In Re Grand Jury Subpoena
709 F.3d 1027
10th Cir.2013Background
- Witness is the LLC's sole member and records custodian, under grand jury investigation.
- Subpoena duces tecum to bring LLC records; Witness asserted personal Fifth Amendment privilege.
- District court denied the motion to quash; Witness complied with the subpoena within eight days.
- Witness appeals the denial, arguing Perlman v. United States permits immediate review.
- Court invokes jurisdictional rule: normally no appellate review of a non-final order; Perlman exception debated.
- Court ultimately holds it lacks jurisdiction to review the privilege claim and dismisses the appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the appeal is jurisdictionally proper before contempt. | Witness relies on Perlman to permit immediate review. | United States contends no jurisdiction absent contempt or final order. | No jurisdiction; appeal dismissed. |
| Whether Perlman applies when a custodian asserts privilege in another capacity. | Witness should be able to invoke Perlman despite capacity as custodian. | Perlman does not extend to this scenario. | No jurisdiction; Perlman does not apply. |
| Whether expedition rationale in Ryan forecloses pre-contempt appellate review. | Immediate review is appropriate to avoid delay in grand jury proceedings. | Expedition rationale supports review only after contempt. | Expedition rationale forecloses pre-contempt review. |
Key Cases Cited
- United States v. Nixon, 418 U.S. 683 (1974) (finality requirement for appeal of orders to produce evidence)
- Cobbledick v. United States, 309 U.S. 323 (1940) (necessity for expedition justifies postponing review)
- Perlman v. United States, 247 U.S. 7 (1918) (interlocutory appeal by intervenor when third-party disclosures are involved)
- United States v. Ryan, 402 U.S. 530 (1971) (review of subpoenas before contempt when unduly burdensome or unlawful)
- Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100 (2009) (collateral-order review limitations; tension with Perlman noted)
- In re Grand Jury Proceedings, 616 F.3d 1172 (10th Cir. 2010) (third-circuit interpretation of Perlman applicability to third-party interests)