United States Court of Appeals

for the Fifth Circuit

No. 21-30475

Jennifer Leonard,

Plaintiff,

versus

Tyler Martin; Wadena Insurance Company, 

Defendants—Appellees,

versus

Joseph W. Turnipseed, M.D.; The Spine Diagnostic & 

Pain Treatment Center, 

Interested Parties—Appellants.

Appeal from the United States District Court

for the Middle District of Louisiana

USDC No. 3:19-CV-827

United States Court of Appeals

Fifth Circuit

FILED

June 30, 2022

Lyle W. Cayce

Clerk

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Before Jones, Haynes, and Costa, Circuit Judges.

Edith H. Jones, Circuit Judge:

This appeal relates to a Fed. R. Civ. Pro. 45 subpoena issued to third 

party Dr. Joseph Turnipseed requiring him to perform patient record audits 

and generate data about how frequently he recommends a particular course 

of treatment. Turnipseed moved to quash the subpoena on undue burden 

grounds. The district court denied his motion to quash. He appealed. In the 

alternative, he sought a writ of mandamus ordering the district court to quash 

the subpoena. With misgivings about the district court’s substantive ruling, 

we DISMISS Turnipseed’s appeal for lack of jurisdiction and DENY his 

alternative petition for a writ of mandamus.

I.

This is a run-of-the-mill personal injury lawsuit arising out of a car 

accident. Plaintiff Jennifer Leonard alleges that Tyler Martin rear-ended her 

when she stopped in traffic. She sued Martin and his insurer, Wadena 

Insurance Company, in Louisiana state court seeking damages for injuries she 

allegedly sustained during the accident. Martin removed the lawsuit to 

federal court based on the existence of diversity jurisdiction.

Turnipseed, an anesthesiologist and pain management specialist, 

treated Leonard for neck and back pain allegedly caused by the accident. 

Among other treatments, Turnipseed performed a cervical radiofrequency 

neurotomy on Leonard. A cervical radiofrequency neurotomy is a procedure 

done to reduce chronic back and neck pain that has not “improved with 

medications or physical therapy, or when surgery [is not] an option.”1

According to Turnipseed, Leonard responded favorably to the cervical 

neurotomy and he recommended that she undergo the procedure annually 

1 Radiofrequency Neurotomy, Mayo Clinic (Feb. 25, 2022), https://www.mayo

clinic.org/tests-procedures/ radiofrequency-neurotomy/about/pac-20394931 (last visited 

April 12, 2022).

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for the next five to six years. These future treatments make up a large 

percentage of Leonard’s life care plan and alleged damages.

The defendants dispute the medical necessity of those expensive, 

future treatments. They suggest that Turnipseed frequently recommends 

annual cervical radiofrequency neurotomies over the course of several years 

but that few patients follow through with the treatments. The subtext, of 

course, is that Turnipseed’s recommendation is simply a means of inflating 

the amount of damages in personal injury litigation. The defendants 

therefore subpoenaed Turnipseed and his medical practice, The Spine 

Diagnostic & Pain Treatment Center, under Rule 45, seeking: (1) all records 

of patients in the past ten years who Turnipseed recommended undergo 

cervical neurotomies for ten years, twenty years, and life; and (2) bills for 

services rendered and records produced in connection with (1). The 

subpoena specified that all patient health information should be redacted.

Turnipseed moved to quash the original subpoena. He argued that it 

was overly broad, unduly burdensome, and sought privileged information. 

The magistrate judge granted his motion in part and denied it in part. He 

agreed that the subpoena was overly broad because it requested the entirety 

of patient records and targeted patients that Turnipseed recommended 

cervical neurotomies for periods of ten years, twenty years, and life, even 

though Turnipseed only recommended that Leonard undergo annual 

neurotomies for five to six years. The magistrate judge likewise agreed that 

the subpoena was overbroad in seeking ten years of data.

The magistrate judge, however, approved a narrower version of the 

subpoena that required production of only (1) the number of patients in the 

last five years that Turnipseed recommended get annual cervical 

neurotomies over the course of five to six years; and (2) the number of known 

patients who actually underwent the procedures. That information is 

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sufficiently relevant, the magistrate judge reasoned, because it bears on 

Turnipseed’s credibility. Moreover, the magistrate judge rejected 

Turnipseed’s objection, as he concluded that producing the information 

targeted by the narrower subpoena—raw numbers, rather than patient 

files—would not be unduly burdensome.

Turnipseed filed a Rule 72(a) motion to review the magistrate judge’s 

ruling in the district court. The district court held that the magistrate judge 

expressly considered the relevant factors—the scope of the information 

requested, the importance of that information, the burden to Turnipseed, 

and the privacy rights of Turnipseed’s patients—and tailored his ruling 

accordingly and, as a result, did not clearly err. Turnipseed appealed. He 

contends that district court abused its discretion in allowing the discovery to 

go forward.

II.

This court cannotreach the question whether the district court abused 

its discretion until we first “assure ourselves of our own federal subject 

matter jurisdiction.” Keyes v. Gunn, 890 F.3d 232, 235 n.4 (5th Cir. 2018). 

We requested supplemental briefing addressing the basis for appellate 

jurisdiction to review an order denying a nonparty’s motion to quash. 

Turnipseed posits that this court has jurisdiction under the collateral order 

doctrine. Alternatively, Turnipseed suggests that the court may treat his 

appeal as a petition for a writ of mandamus. Martin, by contrast, disagrees 

that we have jurisdiction and contends that, even if the court were to treat 

this appeal as a petition for a writ of mandamus, the criteria for mandamus 

relief are not satisfied. We conclude that an order denying this nonparty’s 

motion to quash is not reviewable under the collateral order doctrine and 

that, although we may treat Turnipseed’s appeal as a petition for a writ of 

mandamus, he fails to meet the requirements for such extraordinary relief.

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A. Collateral Order Doctrine

With few exceptions not applicable here, appellate jurisdiction is

statutorily confined to review of “final decisions.” 28 U.S.C. § 1291. The

archetypal final decision is one that “ends the litigation on the merits and 

leaves nothing more for the court to do but execute the judgment.” Digit. 

Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867, 114 S. Ct. 1992, 1995 

(1994) (quoting Catlin v. United States, 324 U.S. 229, 233, 65 S. Ct. 631, 633 

(1945)). Nevertheless, the Supreme Court “has long given” § 1291 a 

“practical rather than a technical construction.” Cohen v. Beneficial Indus. 

Loan Corp., 337 U.S. 541, 546, 69 S. Ct. 1221, 1226 (1949). Section 1291 

encompasses not only the final decisions that terminate an action, “but also 

a ‘small class’ of collateral rulings that, although they do not end the 

litigation, are appropriately deemed ‘final.’” Mohawk Indus., Inc. v. 

Carpenter, 558 U.S. 100, 106, 130 S. Ct. 599, 605 (2009) (quoting Cohen, 

337 U.S. at 545-46, 69 S. Ct. at 1225-26).

To fit within the small class of immediately appealable collateral 

rulings, 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.” 

Vantage Health Plan, Inc. v. Willis-Knighton Med. Ctr., 913 F.3d 443, 448 (5th 

Cir. 2019) (quoting Henry v. Lake Charles Am. Press, L.L.C., 566 F.3d 164, 

171 (5th Cir. 2009)). For an order to be appealable under the collateral order 

doctrine, the “justification for immediate appeal must . . . be sufficiently 

strong to overcome the usual benefits of deferring appeal until litigation 

concludes.” Mohawk Indus., 558 U.S. at 107, 130 S. Ct. at 605. Critically, the 

Supreme Court has repeatedly admonished lower courts that the collateral 

order doctrine must “never be allowed to swallow the general rule that a 

party is entitled to a single appeal, to be deferred until final judgment has been 

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entered.” Digit. Equip. Corp., 511 U.S. at 868, 114 S. Ct. at 1996 (citation 

omitted).

An order is not “effectively unreviewable” just because it “may 

burden litigants in ways that are only imperfectly reparable by appellate 

reversal of a final district court judgment.” Digit. Equip. Corp., 511 U.S. at 

872, 114 S. Ct. at 1998. The “decisive consideration is whether delaying 

review until the entry of final judgment ‘would imperil a substantial public 

interest’ or ‘some particular value of a high order.’” Id. (quoting Will v. 

Hallock, 546 U.S. 345, 352-53, 126 S. Ct. 952, 959 (2006)); see also Lauro 

Lines S.R.L. v. Chasser, 490 U.S. 495, 202, 109 S. Ct. 1976, 1980 (1989) 

(Scalia, J., concurring) (“The importance of the right asserted has always 

been a significant part of our collateral order doctrine.”). Generally, this is 

only the case “where the order at issue involves ‘an asserted right the legal 

and practical value of which would be destroyed if it were not vindicated 

before trial.’” Midland Asphalt Corp. v. United States ̧489 U.S. 794, 

109 S. Ct. 1494 (1989) (quoting United States v. MacDonald, 435 U.S. 850, 

860, 98 S. Ct. 1547, 1552 (1978)). A court must make this determination “on 

a categorical basis, looking only at whether ‘the class of claims, taken as a 

whole, can be vindicated by other means’ than immediate appeal.” Martin 

v. Halliburton, 618 F.3d 476, 483 (5th Cir. 2010) (quoting Mohawk Indus., 

558 U.S. at 107, 130 S. Ct. at 605).

Turnipseed posits that collateral order appeals are necessary to ensure 

effective review of orders requiring nonparty physicians to conduct patient 

audits and generate statistical materials. He claims that the only alternative

means of review is to disobey the discovery order and risk being held in 

contempt; and risking contempt is an intolerable alternative for physicians, 

he suggests, because a contempt citation may have collateral professional 

consequences. Turnipseed makes this collateral-consequences assertion 

without providing any support. Moreover, he suggests that allowing this sort 

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of discovery will chill physicians’ willingness to treat patients involved in 

litigation. Finally, Turnipseed points out that complying with similar 

patient-audit discovery orders will further overburden physicians. 

Turnipseed concludes that the justification for allowing immediate appeals 

far outweighs the usual benefits of deferring review.

A comparison of the types of orders that do and do not fall under the 

collateral order doctrine is instructive. On one hand, courts routinely allow 

immediate appeal from orders that reject absolute or qualified immunity, 

Mitchell v. Forsyth, 472 U.S. 511, 525-27, 105 S. Ct. 2806, 2815-16 (1985), 

deny a state’s Eleventh Amendment immunity, Puerto Rico Aqueduct & Sewer 

Authority v. Metcalf & Eddy, Inc., 506 U.S. 139, 141, 113 S. Ct. 684, 686 (1993), 

or, in the criminal context, deny a defendant’s double jeopardy defense, 

Abney v. United States, 431 U.S. 651, 659, 97 S. Ct. 2034, 2040 (1977). 

Moreover, in the discovery context, this court allows immediate appeal of 

orders that unseal a nonparty’s confidential business documents, Vantage 

Health Plan, 913 F.3d at 449-50, or allow discovery against a nonparty with 

substantial First Amendment implications, Whole Woman’s Health v. Smith, 

896 F.3d 362, 368 (5th Cir. 2018). Each of these cases implicates “some 

particular value of a high order” or “substantial public interest” that would 

be imperiled or destroyed if review were delayed until after entry of an 

archetypal final judgment. Mohawk Indus., 558 U.S. at 107, 130 S. Ct. at 605 

(quoting Will, 546 U.S. at 352-53, 126 S. Ct. at 959).

On the other hand, courts do not permit immediate appeal from orders 

denying motions to enforce a forum selection clause, Lauro Lines, 490 U.S. 

at 496, 109 S. Ct. at 1977, refusing to effectuate a settlement agreement, 

Digit. Equip., 511 U.S. at 865, 114 S. Ct. at 1994, denying motions to 

disqualify counsel, Firestone Tire, 449 U.S. at 370, 101 S. Ct. at 671, or

declining to apply the judgment bar of the Federal Tort Claims act, Will, 

546 U.S. 345, 347, 126 S. Ct. 952, 956 (2006). Furthermore, cases are legion 

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that deny immediate appeals under the collateral order doctrine in an array

of discovery contexts.2 Indeed, this court and every other circuit court hold 

that the collateral order doctrine does not provide jurisdiction over a 

nonparty’s appeal from a discovery order because nonparties have alternative 

avenues for appellate review. A-Mark Auction Galleries v. Am. Numismatic 

Ass’n, 233 F.3d 895, 898-99 (5th Cir. 2000) (holding that the court lacked 

jurisdiction over appeal from discovery order against nonparty because 

nonparty may disobey the order, be cited for contempt, and challenge the 

discovery order in appealing the contempt citation).3

Turnipseed’s appeal falls decidedly into the latter category of cases. 

As a threshold matter, Turnipseed paints the relevant class of orders too 

narrowly. Turnipseed posits that the relevant class is orders that require 

nonparty physicians to conduct patient audits and generate statistical 

materials. Collateral-order theory, however, does not depend on such 

2 See, e.g., Mohawk Indus., 558 U.S. at 103, 130 S. Ct. at 603 (discovery order 

implicating attorney-client privilege); Cunningham v. Hamilton Cty., Ohio, 527 U.S. 198, 

204 n.4, 119 S. Ct. 1915, 1920 n.4 (collecting cases); United States v. Ryan, 402 U.S. 530, 

531-32, 91 S Ct. 1580, 1581-82 (1971) (order denying motion to quash subpoena); Sealed 

Appellees v. Sealed Appellants, 112 F.3d 173, 174 (5th Cir. 1997) (discovery order compelling 

production over attorney work-product objection); see also 15B Charles Alan 

Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice 

and Procedure § 3914.23 (“[T]he rule remains settled that most discovery rulings are 

not final.”).

3 See Ott v. City of Milwaukee, 682 F.3d 552, 555 (7th Cir. 2012); United States v. 

Acad. Mortg. Corp., 968 F.3d 996, 1006-07 (9th Cir. 2020); Drummond Co. v. Terrance P. 

Collingsworth, Conrad & Scherer, LLP, 816 F.3d 1319, 1325-27 (11th Cir. 2016); Corporacion 

Insular de Seguros v. Garcia, 876 F.2d 254, 256-57 (1st Cir. 1989); Nat. Super Spuds, Inc. v. 

New York Mercantile Exchange, 591 F.2d 174, 177 (2d Cir. 1979); In re Flat Glass Antitrust 

Litigation, 288 F.3d 83, 88 (3d Cir. 2002); MDK, Inc. v. Mike's Train House, Inc., 27 F.3d 

116, 122 (4th Cir. 1994); U.S. ex rel. Pogue v. Diabetes Treatment Centers of America, Inc., 

444 F.3d 462, 471 (6th Cir. 2006); In re Burlington N. Inc., 679 F.2d 762, 768 (8th Cir. 

1982); F.T.C. v. Alaska Land Leasing, Inc., 778 F.2d 577, 578 (10th Cir. 1985); U.S. v. 

Anderson, 464 F.2d 1390, 1391 (D.C. Cir. 1972).

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“individualized jurisdictional inquir[ies].” See Mohawk Indus., 558 U.S. at 

107, 130 S. Ct. at 605 (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 

98 S. Ct. 2454, 2460 (1978)). Thus, the class of orders should be defined at 

a higher level of generality. In our view, the class of orders at issue here is

those denying a nonparty’s motion to quash a subpoena on undue burden 

grounds. Cf. Mohawk Indus., 558 U.S. at 108, 130 S. Ct. at 606 (defining the 

class of claims as “orders adverse to the attorney-client privilege”).

Under this broader view, Turnipseed’s contention that the relevant 

class of orders is effectively unreviewable falls apart. Where a district court 

denies a nonparty’s motion to quash on undue burden grounds, the nonparty 

has several potential avenues of review apart from a collateral order appeal. 

For one, the nonparty may disobey the district court’s order, be cited for 

contempt, and then challenge the underlying discovery order in appealing the 

contempt citation. See A-Mark Auction Galleries, 233 F.3d at 233. Indeed, 

the contempt route is broader for nonparties than it is for parties. Unlike a 

party, who may only appeal a criminal contempt citation, a nonparty may 

appeal either a criminal or a civil contempt order. See Texas v. Dep’t of Labor, 

929 F.3d 205, 209 n.9 (5th Cir. 2019). Alternatively, a nonparty may request 

that the district court certify a § 1292(b) appeal or, in extraordinary cases, 

seek a writ of mandamus. Mohawk Indus., 558 U.S. at 110-11, 130 S. Ct. at 

607. Finally, where, as here, the thrust of the motion to quash concerns the 

burdens of complying with the subpoena, a nonparty may comply and seek 

reimbursement for costs. 15B Charles Alan Wright, Arthur R. 

Miller & Edward H. Cooper, Federal Practice and 

Procedure § 3914.23 (citing United States v. Columbia Broad. Sys., Inc., 

666 F.2d 364 (9th Cir. 1982)). If the district court denies those costs, the 

nonparty may immediately appeal. Id.

Because these alternative means of review exist, Turnipseed cannot 

show that collateral order appeals are necessary to ensure effective review of 

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orders denying motions to quash on undue burden grounds. Accordingly, 

this court lacks jurisdiction under the collateral order doctrine.

B. Mandamus

Even though this court lacks jurisdiction under § 1291 to review the 

district court’s order, a writ of mandamus may still be appropriate.4 A writ 

of mandamus is “a ‘drastic and extraordinary’ remedy ‘reserved for really 

extraordinary causes.’” Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 380, 

124 S. Ct. 2576, 2586 (2004) (quoting Ex parte Fahey, 332 U.S. 258, 259-60, 

67 S. Ct. 1559, 1559 (1947)). Mandamus is appropriate only where: (1) the 

petitioner shows a “clear and indisputable right to the writ”; (2) the 

petitioner has “no other adequate means to attain the relief he desires”; and 

(3) the court is “satisfied that the writ is appropriate under the 

circumstances.” Defense Distributed v. Bruck, 30 F.4th 414, 426 (5th Cir. 

2022) (quoting Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 380-81,

124 S. Ct. 2576, 2587 (2004)); see also In re JPMorgan Chase & Co., 916 F.3d 

494, 499 (5th Cir. 2019). Although we are concerned that the district court 

may have erred in denying Turnipseed’s motion to quash, Turnipseed 

nevertheless fails to demonstrate a clear and indisputable right to a writ of 

mandamus.

5

4 Although Turnipseed did not formally seek a writ of mandamus under Federal 

Rule of Appellate Procedure 21, this court may, in its discretion, treat an appeal as a petition 

for a writ of mandamus. In re Deepwater Horizon, 793 F.3d 479, 491 n.12 (5th Cir. 2015) 

(quoting In re Grand Jury Subpoena, 190 F.3d 375, 389 n.16 (5th Cir. 1999)); see also Jefferson 

v. Delgado Cmty. Coll. Charity Sch. of Nursing, 602 F App’x 595, 598-99 (5th Cir. 2015) 

(unpublished).

5 In mandamus cases, this court often holds “that a district court erred, despite 

stopping short of issuing a writ of mandamus.” In re Dupuy Orthopaedics, 870 F.3d at 347 

n.4 (collecting cases).

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Demonstrating a clear and indisputable right to a writ of mandamus 

“require[s] more than showing that the district court misinterpreted the law, 

misapplied it to the facts, or otherwise engaged in an abuse of discretion.” In 

re Lloyd’s Reg. N. Am., Inc., 780 F.3d 283, 290 (5th Cir. 2015). Rather, 

Turnipseed must show a “clear abuse[] of discretion that produce[s] patently 

erroneous results,” Lloyd’s Reg., 916 F.3d at 290 (quoting In re Volkswagen of 

Am., Inc., 545 F.3d 304, 310 (5th Cir. 2008)), or “exceptional circumstances 

amounting to a judicial usurpation of power,” In re Dupuy Orthopaedics, Inc., 

870 F.3d 345, 350 (5th Cir. 2017) (quoting Cheney, 542 U.S. at 380, 124 S. Ct. 

at 2587). In other words, Turnipseed “must show not only that the district 

court erred, but that it clearly and indisputably erred” in denying his motion to 

quash. In re Occidental Petroleum Corp., 217 F.3d 293, 295 (5th Cir. 2000).

Under Rule 45, a court must modify or quash a subpoena that subjects 

a person to undue burden. Fed. R. Civ. P. 45(d)(3)(A)(iv). To determine 

whether a subpoena presents an undue burden, this court weighs the 

following factors: “(1) [the] relevance of the information requested; (2) the 

need of the party for the documents; (3) the breadth of the document request; 

(4) the time period covered by the request; (5) the particularity with which 

the party describes the requested documents; and (6) the burden imposed.” 

Wiwa v. Royal Dutch Petroleum Co., 392 F.3d 812, 818 (5th Cir. 2004). 

Moreover, where a subpoena requests information from a nonparty, as it does 

here, the court must be sensitive to the nonparty’s compliance costs. Id. In 

our estimation, two salient factors here, relevance and burdens, weigh in 

Turnipseed’s favor.6

6 Turnipseed does not seriously challenge the subpoena under the second, third, 

fourth, and fifth elements of the undue burden test articulated in Wiwa.

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First, relevance. For purposes of the undue burden test, relevance is 

measured according to Fed. R. Civ. Pro. 26(b)(1). Under that rule, 

information is relevant if it “bears on, or that reasonably could lead to other 

matters that could bear on, any issue related to the claim or defense of any 

party.” Coughlin v. Lee, 946 F.2d 1152, 1159 (5th Cir. 1991) (internal 

quotation omitted). The defendants posit that how often Turnipseed 

recommends repeated cervical neurotomies for a period of five to six years

and the number of patients that follow through with that treatment course

bear on Turnipseed’s credibility. Such information could show, for instance,

that Turnipseed regularly recommends recurring cervical neurotomies but 

few patients ever undergo treatment. Turnipseed counters that the 

requested information has no bearing on his credibility. He emphasizes that 

his records do not accurately reflect the number of patients that follow his 

recommended course of treatment. For example, patients may undergo 

treatment at different facilities because of a change in residence or another 

facility’s greater scheduling flexibility. At best, he concludes, the 

information that he must produce will present a misleading view of his 

credibility. We agree that, for the reasons Turnipseed articulates, the 

requested information is only tenuously relevant.

Second, the burden imposed. The defendants’ subpoena, as modified 

by the district court, requires Turnipseed to audit his patient records and 

generate new information about how often he has recommended repeated 

cervical neurotomies and how many of those patients underwent the 

procedures. A Rule 45 subpoena may require a nonparty to produce 

“designated documents, electronically stored information, or tangible things 

in that person’s possession, custody, or control.” Fed. R. Civ. 

P. 45(a)(1)(A)(iii). By the terms of the Rule, these are items that already 

exist. Rule 45 does not contemplate a subpoena requiring a nonparty to 

analyze documents in the nonparty’s possession and generate new 

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information.7 Accordingly, to the extent that the subpoena requires 

Turnipseed to do more than simply produce documents already in existence, 

it imposes an undue burden on him.

Finally, the cost of complying with the subpoena. Turnipseed alleges 

that complying with the modified subpoena would be costly and burdensome. 

Based on a sample review, Turnipseed estimates that it will take him 

approximately three hours to review twenty patient files. Further, he 

estimates that complying with the district court’s order would require him to 

review about four hundred patient files, which if accurate would require at 

least sixty hours of work. At Turnipseed’s typical $1,000/hour rate, the cost 

of complying with the subpoena is excessive, particularly because the amount 

in dispute here is only about $120,000. In our view, even if Turnipseed 

somewhat overstates the cost of compliance, it is nevertheless 

disproportionate to any value that the information has with respect to 

Turnipseed’s credibility.

Based on the above-articulated circumstances, it appears that the 

subpoena, even as modified by the district court, imposes an undue burden 

on Turnipseed. Nevertheless, district courts are afforded wide discretion in 

discovery matters, and as the district court here found, the magistrate judge 

7 See, e.g., McGlone v. Centrus Energy Corp., No. 2:19-cv-2196, 2020 WL 4462305, 

at *3 (S.D. Ohio Aug. 4, 2020) (collecting cases); Taylor v. Kilmer, No. 18-cv-7403, 

2020 WL 606781, at *3 (N.D. Ill. Feb 7, 2020) (same); Mir v. L-3 Commc’ns Integrated Sys, 

L.P., 319 F.R.D. 220, 227 (N.D. Tex. 2016) (same); 9 James W. Moore et. al., 

Moore’s Federal Practice § 45.10 (Matthew Bender 3d ed. 2021) (“A command 

to produce may be made only for documents, electronically stored information, or things 

already in existence; accordingly, although a subpoena may compel a person to produce a 

document or thing, it may not compel the person to create the document or thing in the first 

instance.”).

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purported to apply the relevant law. Thus, Turnipseed fails to show a clear 

and indisputable right to the writ, and we must deny mandamus relief.

8

III.

For the foregoing reasons, Turnipseed’s appeal is DISMISSED for 

lack of jurisdiction and his petition for a writ of mandamus is DENIED.

8 Rule 45(d)(2)(B)(ii) states that, when a court orders a nonparty to comply with a 

subpoena over an objection, “the order must protect” the nonparty “from significant 

expense resulting from compliance.” In other words, Rule 45 requires a district court to 

shift a nonparty’s cost of complying with a subpoena if those costs are significant. In re 

Modern Plastics Corp., 890 F.3d 244, 252 (6th Cir. 2018); Legal Voice v Stormans Inc., 

738 F.3d 1178, 1184 (9th Cir. 2013); Linder v. Calero-Portocarrero, 251 F.3d 178, 182 (D.C. 

Cir. 2001). If, in fact, Turnipseed’s cost of complying with the subpoena is significant, the 

district court should shift those costs to the defendants. Given the value of Turnipseed’s 

time and the number of patient files he may have to review, it seems almost certain that the 

cost of complying will be significant. Cf. Legal Voice, 738 F.3d at 1185 (“[W]e have no 

trouble concluding that $20,000 is ‘significant’”); Linder, 251 F.3d at 182 (suggesting that 

even $9,000 may be sufficient significant to justify shifting costs under Rule 

45(d)(2)(B)(ii)).

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Haynes, Circuit Judge, dissenting:

I agree with much of the majority opinion’s discussion, but not its 

conclusion. For example, the majority opinion correctly determines that the 

district court erred by denying Turnipseed’s motion to quash a subpoena for 

an entirely irrelevant and overly burdensome request for documents. 

Unfortunately, it then holds that it is powerless to grant Turnipseed the relief 

to which it tacitly agrees he is entitled. That is where we differ. As a 

preliminary matter, I disagree as to the conclusion that we lack jurisdiction 

under the collateral order doctrine. But, even assuming arguendo we lack 

appellate jurisdiction, I conclude we have the authority to grant mandamus 

relief and Turnipseed is entitled to that relief from the district court’s clearly 

and indisputably erroneous discovery order. I respectfully dissent.

I.

The majority opinion “decidedly” concludes that Turnipseed’s claim 

is not reviewable on appeal under the collateral order doctrine. I’m not so 

sure. That determination turns on one question: whether Turnipseed’s 

claim is “effectively unreviewable on appeal from a final judgment.” See 

Vantage Health Plan, Inc. v. Willis-Knighton Med. Ctr., 913 F.3d 443, 448 (5th 

Cir. 2019). Per the majority opinion, Turnipseed’s claim is not effectively 

unreviewable because he actually “has several potential avenues of review.” 

Majority Op. at 9. For one, Turnipseed can simply disobey the district 

court’s order, be charged with contempt, and then appeal the contempt 

citation. The majority opinion is unpersuaded by the fact that this option 

forces Turnipseed to violate his code of ethics and put his license to practice 

medicine at risk.1

1 The majority opinion’s lack of concern about this issue seemingly stems from the 

erroneous conclusion that Turnipseed’s adverse professional consequences claim lacks 

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I recognize that we have previously endorsed this path for nonparties 

who wish to challenge discovery orders. See A-Mark Auction Galleries, Inc. v. 

Am. Numismatic Ass’n, 233 F.3d 895, 898–99 (5th Cir. 2000). However, 

recognizing that “[t]hird parties have no power to control the course of 

litigation nor any influence over an appeal from a final judgment,” we have 

also held that such an extreme avenue is not always required for nonparties. 

See, e.g., Vantage Health Plan, 913 F.3d at 449–50; Whole Woman’s Health v. 

Smith, 896 F.3d 362, 368 (5th Cir. 2018). In Vantage Health Plan, for 

example, we did not force the nonparty seeking review to first defy the 

court’s order and face contempt because “incurring sanctions is risky.” 913 

F.3d at 449. More notably, in Whole Woman’s Health, we concluded that the 

relevant discovery order was “effectively unreviewable” on appeal in part 

because it was directed at a third party. 896 F.3d at 367–68.2 Our analysis in 

that case was replete with concern about the nonparty’s inability to benefit 

from a party’s appeal of a final judgment. See id. at 367–68, 375. That 

concern is mysteriously absent from the majority opinion’s analysis here. 

support given his brief discussion of the same. See Majority Op. at 7. But as a physician 

practicing in Louisiana, Turnipseed is governed by state law protecting against, inter alia, 

physicians engaging in “unprofessional conduct.” See La. Rev. Stat. Ann. § 37:1261. 

Because the statute does not define “unprofessional conduct,” Louisiana courts look to the 

Louisiana Rules of Professional Conduct governing “professional misconduct” of a lawyer 

for guidance. Doe v. La. State Bd. of Med. Exam’rs, 788 So. 2d 1234, 1239–40 (La. Ct. App. 

2001) (citing La. R. Pro. Conduct 8.4(a)–(h)). Louisiana case law makes clear that failure 

to comply with a court order constitutes “professional misconduct” in violation of Rule 

8.4(d) and can result in the suspension of a law license. In re Robinson, 819 So. 2d 280, 284–

85 (La. 2002) (per curiam) (“A review of our jurisprudence of this court indicates we have 

considered an attorney’s knowing failure to comply with the orders of a tribunal to be a 

serious professional violation.”). Accordingly, Turnipseed’s concern that he risks losing 

his professional license by violating the district court’s discovery order is hardly 

unsupported.

2 We also held that the standards of the collateral order doctrine were met because 

the case was “practically sui generis from the standpoint of the type of discovery sought and 

the issues raised by [the nonparty].” Whole Woman’s Health, 896 F.3d at 368. 

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Tellingly, neither Vantage Health Plan nor Whole Woman’s Health discusses 

(let alone cites) A-Mark, a fact the majority opinion overlooks.

The majority opinion concludes that Vantage Health Plan and Whole 

Woman’s Health are different because they “implicate[] ‘some particular 

value of a high order’ or ‘substantial public interest’ that would be imperiled 

or destroyed if review were delayed.” Majority Op. at 7–8. Stated 

differently, the importance and sensitivity of the potentially discoverable 

material qualified the orders for immediate appellate review and excused the 

third parties from being required to defy the orders and seek contempt. See 

Vantage Health Plan, 913 F.3d at 449; Whole Woman’s Health, 896 F.3d at 

368. But in Vantage Health Plan, we questioned “whether third-party status 

alone, absent some constitutional or other issue that calls into question the 

‘general familiarity of courts with standards governing [the dispute],’ may 

suffice to invoke the collateral order doctrine.” 913 F.3d at 450 n.2 

(alteration in original) (quoting Whole Woman’s Health, 896 F.3d at 368).

Importantly, the Supreme Court case that took us down this path was 

about a party appealing a discovery order as a collateral order, noting the 

general rule that “a party is entitled to a single appeal.” See Mohawk Indus. 

v. Carpenter, 558 U.S. 100, 101, 106 (2009). But no one argues that 

Turnipseed has “an appeal” in this case; even Martin does not claim that. In 

the “ordinary case” between parties there can be dozens of discovery 

disputes and rulings, and the Supreme Court understandably (and correctly) 

did not approve of a back and forth between the district courts and the 

appellate courts over these issues. But this is not the situation here where a 

non-party was ordered to create documents.

Even if Mohawk’s general rule applies across the board, in my view, 

the majority opinion’s holding here does implicate a high order—it requires 

a licensed professional to violate his code of ethics (which requires following 

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court orders). Our core as judges is ethics: would we think it is okay to violate 

our rules of ethics to protest an order as a non-party in a case? Would we 

want to throw our positions and our reputations as highly ethical judges out 

the window just so we could appeal a completely erroneous order? I cannot 

agree with that notion.

In addition to that point, forcing physicians to perform burdensome 

patient population audits that yield information immaterial to an underlying 

litigation—and potentially chilling physicians’ willingness to treat patients 

involved in litigation—implicates a “value of a high order” and a 

“substantial public interest” particularly in this pandemic era where doctors 

are being placed to the test every day. See Mohawk, 558 U.S. at 107 (quotation 

omitted). At the very least, it seemingly calls into question district courts’ 

“general familiarity” with the standards governing the scope of permissible 

discovery from third party physicians.3

 In any event, we have not foreclosed 

the possibility that third-party status alone, in certain circumstances, is 

enough to invoke the collateral order doctrine. See Vantage Health Plan, 913 

F.3d at 450 n.2. Forcing Turnipseed to defy the discovery order, violate his 

code of ethics, spend wasted time on an improper order, and risk losing his 

medical license is an extraordinary and unacceptable result. I accordingly 

urge that the circumstances present here warrant immediate appealability. 

II.

For this section I will assume arguendo that we do not have appellate 

jurisdiction under the collateral order doctrine. In that circumstance, given 

that the untenable disobey-and-seek-contempt route is the only path forward 

3 A motion to quash a discovery order is a routine district court ruling. However, 

no circuit court has yet to opine on whether this type of information from a treating 

physician is discoverable. 

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for an appeal, then a writ of mandamus is all the more appropriate here, as 

Turnipseed is left without “adequate means to attain relief.” In re 

Volkswagen of Am., Inc., 545 F.3d 304, 318 (5th Cir. 2008) (en banc); see also 

16 Charles Alan Wright, Arthur R. Miller & Edward H. 

Cooper, Federal Practice and Procedure § 3935.3 (3d ed. 

Supp. 2022) (“Writ review, indeed, may be specifically justified on the 

ground that the alternative of disobedience and contempt is not a suitable or 

adequate remedy.”). 

I recognize that the writ is an “extraordinary remedy” and that its 

requirements are difficult to satisfy. See In re Volkswagen, 545 F.3d at 311. 

But the writ’s high hurdles “are not insuperable.” Id. (quotation omitted). 

Indeed, a writ of mandamus is a useful “safety valve for promptly correcting 

serious errors.” Mohawk Indus., 558 U.S. at 111 (internal quotation marks, 

citation, and brackets omitted). That’s especially true where, as here, 

“unfettered discovery” that “otherwise might elude appellate review” is an 

overwhelming burden. See generally Wright & Miller § 3935.3. Cf. In 

re Burlington N., Inc., 822 F.2d 518, 522 (5th Cir. 1987) (“[T]he difficulty of 

obtaining effective review of discovery orders, the serious injury that 

sometimes results from such orders, and the often recurring nature of 

discovery issues support use of mandamus in exceptional cases.”). It seems 

clear that the order in question is “truly irremediable on ordinary appeal.” 

See, e.g., In re A&D Ints., Inc., 33 F.4th 254, 256 (5th Cir. 2022), pet. for reh’g 

en banc filed, May 17, 2022.

The majority opinion concedes that the discovery order at issue here 

is both irrelevant and unduly burdensome, but nevertheless concludes that 

Turnipseed has failed to show a clear and indisputable right to the writ 

because “district courts are afforded wide discretion in discovery matters” 

and the magistrate judge here “purported to apply the relevant law.” 

Majority Op. at 14. But a district court’s discretion is not unlimited, see 

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Munoz v. Orr, 200 F.3d 291, 305 (5th Cir. 2000), nor is it a talisman 

precluding otherwise appropriate mandamus relief, see In re Volkswagen, 545 

F.3d at 311–12. Mandamus is warranted when the circumstances demand as 

much.4

In In re Volkswagen, for example, our en banc court granted a writ to 

review a district court’s forum non conveniens transfer even though “[t]here 

[is] no question” that “district courts have broad discretion in deciding 

whether to order a transfer.” Id. at 307, 311 (internal quotation marks and 

citation omitted). Despite that discretion, we concluded that a writ in that 

case was appropriate because the “district court’s errors resulted in a 

patently erroneous result.” Id. at 318–19. 

That is true here as well. The majority opinion outlines the problems 

with the discovery order, see Majority Op. at 12–14, so I merely reemphasize 

the major issues. I start with the discovery order’s complete lack of 

relevance. Defendants argue that the number of patients who follow through 

with Turnipseed’s recommended treatment bears on his credibility. But a 

doctor’s credibility turns on whether a recommended treatment plan works, 

not on whether a patient decides to follow it. A person’s decision not to quit 

smoking or their refusal to eat healthy and exercise doesn’t mean their 

doctor’s recommendation to do so is unsound; it just means that (for a 

myriad of potential reasons) the person has trouble quitting smoking or opts 

not to eat healthy and exercise.5

4 I deeply respect the work of magistrate and district judges, and I recognize and 

appreciate the amount of work that has to be expended on discovery issues. While most of 

what they do is well within discretion, the reality is that mistakes, including severe ones, 

can be made, and that is what we are addressing here.

5 Turnipseed lists other reasons why a patient may not undergo a recommended 

treatment—a patient may have limited financial resources and may not be able to afford the 

procedure; or the patient may have developed a more pressing health concern. There are 

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The magistrate judge inexplicably concluded otherwise, asserting that 

“other courts” have recognized the relevance of such information. Those 

“other courts,” however, are two district courts that issued unpublished 

orders discussing topics only tangentially related to the relevant inquiry. In 

Fusco v. Levine, No. 16-cv-1454 (W.D. La. Feb. 21, 2019) (order denying 

motion to quash), for example, a magistrate judge considered a subpoena 

issued on a nonparty treating physician seeking a wide array of statistical 

information concerning his treatment of other patients. Id. at 2–3. But the 

relevant motion to quash was dismissed for procedural reasons. Id. at 10. 

The magistrate judge opined (in dicta) that the requested information could 

be “potentially relevant” to the doctor’s credibility but also stated that “the 

number of procedures undergone by other patients is not, in and of itself, 

directly relevant to plaintiff’s need for future procedures.” Id. Importantly, 

the Fusco court never decided if the information was discoverable—the case 

settled shortly after the order issued. 

Furthermore, in Chauppette v. Northland Insurance Co., No. 08-4193, 

2009 WL 3447291, at *1 (E.D. La. Oct. 21, 2009), a magistrate judge stated 

that a motion to quash a subpoena and limit it only to “areas involving the 

plaintiff, her medical bills, and her medical treatment” swept too broadly. Id. 

But the magistrate judge concluded the relevant information was the 

nonparty physician’s financial interest arising from his previous relationship 

with plaintiff’s counsel, as fees earned by experts in previous cases speak to 

credibility and possible bias. Id. Those facts are inapplicable to the instant 

matter. In short, the magistrate judge’s conclusion here regarding the 

also valid reasons why a patient might not undergo the procedure with the recommending 

physician—they may have moved to a different city or been referred to another provider. 

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relevance of the requested materials—supported only by irrelevant, 

unpublished, and non-binding authority—was clearly erroneous. 

In terms of the burden this discovery order places on Turnipseed, I 

emphasize that a Rule 45 subpoena requires a nonparty to “produce 

designated documents, electronically stored information, or tangible things 

in that person’s possession, custody, or control”—i.e., material that already 

exists. See Fed. R. Civ. P. 45(a)(1)(A)(iii) (emphasis added). Conversely, 

the discovery order at issue here forces Turnipseed to audit his patient’s files 

and create new data reflecting how often he recommends repeated cervical 

neurotomies and how often patients follow that recommendation. Such a 

request goes beyond the bounds of Rule 45. See also Majority Op. at 13 n.7. 

Worse, it does so for entirely irrelevant information. 

In sum, I highlight two important conclusions. First, the flaws in the 

district court’s discovery order and in its “decision making process” created 

a “patently erroneous result.” See In re Volkswagen, 545 F.3d at 312 (internal 

quotation marks and citation omitted). Second, forcing Turnipseed to seek 

sanctions and risk his medical license for relief from that clearly erroneous 

order is an unacceptable obstacle that renders such relief “effectively 

unobtainable.” See In re Lloyd’s Reg. N. Am., Inc., 780 F.3d 283, 289 (5th Cir. 

2015). Taking these two considerations in tandem, we are left with the 

extraordinary circumstance where Turnipseed is “without adequate means 

to review” a clear and indisputable error. See id. at 288. Assuming arguendo 

that we cannot hear this case as a collateral order and grant relief that way, 

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Turnipseed is entitled to a writ of mandamus, and I respectfully dissent from 

the majority opinion’s conclusion to the contrary.6

6 For the reasons articulated in this dissenting opinion, I am also “satisfied that the 

writ is appropriate under the circumstances.” See Cheney v. U.S. Dist. Ct. for D.C., 542 

U.S. 367, 381 (2004).

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