In Re: Orly Genger

Background

Orly Genger began Chapter 7 bankruptcy proceedings in 2019. Sagi Genger and Eric Herschmann filed claims in that bankruptcy case, which was later transferred to the Southern District of New York. Herschmann, an attorney representing himself, sought disclosure of the “Herschmann Report,” a report prepared by an Israeli private investigator for Sagi Genger concerning the location of Herschmann’s residences and bank accounts.

Sagi Genger asked the Bankruptcy Court for a protective order preventing disclosure of the report. The Bankruptcy Court concluded that the report was protected by privilege and the work-product doctrine and denied Herschmann’s request for an order requiring its production. The Bankruptcy Court later denied Herschmann’s motion for reconsideration. Herschmann appealed both orders to the District Court.

Jurisdiction and finality

Sagi Genger moved to dismiss the appeal for lack of jurisdiction. The District Court explained that 28 U.S.C. § 158(a)(1) generally permits appeals from final bankruptcy-court judgments, orders, and decrees. In bankruptcy cases, an order can be final when it completely resolves a distinct dispute within the larger bankruptcy case.

The District Court held that the Bankruptcy Court’s protective order was a discovery order. Discovery orders generally are not final because they are preliminary steps in resolving a larger dispute. The court rejected Herschmann’s argument that the order was final because nothing more could be litigated about the report. The court stated that the relevant proceeding for finality was the larger proceeding for which the discovery was sought, not the discovery dispute alone.

Because the protective order was not final, the Bankruptcy Court’s order denying reconsideration was not final either. Herschmann therefore was not entitled to appeal either order automatically under Section 158(a)(1).

Collateral order doctrine

Herschmann alternatively argued that the orders were immediately appealable under the collateral order doctrine. That doctrine allows immediate review of an order only when it conclusively resolves a disputed question, addresses an important issue separate from the case’s merits, and would be effectively unreviewable after final judgment.

The District Court held that the doctrine did not apply because the discovery orders could be challenged in an appeal from a final judgment. The court did not reach Sagi Genger’s separate argument that the orders failed to resolve an important issue separate from the merits because the unreviewability requirement was not satisfied.

Disposition

The District Court granted Sagi Genger’s motion to dismiss the appeal for lack of jurisdiction and directed the Clerk of Court to close the case. Herschmann expressly stated that he was not seeking permission for an interlocutory appeal. The court therefore did not decide whether the Herschmann Report was privileged or protected by the work-product doctrine.