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Last week, the U.S. Court of Appeals for the Federal Circuit issued an opinion in <em>Modern Font Applications LLC v. Alaska Airlines, Inc.</em>, 2021-1838 (Dec. 29, 2022), dismissing the interlocutory appeal filed by Modern Font Applications (MFA) for lack of jurisdiction under the collateral order doctrine.

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During litigation proceedings between MFA and Alaska Airlines, Alaska produced certain source code files as “CONFIDENTIAL INFORMATION – ATTORNEYS’ EYES ONLY,” under the District’s Standard Protective Order, which precluded MFA’s in-house counsel from accessing those materials. The parties’ engaged in motion practice wherein Alaska sought to preclude MFA’s in-house counsel from accessing such materials, while MFA sought to gain access to such materials for its in-house counsel. The Magistrate Judge found that MFA’s in-house counsel engaged in competitive decision making and, consequently, was properly precluded from accessing information designated as “CONFIDENTIAL INFORMATION – ATTORNEYS’ EYES ONLY.” The District Judge affirmed that decision. MFA sought an interlocutory appeal of that order.

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MFA argued its interlocutory appeal should be heard under the collateral order doctrine. A majority of the Federal Circuit panel disagreed. The Court explained that Congress limited its jurisdiction to appeals of “final” decisions, with only limited exceptions. The Court further explained that the collateral order doctrine is a practical construction of the final judgment rule that permits review of a “‘small class’ of collateral rulings that are appropriately deemed ‘final.’” Under the doctrine, courts of appeal may allow interlocutory appeal of decisions that (1) are conclusive, (2) resolve important questions separate from the merits, and (3) are effectively unreviewable on appeal from the final judgment. Noting the importance of not allowing the doctrine to swallow the general rule that a party is entitled to a single appeal after final judgment has been entered, the Court explained that pretrial discovery orders are generally not “final” and, therefore, not reviewable under the collateral order doctrine. The Court rejected MFA’s arguments about prejudice, finding that access to the documents by MFA’s outside counsel was sufficient. As a result, the Court concluded it did not have jurisdiction over, and dismissed, MFA’s interlocutory appeal.

Judge Newman dissented from the ruling that the Court lacks jurisdiction to hear the appeal, stating “the preferable path at this stage of this case is to exercise our discretion and finally resolve these confidentiality and protective order issues, for if MFA’s in-house counsel is indeed entitled to receive this information, the information should be available before, not after, trial.”

01_03_23 CAFC Dismisses Interlocutory Appeal of Protective Order for Lack of Jurisdiction

CAFC Dismisses Interlocutory Appeal of Protective Order for Lack of Jurisdiction

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