United States v. Krane
2010 U.S. App. LEXIS 22605
| 9th Cir. | 2010Background
- Intervenor Quellos appeals a district court order compelling Skadden to comply with a Rule 17(c) subpoena in a criminal case against two former Quellos executives.
- Government contends documents relate to attorney opinions supporting POINT, a tax shelter allegedly developed for Quellos.
- Skadden produced a privilege log and two sets of notes; Quellos asserted attorney-client privilege over the materials.
- After initial proceedings, the defendants pled guilty and the criminal trial was canceled; the government moved to continue seeking the documents for sentencing.
- This court earlier stayed the district court order; subsequent events raised mootness questions, leading to a dismissal under the Perlman rule and 28 U.S.C. § 1291.
- The panel concludes the case is moot and directs vacatur of the district court’s order and remand for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Perlman survives Mohawk for interlocutory review | Quellos argues Perlman remains valid. | Government contends Mohawk restricts review. | Perlman survives Mohawk; jurisdiction exists. |
| Whether the case is moot due to guilty pleas and termination | Plea and trial termination moot the subpoena dispute. | Dispute could persist for sentencing; not moot. | The appeal is moot; case dismissed. |
| Whether district court’s order should be vacated and remanded | If moot, order should be vacated to avoid live dispute. | Remand unnecessary if moot. | Vacate district court order and remand for consistency with opinion. |
Key Cases Cited
- Perlman v. United States, 247 U.S. 7 (1918) (establishes the Perlman rule for third-party custodians)
- Mohawk Industries, Inc. v. Carpenter, 130 S. Ct. 599 (2009) (collateral-order-type limitations on attorney-client disclosure orders)
- Griffin v. United States, 440 F.3d 1138 (9th Cir. 2006) (performs Perlman-based jurisdictional analysis)
- United States v. Bergeson, 425 F.3d 1221 (9th Cir. 2005) (discusses Rule 17(c) discretionary inquiry factors)
- Nixon v. United States, 418 U.S. 683 (1974) (nixon factors for pretrial subpoenas)
- Munsingwear, Inc. v. United States, 340 U.S. 36 (1950) (mootness vacatur doctrine; dismissal when moot)
- United States v. Austin, 416 F.3d 1024 (9th Cir. 2005) (Perlman as alternative basis to collateral order)