Kristin Perry v. Arnold Schwarzenegger

I. Discussion

A. Appellate Jurisdiction under 28 U.S.C. § 1291

Appellants assert that this court may exercise jurisdiction over this appeal under 28 U.S.C. § 1291. As appellants are nonparties in the underlying litigation, however, they can obtain review of the district court’s order compelling produc- tion of documents they contend are protected under the First Amendment privilege we articulated in Perry I only by elect- ing to ignore the order and appealing any ensuing contempt citation. See In re Subpoena Served on Cal. Pub. Util. Comm’n, 813 F.2d 1473, 1476 (9th Cir. 1987). Appellants recognize as much in their brief on appeal regarding jurisdic- 5656 PERRY v. SCHWARZENEGGER tion, stating that “if [they] decline to produce th[e] documents [ordered produced by the district court] and are cited for con- tempt as a consequence, they will have an appealable order.” Until then, we lack jurisdiction under 28 U.S.C. § 1291 to review the district court’s order. Id.; see id. at 1476 n.1 (“The requirement that a nonparty must be in contempt of court in this situation is a serious matter and serves to illustrate the strictness in applying the final judgment…