An order compelling discovery is not interlocutory and may be appealed if, after entering that order, the district court dismisses the action and enters a final judgment. Plaintiff airline did not waive its right to compel arbitration by defending on the merits against an administrative investigation by the Department of Labor, which defendant had triggered by his complaint that he was fired in retaliation for complaining about unsafe airline practices. The DOL had its own independent interest in the investigation to assure air safety. The airline could not have compelled the DOL to arbitrate since it was not a party to the arbitration agreement. So the airline didn’t waive its right to compel arbitration by defending the DOL investigation and then moving to compel arbitration when the defendant sought to pursue an individual action against the airline.
Ninth Circuit Court of Appeals (Berzon, J.); September 26, 2018; 2018 U.S. App. LEXIS 27450