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Reise v. Board of Regents of the University of Wisconsin

Citation. 957 F.2d 293 (7th Cir. 1992)
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Brief Fact Summary.

Plaintiff, a job applicant, brought an action against his employer for discrimination. Defendant requested a mental examination of Plaintiff. Plaintiff refused. The district court ordered Plaintiff to submit to a mental examination under FRCP Rule 35. Plaintiff sought review of the order.

Synopsis of Rule of Law.

Interlocutory orders, discovery orders in particular, are not appealable, prior to a final order.


Plaintiff graduated from the Law School of the University of Wisconsin at Madison in the top 5 percent of his class. Plaintiff then applied for a faculty position with the University and was not hired. Plaintiff sued the University, alleging that Plaintiff was not hired because of his race and gender. Plaintiff alleged that the University refused to hire anyone who is not black, female, or otherwise in a protected class. Out of the previous 13 hires, only one was a white man. Plaintiff sought $4 million in damages, arising from the mental anguish, emotional distress, and illness allegedly caused by the University’s failure to hire him. The University requested a mental examination of Plaintiff under FRCP Rule 35. Plaintiff asserted that the examination would not reveal anything, because Plaintiff was not experiencing emotional distress at that time. The trial court ordered Plaintiff to undergo the examination. Plaintiff appealed.


Was the order of the trial court regarding discovery matters appealable?




Trial court decisions regarding discovery matters are interlocutory orders, rather than final orders, and cannot be appealed prior to a final order. United States courts of appeal do not have jurisdiction over interlocutory orders. 28 U.S.C. § 1291. Review of discretionary discovery orders is deferential to trial courts and would result in almost all discovery orders being affirmed. Additionally, appeals of discovery orders would cause delay and be a burden on the court system. Therefore, the costs of allowing appeals of interlocutory orders outweigh the costs of the few incorrect discovery decisions that might be overturned. In addition, parties may obtain review of these orders after a final judgment is issued. This process ensures that only parties with a substantial belief that a discovery decision was an abuse of discretion will pursue an appeal of the discovery order. While there is a possibility that some cases may be remanded for new trials, the number of actual retrials will be small due to the risk of refusing to comply with the order and the deferential review of discovery orders. Here, the order to submit to the mental examination is an interlocutory order. Therefore, the court of appeals does not have jurisdiction to hear the merits of the appeal. The appeal is dismissed.

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