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United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
March 3, 2004
FOR THE FIFTH CIRCUIT
_______________________
Charles R. Fulbruge III
Clerk
NO. 03-50772
Summary Calendar
_______________________
MARIO PIRATELLO,
Plaintiff-Counter Defendant-Appellant,
versus
PHILIPS ELECTRONICS NORTH AMERICA CORPORATION, ET AL.,
Defendants;
PHILIPS ELECTRONICS NORTH AMERICA CORPORATION,
Defendant-Counter Claimant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
________________________________________________________________
Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:
Before the panel is a motion carried with the case which
argues that this court lacks appellate jurisdiction over an order
compelling a judgment debtor to appear for a post-judgment
deposition, respond to questions regarding the identity, amount,
and location of his assets, and produce a variety of documents
requested by the judgment creditor. Because we find that this
panel lacks appellate jurisdiction over this action at the present
juncture, we DISMISS the appeal.

I. BACKGROUND
Mario Piratello was employed by Philips North America as
a senior plant manager from 1988 to 1999. An internal
investigation conducted by Philips suggested that Piratello had
defrauded Philips during his employment. Piratello was fired.
Piratello responded to his dismissal by filing an action in federal
court alleging, inter alia, a breach of contract and a violation of
the Employee Retirement Income Security Act of 1974 ("ERISA").
Philips counter-claimed for the losses sustained as a result of
Piratello's allegedly fraudulent activities. The case was tried to
a jury and resulted in a complete loss for Piratello and a complete
victory for Philips. The district court entered a judgment against
Piratello for $1,000,000 plus costs. Piratello filed a notice of
appeal with this court, but the appeal was dismissed for want of
prosecution when Piratello failed to timely order a transcript.
While the appeal was pending, Philips attempted to depose
Piratello to determine the identity, amount, and location of his
assets to collect on its judgment. Piratello appeared at the
deposition but refused to answer any questions, including basic
information about himself, and asserted his Fifth Amendment right
against self-incrimination. In addition, Piratello failed to
produce any of the documents requested by Philips. Philips then
filed a motion to compel Piratello to answer questions regarding
his assets, produce various documents, and enjoin Piratello from
2

disposing of any assets in excess of $500. The motion was granted
in part and denied in part by the district court. On June 25,
2003, the district court ordered Piratello to appear in Washington,
DC, by July 7, to answer questions regarding his assets and to
produce the documents requested by Philips. In the same order, the
district court denied Philips's request for an injunction against
Piratello, but noted that it might reconsider the request for an
injunction at a later date.
Instead of appearing for his deposition on the requisite
date, Piratello filed a notice of appeal with this court
challenging the district court's order of June 25, 2003. Philips
moved to dismiss, arguing that this court lacks jurisdiction over
Piratello's appeal. We carried the motion with the case and
ordered briefing from the parties.
II. DISCUSSION
Subject to specific exceptions, this court's jurisdiction
is limited to the review of "final decisions of the district courts
of the United States . . . except where a direct review may be had
in the Supreme Court." 28 U.S.C. � 1291 (2000). As a general
matter, discovery orders do not constitute final decisions under
� 1291, and therefore, are not immediately appealable. See A-Mark
Auction Galleries, Inc. v. Heritage Capital Corp., 233 F.3d 895,
897 (5th Cir. 2000) (citing Church of Scientology v. United States,
506 U.S. 9, 18 n.11 (1992)). The Supreme Court has held that a
3

party that wishes to immediately appeal a discovery order "must
[first] refuse compliance, be held in contempt, and then appeal the
contempt order." Church of Scientology, 506 U.S. at 18 n.11
(citing United States v. Ryan, 402 U.S. 530 (1971)).1 In addition,
the basis of Piratello's claim - the Fifth Amendment's privilege
against self-incrimination - does not, standing alone, entitle him
to an interlocutory appeal. See Maness v. Meyers, 419 U.S. 449,
458-461 (1975) (no interlocutory appeal of an order refusing to
quash a subpoena for materials that arguably violated the
subpoenaed
party's
Fifth
Amendment
privilege
against
self-incrimination).
While this court has not previously held that the
requirement of a sanction prior to an appeal specifically applies
to post-judgment discovery orders to judgment debtors, we see no
reason to treat such orders differently. See Richmark Corp. v.
Timber Falling Consultants, Inc., 937 F.2d 1444, 1449 (9th Cir.
1991) (holding that post-judgment orders granting discovery, such
as those relating to judgment debtors "are not considered final
judgments and may be appealed only after the issuance of a contempt
order for failure to comply"); Rouse Construction Int'l Inc. v.
1
As to non-parties, however, the rule is different: "a discovery
order directed at a disinterested third party is treated as an immediately
appealable final order because the third party presumably lacks a sufficient
stake in the proceeding to risk contempt by refusing compliance." Church of
Scientology, 509 U.S. at 18 n.11 (citing Perlman v. United States, 247 U.S. 7
(1918)). Further, the Supreme Court has carved out an exception for pre-contempt
appeals by the President of the United States to avoid unnecessary constitutional
confrontations between two coordinate branches of government. See United States
v. Nixon, 418 U.S. 683 (1974).
4

Rouse Construction Corp., 680 F.2d 743, 746 (holding that "the
granting of a post-judgment discovery motion is not an appealable
final order") (11th Cir. 1982); see also In re Joint E. & S. Dists.
Asbestos Litig., 22 F.3d 755, 760 (7th Cir. 1994) (noting that,
every circuit to have considered the question has held that "as a
general rule, an order authorizing discovery in aid of execution of
judgment is not appealable until the end of the case").
Piratello argues that the collateral order doctrine
provides another exception to the finality doctrine that allows his
appeal to proceed. See Cohen v. Beneficial Indus. Loan Corp., 337
U.S. 541 (1949) (setting out the collateral order doctrine). This
court has indicated its agreement with the Fourth Circuit's view
that the availability of an appeal through a contempt order renders
the collateral order doctrine inapplicable to discovery orders.
See A-Mark Auction Galleries, 233 F.3d at 898-99 (noting, with
approval, the holding of MDK, Inc. v. Mike's Train House, Inc.,
27 F.3d 116, 119 (4th Cir. 1994)).
Piratello also argues that this appeal is proper under
28 U.S.C. � 1292(a)(1), which grants the court of appeals jurisdic-
tion over interlocutory injunctive orders. Piratello contends that
the district court's denial of the injunction to Philips, with an
indication that the court might grant one at a later date, was a
modification within the meaning of this statute. This argument is
meritless -- the district court order did not "modify" an injunction
because there was no injunction on file to modify. Nor is
5

Piratello a "party aggrieved" by the denial of the injunction
sought by Philips.
Therefore, in order to sustain an appeal, Piratello must
choose to disobey the district court's order and endure the
district court's sanction.
For these reasons, we DISMISS this appeal for lack of
jurisdiction.
6