Commonwealth v. Winer
404 N.E.2d 654
Mass.
1980
Check Treatment

The defendant appealed from the July 12,1979, order to produce and the September 19, 1979, contempt order. We transferred the appeal here on our own motion. We conclude that the orders are not appealable. In order to obtain review of an order directing the production of evidence before a grand jury, the party subpoenaed must move to quash, and, if unsuccessful, refuse to comply and suffer a conviction for contempt. See United States v. Ryan, 402 U.S. 530 (1971); Cobbledick v. United States, 309 U.S. 323 (1940); Meadowbrook Hosp., Inc. v. United States, 528 F.2d 983 (5th Cir. 1976). Cf. In re Oberkoetter, 612 F.2d 15 (1st Cir. 1980), and Borman v. Borman 378 Mass. 775, 781-784 (1979). Additionally, where there has been such an adjudication of civil contempt, if the party complies with the order to produce, thereby purging the contempt, the matter becomes moot. It is only where “the witness chooses to disobey and is committed for contempt” that “the witness’ situation becomes so severed from the main proceeding as to permit an appeal.” Cobbledick supra at 328. In order to safeguard against obstruction of the orderly process of a grand jury investigation, we allow exceptions to this rule “[o]nly in the limited class of cases where denial of immediate review would render impossible any review whatsoever of an individual’s claims.” Ryan, supra at 533. The defendant, of course, could still object to the introduction of the subpoenaed work papers or its fruits against him at his trial on the pending indictments. See id. at 532 n.3.

Appeal dismissed.