In re Grand Jury Subpoenas Dated March 2, 2015, 628 F. App'x 13

Company is an investment firm; its president/owner is under grand jury investigation for tax fraud.
District court ordered the Company’s attorneys to produce attorney-client communications with the Owner.
District court applied the crime-fraud exception to privilege, finding probable cause that the Owner used counsel to further a fraudulent tax protest scheme.
The district court conducted an in camera review of the privileged materials and relied on them in reaching its conclusion.
Company appealed the disclosure order to the Second Circuit; the government and Company both asked the appellate court to reach the merits.
The Second Circuit affirmed, holding the crime-fraud exception applied and directing immediate mandate because the grand jury investigation remains ongoing.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether appellate jurisdiction exists under Perlman/Mohawk for non-party appeal of non-final disclosure order	Company: Perlman permits appeal because it cannot avoid the harm of disclosure in an ongoing grand jury matter	Government: Mohawk limits collateral appeals; postjudgment review suffices	Court assumed statutory jurisdiction and reached merits for efficiency; did not resolve Perlman–Mohawk tension
Whether crime-fraud exception applies to communications about a tax protest	Company: Communications remain privileged; tax protest does not meet heightened showing	Government: Owner used counsel to further/ conceal tax fraud, invoking exception	Court: No clear error—probable cause that protest was based on false transaction and furthered concealment; exception applies
Proper standard of proof when litigation is alleged to further fraud	Company: If litigation alleged, heightened probable-cause standard applies	Government: Court may apply standard but facts here satisfy it	Court: Even assuming heightened standard applies to tax protests, district court met it
Whether district court erred in relying on in camera review and ex parte submissions	Company: Challenges sufficiency and process	Government: In camera review appropriate and supported finding	Court: Reviewed materials and record; found no clear error in district court’s in camera reliance

Mohawk Indus. v. Carpenter, 558 U.S. 100 (2009) (limits availability of collateral-order appeals for privilege rulings)
Perlman v. United States, 247 U.S. 7 (1918) (permits non-party appeals where appellant cannot avert harm of disclosure)
In re John Doe, Inc., 13 F.3d 633 (2d Cir. 1994) (crime-fraud exception scope)
In re Grand Jury Subpoena Duces Tecum Dated Sept. 15, 1983, 731 F.2d 1032 (2d Cir. 1984) (foundational crime-fraud exception discussion)
In re Richard Roe, Inc., 168 F.3d 69 (2d Cir. 1999) (elements and probable-cause standards for crime-fraud exception)
United States v. Jacobs, 117 F.3d 82 (2d Cir. 1997) (standard of review for crime-fraud determinations)
Loughrin v. United States, 134 S. Ct. 2384 (2014) (noting abrogation in part of precedent on other grounds)
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998) (jurisdictional limits on hypothetical jurisdiction)
Fama v. Comm’r of Corr. Servs., 235 F.3d 804 (2d Cir. 2000) (discusses when courts may assume jurisdiction over statutory questions)