UNITED STATES COURT OF APPEALS Filed 12/9/96 FOR THE TENTH CIRCUIT

ROBERT H. AULL, on behalf of himself and all other similarly situated,

Plaintiff - Appellee, No. 96-1474

v.

CAVALCADE PENSION PLAN; CAVALCADE PENSION PLAN COMMITTEE; KEVIN LEWIS; CARLENE STEWART; ALTON SMITH; DONALD DODSON; FURR’S/BISHOP’S, INC.; FURR’S/BISHOP’S CAFETERIAS, L.P.; CAVALCADE & CO., INC.; and CAFETERIA OPERATORS, L.P.,

Defendants - Appellants,

and

MICHAEL J. LEVENSON; KMART CORPORATION; and KMART CORPORATION EMPLOYEES’ RETIREMENT PLAN,

Defendants.

ORDER AND JUDGMENT 1

1 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. Before TACHA, KELLY, and BRISCOE, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

Before us is defendants-appellants’ appeal from the district court’s October

4, 1996 order denying their motion for protective order seeking to bar discovery

of all accountant/actuary - client privileged matters. Defendants-appellants have

also filed a motion for stay of the district court’s order pending disposition of

their appeal.

Generally, pretrial discovery rulings are interlocutory and are not

appealable as final orders. See F.T.C. v. Alaska Land Leasing, Inc., 778 F.2d 577, 578 (10th Cir. 1985). This is true even if the discovery at issue is claimed to

be privileged. Boughton v. Cotter Corp., 10 F.3d 746, 750 (10th Cir. 1993). This

court ordered the parties to show cause why this appeal should not be summarily

dismissed for lack of jurisdiction. Upon review of the parties’ responses, we find

the order being appealed is interlocutory and not appealable as a final order.

Because we conclude this appeal is premature, we do not consider defendants-

-2- appellants’ motion for stay pending appeal. The appeal is DISMISSED for lack

of jurisdiction.

Entered for the Court

Deanell Reece Tacha Circuit Judge

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