13. Should the court of appeals consider the appeal pursuant to the collateral order doctrine?

Generally, only final orders are reviewable on appeal. However, under Federal Rules of Appellate Procedure (FRAP) 3 and 4, an appeal may be taken by filing a notice of appeal with the district court within 30 days from the entry of the judgment. A final order is one that disposes of the whole case on its merits by rendering final judgment not only as to all the parties but as to all causes of action involved.

The collateral order doctrine is a narrow exception to the finality requirement for appeals. Typically, only final orders are reviewable by the appellate court. Under the collateral order doctrine, however, a claim or issue may be immediately appealable if it is too important to wait until the final judgment. Three requirements must be met:

(i) the lower court must have conclusively determined the disputed question;

(ii) the issue must be separate from and collateral to the merits of the main issue of the case; AND

(iii) the issue must be effectively unreviewable on an appeal from the final judgment.

The collateral order doctrine is meant to be used only for extreme cases and so far has only been applied to cases involving matters of immunity and double jeopardy.

B is correct. The court of appeals should not entertain the appeal pursuant to the collateral order doctrine because the issue does not meet the third requirement of the test: that it must be effectively unreviewable on an appeal after the final judgment. The art gallery has other adequate means of asserting its rights, such as by refusing to comply with the production order, suffering sanctions for so doing, and appealing from the imposition of those sanctions after final judgment.

A is incorrect. This answer reaches the correct answer with incorrect legal reasoning. Although the court of appeals should not entertain the appeal, it is not because the issue of attorney-client privilege cannot be separated from the merits of the case. Here, the forced production of the documents during discovery has nothing to do with the merits of the main legal claims of the case. Therefore, the issue would be a collateral issue, easily separated from the merits of the case.

C is incorrect. Although the issue may easily be separated from the main legal arguments, the appellate court should still not entertain the appeal because the requirement that the issue be effectively unreviewable on appeal from a final judgment is not satisfied, which is required to invoke the collateral order doctrine.

D is incorrect. The issue would not be effectively unreviewable on an appeal after final judgment, as explained above. There are other avenues available for the art gallery absent immediate review, such as refusing the production order, and in the event that sanctions are imposed, those may be appealed following final judgment. As such, the elements of the collateral order doctrine are not fully met.