Second Circuit Invokes Collateral Order Doctrine to Exercise Jurisdiction over Motion Held in "Abeyance"

Per the Second Circuit in Lugosch v. Pyramid Co. of Onondaga, --- F.3d ----, 2006 WL 45865 (2d Cir. Jan. 10, 2006):

Before turning to the merits of the appeal, we must first consider whether we have jurisdiction to do so. Although the decision here appealed from-namely, the district court's order holding the Newspapers' intervention motion in abeyance-was not a final judgment, the Newspapers assert that this Court nonetheless has jurisdiction under the collateral order doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), “a narrow exception to the general rule that interlocutory orders are not appealable as a matter of right.” Schwartz v. City of New York, 57 F.3d 236, 237 (2d Cir.1995). “To fit within the collateral order exception, the interlocutory order must: [i] conclusively determine the disputed question, [ii] resolve an important issue completely separate from the merits of the action, and [iii] be effectively unreviewable on appeal from a final judgment.” (citation omitted)

We have previously allowed media intervenors to appeal from apparently interlocutory orders under the collateral order doctrine on the grounds that orders denying access are final as to the intervenors and that the intervention motion could have been treated as a separate civil case in which the ruling would have been final. See, e.g., ABC, Inc. v. Stewart, 360 F.3d 90, 97 (2d Cir.2004); In re New York Times Co., 828 F.2d 110, 113 (2d Cir.1987). The instant matter stands in a slightly different posture from those cases, however, as the district court held “in abeyance” the intervention motion rather than outright denying it. The defendants argue that because of this distinction, there was no conclusive determination of the disputed question and the appeal should be dismissed for want of jurisdiction. (citations omitted)

However, in none of the cases dealing with motions held “in abeyance” was the relief sought dependent on timing. Here, in contrast, the Newspapers seek immediate right of access to the contested documents, bringing the instant matter more within the ambit of our other cases dealing with media intervenors. . . . [I]t is clear that the district court's decision here did conclusively resolve a disputed issue-whether the Newspapers had a right of immediate access to the contested documents-and accordingly, the first prong of the collateral order doctrine is satisfied.

The defendants argue that the second prong of the collateral order doctrine is not met because the issue of immediate release of the contested documents is intertwined with the underlying summary judgment motion. . . . The question of public access to the contested documents is thus completely separate from the merits of the underlying action, satisfying the second prong.

As to the third prong, it is patently clear that the denial of “prompt public disclosure” the Newspapers seek will be unreviewable, not to mention any damage irreparable, on appeal from a final judgment. Accordingly, we find that the district court's order falls within the collateral order doctrine, and we thus have jurisdiction to review it.