Jan L. Tyler v. Department Human Services

Defendants have filed a notice of appeal from an order of the district court compelling discovery. The matter is before this court on plaintiffs motion to dismiss pursuant to rule 10(a)(1) of the Utah Rules of Appellate Procedure. Plaintiff argues that the order appealed is interlocutory in nature and is not appealable as a matter of right. Defendants concede that the order is not a final judgment, but they do not seek an interlocutory appeal under rule 5 of the Utah Rules of Appellate Procedure. Instead, defendants claim a right to appeal this order in accordance with the "collateral order" doctrine, or Cohen rule, which they assert is a recognized exception to the general rule that only final judgments are reviewable by an appellate court. The state has urged this court to adopt the federal collateral order doctrine in several other cases filed this term. But Cohen is not applicable in this case because the order is not one that, in the words of Cohen, is a "final Disposition of a claimed right" that will escape review entirely if an appeal of right is not allowed. Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546-47, 69 S. Ct. 1221, 93 L. Ed. 1528 (1949). Indeed, defendants had an avenue to appeal this interlocutory order under rule 5 of the Utah Rules of Appellate Procedure, which they chose not to pursue.