improvements of Act of 1996, a federal statute on all

fours with EMTALA, are noted in parentheticals as

“HCQUIA.”) Wei v. Bodner, 127 F.R.D. 91 (D.N.J. 1989),

(HCQUIA case); Robertston v. Neuromedical Center, 169

F.R.D. 80 (M.D. La. 1996) (HCQUIA); Pagano v. Oroville

Hospital, 145 F.R.D. 683 (E.D. Cal. 1993) (HCQUIA);

LeMasters v. Christ Hospital, 791 F.Supp. 188, 191 (S.D.

Ohio 1986) (HCQUIA); Manthe v. Vanbolden, 133 F.R.D.

497 (N.D. Tex. 1991) (HCQUIA); Teasdale v. Marin General

Hospital, 138 F.R.D. 691, 694 (N.D. Cal. 1991) (HCQUIA);

Robinson v. Magovern, 83 F.R.D. 79 (W.D. Pa. 1979); Ott v.

St. Luke Hospital, 522 F.Supp. 706 (E.D. Ky. 1981); Todd v.

South Jersey Hospital System, 152 F.R.D. 676, 683 (D.N.J.

1993); Memorial Hospital for McHenry County v. Shadur, 664

F.2d 1058, 1062-63 (7th Cir. 1981); United States v. Illinois,

SS

17

148 E.R.D. 587, 588-89 (N.D. Ill. 1993); Smith v. Alice Peck

Day Memorial Hospital, 148 E.R.D. 51, 56 (D.N.H. 1993);

Jiricko v. Coffeyville Memorial Hospital Medical Center, 700

F.Supp. 1559, 1564 (D. Kan. 1988); Doe v. St. Joseph's

Hospital, 133 F.R.D. 677, 680 (N.D. Ind. 1987); Quinn v.

Kent General Hospital, 617 F.Supp. 1226, 1245 (D. De.

1985); Schafer v. Parkview Memorial Hospital, 593 F.Supp.

61, 65 (N.D. Ind. 1984); Dorsten v. Lapeer County General

Hospital, 88 F.R.D. 583, 586 (E.D. Mich. 1980).?

1 A similar tide of federal authority has rejected federal

application of state privileges in cases other than medical peer

review. A by no means exhaustive list includes: United States v.

Wilson, 960 F.2d 48, 50 (7th Cir. 1992) (refusing to apply state

unemployment claims privilege); In re Grand Jury Proceedings, 5

F.3d 397, 402-03 (9th Cir. 1993) (no to state privilege for votes on

academic promotions); In re International Horizons, Inc., 689 F.2d

996, 1004-05 (11th Cir. 1982) (no to state accountant-client

privilege); FTC v. TRW, 628 F.2d 207, 210 (D.C. Cir. 1980) (no to

self evaluation privilege against federal agency subpoena);

Memorial Hospital for McHenry County v. Shadur, 664 F.2d 1058,

1061 (7th Cir. 1981) (no to state medical peer review privilege;

Hancock v. Dodson, 958 F.2d 1367, 1373 (6th Cir. 1992) (no to state

doctor/patient privilege); United States v. One Parcel of Property

Located at 31-33 York Street, 930 F.2d 139 (2d Cir. 1991) (no to state

privilege re erased arrest records); Sexton v. Poole Truck Lines,

Inc., 888 F.Supp. 127 (M.D. Ala. 1994) (no to state privilege re

sealed driving records); Equal Employment Opportunity

Commission v. Illinois Dep’t of Employment Security, 995 F.2d 106,

109 (7th Cir. 1993) (no to state privilege re unemployment

hearings); Linde Thomason Langworthy Kohn & Van Dyke, P.C. v.

Resolution Trust Corporation, 5 F.3d 1508, 1514-15 (D.C. Cir. 1993)

(no to state insured-insurer privilege); Dowling v. American

Hawaii Cruises, Inc., 971 F.2d 423 (9th Cir. 1992) (no to state

privilege for safety review meetings).

18

To be sure, petitioners here, as below, purport to rely

upon some of these same cases by attempting to distin-

guish them as being only apparently adverse authority.

Their theory is that in listed cases where the gravamen

was not, at least directly, improper patient care — e.g.,

antitrust or discrimination cases — discovery notwith-

standing the state peer review privilege could be justified

because these purported violations happened “in” the

peer review process itself, as opposed to the’ violations

merely being analyzed by the peer review process.

This argument is unpersuasive for two reasons. First,

regardless of the purported distinction, the upshot is that

court after court has ordered discovery of peer review

information. No matter what the theory, such discovery

obviously is so common that no reasonable doctor could

truly have relied on the supposed immunity from discov-

ery of peer review records. Yet this frequent knowledge

and fact of discovery has not caused the medical care

system to collapse as the petitions say will happen

because of the discovery ordered in this case.

Second, as we showed in the Statement of the Case,

the purported distinction between those cases and the

instant case does not actually exist. Or, even if it does

arguably exist, that issue is not fit for review by the

Supreme Court.

The primary ground for the district court’s order, as

we explained, was that sufficient evidence supported

plaintiff’s contention that relevant misconduct did happen

“in” the peer review process itself. That alone takes the

case out of the fact pattern petitioners have invented in

their attempt to obtain certiorari. (That pattern, again, is

A TN ATR ES EES

———— I OT

19

one where the peer review records contain nothing more

than straight commentary by doctors about each other’s

performance). This determination by the district court

was based upon its knowledge of the record in this case,

which is a matter especially within its zone of discretion.

It probably would not be appropriate for Supreme Court

review even on a properly presented appeal after final

judgment. It certainly is not appropriate for Supreme

Court intervention on an interlocutory basis.

B. There Is No Intercircuit Split On the Question

Whether A Party Who is Not the Target of Dis-

covery In a Civil Case Has The Right to Auto-~

matic Appeal Of An Interlocutory Discovery

Order Directed At Another Party, Particularly

Where the Other Party Is Able and Motivated to

Contest the Discovery Order Itself, Whether By

Petition for Mandamus, as Has Already

Occurred Here, Or Subsequently By Suffering

Contempt and Then Appealing the Contempt

Ruling.

Although the Hospitals’ and Schug’s petitions for

mandamus were and are unmeritorious, defendants were

entitled to bring them and to make their arguments to the

Ninth Circuit and to the Supreme Court. Those petitions

did not halt all progress in the litigation of the civil suit in

the district court. Although the Ninth Circuit issued a

stay, which remains in effect, of the order for discovery of

the peer review records, that did not prevent any other

case proceedings from going forward in the district court.

Fe a me SNe nT

ee

20

But Schug’s separate appeal was fraudulent miscon-

duct from the beginning, which has now been exacer-

bated by a fraudulent presentation to this Court of an

entirely nonexistent “intercircuit split” in the authority

applicable to interlocutory appeals of discovery orders in

civil cases. This improper appeal had, and continues to

have, precisely the devastating “freezing” effect on the

entire civil case, prevention of which is the uncerlying

rationale for the important statutory and case law policy

against piecemeal interlocutory appeals. The appeal,

unlike the mandamus petitions, caused the case file to be

transferred from the district court to the Ninth Circuit,

thereby depriving the district court of jurisdiction to

move the case forward through remaining motions to a

trial date. This freeze has lasted for a year now, and will

continue while the certiorari petition as to the appeal is

pending.

28 U.S.C. Sec. 1291 gives the courts of appeal jurisdic-

tion over appeals solely from final decisions of district

courts, which do not include interlocutory discovery

orders. Section 1292(b), however, provides a discretionary

avenue to obtain immediate appellate relief from an

allegedly oppressive discovery (or other) order: Asking

the district court to certify the order for immediate

appeal.

Schug omits from his fact statement the crucial infor-

mation that his trial court law firm did file a motion,

including memorandum of law, on June 1, 1998 for Sec.

1292(b) certification of the district court’s order. See

excerpt from district court docket sheet, attached hereto

as App. A. However, the attorney in the firm who filed

those papers apparently was unaware that a different

—_ =

21

attorney in the firm had been told by the district judge at

a status conference three days earlier that if such motion

were presented, the court would not be inclined to grant

it. See declaration of respondents’ counsel, attached

hereto as App. B. This information induced Schug’s coun-

sel on June 4, 1998 to withdraw the motion for Sec.

1292(b) certification. See App. A.

But instead of the withdrawal’s terminating inter-

locutory appellate proceeding in this case, Schug’s coun-

sel, despite obvious awareness that discretionary

certification was the proper and sole remedy for immedi-

ate relief, replaced their certification motion with a notice

of appeal as of right under Sec. 1291. See App. A (entry

for June 3, 1998). They persist in that improper venture to

this very day.

Not a single case cited in Schug’s petition (pp. 21-26)

supports the theory that a party in a civil case has a right

to automatic interlocutory of a discovery order that sup-

posedly affects him, but which is directed at another

party in the same case who holds the documents and

other information sought. Moreover, such interlocutory

appeal is particularly inappropriate where, as here, the

other party is fully motivated to contest the order and is

indeed vigorously contesting the order. Such an appeal,

which violates basic black letter federal doctrine against

piecemeal appeals, is not supported by Perlman v. United

States, 247 U.S. 7 (1918), or any other authority.

The Ninth Circuit summarily dismissed the appeal

based on its own prior authority, In re National Mortgage

22

Equity Corp., 857 F.2d 1238 (9th Cir. 1988), which

explained why neither Perlman nor any other case sup-

ports a right to appeal a civil discovery order in that

~ situation. This Ninth Circuit decision, however, broke no

new ground nor is it contrary to any case from any other

circuit.

The Ninth Circuit explained that it, like the Supreme

Court and some other circuits, had previously permitted

interlocutory appeals by parties who claimed potential

adverse impact of disclosures by a third party, one not a

party to any ongoing civil case, who had been served

with a grand jury subpoena. 857 F.2d at 1240, citing

Gravel v. United States, 408 U.S. 606, 608 n.1 (1972); In re

Grand Jury Proceeding (Schofield), 721 F.2d 1221 (9th Cir.

1983); In re Grand Jury Subpoena Duces Tecum (Marger), 695

F.2d 363 (9th Cir. 1982); In re Gren, 633 F.2d 825 (9th Cir.

1980); Harris v. United States, 413 F.2d 316 (9th Cir. 1969).

The Ninth Circuit also cited, and endorsed, a differ-

ent basis for immediate appeal “where the aggrieved

party’s motion or petition is the only pending proceeding

in any federal court,” a situation that, of course, does not

exist where that party opposes a discovery order directed

at another party in an ongoing civil case. See 857 F.2d at

1240, citing Eastland v. U.S. Servicemen’s Fund, 421. U.S.

491, 514 (1975) (motion in district court to quash U.S.

Serate subpoena directed at third party); Go-Bart Import-

ing Co. v. United States, 282 U.S. 344, 356 (1931) (no

criminal case pending when motion was made); Burdeau

v. Powell, 256 U.S. 465 (1921) (same); and several other

cases to the same effect.

23

The Ninth Circuit’s opinion cast no doubt on the

viability of all these cases as applications of the so-called

Perlman exception to non-appealability of interlocutory

discovery orders or subpoenas, contrary to Schug’s pre-

posterous claim that the opinion construes the exception

sO narrowly that it “essentially eliminates” it. (Schug Pet.

22.) Rather, the Ninth Circuit correctly explained that a

case like the instant one is fundamentally different:

“The reason for allowing [interlocutory]

review of such orders in the grand jury context

is that there are aspects of independence from

the main course of any prosecution that render

the order collateral... . We are persuaded that

any aspect of independence is lost in an ongoing

civil case where a party is aggrieved by a dis-

trict court discovery order. The essential charac-

ter of any litigation over a discovery order and

the circumstances under which the order is

issued, as in this case, render it merely a step in

the civil proceeding.” 857 F.2d at 1240.

All the cases cited in Schug’s petition, from every

circuit, are entirely consistent with the Ninth Circuit’s

endorsement of immediate appealability (the “Perlman

exception”) in the instances described, while recognizing

that its rationale does not extend to discovery orders

directed at civil litigation parties. The most thorough

explanations are two First and Second Circuit opinions

that Schug cites for some peculiar reason, even though

they definitively reject his precise argument for automatic

right of appeal.

In Corporacion Insular De Seguros v. Garcia, 876 F.2d

254 (ist Cir. 1989), the court explains why it rejected a

party’s claim that the Perlman case gave him the right to

24

appeal a discovery order directed at another party. Id. at

258-59. The First Circuit relied upon Judge Friendly’s

opinion in National Super Spuds, Inc. v. New York Mercan-

tile Exchange, 591 F.2d 174, 178 (2d Cir. 1979), the other

case cited by Schug.

Judge Friendly gave perhaps the most thorough

explanation extant of why the Perlman case has nothing to

do with discovery orders in civil cases. The point is very

simple, but Schug muddles it by making a crucial error in

describing the key facts in Perlman.

Schug’s petition claims the grand jury subpoena to

which Mr. Perlman objected was directed at his “book-

keeper.” Schug Pet. 22. The implication is that even

though the bookkeeper was not a party to ongoing civil

litigation, the situation was sufficiently similar to the

relationship between doctor and hospital that if Perlman

could take an interlocutory appeal, despite that he was

not the target, then so should Schug.

But the subpoena was not directed at Perlman’s

“bookkeeper”! Rather, it was directed at the clerk of the

U.S. District Court in New York who was holding some

sensitive documents of Perlman’s company that had been

exhibits in a prior proceeding. 247 U.S. at 8-10. The whole

point of the Perlman case was that a subpoena directed to such

a completely uninvolved and obviously unmotivated and disin-

terested third party created a special situation because such

person would have no wish or motive to contest it on behalf of

the party who might be injured by the disclosure. That is why

the First Circuit in Corporacion Insular, and Judge Friendly

in National Super Spuds, distinguished Perlman “as a

‘unique case’ in which there was no relation between the

25

holder of the privilege (Perlman) and the target of the

court’s order (the clerk of the district court).” 876 F.2d at

259; 591 F.2d at 180.2

In sharp contrast, where a relationship — whether of

employment, self-interest, or otherwise — does exist, the

target of the subpoena “may reasonably be expected to

risk a contempt citation in order to preserve both his own

and his employer’s right to appellate review of their joint

claim of privilege.” 876 F.2d at 260. Judge Friendly

expounded at greater length to the same effect. See 591

F.2d at 179-180.

These opinions, though they do not cite it, were in

fact following the Supreme Court’s decision in United

States v. Ryan, 402 U.S. 530 (1971). This Court explained

that the basic rationale of Perlman was that “the custodian

{of Perlman’s records] could hardly have been expected

to risk a citation for contempt in order to secure Perlman

an opportunity for judicial review.” Id. at 533.

That situation is so far removed from the instant case

as to render Schug’s petition on the appeal simply

absurd. It would be difficult to imagine a more motivated

and effective subpoena or discovery order target, both in

theory and in fact, than the Hospital petitioners herein. In

theory, because they obviously have an even broader and

2 The court in Corporacion Insular also explains why Schug’s

citation to Nixon v. Sirica, 487 F.2d 700, 707 (D.C. Cir. 1973), is

irrelevant. The reason, of course, is the obvious one: “But Nixon

was a unique case, and we do not believe that the court meant to

extend it to any government official other than the President

himself.” 876 F.2d at 257, citing In re Attorney General of the

United States, 596 F.2d 58, 62 (2d Cir. 1979).

ee TET

x

26

more profound claimed interest than Schug in the confi-

dentiality of their records. He alleges potential embar-

rassment to himself alone. But no matter how bad that

might be, it hardly can compare with the Hospital’s

sweeping claim that discovery will destroy the entire

system of peer review that it alleges is fundamental to its

services.

The Hospital also is motivated and effective in fact

because it has indeed vigorously pursued its mandamus

petition, sparing no effort or legal expense. Whether it

will suffer contempt in order to obtain further appellate

review (on a legitimate basis this time) remains to be seen.

But Dr. Schug cannot plausibly say that the Hospital is

less than fully motivated and capable of doing so.

All of Schug’s remaining citations similarly fail to

support either his substantive argument or his argument

for certiorari based on purported intercircuit conflict. We

dispose of them briefly.

Boughton v. Cotter Corp., 10 F.3d 746 (10th Cir. 1993),

is perhaps Schug’s strangest citation because its flat rejec-

tion of interlocutory appeal of the discovery order in that

civil case is entirely consistent with the Ninth Circuit’s

same holding in In re National Mortgage Equity Corp.,

supra, and thus in the instant case as well. The courts cite

numerous other cases, also consistent with the Ninth

Circuit, noting that “in virtually every case in other cir-

cuits involving similar attorney-client privilege claims,

the courts have refused to take [appellate] jurisdiction.”

10 F.3d at 749-50.

27

Even more remarkably, the Tenth Circuit in Boughton

delivers the coup de grace to Schug’s misconceived the-

ory that the Perlman exception permits his immediate

appeal. The court observed that defendants there did

“not [even] rely on Perlman and deny application of these

[grand jury subpoena cases], arguing that they involve

grand jury criminal investigations”! Id. at 749-50 n.2.

Schug’s attorneys should have had the integrity to take

the same position instead of vainly pursuing their

improper appeal.

In re Grand Jury Investigation of Ocean Transportation,

604 F.2d 672 (D.C. Cir. 1979), was not only a grand jury

case just like those distinguished by the Ninth Circuit,

and every other circuit, from ongoing civil litigation, but

the privilege, even if it had once existed, had been effec-

tively waived. In re Faltico, 561 F.2d 109 (8th Cir. 1977),

similarly involved a grand jury subpoena directed at a

non-party “who could not be expected to expose himself

to the penalty of contempt in order to obtain appellate

review,” precisely because his non-party status gave him

no particular stake in the litigation or interest in the

aggrieved party’s complaint about the discovery. Schwim-

mer v. United States, 232 F.2d 855, 860 (8th Cir. 1956), was

by Schug’s own description a similar grand jury sub-

poena directed at non-party with no interest in resisting

it. Similarly, all the cases cited in footnotes 30, 31, 32, and

36 of Schug’s petition (p. 24) are also grand jury sub-

poena cases, are entirely consistent with the Ninth Cir-

cuit’s decision on which dismissal of the instant appeal

was based, and are thus irrelevant because they establish

no “intercircuit conflict.”

26

more profound claimed interest than Schug in the confi-

dentiality of their records. He alleges potential embar-

rassment to himself alone. But no matter how bad that

might be, it hardly can compare with the Hospital’s

sweeping claim that discovery will destroy the entire

system of peer review that it alleges is fundamental to its

services.

The Hospital also is motivated and effective in fact

because it has indeed vigorously pursued its mandamus

petition, sparing no effort or legal expense. Whether it

will suffer contempt in order to obtain further appellate

review (on a legitimate basis this time) remains to be seen.

But Dr. Schug cannot plausibly say that the Hospital is

less than fully motivated and capable of doing so.

All of Schug’s remaining citations similarly fail to

support either his substantive argument or his argument

for certiorari based on purported intercircuit conflict. We

dispose of them briefly.

Boughton v. Cotter Corp., 10 F.3d 746 (10th Cir. 1993),

is perhaps Schug’s strangest citation because its flat rejec-

tion of interlocutory appeal of the discovery order in that

civil case is entirely consistent with the Ninth Circuit's

same holding in In re National Mortgage Equity Corp.,

supra, and thus in the instant case as well. The courts cite

numerous other cases, also consistent with the Ninth

Circuit, noting that “in virtually every case in other cir-

cuits involving similar attorney-client privilege claims,

the courts have refused to take [appellate] jurisdiction.”

10 F.3d at 749-50.

27

Even more remarkably, the Tenth Circuit in Boughton

delivers the coup de grace to Schug’s misconceived the-

ory that the Perlman exception permits his immediate

appeal. The court observed that defendants there did

“not [even] rely on Perlman and deny application of these

[grand jury subpoena cases], arguing that they involve

grand jury criminal investigations”! Id. at 749-50 n.2.

Schug’s attorneys should have had the integrity to take

the same position instead of vainly pursuing their

improper appeal.

In re Grand Jury Investigation of Ocean Transportation,

604 F.2d 672 (D.C. Cir. 1979), was not only a grand jury

case just like those distinguished by the Ninth Circuit,

and every other circuit, from ongoing civil litigation, but

the privilege, even if it had once existed, had been effec-

tively waived. In re Faltico, 561 F.2d 109 (8th Cir. 1977),

similarly involved a grand jury subpoena directed at a

non-party “who could not be expected to expose himself

to the penalty of contempt in order to obtain appellate

review,” precisely because his non-party status gave him

no particular stake in the litigation or interest in the

aggrieved party’s complaint about the discovery. Schwim-

mer v. United States, 232 F.2d 855, 860 (8th Cir. 1956), was

by Schug’s own description a similar grand jury sub-

poena directed at non-party with no interest in resisting

it. Similarly, all the cases cited in footnotes 30, 31, 32, and

36 of Schug’s petition (p. 24) are also grand jury sub-

poena cases, are entirely consistent with the Ninth Cir-

cuit’s decision on which dismissal of the instant appeal

was based, and are thus irrelevant because they establish

no “intercircuit conflict.”

28

The subpoena in Covey Oil Co. v. Continental Oil Co.,

340 F.2d 993 (10th Cir. 1965), was indeed issued in a civil

case, but it went to a non-party witness. Schug overlooks

that this makes that case quite different from the instant

case. The non-party target of the subpoena there was the

very one who brought the appeal, unlike Schug who

claims the right to appeal even though he is not the target

of the discovery. Id. at 996. It was the combination of

being both a non-party and the target that created the

right to appeal: “The appellants, as nonparties to the

main suit, will have no right to appeal from a judgment

therein. The trial court’s order [will be] final as to these

appellants.” Id.

Finally, Branch v. Phillips Petroleum Co., 638 F.2d 873,

877-78 (5th Cir. 1981), is irrelevant because it involved the

distinguishable situation of the Government’s special

right to interlocutory appeal in some discovery contexts.

Accordingly, the law on the appeal matter is settled,

it is consistent throughout the nation, there certainly is no

“intercircuit conflict,” and Schug’s argument in this part

of his petition is utterly without merit, either as to worth-

iness for certiorari or as to legal substance.

29

Ill.

CONCLUSION

For the reasons given above, the petitions for cer-

tiorari should be denied.

Dated: May 5, 1999

Respectfully submitted,

Law Orrices Or JAMes BRADEN

James BRADEN

44 Montgomery Street, Suite 1210

San Francisco, CA 94104

(415) 398-6865

Counsel for Respondents

A-l

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAVID BURROWS, et al.

Plaintiff(s),

(Petitioner)

Court of Appeals

Docket No. 98-70610

Docket Number(s) of

Court of Appeals

x Companion and/or

REDBUD COMMUNITY ) Cross Appeals (if

)

)

)

)

)

)

HOSPITAL DIST., et al. . known) 98-70616

)

)

)

)

)

Defendant(s),

(Respondent)

District Court Docket

Number C 96-4345 SI

Date Transcript(s) Filed:

no transcripts designated

CERTIFICATE OF RECORD

This certificate is submitted in conformance with

Rule 11-2 of the Local Rules of the U.S. Court of Appeals

for the Ninth Circuit. The record on appeal, consisting of

the trial transcript (if any) and the trial court clerk’s

record, is ready for the purposes of the appeal. This

record is available in the Clerk’s Office of the U.S. District

Court identified below.

The documents comprising the trial court clerk’s

record have been numbered in conformance with Rule

11(b) of the Federal Rules of Appellate Procedure. These

document numbers are reflected on the U.S. District

Court docket sheet and should be used for reference

purposes in the briefs.

A-2

The actual filing date for this document in the U.S.

Court of Appeals will initiate the briefing schedule in

civil cases (including habeas corpus cases). All parties in

civil cases will receive separate notification of this filing

date. In criminal cases, the briefing schedule is set by a

Time Schedule Order from the U.S. Court of Appeals.

DATED: July 16, 1998 RICHARD W. WIEKING

Office of the CLERK

Clerk /s/ Cora G. Delfin

U.S. District Court

Northern District of

California

450 Golden Gate

Ave., Box 36060

San Francisco, CA 94102

by: Cora Delfin

Deputy Clerk

A-3

Proceedings include all events.

3:96cv4345 Burrows, et al. v. Redbud Community

Hos, et al.

APPEAL

6/1/98 161 NOTICE by defendant Dr. Wolfgang Schug’s °

request for certification of order for appeal.

[3:96-cv-04345] (cgd) [Entry date 06/03/98]

6/1/98 162 MEMORANDUM OF POINTS AND

| AUTHORITIES by defendant Wolfgang

Schug in support of notice [161-1] [3:96-

cv-04345] (cgd) [Entry date 06/03/98]

6/3/98 163 LETTER dated 6/1/98 from John S. Gilmore

for Adventist Health Inc in response to let-

ter from plaintiff's counsel dated 5/26/98.

[3:96-cv-04345] (cgd) [Entry date 06/05/98]

6/3/98 164 LETTER dated 6/2/98 from Redbud Com-

munity Hospital District in response by

plaintiff's attorney, Richard Massa dated

5/26/98. [3:96-cv-04345] (cgd) [Entry date

06/05/98)

6/3/98 165 MINUTES: (C/R N/A) ( Hearing date:

5.29.98) Further case management confer-

ence — Held. Motion for leave to file

amended complaint —- Submitted. Discovery

cutoff extended to 7/24/98; Expert Discov-

ery cutoff extended to 6/26/98. Motion for

leave granted and plaintiff to file amended

complaint next week; request for order

shortening time submitted; Defendants to

respond to submitted letter not later than

6/2/98. Court to issue order re 1157 issues;

Defendants request for one

eer ee rae teh ee Pn gee

ao ee Cet eee On

[Boldface emphasis added by respondents]

;

3

4

4

:

3

4

£

4

H

4

5

%

FY

:

v

A-4

week continuance for expert disclosure

granted. [3:96-cv-04345] (cgd) [Entry date

06/05/98]

6/3/98 171 NOTICE OF APPEAL by defendant Wolf-

gang Schug, M.D., defendant JJ&R Emer-

gency Mgmt (sued erroneously as

Emergency Medical Management Services,

Inc. from Dist. Court decision order dated

5/5/98 [154-1] Fee status Paid, $105.00,

receipt no. 131499. [3:96-cv-04345] (cgd)

[Entry date 06/08/98]

6/4/98 166 LETTER dated 6/1/98 from Richard J.

Massa re possible use of jury instructions

discussed at the case mgmt conf. on

5/29/98. [3:96-cv-04345] (cgd) [Entry date

06/05/98]

6/4/98 167 LETTER dated 6/2/98 from Matthew P. Mil-

ler re discovery disputes. [3:96-cv-04345]

(cgd) [Entry date 06/05/98]

6/4/98 168 LETTER dated 6/3/98 from Sonja M. Dahl

to Mr. Massa. [3:96-cv-04345] (cgd) [Entry

date 06/05/98]

6/4/98 169 LETTER cated 6/4/98 from Thomas J. Don-

nelly for Redbud Community Hospital re a

petition for writ be filed with the Appellate

Court regarding the Evidence Code 1157

issues. [3:96-cv-04345] (cgd) [Entry date

06/05/98]

6/4/98 170 NOTICE by defendant of withdrawal of

request for certification. [3:96-cv-04345]

(cgd) [Entry date 06/05/98]

Docket as of July 16, 1998 11:47 a.m.

[Boldface emphasis added by respondents]

B-1

APPENDIX B

MASSA & ASSOCIATES

Attorneys At Law Telephone: (707) 262-0230

120 North Forbes Street Fax: (707) 262-1028

Lakeport, California 95453

January 15, 1999

DECLARATION OF RICHARD J. MASSA

I, RICHARD J. MASSA, declare:

I am an attorney at law admitted to practice before

the United States District Court for the Northern District

of California and the Ninth Circuit Court of Appeals, am

the attorney of record and primarily responsible for fil-

ing, preparation and trial of the case of Burrows, et al., v.

Redbud Hospital, et al., No. C-96-4345 SI, in the United

States District Court, Northern District of California.

I have been personally present at every hearing and

conference held on this matter in the trial court, speci-

fically including the Case Management Conference of

May 29, 1998, held before the Honorable Susan Illston,

District Judge.

At no time during the May 29, 1998, Case Manage-

ment ‘Conference, or at any other time, in my presence or

to my knowledge, did Judge Illston “instruct” defendant

SCHUG, et al., or counsel for defendant SCHUG, et al., to

“withdraw” a request for certification of any order for

appeal.

With regard to the Case Management Conference

held in this matter on May 29, 1998, the only relevant

B-2

comment of Judge Illston with regard to this matter that

declarant recalls was to the effect that if a request for

certification were to be made, the Court would not be

inclined to grant such a request.

[ declare under penalty of perjury under the laws of

the State of California that the foregoing is true and

correct.

DATED: January 15, 1999 /s/ Richard J. Massa

RICHARD J. MASSA

AAR

S igi\ ins Sa aean oe tek A Bas <a