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When is a Discovery Order in Bankruptcy Final?

Final orders are directly appealable.  Interlocutory orders are not.  To appeal an interlocutory order you must obtain relief to do so.

A Bankruptcy Court order entered before the conclusion of a bankruptcy case is not considered a final order “unless it finally resolves a discrete segment of the underlying proceeding.” In re M & S Grading, Inc., 526 F.3d 363, 368 (8th Cir.2008) (citation omitted).

To determine if an order is final, the Court considers the extent to which (1) the order leaves the Bankruptcy Court nothing to do but execute the order; (2) the extent to which delay in obtaining review would prevent the aggrieved party from obtaining effective relief; (3) the extent to which a later reversal on [the contested] issue would require recommencement of the entire proceeding. Id. (citation omitted)

“Generally, pretrial discovery decisions are not considered to be final decisions subject to immediate appeal, even under this flexible approach to finality.” In re Kaiser Group Int'l, Inc., 400 B.R. 140, 143 (D.Del.2009) (citing New York v. United States Metals Refining Co., 771 F.2d 796, 799 (3d Cir.1985)). See also Matter of Int'l Horizons, Inc., 689 F.2d 996, 1001 (11th Cir.1982) (holding that, absent finding of contempt, bankruptcy court order compelling production of privileged documents hold by the party asserting the privilege is interlocutory and non-appealable); In re Towers Financial Corp., 164 B.R. 719, 720 (S.D.N.Y.1994) (“Bankruptcy court orders granting or denying discovery do not finally dispose of an entire claim on which relief may be granted, and therefore are generally treated as interlocutory and not appealable as of right.”) (Citations omitted); Aetna Cas. & Sur. Co. v. Glinka, 154 B.R. 862, 868 (D.Vt. 1993) (holding that a Bankruptcy Court's denial of motion to quash was interlocutory because, “at this point in the discovery process, this Court has no way of conclusively determining whether [the parties] will refuse to comply with the subpoenas [;][n]or can this Court predict whether the Bankruptcy Court will issue a contempt order in the face of such a refusal”).

Sarah Grace Chastain