In Re Air Crash At Belle Harbor, New York On November 12, 2001.
Ira M. Feinberg, Hogan & Hartson L.L.P., New York, N.Y. (George F. Hritz, Hogan & Hartson L.L.P., New York, NY; Thad T. Dameris, Trevor R. Jeffries, and Bruce D. Oakley, Hogan & Hartson L.L.P., Houston TX; and David J. Weiner, Hogan & Hartson L.L.P., Washington, DC, on the brief), for Defendant-Appellee Airbus Industrie G.I.E.
JOSÉ A. CABRANES, Circuit Judge.
We consider here whether we may exercise appellate jurisdiction over a non-party lawyer‘s appeal from a district court order directing him to produce documents and appear for a deposition, despite his assertions of various privileges belonging to himself and his client, where the lawyer has not disobeyed the order and been held in contempt.
The appeal arises out of lawsuits filed against, inter alia, defendant-appellee Airbus Industrie G.I.E. (“Airbus“) following the crash of American Airlines Flight 587 at Belle Harbor, New York, on November 12, 2001. During consolidated pretrial proceedings, the United States District Court for the Southern District of New York (Robert W. Sweet, Judge) granted Airbus‘s motion to compel non-party-appellant Jeffrey W. Golan (“Golan“), a lawyer licensed in Pennsylvania, to produce certain documents and appear for a deposition in compliance with a subpoena, over his objections based on attorney-client privilege, the work product doctrine, and the reporters’ shield laws of New York and Germany. Golan asserts that he represents a German reporter, who is not a party to these proceedings, and that he serves as a consultant for plaintiffs’ counsel in the underlying litigation. The District Court subsequently designated the order as a “final order” and directed its immediate entry pursuant to
On April 24, 2002, the Judicial Panel on Multidistrict Litigation transferred all lawsuits concerning the November 12, 2001 crash to the Southern District of New York pursuant to
On October 13, 2005, Airbus served the PEC with a document request for any material in its possession obtained from current and former Airbus employees. On March 9, 2006, the PEC provided Airbus with a privilege log identifying three memoranda written and transmitted to the PEC by Golan. On November 3, 2006, Airbus served Golan with a subpoena issued and signed by Airbus‘s counsel on behalf of the District Court.3 The subpoena commanded Golan to appear for a deposition and to produce thirteen categories of documents, including all documents received from any current and former Airbus employees, all documents concerning the November 12, 2001 crash and certain Airbus aircraft, and all documents provided to any other person regarding the litigation. Golan served objections to the subpoena on November 21, 2006, and amended objections on November 30, 2006.
Golan‘s amended objections to the subpoena consisted of six “General Objections,” a discussion of the basis for the general objections, statements in response to each category of documents requested by Airbus, and broad descriptions of the documents being withheld. Golan asserted that the subpoena (1) called for the production of materials protected by the attorney-client privilege; (2) called for the production of materials protected by the attorney work product doctrine; (3) was overly broad, unduly burdensome, and harassing; (4) sought information protected by reporters’ shield laws in the United States and Europe; (5) attempted to “end-run the plaintiffs’ [March 9, 2006] designation of privileged documents“; and (6) required him to appear for a deposition on a day when he had other professional commitments. Golan explained that he became aware of information relevant to the litigation as a result of serving as counsel for a European journalist, and that any information Golan shared with the PEC was done (1) in anticipation of potential litigation the journalist might bring, (2) to aid the journalist “in the pursuit of an eventual investigative publication,” or (3) to assist the PEC.
On January 30, 2007, Airbus filed a motion to compel Golan to produce the documents and appear for the deposition. Both Golan and the PEC opposed the motion. In a declaration filed in support of his opposition to the motion, Golan specified that several months after the November 12, 2001 crash, he was contacted by a reporter at a well-established German publication who was seeking legal counsel regarding, inter alia, whether a person not injured in the crash could bring a private action in the United States and how to obtain information disclosed in the course of litigation that had already commenced. Golan stated that he continued to serve as the reporter‘s attorney after the reporter decided not to initiate any litigation; Golan also claimed that he entered into a consulting relationship with the PEC “for the purpose of investigating and communicating information pertinent to the crash.” In sum, Golan claimed that “all of the information and documents that [he possesses] have come into [his] possession solely as a result of [his] providing legal advice to [his] client, the reporter, and later, as a consultant to Plaintiffs’ counsel.” Purporting to assert a “good faith and sufficient basis for protecting from production . . . all documents in [his] possession and all information that [he] may have learned relevant to this matter,” Golan invoked the attorney-client privilege, the attorney work product doctrine, and the reporters’ shield laws of New York and Germany.
On March 8, 2007, the District Court entered an order directing Golan to appear for the deposition on or before March 12 and to produce all documents responsive to Airbus‘s subpoena on or before March 9. The March 8 order also directed plaintiffs to produce related documents. On March 9, 2007, Golan filed a notice of appeal from the March 8 order. Also on March 9, 2007, in response to a request from Golan, the District Court issued a further order in which it designated “the portions of the March 8 Order pertaining to Golan” as a “Final Order with respect to Golan.” The District Court found no just reason for delay in the entry of the “Final Order” and directed its immediate entry pursuant to Rule 54(b). Golan filed an amended notice of appeal on March 14, 2007, which indicated that the March 8 order had been entered as a final order under Rule 54(b) pursuant to the District Court‘s instructions.
At oral argument before this Court, Golan informed us that if his appeal were to prove unsuccessful, he would abide by the District Court‘s order compelling compliance with the subpoena, and that he has received his reporter client‘s authorization to do so in that event.
DISCUSSION
This Court “shall have jurisdiction of appeals from all final decisions of the district courts of the United States.”
“The requirement of submitting to contempt, however, is not without exception and in some instances the purposes underlying the finality rule require a different result.” Nixon, 418 U.S. at 691. Thus, for example, “a district court order enforcing a subpoena issued by a government agency in connection with an administrative investigation may be appealed immediately without first performing the ritual of obtaining a contempt order,” because the administrative proceeding is self-contained and, unlike in the case of a grand jury or trial, there is no “further judicial inquiry which would be halted were the offending [subpoenaed party] permitted to appeal.” Constr. Prods. Research, Inc., 73 F.3d at 469 (alteration in original) (quoting Cobbledick v. United States, 309 U.S. 323, 330 (1940)) (internal quotation mark omitted).
I. The Perlman Exception
Golan argues that his appeal falls under the so-called Perlman exception to the rule requiring the subject of a subpoena to submit to contempt before a district court‘s order compelling compliance with the subpoena is appealable. In Perlman v. United States, 247 U.S. 7 (1918), the Supreme Court permitted Perlman, the target of a grand jury investigation, to immediately appeal the district court‘s denial of his motion for an order restraining the United States Attorney from using property belonging to him that had been impounded and deposited with the clerk of the court, after the clerk had been ordered by the district court to produce the property. See id. at 12-13; Nat‘l Super Spuds, Inc., 591 F.2d at 178 (discussing Perlman‘s facts and procedural history). Thus, in Perlman, “the contempt avenue for ultimately securing review” of the district court‘s production order “was not available since Perlman was not being required to do anything,” Nat‘l Super Spuds, Inc., 591 F.2d at 179 (citing Cobbledick, 309 U.S. at 328-29). Moreover, it was “unimaginable” that the disinterested clerk would defy the district court‘s order so that Perlman—who had no connection to the clerk—could appeal. Id.
Perlman has since come to stand for the principle that the holder of an asserted privilege may immediately appeal the enforcement of a subpoena when the subpoena is directed at another person who does not object to providing the testimony or documents at issue. See Stolt-Nielsen SA, 430 F.3d at 575 (“[W]here a subpoenaed third-party witness does not object to testifying, but someone else does—often on the grounds of privilege—a district court‘s refusal to quash the subpoena is immediately appealable by the objecting party.“); In re Katz, 623 F.2d 122, 124 (2d Cir. 1980) (“[W]here the subpoena is directed against a third party, the movant who claims that production of the subpoened material would violate his fifth amendment privilege against self-incrimination is permitted an immediate appeal.“); see also In re Grand Jury Proceedings, 219 F.3d 175, 182 n. 3 (2d Cir. 2000) (interpreting In re Katz as concluding that the “holder of [an] asserted privilege may appeal when [a] subpoena is directed at a third party because of the risk that the third party will surrender the privilege rather than risk a contempt citation“). The Perlman exception applies to appeals both from orders denying motions to quash, see, e.g., In re Katz, 623 F.2d at 124, and orders granting motions to compel, see, e.g., In re Grand Jury Proceedings, 219 F.3d at 181-82 & n. 3. It also applies to appeals from orders issued in both grand jury proceedings, see, e.g., In re Katz, 623 F.2d at 123-24, and criminal and civil actions, see Nat‘l Super Spuds, Inc., 591 F.2d at 176-81.
Golan‘s argument fails, and the Perlman exception is inapplicable to his appeal, for two reasons. First, the Perlman exception is relevant only to appeals brought by the holder of a privilege where the disputed subpoena is directed at someone else. It is impossible for such an appellant to pursue the normal avenue of review—submission to contempt—because, like Perlman, that appellant has not been required to do anything by the district court. In the instant case, however, Golan is both the appellant and the subject of the subpoena. The power to abide by or defy the district court‘s order is in his hands alone. See In re Am. Tobacco Co., 866 F.2d 552, 556 (2d Cir. 1989) (”Perlman may not be extended to permit the party in possession of the subpoenaed documents to appeal prior to contempt simply because other persons might have been able to do so.“); cf. In re Grand Jury Subpoena for N.Y. State Income Tax Records, 607 F.2d 566, 571 (2d Cir. 1979) (“Since the State is both the holder of the privilege and the custodian of the records the Perlman doctrine does not permit this appeal.“).
Second, unlike the court clerk in Perlman, a lawyer in Golan‘s position— even one concerned about the effects of a contempt citation on his practice—does not lack countervailing motivations to submit to contempt, as well as ethical obligations to assert his client‘s privileges. As the United States Court of Appeals for the District of Columbia Circuit has noted in a similar situation, a lawyer who “assert[s][his] own interests in work product and in not being subject to what [he] claims is burdensome and abusive discovery, plus the privilege of [his] client (which [he] is normally duty-bound to assert) ... has the requisite incentives (as well as the clear ability) to risk contempt and thereby force review into the usual channel.” In re Sealed Case, 141 F.3d 337, 340 (D.C. Cir. 1998) (citations omitted). Moreover, if a mere citation for civil contempt might hinder an attorney‘s attempts at obtaining representation in future cases, the refusal to submit to such contempt under any circumstances might drive away clients in the future.7
Because Golan cannot take advantage of the Perlman exception to obtain review of the District Court‘s order, the ordinary contempt requirement would prevent immediate appeal unless we were to create a new exception for lawyers that is similar to the exception established for the President of the United States by the Supreme Court in United States v. Nixon. In that case, the Supreme Court held that the President, who had been issued a subpoena to produce certain tapes and documents in connection with a criminal proceeding where he was named as an unindicted co-conspirator, could immediately appeal the district court‘s denial of his motion to quash the subpoena, even though he had not first submitted to contempt. Nixon, 418 U.S. at 686, 691-92. The Court emphasized that the ordinary rule was “peculiarly inappropriate due to the unique setting” in which the issue arose. Id. at 691. Requiring the President to submit to contempt would have “present[ed] an unnecessary occasion for constitutional confrontation between two branches of the Government,” placed the federal judge in an unusually difficult position, and threatened to “itself engender protracted litigation” over whether the district court had the power to hold the President in contempt, thereby delaying review “on the merits of his claim of privilege and the ultimate termination of the underlying criminal action for which his evidence [was] sought.” Id. at 692.
II. Rule 54(b)
Golan contends further that even if he would ordinarily have to submit to contempt before he could appeal the District Court‘s order, the District Court‘s invocation of Rule 54(b) rendered the order final and immediately appealable. This argument fails, however, because Rule 54(b) does not provide district courts with the authority to make “final” an order compelling a non-party to comply with a subpoena.
Rule 54(b) provides:
When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form or decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.
The circumstances of the instant case cannot satisfy factor (2). A district court may designate its order as final only if the order “meets the standard of finality governing independent litigation.” Horn v. Transcon Lines, Inc., 898 F.2d 589, 594 (7th Cir. 1990). For the reasons discussed above, the District Court‘s order directing Golan to produce documents and appear for a deposition is not final for the purposes of
Golan argues in the alternative that, regardless of whether the District Court‘s order is “final” for the purposes of
Although we ultimately exercised mandamus review to overturn the discovery order in Chase Manhattan Bank, Golan has not petitioned for this extraordinary writ and has neither indicated which issues addressed in the District Court‘s order are “of importance and of first impression” nor explained how “immediate resolution will avoid the development of discovery practices or doctrine undermining” the asserted privileges. Chase Manhattan Bank, 964 F.2d at 163 (explaining the prerequisites for mandamus review of a discovery order).
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For the foregoing reasons, and pursuant to our order of April 17, 2007, Airbus‘s motion to dismiss the appeal is GRANTED.