The Final Judgment Rule and Appellate Review of Discovery Orders in Nebraska

In Lund v. Holbrook the Nebraska Supreme Court held that no appeal could be taken until after final judgment from an order requiring a party to turn over documents to his opponent for inspection and copying. The basis for the decision was a statute limiting the appellate jurisdiction of the supreme court to the review of a “judgment rendered or final order.” “Final order” is defined by statute as one which “ . . . in effect determines the action and prevents a judgment.” The same rule would undoubtedly by applied to any other discovery order in Nebraska. This “final judgment” rule exists in some form in almost every state. The application of the rule in Lund v. Holbrook is in line with the rulings of the majority of states as to discovery orders. The purpose of the rule is to reduce the volume of appeals which would, in the absence of the rule, clog the calendars of appellate courts and cause interminable delay in litigation. Many states have modified the final judgment rule by statute to allow immediate appeal from specified orders which are not reviewable under the majority rule until after final judgment. The reason for these modifications may be either that the final judgment rule does not fulfill its purposes, or that the assumption underlying the rule (i.e., that the effect of any error on the part of the trial court can be remedied by a new trial) has proved to be untrue. The decision in Lund v. Holbrook illustrates another type of order, the discovery order, which may be worthy of consideration as justifying a departure from the final judgment rule. We propose to examine: (a) the effect of the final judgment rule in cases involving discovery orders, to determine whether departure from the final judgment rule is justified, (b) the means presently existing in Nebraska for avoiding the effect of the final judgment rule as to discovery orders, and (c) the desirability of, and possibilities for statutory modification of the final judgment rule as to discovery orders in Nebraska