In re: Grand Jury Matter 3 v., 847 F.3d 157

John Doe (Doe), his lawyer, and a business associate are subjects of an ongoing grand jury investigation into an alleged scheme to hide Doe’s ownership of Company A and induce low-value settlements in a class action.
An email from Doe’s lawyer advising how to amend records to show Company B owned Company A was forwarded by Doe to his accountant; the accountant later produced the email to the Government and sought to recall it as privileged.
The District Court held the email was work product but that the crime-fraud exception applied, permitting the Government to present the email to the grand jury; Doe filed an interlocutory Perlman appeal.
While the appeal was pending the grand jury returned an indictment and later a superseding indictment; a new grand jury, which also viewed the email, continues to investigate related ownership issues.
The Third Circuit considered (1) whether appellate jurisdiction still existed post-indictment given Perlman and prior circuit precedent, and (2) whether the crime-fraud exception to the work-product doctrine applied to the email.

Issue	Plaintiff's Argument (Doe)	Defendant's Argument (Government)	Held
Appellate jurisdiction post-indictment for a Perlman interlocutory appeal	Perlman permits immediate appeal because a disinterested third party produced the document; the continued grand jury investigation keeps the controversy live	Indictment and superseding indictment moot appeal; no contempt threatened so Perlman inapplicable	Court retained jurisdiction: because appeal was properly filed under Perlman and the grand jury investigation continues, the appeal is not moot
Applicability of crime-fraud exception to attorney work-product	Forwarding the lawyer’s email to the accountant did not use the work product to further a fraud; no affirmative act in furtherance occurred	The forwarding, context, and other evidence (recording, tax filings) show a reasonable basis to suspect fraud and that the work product was used in furtherance	Crime-fraud exception does not apply: insufficient evidence of an act using the work product to further a fraud; mere consideration or forwarding without more is inadequate

In re Grand Jury (ABC Corp.), 705 F.3d 133 (3d Cir. 2012) (discusses Perlman and interlocutory appeals of disclosure orders)
In re Grand Jury Proceedings (Johanson), 632 F.2d 1033 (3d Cir. 1980) (allows continuing appellate review when grand jury investigation continues post-indictment)
In re Search of Elec. Commc’ns in the Account of chakafattah@gmail.com at Internet Serv. Provider Google, Inc., 802 F.3d 516 (3d Cir. 2015) (Perlman appeal continued post-indictment due to ongoing investigation)
Westinghouse Elec. Corp. v. Republic of Phil., 951 F.2d 1414 (3d Cir. 1991) (describes purpose of work-product protection)
In re Chevron Corp., 633 F.3d 153 (3d Cir. 2011) (crime-fraud exception requires both reasonable basis to suspect fraud and use of attorney materials in furtherance)
In re Grand Jury Investigation, 445 F.3d 266 (3d Cir. 2006) (discusses misuse of attorney work product in furtherance of fraud)
Bank of Nova Scotia v. United States, 487 U.S. 250 (U.S. 1988) (harmless-error standard for use of improperly obtained materials)
Perlman v. United States, 247 U.S. 7 (U.S. 1918) (allows privilege holder to appeal when a disinterested third party produces privileged material)
Hyde v. United States, 225 U.S. 347 (U.S. 1912) (discussion that conspiracy requires an overt act beyond mere intent)