dissenting.
I write separately to highlight the unnecessarily broad brush the majority uses to paint on this otherwise narrow canvass. Specifically, I harbor grave concerns regarding three facets of the majority opinion. First, the majority holds that sanctions orders, such as the one appealed from in this case, fail to satisfy the second Cohen element requiring that the merits of the underlying litigation be separate from the sanctions order.1 See Op. at 422-24. Second, the majority rejects any distinction between those attorneys who are and those who are not participating in the underlying litigation, despite the weight of authority accepting this distinction. Finally, the majority ignores the inequity of applying its new rule, retroactively, to bar a merits review of the issues raised by Cunningham in this appeal. See Op. at 423, n. 5.
In my view, Cunningham’s appeal satisfies the second Cohen requirement in that the sanctions order is separate from the merits of the underlying action. Although in some instances sanctions orders may be intertwined with the merits, none of these circumstances are present in this case. For example, in G.J.B. & Assocs. v. Singleton, 913 F.2d 824, 829 (10th Cir.1990), the plaintiffs lawyer failed to turn over notes requested by the defendant’s lawyer and then used those notes at trial. The district court sanctioned the plaintiff’s lawyer for failing to produce the notes to defendant’s counsel. On appeal, the Tenth Circuit held that the sanctions arose from a discovery dispute over the relevance of the notes. Accordingly, any evaluation of relevancy would necessarily require the court to examine the merits of the underlying action. The court thus concluded that the attorney’s appeal faded to satisfy the Cohen requirements and should await a final judgment in the case. Accord Eastern Maico Distribs. v. Maico-Fahrzeugfabrik, G.m.b.H., 658 F.2d 944, 947 (3d Cir.1981) (dismissing appeal for failure to satisfy Cohen requirements where review of sanctioning of attorney for filing dilatory discovery motions required examination of relevance to underlying dispute). Cf. Evanson v. Union Oil Co. of California, 619 F.2d 72 (Temp.Emer.Ct.App.), cert. denied, 449 U.S. 832, 101 S.Ct. 102, 66 L.Ed.2d 38 (1980) (sanctioned party requested appellate court to vacate district court’s sanction order for lying in interrogatory answers, and court of appeals refused where determining truth or falsity of answers would require it to evaluate the merits of the underlying action).
Contrast the holdings in the preceding cases with the holding in Thomas E. Hoar, Inc. v. Sara Lee Corp., 882 F.2d 682 (2d Cir.1989). In that case, the magistrate judge imposed monetary sanctions on an attorney under Rule 37 for failure to provide complete answers to interrogatories and for failure to produce requested documents, and the district court affirmed the sanctions order. On appeal, the Second Circuit concluded that the appeal satisfied the second Cohen requirement “since the imposition of the sanction involves an issue completely separate from the merits of the underlying litigation.” Id. at 685 (quotation omitted).
The facts presented in Cunningham’s appeal more closely resemble the facts in Thomas E. Hoar, Inc. than those facts presented in G.J.B. & Assocs., Eastern Maim Distribs., and Evanson. Specifically, unlike the appellants in those cases, Cunningham does not contend that her failure to answer the discovery turned on the relevance or scope of the discovery, or that her answers were true where the district court found them to be false. Those kinds of contentions could have required this court to evaluate the merits of the underlying action to determine if the interrogatories were relevant, covered an appropriate time frame, or whether Cunningham’s responses were in fact true. As the courts in G.J.B. & Assocs., Eastern Maico Distribs., and Evanson correctly concluded, any such evaluation of the merits would by its very nature run afoul of Cohen’s requirement that the sanctions order and the merits be “completely separate.”
*427Cunningham raises far different challenges to the sanctions order. Her arguments against the sanctions order are that she did not have enough time to answer the interrogatories, she had to depose Smith in Indianapolis, and she did not receive sufficient notice in order to prepare for the sanctions hearing. None of these arguments against the sanctions order involve the' substance of the discovery itself. .Consequently, like the appellant’s due process objection in Thomas E. Hoar, Inc., resolution of Cunningham’s timing and due process objections to the sanctions order would not compel us to address the merits of the underlying action. Therefore, Cunningham’s appeal satisfies the second Cohen requirement. In my view, the majority opinion needlessly forecloses the possibility that some sanctions orders, not just those in an “extreme ease,” will not be intertwined with the merits and thus will satisfy the second Cohen requirement.
Next, the majority rejects the participating and nonparticipating attorney distinction. However, of the five circuits to consider this issue explicitly, four have found this distinction persuasive. Compare Walker v. City of Mesquite, Tex., 129 F.3d 831, 832 (5th Cir.1997) (“As a general rule an attorney must await the end of litigation in the district court to appeal a sanction____[Hjowever, we recognize[] an exception to this rule in those situations in which the sanctioned attorney is no longer involved in the case and an appeal of the sanctions order would not impede the underlying litigation.”); Eavenson, Auchmuty & Greenwald v. Holtzman, 775 F.2d 535, 539 (3d Cir.1985) (holding that a sanctioned attorney who has withdrawn from the representation may take an interlocutory appeal under Cohen); Mark Indus., Ltd. v. Sea Captain’s Choice, Inc., 50 F.3d 730, 731 (9th Cir.1995) (sanctioned counsel who has withdrawn from the representation may take an interlocutory appeal under Cohen); Knorr Brake Corp. v. Harbil, Inc., 738 F.2d 223, 226 (7th Cir.1984) (same), with Howard v. Mail-Well Envelope Co., 90 F.3d 433, 436 (10th Cir.1996) (rejecting interlocutory appeal of sanctions order by withdrawn attorney).
With respect to In re Sealed Case, 141 F.3d 337 (D.C.Cir.1998), cited by the majority in a footnote, that case did not address the issue of whether a sanctioned attorney who has withdrawn or been disqualified from representing a party to the underlying action may immediately appeal the sanctions order. Instead, that ease addressed the issue of whether a law firm subjected to a subpoena duces tecum relating to a case in another district court in which it was not a party could immediately appeal an order of a federal district court transferring the case to that other federal district court. The D.C. Circuit held the law firm could not immediately appeal such an order, but must either disobey the order, be cited for contempt, and then appeal the contempt order, or must file a petition for a writ of mandamus. See id. at 339-40. In that case, the law firm proceeded by way of a mandamus petition. Accordingly, the Sealed case, which focuses on a peripheral issue, provides little support for the Tenth Circuit’s position in Howard denying an immediate appeal of the sanctions order to a sanctioned attorney who no longer represents a party in the underlying action, a position that is contrary to the weight of published authority.
The Tenth Circuit bases its restrictive position on the ground that a sanctioned attorney no longer connected to the underlying action may appeal at the conclusion of that action, whether the court issues a final judgment, or the parties settle the case. ' Thus, the Tenth Circuit holds the sanctioned attorney fails to meet the third Cohen requirement of demonstrating that the sanctions order will be effectively unreviewable on appeal from a final judgment. See Howard, 90 F.3d at 436-37. This is a debatable issue, as manifested by the'even split among our sister circuits when the sanctioned attorney remains as an attorney in the underlying litigation. The Second, Seventh, Eighth, Ninth, and Eleventh Circuits hold that a sanctioned attorney meets this third requirement. See, e.g., Ted Lapidus, S.A. v. Vann, 112 F.3d 91, 95-96 (2d Cir.), cert. denied, — U.S.-, 118 S.Ct. 337, 139 L.Ed.2d 262 (1997); Serritella v. Markum, 119 F.3d 506, 512 (7th Cir.), cert. denied sub nom. Steagall v. United States Dist. Court for Cent. Dist. of Ill., - U.S. -, 118 S.Ct. 566, 139 L.Ed.2d 406 (1997); Crookham v. Crookham, 914 F.2d *4281027, 1029 n. 4 (8th Cir.1990); Triad Sys. Corp. v. Southeastern Express Co., 64 F.3d 1330, 1338 (9th Cir.1995); Transamerica Commercial Fin. Corp. v. Banton, Inc., 970 F.2d 810, 814 (11th Cir.1992). Conversely, the First, Third, Fifth, Tenth, and Federal Circuits hold that a sanctioned attorney who remains as counsel in the litigation fails the third Cohen requirement. See, e.g., In re Licht & Semonoff, 796 F.2d 564, 572 (1st Cir.1986); Eastern Maico Distribs. v. Maico-Fahrzeugfabrik, G.m.b.H., 658 F.2d 944, 947 (3d Cir.1981); Click v. Abilene Nat’l Bank, 822 F.2d 544, 545 (5th Cir.1987); G.J.B. & Assocs. v. Singleton, 913 F.2d 824, 829 (10th Cir.1990); Sanders Assocs. v. Summagraphics Corp., 2 F.3d 394, 398 (Fed.Cir.1993).
Today, the majority rejects the weight of authority, holding that a nonparticipating attorney, such as Cunningham, cannot take an interlocutory appeal of a sanctions order. Adopting the reasoning in Howard, the majority holds that in this circuit, a sanctioned attorney, whether participating or nonparticipating in the underlying action, must wait until the termination of that litigation to take an appeal of the sanctions order. In holding that adequate and effective appellate review is available at the conclusion of the case, the majority renders it impossible for nonparticipating sanctioned: attorneys to satisfy the third Cohen requirement. Although I remain unpersuaded by the majority’s view that nonparticipating attorneys ■ must await the conclusion of the underlying action in order to appeal the. sanctions order, I am bound by this new holding that review is both available and effective when delayed until the conclusion of a ease in which, the attorney no longer has a role.
Having announced a new rule in this circuit, the majority suggests that its holding applies retroactively so ás to bár a merits review of the issues Cunningham raises in this appeal. See Op. at 423 & n. 5. Because Cunningham did not file a notice of appeal upon the termination of the underlying litigation, retroactive application of the majority decision effectively bars any review of the district court’s sanctions imposed upon her. The inequity of this result is patently obvious. When faced with a similar situation, the Tenth Circuit in G.J.B. & Assocs. v. Singleton, 913 F.2d 824 (10th Cir.1990), refused to impose such an unfair result on the attorney, explaining that
[t]he sharp split between the circuit courts as to the Cohen doctrine’s applicability and the absence of any binding circuit precedent made our holding difficult, if not impossible, to foretell. Consequently, to apply our holding retroactively would be inequitable____ If we dismiss [the attorney’s] appeal for want of jurisdiction, he will be remediless for the time has passed to file a new notice of appeal from the final judgment. While the aim of our holding—to effectuate the purposes of the final judgment rule—would not be hampered by its retroactive application, the small benefit we would gain by applying our holding retroactively does not outweigh the inequity which would result from such a determination. Accordingly, we conclude that our holding should not apply retroactively____
Id. at 829-30. As in G.J.B., principles of equity militate here against retroactive application of the majority’s new rule and compel this court to conduct a merits review of the issues Cunningham raises in this appeal.
For the foregoing reasons, I respectfully dissent.
. In dictum, the majority notes that maybe in an "extreme case” the sanctions order "would not implicate any merits issues.” Op. at 424.