& 01-3091 IN RE: FLAT GLASS ANTITRUST LITIGATION MDL No. 1200 BRIAN S. NELSON, d/b/a… v. Pilkington Plc

PRECEDENTIAL
Filed April 26, 2002
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 01-3081 & 01-3091
IN RE: FLAT GLASS ANTITRUST LITIGATION
(MDL No. 1200)
BRIAN S. NELSON, d/b/a Jamestown Glass Service;
MEL’S AUTO GLASS, INC.; A. WAXMAN & CO., on behalf
of itself and all others similarly situated; DESIGNER
WINDOWS, INC., on behalf of itself and all others
similarly situated; MOSES MOORE ALL GLASS ASPECTS,
INC., on behalf of itself and all others similarly situated;
AAA GLASS, INC., on behalf of itself and all others
similarly situated, d/b/a The Glass Doctor; THE LURIE
COMPANIES, INC.; VSTB ENTERPRISES, INC., d/b/a
Perfecto Auto Glass & Upholstery and its successors;
PORT CITY GLASS & MIRROR, INC., on its own behalf
and on behalf of all others similarly situated; JOHN
HEALY, JR.; COUNTY AUTO GLASS, INC., on behalf of
themselves and all others similarly situated; GERARD J.
CLABBERS, on behalf of himself and all others similarly
situated; KIRSCHNER CORPORATION, INC., t/a Berwyn
Glass Company, on behalf of itself and all others similarly
situated; HARTUNG AGALITE GLASS CO., d/b/a Hartung
Glass Industries; ALL STAR GLASS, INC., on behalf of
itself and all others similarly situated; SUPERIOR
WINDSHIELD INSTALLATION, INC., on its own behalf and
on behalf of all others similarly situated; JOVI, INC., on
behalf of itself and all others similarly situated, t/a
Easton Area Glass; ENGINEERED GLASS WALLS, INC.,
on behalf of itself and all others similarly situated;
BAILES GLASS CO.; INTERSTATE GLASS DISTRIBUTORS,
INC., on behalf of itself and all others similarly situated;
ORLANDO AUTO TOP, INC.; MAYFLOWER SALES CO.,
INC., on behalf of itself and all others similarly situated;
CARDINAL IG; REED’S BODY SHOP, INC.; BELETZ
BROTHERS GLASS COMPANY, INC.; COMPLAST, INC.;
WESTERN STATES GLASS, on behalf of itself and all
others similarly situated; GRIMES AUTO GLASS, INC.;
D&S GLASS SERVICES, INC.; GEORGE BROWN & SON
GLASS WORKS, INC.; THERMAL CHEK, INC.; MOBILE
GLASS, INC., individually and as a representative of a
class; JELD-WEN, INC., an Oregon corporation;
JELD-WEN CANADA LIMITED, a Canadian corporation;
JELD-WEN ARIZONA, INC., an Arizona corporation;
AVANTI INDUSTIRES, INC., an Arizona corporation;
LAKEWOOD CITY GLASS, INC.; CAROLINA MIRROR;
ALLSTATE INSURANCE COMPANY; ALLSTATE
INDEMNITY COMPANY

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v.
PILKINGTON PLC; PILKINGTON LIBBEY-OWENS-FORD
CO., INC.; AFG INDUSTRIES, INC.; GUARDIAN
INDUSTRIES CORPORATION; PPG INDUSTRIES, INC.;
LIBBEY-OWENS-FORD CO., INC.; ASHAI GLASS CO.,
LTD.; FORD MOTOR CO.; PILKINGTON HOLDINGS;
ASHAI GLASS AMERICA, INC.;
UNITED STATES OF AMERICA (Intervenor in D.C.)
(D.C. No. 97-mc-00550)
*Edward Bryant, Appellant at 01-3081
*Ronald W. Skeddle, Appellant at 01-3091
*Pursuant to Rule 12(a), F.R.A.P.
On Appeal from the United States District Court
for the Western District of Pennsylvania
D.C. Civil Action No. 97-mc-00550
(Honorable Donald E. Ziegler)
Argued December 13, 2001
Before: SCIRICA and BARRY, Circuit Judges,
and MUNLEY, District Judge**
_________________________________________________________________
** The Honorable James M. Munley, United States District Judge for the
Middle District of Pennsylvania, sitting by designation.
2
(Filed April 26, 2002)
J. MICHAEL MURRAY, ESQUIRE
(ARGUED)
Berkman, Gordon, Murray & DeVan
2121 The Illuminating Building
55 Public Square
Cleveland, Ohio 44113-1949
Attorney for Appellant,
Edward Bryant
MICHAEL S. SOMMER, ESQUIRE
(ARGUED)
McDermott, Will & Emery
50 Rockefeller Plaza
New York, New York 10020-1605
Attorney for Appellant,
Ronald W. Skeddle
DAVID E. ROMINE, ESQUIRE
(ARGUED)
Fine, Kaplan & Black
1845 Walnut Street, 23rd Floor
Philadelphia, Pennsylvania 19103

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ROBERT N. KAPLAN, ESQUIRE
Kaplan, Fox & Kilsheimer
805 Third Avenue, 22nd Floor
New York, New York 10022
Attorneys for Appellees,
Brian S. Nelson, d/b/a Jamestown
Glass Service; Mel’s Auto Glass,
Inc.; A. Waxman & Co., on behalf
of itself and all others similarly
situated; Designer Windows, Inc.,
on behalf of itself and all others
similarly situated; Moses Moore All
Glass Aspects, Inc., on behalf of
itself and all others similarly
situated; AAA Glass, Inc., on
behalf of itself and all others
similarly situated, d/b/a The
Glass Doctor; The Lurie
3
Companies, Inc.; VSTB
Enterprises, Inc., d/b/a Perfecto
Auto Glass & Upholstery and its
successors; Port City Glass &
Mirror, Inc., on its own behalf and
on behalf of all others similarly
situated; County Auto Glass, Inc.,
on behalf of themselves and all
others similarly situated; Gerard J.
Clabbers, on behalf of himself and
all others similarly situated;
Kirschner Corporation, Inc., t/a
Berwyn Glass Company, on behalf
of itself and all others similarly
situated; All Star Glass, Inc., on
behalf of itself and all others
similarly situated; Superior
Windshield Installation, Inc., on its
own behalf and on behalf of all
others similarly situated; Jovi,
Inc., on behalf of itself and all
others similarly situated, t/a
Easton Area Glass; Engineered
Glass Walls, Inc., on behalf of
itself and all others similarly
situated; Bailes Glass Co.;
Interstate Glass Distributors, Inc.,
on behalf of itself and all others
similarly situated; Mayflower Sales
Co., Inc., on behalf of itself and all
others similarly situated; Cardinal
IG; Reed’s Body Shop, Inc.; Beletz
Brothers Glass Company, Inc.;
Complast, Inc.; Western States
Glass, on behalf of itself and all
others similarly situated; Grimes
Auto Glass, Inc.; D&S Glass

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Services, Inc.; George Brown &
Son Glass Works, Inc.; Thermal
Chek, Inc.
4
DAVID J. HICKTON, ESQUIRE
JOHN G. WALL, ESQUIRE
Burns, White & Hickton
120 Fifth Avenue, Suite 2400
Pittsburgh, Pennsylvania 15222
PETER S. EHRLICHMAN, ESQUIRE
MICHAEL K. VASKA, ESQUIRE
Foster, Pepper & Shefelman
1111 Third Avenue, Suite 3400
Seattle, Washington 98101
Attorneys for Appellees,
Jeld-Wen, Inc., an Oregon
corporation; Jeld-Wen Canada
Limited, a Canadian corporation;
Jeld-Wen Arizona, Inc., an Arizona
corporation; Avanti Industires,
Inc., an Arizona corporation
DAVID J. ARMSTRONG, ESQUIRE
Dickie, McCamey & Chilcote
Two PPG Place, Suite 400
Pittsburgh, Pennsylvania
15222-5402
PAUL M. DODYK, ESQUIRE
Cravath, Swaine & Moore
Worldwide Plaza
825 Eighth Avenue
New York, New York 10019-7415
Attorneys for Appellee,
PPG Industries, Inc.
5
OPINION OF THE COURT
SCIRICA, Circuit Judge.
This is an appeal from an order compelling document
production from a nonparty witness in a consolidated,
multidistrict class action. The principal issue is whether a
nonparty witness may appeal a discovery order without a
citation for contempt.
I.
In 1995, a federal grand jury indicted Ronald Skeddle
and Edward Bryant for conspiracy, mail and wire fraud,
and money laundering. Skeddle had been president and

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chief executive officer of Libbey-Owens Ford Co., the
second-largest flat glass manufacturer in the United States.
Bryant was Libbey-Owens Ford’s second-highest ranking
officer. All criminal charges against them were either
dismissed or resulted in acquittal. But at their trial in
1997, Skeddle and Bryant accused Libbey-Owens Ford of
conspiring to fix, maintain, and stabilize the price of all
glass products sold in interstate and foreign commerce.
Federal prosecutors in different jurisdictions investigated
the antitrust allegations against Libbey-Owens Ford. In
1998, under grants of immunity, Skeddle testified before a
grand jury in the Northern District of Texas, and Bryant
testified before a grand jury in the Eastern District of
Michigan. The grand juries disbanded without returning
indictments.
In 1997, several private antitrust suits were filed alleging
Libbey-Owens Ford and other flat glass manufacturers
violated the Sherman Act and the Clayton Act. The Judicial
Panel on Multidistrict Litigation consolidated and
transferred the actions to the Western District of
Pennsylvania, which certified a class of individuals and
entities who purchased flat glass products or automotive
replacement glass from defendants between August 1, 1991
and December 31, 1995. In re Flat Glass Antitrust Litig.,
191 F.R.D. 472 (W.D. Pa. 1999). The amended complaint
6
alleges defendants concealed a price-fixing conspiracy until
Skeddle and Bryant exposed it during their criminal trial.
In February 2000, the District Court approved settlements
between the class and four defendants. In re Flat Glass
Antitrust Litig., No. 97-550, MDL No. 1200 (W.D. Pa. Feb. 9,
2000). But the class still has certain outstanding claims.
In March 2001, class plaintiffs served subpoenae duces
tecum on Skeddle and Bryant for depositions and
documents. Neither Skeddle nor Bryant is a defendant in
what remains of the consolidated class action. At deposition
both men invoked their Fifth Amendment privileges against
self-incrimination. Plaintiffs’ motions to compel were
denied. After plaintiffs served Skeddle a second subpoena,
Skeddle and Bryant produced certain documents, but
withheld others on attorney-client or work-product-doctrine
grounds. Each produced a privilege log.
In June 2001, plaintiffs filed a motion to compel Skeddle
and Bryant to produce documents for which they claimed
attorney-client privileges. Denying the motion, the District
Court ordered production of other attorney-work-product
documents, finding plaintiffs had shown a "substantial
need," for which "substantial equivalent[s]" could not be
obtained without "undue hardship."1 This appeal followed.2
_________________________________________________________________
1. Under Fed. R. Civ. P. 26(b)(3), "a party may obtain discovery of
documents and tangible things otherwise discoverable. . . only upon a

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showing that the party seeking discovery has substantial need of the
materials in the preparation of the party’s case and that the party is
unable without undue hardship to obtain the substantial equivalent of
the materials by other means."
2. Skeddle seeks to protect three documents: (1) his attorney’s notes
from a January 20, 1998 interview of Skeddle by Antitrust Division
investigators; (2) his attorney’s notes from a 1998 telephone
conversation; and (3) his attorney’s outline of a proffer to the Northern
District of Ohio. Bryant claims the privilege for six documents: (1) his
attorney’s notes from a meeting with Antitrust Division investigators; (2)
his attorney’s notes regarding a conversation with an investigator; (3) an
internal memorandum regarding the communications with the
investigator; (4) his attorney’s notes from a meeting between Bryant and
the investigators; (5) a page of general notes from his attorney; and (6)
an internal memorandum regarding negotiations.
7
II.
Generally, discovery orders are not final orders
reviewable under 28 U.S.C. S 1291. At issue here is whether
an order compelling a nonparty to produce documents
allegedly protected by the attorney-work-product doctrine
may be appealed. If not, we lack jurisdiction to consider
these appeals unless Skeddle and Bryant are found in
contempt of court.
A.
Ordinarily we review final decisions of district courts. 28
U.S.C. S 1291.3 The finality requirement advances our
interest in avoiding "piecemeal appeals" during ongoing
proceedings. Firestone Tire & Rubber Co. v. Risjord, 449
U.S. 368, 374 (1981). More than sixty years ago, the
Supreme Court said the finality rule accords with the policy
of "avoid[ing] the obstruction to just claims that would
come from permitting the harassment and cost of a
succession of separate appeals from the various rulings to
which a litigation may give rise, from its inception to entry
of judgment." Cobbledick v. United States, 309 U.S. 323,
325 (1940). The finality rule promotes efficient
administration. Eisen v. Carlisle & Jacquelin , 417 U.S. 156,
170 (1974).
In Cobbledick, the Supreme Court established that a
nonparty witness subpoenaed to testify before a grand jury
must be held in contempt before challenging the order. 309
U.S. at 328. An adjudication of contempt, the Court found,
provides the finality necessary to initiate an appeal. Id. The
Cobbledick Court cited and relied upon Alexander v. United
States, 201 U.S. 117 (1906), in which nonparties to a
Sherman Act case refused to submit subpoenaed
documents. In Alexander, the Supreme Court held that
finality was established only if the nonparties stood in
contempt. Id. at 121-22 ("Let the court go farther, and
_________________________________________________________________

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3. The statute provides: "The courts of appeals (other than the United
States Court of Appeals for the Federal Circuit) shall have jurisdiction of
appeals from all final decisions of the district courts of the United States
. . . ."
8
punish the witness for contempt of its order, -- then arrives
a right of review . . . . This power to punish being exercised,
the matter becomes personal to the witness and a judgment
as to him. Prior to that the proceedings are interlocutory in
the original suit.").
Instead of refusing to comply with the District Court’s
discovery order, Skeddle and Bryant brought this appeal.
They contend Cobbledick applies only to ongoing grand jury
deliberations, which must be shielded from interruption
caused by peripheral appeals. But the rule is broader than
appellants acknowledge. It also applies in civil cases. In
several instances we have held nonparty witnesses must be
held in contempt before seeking appellate review. E.g.,
Gross v. G.D. Searle & Co., 738 F.2d 600, 603-04 (3d Cir.
1984); DeMasi v. Weiss, 669 F.2d 114, 121 (3d Cir. 1982);
Borden Co. v. Sylk, 410 F.2d 843, 846 (3d Cir. 1969).
Clearly in grand jury cases, denying interlocutory appeals
discourages "[o]pportunit[ies] for obstructing the orderly
progress of [the] investigation." Cobbledick, 310 U.S. at 327.
But outside the grand jury context, nonparties must still
stand in contempt for finality. In DeMasi, we said, "A non-
party witness may not obtain appellate review of the mere
issuance of a discovery order requiring production of
information . . . . The non-party witnesses thus have a
remedy by appeal, but that right must await their
willingness to stand in contempt of the district court’s
order." 669 F.2d at 122. In Cunningham v. Hamilton
County, 527 U.S. 198 (1999), the Supreme Court said, "[A]
witness subject to a discovery order, but not held in
contempt, generally may not appeal the order." Id. at 204
n.4 (citing Cobbledick and Alexander).4
B.
Notwithstanding the contempt requirement, Skeddle and
Bryant contend we have jurisdiction under the collateral
order doctrine. In Cohen v. Beneficial Indus. Loan Corp.,
_________________________________________________________________
4. We agree with the Court of Appeals for the Sixth Circuit, which stated,
"The Supreme Court’s adherence to the Alexander principle for obtaining
appellate review for discovery orders has been unswerving." Starcher v.
Corr. Med. Sys., Inc., 144 F.3d 418, 423 n.4 (6th Cir. 1998).
9
337 U.S. 541 (1949), the Supreme Court exempted from the
finality requirement a "small class" of decisions "which
finally determine claims of right separable from, and
collateral to, rights asserted in the action, too important to

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be denied review and too independent of the cause itself to
require that appellate consideration be deferred until the
whole case is adjudicated." Id. at 546. Later, the Court
established a three-part test for determining whether an
order qualifies for immediate review. The order must (1)
"conclusively determine the disputed question"; (2) "resolve
an important issue completely separate from the merits of
the action"; and (3) "be effectively unreviewable on appeal
from a final judgment." Coopers & Lybrand v. Livesay, 437
U.S. 463, 468 (1978). Each criterion must be satisfied.
Firestone Tire, 449 U.S. at 376.5
The District Court’s order requires Skeddle and Bryant to
produce "protected" documents immediately. Once they
comply, appellants suggest, they will forfeit the attorney-
work-product privilege and will not be able to protect the
information. In their view, a challenge raised after the class
action is "final" would be useless. Furthermore, as
nonparties, Skeddle and Bryant would not have standing to
challenge the ultimate disposition of the class action.
Whether directed to a party or a nonparty, discovery
orders to produce protected or privileged material may be
effectively unreviewable after disposition of the underlying
case. This is so because the information has already
entered the public domain.6 Under the collateral order
doctrine, a party can usually obtain interlocutory review.
But we have required a nonparty to stand in contempt in
order to bring an interlocutory appeal. We have grafted on
_________________________________________________________________
5. All the parties suggest the three criteria are satisfied here, but we have
an "independent responsibility to examine our own jurisdiction sua
sponte." In re Ford Motor Co., 110 F.3d 954, 958-59 (3d Cir. 1997).
6. See Ford Motor Co., 110 F.3d at 961-64. If we wait to review those
claims until the parties obtain a final judgment, we may not be able to
"remedy the breach in confidentiality occasioned by erroneous disclosure
of protected materials. At best . . . an appellate court could send the
case back for re-trial without use of the protected materials. At that
point, however, the cat is already out of the bag." Id. at 963.
10
the contempt requirement to ensure nonparties have a
definite stake in the litigation. As we have stated,"The
contempt order effectively transforms the ‘interlocutory’ into
the ‘final’ by giving the [nonparty] witness a distinct and
severable interest in the underlying action." United States v.
Sciarra, 851 F.2d 621, 628 (3d Cir. 1988); In re Grand Jury
(Schmidt), 619 F.2d 1022, 1025 (3d Cir. 1980) (describing a
nonparty’s "contempt route to a final order"). 7 The rationale
of the United States Court of Appeals for the Fourth Circuit
is instructive:
Courts have long recognized that a party sufficiently
exercised over a discovery order may resist that order,
be cited for contempt, and then challenge the propriety
of the discovery order in the course of appealing the

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contempt citation. Indeed, the Supreme Court has
pointed to this path to appellate review as a reason
why discovery orders are not appealable under Cohen.
Firestone Tire, 449 U.S. at 377. We recognize, of
course, that the contempt route is a difficult path to
appellate review, and one that may carry with it a
significant penalty for failure. In discovery disputes,
however, this difficulty is deliberate.
MDK, Inc. v. Mike’s Train House, Inc., 27 F.3d 116, 121 (4th
Cir. 1994) (citations omitted).8 Judge Friendly provided
additional justification for the contempt requirement:
_________________________________________________________________
7. Cf. Connaught Labs., Inc. v. SmithKline Beecham P.L.C., 165 F.3d
1368, 1370 (Fed. Cir. 1999) ("Nonparties may secure review of a
discovery order by refusing to comply with it and appealing a consequent
contempt order, which is considered final."); In re Sealed Case, 141 F.3d
337, 338-39 (D.C. Cir. 1998); Bennett v. City of Boston, 54 F.3d 18, 20
(1st Cir. 1995); see also Bogosian v. Gulf Oil Corp., 738 F.2d 587, 591
(3d Cir. 1984) ("Unlike the non-party witness, a party has no immediate
right to appeal even if it has been adjudicated in civil contempt to gain
compliance with a discovery order.").
8. See also A-Mark Auction Galleries, Inc. v. Am. Numismatic Ass’n, 233
F.3d 895, 899 (5th Cir. 2000) (citing MDK and agreeing with its "most
acceptable solution to this difficult problem," in part because "this
hurdle to appellate review has been sanctioned by the Supreme Court");
FTC v. Alaska Land Leasing, Inc., 778 F.2d 577, 578 (10th Cir. 1985)
("To perfect standing to appeal from a civil pretrial discovery order, a
non-party deponent must refuse to comply and submit to a contempt
proceeding. Thereafter, an adverse contempt order is final and it may be
appealed.").
11
Both sides benefit from having a second look. The
person ordered to respond may decide . . . that the
importance of the issue and the risk of adverse
appellate determination do not warrant being branded
as a contemnor. Conversely the person seeking the
information . . . may decide that the quest is not
important enough to seek a contempt citation, thereby
entailing the delay of an appeal . . . .
Nat’l Super Spuds, Inc. v. N.Y. Mercantile Exch. , 591 F.2d
174, 180 (2d Cir. 1979).
Here appellants may decline to comply with the discovery
order. If they are found in contempt, they may appeal the
citation and argue the discovery order was flawed. 9 Accord
United States v. Fried, 386 F.2d 691, 694 (2d Cir. 1967)
("[W]e know of no instance in which the Supreme Court has
reflected on the holding in Alexander that a judge’s order
directing a witness to answer a question in the very action
pending lacks the finality required to support an appeal by
the witness until he decides to risk citation for contempt
and a contempt order is made.").

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The Supreme Court has cautioned that the collateral
order doctrine should be used sparingly. E.g. , Cunningham,
527 U.S. at 200 (order sanctioning an attorney for discovery
abuse not immediately appealable); Digital Equip. Corp. v.
Desktop Direct, Inc., 511 U.S. 863, 872 (1994) (describing
the conditions as "stringent"). As the parties suggest, we
have asserted jurisdiction under the collateral order
doctrine in cases concerning the attorney-work-product
privilege. But those cases did not involve nonparty
_________________________________________________________________
9. In Perlman v. United States, 247 U.S. 7 (1918), the Supreme Court
allowed immediate review of certain discovery orders addressed to
nonparties, absent contempt findings. But as the Court of Appeals for
the District of Columbia Circuit has recognized, Perlman "reflected
concern that where the subject of the discovery order (characteristically
the custodian of documents) and the holder of a privilege are different,
the custodian might yield up the documents rather than face the
hazards of contempt, and would thereby destroy the privilege." In re
Sealed Case, 141 F.3d at 340. In contrast, where the petitioner asserts
its own interests in the work product, it has "the requisite incentives . . .
to risk contempt." Id.
12
witnesses. E.g., Pearson v. Miller, 211 F.3d 57, 64 (3d Cir.
2000); Montgomery County v. Microvote Corp., 175 F.3d
296, 300 (3d Cir. 1999); Ford Motor Co., 110 F.3d at 958-
64. We have not exercised appellate jurisdiction over
similar claims by nonparties. Cf. In re Grand Jury
Proceedings (FMC Corp.), 604 F.2d 798, 800 (3d Cir. 1979);10
Borden Co., 410 F.2d at 845-46.11
Nonparties challenging discovery orders requiring the
production of documents allegedly protected by the
attorney-work-product doctrine must stand in contempt.
Because Skeddle and Bryant have failed to do so, we have
no jurisdiction to consider their appeals.12
_________________________________________________________________
10. In In re Grand Jury we held an attorney not yet held in contempt
could not challenge a discovery order. Id. Citing Cobbledick, we noted,
"[U]nless and until a witness has been held in contempt, he has no
standing to appeal from an order directing him to testify or produce
documents before a grand jury. The policy, though at times a harsh one,
was formulated to discourage appeals in all but the most serious cases."
Id.
11. In Borden Co., we noted, "We have detected what appears to be an
irresistible impulse on the part of appellants to invoke the ‘collateral
order’ doctrine whenever the question of appealability arises. Were we to
accept even a small percentage of these sometime exotic invitations, this
court would undoubtedly find itself reviewing more‘collateral’ than ‘final’
orders." 410 F.2d at 845-46.
12. Skeddle contends Fed. R. Civ. P. 37(a)(1) did not provide the District
Court with jurisdiction to hear his motion to compel. Under Rule
37(a)(1), a discovery order for "a person who is not a party shall be made
in the court where the discovery is being, or is to be, taken." Skeddle

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contends the April 11 subpoena was issued from the Northern District
of Ohio, so that court had to issue any order "compelling discovery."
Had we jurisdiction, we would disagree. The Judicial Panel on
Multidistrict Litigation transferred these actions for "coordinated or
consolidated pretrial proceedings." The relevant statute provides that
consolidated proceedings "shall be conducted by a judge or judges to
whom such actions are assigned by the judicial panel. . . ." 28 U.S.C.
S 1407(b). Moreover, S 1407(b) empowers the transferee judge in
multidistrict cases to act not only on behalf of the transferee district, but
also with "the powers of a district judge in any district for the purpose
of conducting pretrial depositions in such coordinated or consolidated
proceedings." Id. By way of example, the Courts of Appeals for the
13
III.
Alternatively, the parties contend we should treat the
notice of appeal as a petition for mandamus. But a writ of
mandamus only issues when "the party seeking the writ
has no other adequate means to attain the relief he desires"
and "the court below has committed a clear error of law."
Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1118 (3d
Cir. 1986) (quotations and citations omitted). The first
factor is not satisfied. Skeddle and Bryant can"attain
relief " by standing in contempt. We need not consider
whether the District Court committed a "clear error of law."
As the Supreme Court has noted, "The remedy of
mandamus is a drastic one, to be invoked only in
extraordinary situations." Kerr v. U.S. Dist. Ct. for N. Dist. of
Cal., 426 U.S. 394, 402 (1976).
IV.
We understand transcripts of Skeddle’s and Bryant’s
testimonies before the grand juries have become available
to the District Court. As the District Court continues to
exercise jurisdiction over discovery, it may be advisable to
examine the transcripts in camera. That examination would
shed light on whether Skeddle and Bryant have a
"substantial need" for the documents that cannot be
alleviated absent "undue hardship." The transcripts may
cover the same ground as the allegedly protected
documents, obviating plaintiffs’ need for any of the disputed
material. The District Court remains in the best position to
_________________________________________________________________
District of Columbia and Fifth Circuits have held the supervisory power
over depositions in other districts may be exercised in person or by
telephone. In re Corrugated Container Antitrust Litig., 662 F.2d 875 (D.C.
Cir. 1981); In re Corrugated Container Antitrust Litig., 620 F.2d 1086 (5th
Cir. 1980). Regardless, Skeddle’s counsel accepted service of both
subpoenas, rather than filing a motion to quash under Fed. R. Civ. P.
45(c)(3)(A), effectively waiving the argument.
Should Skeddle stand in contempt, we express no opinion on whether
his appeal should be heard by this Court or the United States Court of
Appeals for the Sixth Circuit.

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14
make that determination. Accord United States v. Zolin, 491
U.S. 554 (1989).
V.
For these reasons, we have no appellate jurisdiction and
will dismiss the appeal.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
15

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