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2d 1028
The underlying issue in this appeal is whether, upon a law firm's withdrawal
from a case in the face of conflict-of-interest charges, its work product may be
turned over to successor counsel. The immediate issue is whether we have
jurisdiction to entertain an interlocutory appeal from a district court order
declining to enjoin such turnover. 732 F.Supp. 270. We conclude that
jurisdiction is lacking, that mandamus relief is unwarranted, and that the appeal
must accordingly be dismissed.
Anderson, which was filed in November 1989. Arguing that the state and
federal suits were substantially related and that he had earlier disclosed
confidences and secrets to Bowditch and Dewey pertinent to the present action,
Anderson moved that the firm be disqualified and be prevented from turning
over its allegedly "tainted" work product to successor counsel. While denying
the existence of any conflict, Bowditch and Dewey voluntarily withdrew and
Chronicle retained Foley, Hoag and Eliot as substitute counsel. On March 14,
1990, the district court ordered Bowditch and Dewey to "preserve any
confidential communications, privileged information or client secrets" but
otherwise denied Anderson's motion to enjoin the turnover of work product. On
March 28, it denied Anderson's request for Sec. 1292(b) certification and his
motion to stay all proceedings pending appeal. On April 3, Anderson appealed
from the district court's March 14 order. And on April 12 he moved in this
court for a stay, pending such appeal, of (1) the turnover of work product
permitted by the March 14 order, and (2) all proceedings in the district court.1
Chronicle has responded in part by challenging our jurisdiction to entertain this
interlocutory appeal.
3
We need not rest our decision on this basis, however, for Anderson's claim
falters on another ground. Even were the March 14 order to be deemed an
injunction under Sec. 1292(a)(1), interlocutory review would be permissible
only upon a showing that the order will have a " 'serious, perhaps irreparable,
consequence,' and that the order can be 'effectually challenged' only by
immediate appeal." Carson v. American Brands, Inc., 450 U.S. at 84, 101 S.Ct.
at 997, quoting Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176, 181, 75
S.Ct. 249, 252, 99 L.Ed. 233 (1955); accord, e.g., Stringfellow v. Concerned
Neighbors in Action, 480 U.S. 370, 379, 107 S.Ct. 1177, 94 L.Ed.2d 389
(1987); Gardner v. Westinghouse Broadcasting Co., 437 U.S. 478, 480-82, 98
S.Ct. 2451, 2453-54, 57 L.Ed.2d 364 (1978). Anderson has made no such
showing. No allegation has been made, for example, that trade secrets will be
revealed, or that he will "irretrievably los[e] an important tactical litigation
advantage." Kartell v. Blue Shield of Massachusetts, Inc., 687 F.2d 543, 551-53
(1st Cir.1982). Instead, he complains only of the expense and inconvenience
that would attend any retrial in this "massive litigation." Such putative hardship
is plainly insufficient to justify interlocutory appeal; it does not constitute the
sort of irreparable harm contemplated by the statute and in no way precludes an
"effectual challenge" to the court order on appeal from final judgment. As we
have stated with regard to the related "urgency" criterion of the collateral order
exception, "[o]ur decisions have consistently declined to allow the prospect of
possibly substantial litigation burdens ... or even of relitigation itself ... to
circumvent the policy against piecemeal review." In re Continental Investment
Corp., 637 F.2d 1, 5-6 (1st Cir.1980); accord, e.g., Firestone Tire and Rubber
Co. v. Risjord, 449 U.S. 368, 378, 101 S.Ct. 669, 675-76, 66 L.Ed.2d 571
(1981); Queipo v. Prudential Bache Securities, Inc., 867 F.2d 721, 722 (1st
Cir.1989) ("the expense of court proceedings ... does not constitute irreparable
harm"). We think the same considerations apply in the context of Sec. 1292(a)
(1). For these reasons, we conclude that Sec. 1292(a)(1) provides no
jurisdictional basis to entertain the instant appeal.4
6
For these reasons, the motion for a stay pending appeal is denied, the request
for leave to petition for mandamus is denied, and the appeal is dismissed for
want of jurisdiction. See Loc.R. 27.1.
Anderson points to Teradyne, Inc. v. Mostek Corp., 797 F.2d 43, 45-47 (1st
Cir.1986), in which we granted review under Sec. 1292(a)(1) of an order
enjoining a party to set aside $4,000,000 in an interest-bearing account for the
purpose of satisfying any judgment
In a series of recent decisions, the Supreme Court has held that orders involving
the disqualification of counsel are also not appealable under 28 U.S.C. Sec.
1291 pursuant to the Cohen collateral-order exception. Richardson-Merrell Inc.
v. Koller, 472 U.S. 424, 105 S.Ct. 2757, 86 L.Ed.2d 340 (1985) (order
disqualifying counsel in civil case); Flanagan v. United States, 465 U.S. 259,
104 S.Ct. 1051, 79 L.Ed.2d 288 (1984) (order disqualifying counsel in criminal
case); Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 101 S.Ct. 669, 66
L.Ed.2d 571 (1981) (denial of motion to disqualify counsel in civil case). For
this reason, Anderson has not invoked the collateral-order exception here
substantially moot. The order was issued on March 14, 1990 and directed that
such turnover, and all communications between the two law firms with respect
thereto, be completed by May 13, 1990. Anderson waited until March 22 before
seeking Sec. 1292(b) certification and a stay in the district court (both of which
were denied on March 28), and then waited until April 12 before seeking a stay
in this court. By that date, as Chronicle has indicated, substantial work-product
materials had already been turned over to successor counsel