Tuesday, November 01, 2016

Interlocutory appeal of disclosure order in grand jury proceedings dismissed for lack of jurisdiction

            The Third Circuit dismissed the appeal in In Re Grand Jury Matter #3, 15-2475 (10/28/2016), for lack of jurisdiction.  In response to a grand jury subpoena, John Doe’s accountant gave the government an email that was written by John Doe’s lawyer and forwarded to the accountant by John Doe. The government wanted to show the email to the grand jury.  John Doe claimed that it was attorney work product and privileged.  District Court ruled that the crime-fraud exception applied and that the government could disclose the email to the grand jury.

            Normally, to file an interlocutory appeal of such a disclosure order, the subpoenaed party would have to refuse the subpoena, get held in contempt, and then file an appeal of the contempt finding.  However, in circumstances, such as here, where the document is not in the possession of the person opposing disclosure, the person opposing disclosure is unable to choose to stand in contempt so that he/she could immediately appeal the disclosure order.  Under these circumstances, sometimes the Perlman doctrine allows the privilege-holder to file an interlocutory appeal.

            In this case, the Third Circuit allowed the appeal to continue and had full briefing and oral argument.  However, sometime after the filing of the appeal, the grand jury was shown the email and they returned an indictment.  Given the indictment, the Third Circuit found that an interlocutory appeal was premature because the issue could be raised after final judgment if there was a conviction in this case.  They dismissed the case for lack of jurisdiction.  A dissent was filed.

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