In Re Grand Jury ABC Corp.
680 F.3d 328
3rd Cir.2012Background
- ABC Corp., John Doe 1, and John Doe 2 appeal a district court order directing production of documents to the Government in a grand jury investigation; documents are held by Blank Rome for John Doe 2 and stored at the request of ABC's counsel LaCheen Wittels.
- Government sought 171 documents (167 compelled) under the crime-fraud doctrine; district court held crime-fraud vitiated privilege/work product and ordered production of the 167 documents.
- Appellants contend attorney-client privilege (ABC as privilege holder) and work product protection shield the documents; district court rejected those claims.
- Appellants invoke Perlman to obtain immediate appellate review despite the custodian being a third party; the court rejects Perlman as a basis for jurisdiction here because the order directly compels production by the privilege holder and the privilege holder may obtain custody.
- The Third Circuit majority dismisses for lack of appellate jurisdiction; Judge Vanaskie separately concurs in part and dissents in part, arguing Perlman covers the production by the law firms and would affirm on merits, and addressing Mohawk's impact.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the production order immediately appealable under Perlman? | ABC contends Perlman allows immediate appeal when custodian is a third party. | Government argues Perlman does not apply where the order directs the privilege holder to produce and the holder may obtain custody. | Perlman not applicable; order dismissed for lack of jurisdiction. |
| Does the contempt route remain open to obtain review? | ABC may refuse to comply and appeal contempt sanctions to obtain review. | Contempt route exists but Perlman still governs; here the order is directed to the privilege holder and jurisdiction rests on contempt only if applicable. | Contempt route exists, but jurisdiction is not conferred under Perlman for this interlocutory appeal. |
| What is Mohawk's effect on Perlman in grand jury privilege contexts? | Mohawk narrows or overrides Perlman in some contexts. | Mohawk may limit collateral appeals for privilege in civil cases; its effect on Perlman pending broader guidance. | Mohawk does not render Perlman applicable here; nonetheless, the court declines to decide Mohawk's broader impact on Perlman in this case. |
| Does current representation by law firms affect Perlman applicability? | Current attorneys can be third-party custodians under Perlman. | Treatment of current attorneys should align with Perlman; many circuits treat current attorneys as third parties for Perlman purposes. | Perlman applies to law firms as custodians; jurisdiction exists for the law-firm production portion, but overall appeal dismissed for lack of jurisdiction. |
Key Cases Cited
- Perlman v. United States, 247 U.S. 7 (U.S. 1918) (permitting immediate appeal when third-party custodian ordered to produce purportedly privileged documents)
- In re Grand Jury Proceedings (FMC Corp.), 604 F.2d 798 (3d Cir. 1979) (crime-fraud exception permits compelled production; privilege may be defeated)
- In re Grand Jury Proceedings (Cianfrani), 563 F.2d 577 (3d Cir. 1977) (permanence of Perlman doctrine for third-party custodians)
- In re Grand Jury, 111 F.3d 1066, 111 F.3d 1066 (3d Cir. 1997) (application of Perlman to privilege and third-party custody)
- In re Grand Jury, 286 F.3d 153, 286 F.3d 153 (3d Cir. 2002) (permitting Perlman where appropriate to challenge orders affecting privilege holders other than direct subpoena recipient)
- Alexander v. United States, 201 U.S. 117 (1906) (finality and contempt route for discovery orders)
- Ryan v. United States, 402 U.S. 530 (1971) (expedition in criminal law justifies contempt route for immediate review)
- Church of Scientology v. United States, 506 U.S. 9 (1992) (comments on Perlman and disinterested third party considerations)
- Mohawk Indus., Inc. v. Carpenter, 130 S. Ct. 599 (2009) (collateral-order doctrine and disclosure orders; limits on immediate appellate review of privilege rulings)
- In re Grand Jury Proceedings (Gordon), 722 F.2d 303 (6th Cir. 1983) (current attorneys can be treated as third parties under Perlman)