Appeal from the United States District Court for the Middle District of Louisiana. D.C. DOCKET NUMBER CA-88-998-A-M2. JUDGE John V. Parker
Before Higginbotham, Smith, and DeMOSS, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
We write today to clarify the jurisprudence of this circuit regarding whether a discovery order is immediately appealable under the collateral order doctrine of Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 93 L. Ed. 1528, 69 S. Ct. 1221 (1949). We conclude that, based upon controlling caselaw, and subject to an exception not relevant here, such an order is not appealable.
The appellant, Texaco Inc. ("Texaco"), is subject to an order of the magistrate Judge requiring it to produce certain documents that it claims are subject to the attorney-client privilege. Seeking relief from the order, Texaco filed with this court a petition for writ of mandamus and/or prohibition. We denied relief, stating, in an unpublished order, "We are not persuaded that petitioners have met the high standards for the extraordinary writs, despite not insubstantial arguments that the courts below erred in their treatment of privilege."
Undaunted, Texaco pursued an appeal that it had noticed the same day it filed its mandamus petition. The defendants-appellees, who are the State of Louisiana, the Louisiana Department of Natural Resources, and the State Mineral Board, have filed a motion to dismiss the appeal, arguing that discovery orders are not appealable.
In Honig v. E.I. duPont de Nemours & Co., 404 F.2d 410, 410 (5th Cir. 1968) (per curiam), this court declared that, subject to the exception for governmental privilege recognized in Overby v. United States Fidelity & Guar. Co., 224 F.2d 158, 162 (5th Cir. 1955), and not relevant here, "the general rule [is] that a discovery order incident to a pending action is not subject to appeal." That rule has been observed generally in this circuit.*fn1
Texaco, however, refers us to Acosta v. Tenneco Oil Co., 913 F.2d 205, 207-08 (5th Cir. 1990), in which a panel of this court held that a discovery order, although not final within the meaning of 28 U.S.C. § 1291, was appealable under the Cohen doctrine. The panel made no mention of Honig or its progeny.
"In the event of conflicting panel opinions from this court, the earlier one controls, as one panel of this court may not overrule another." Smith v. Penrod Drilling Corp., 960 F.2d 456, 459 n.2 (citing Heitkamp v. Dyke (In re Dyke), 943 F.2d 1435, 1442-43 (5th Cir. 1991)). Accordingly, Honig, not Acosta, is the controlling precedent in this circuit, and the discovery order in question may not be appealed from at this time.*fn2
Although we make no comment as to the correctness of the rule expressed in Honig, but merely apply circuit precedent by which we are bound,*fn3 we observe that the rule in Honig, which we reiterate, is consistent with controlling precedent in almost all of the federal courts of appeals.*fn4 As we are without ...