13‐945‐cv
Pineboard Holdings v. Parmar
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL
EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER
JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL RULE
OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE
32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED
WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL
APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second
2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
3 Square, in the City of New York, on the 18th day of February, two thousand
4 fourteen.
5
6 PRESENT: ROBERT A. KATZMANN,
7 Chief Judge,
8 RICHARD C. WESLEY,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
12 PINEBOARD HOLDINGS, INC.,
13
14 Plaintiff‐Appellee,
15
16 v. No. 13‐945‐cv
17
18 PAUL PARMAR,
19
20 Interested Party‐Appellant.
21 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
The Clerk of the Court is directed to amend the caption of this case as set forth
above.
1
1
2 FOR APPELLANT: David C. Burger, Robinson Brog Leinwand
3 Greene Genovese & Gluck, P.C., New York, NY.
4
5 FOR APPELLEE: Stephen Z. Starr, Starr & Starr, PLLC, New York,
6 NY and Alex M. Weingarten, Weingarten Brown
7 LLP, Los Angeles, CA.
8
9 Appeal from an order of the United States District Court for the Southern
10 District of New York (Kimba M. Wood, Judge).
11 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
12 AND DECREED that this appeal is DISMISSED for lack of appellate jurisdiction.
13 Interested party‐appellant Paul Parmar appeals from the District Court’s
14 order compelling a non‐party, Paul Niehaus, to comply with a subpoena. We
15 assume the parties’ familiarity with the facts and record of the prior proceedings,
16 to which we refer only as necessary to explain our decision to dismiss.
17 Pineboard Holdings, Inc., a party to ongoing litigation in the Central
18 District of California, moved to compel Niehaus to comply with a subpoena
19 issued in connection with the California litigation. The subpoena seeks
20 deposition testimony and documents regarding a meeting between Niehaus and
21 Parmar. Parmar opposed the motion to compel on the grounds that Niehaus is
22 his former attorney and that the subpoenaed material is protected by the
23 attorney‐client privilege. In March 2013 the District Court issued an order
24 compelling Niehaus to comply with the subpoena. Shortly thereafter, Niehaus
25 complied with the order by testifying in a deposition and producing documents.
26 On appeal, Parmar urges us to reverse the District Court’s order compelling
27 compliance with the subpoena.
28 “Although neither party has suggested that we lack appellate jurisdiction,
29 we have an independent obligation to consider the presence or absence of subject
2
1 matter jurisdiction sua sponte.” Joseph v. Leavitt, 465 F.3d 87, 89 (2d Cir. 2006).
2 “The general rule is that orders enforcing subpoenas issued in connection with
3 civil and criminal actions, or grand jury proceedings, are not final, and therefore
4 not appealable.” United States v. Constr. Prods. Research, Inc., 73 F.3d 464, 468
5 (2d Cir. 1996). “To obtain appellate review, the subpoenaed party must defy the
6 district court’s enforcement order, be held in contempt, and then appeal the
7 contempt order, which is regarded as final under § 1291.” Id. at 469. Because
8 Niehaus complied with rather than defied the District Court’s order, this appeal
9 must fall within an exception to the general rule in order for us to have
10 jurisdiction. Two possible exceptions, the Perlman doctrine and the collateral
11 order doctrine, do not apply under the circumstances of this case.
12 Under the Perlman doctrine, “the holder of an asserted privilege may
13 immediately appeal the enforcement of a subpoena when the subpoena is
14 directed at another person who does not object to providing the testimony or
15 documents at issue.” In re Air Crash at Belle Harbor, N.Y. on Nov. 12, 2001, 490
16 F.3d 99, 106 (2d Cir. 2007). “The theory of immediate appealability in these cases
17 is that the third party will not be expected to risk a contempt citation and will
18 surrender the documents sought, thereby letting the ‘cat out of the bag’ and
19 precluding effective appellate review at a later stage.” In re Katz, 623 F.2d 122,
20 124 (2d Cir. 1980). Here, Parmar did not move for a stay, Niehaus complied with
21 the subpoena, and the “cat” is already out of the bag. Accordingly, Parmar’s
22 interest in remedying the allegedly improper disclosure of privileged material is
23 not enough to trigger the Perlman exception. See United States v. Lavender, 583
24 F.2d 630, 633 (2d Cir. 1978) (declining to apply Perlman exception where third
25 party already had complied with subpoena); see also 15B Charles Alan Wright et
26 al., Federal Practice & Procedure § 3914.23 (2d ed. 1992) (“If the harm threatened
3
1 by the order . . . has been done, there is no sufficient interest remaining to
2 support appeal.”).
3 A second possible exception, the collateral order doctrine, permits
4 immediate review if, among other requirements, an order would “be effectively
5 unreviewable on appeal from a final judgment.” Will v. Hallock, 546 U.S. 345,
6 349 (2006) (quotation marks omitted). Under this doctrine, we have assumed
7 jurisdiction over orders denying discovery where, as here, the ancillary
8 discovery proceeding and the principal action are in different Circuits. Accord
9 Stolt‐Nielsen SA v. Celanese AG, 430 F.3d 567, 574 n.5 (2d Cir. 2005). However,
10 we have refrained from extending the exception to orders that, like the order on
11 appeal, grant discovery. See Republic Gear Co. v. Borg‐Warner Corp., 381 F.2d
12 551, 554 (2d Cir. 1967) (collecting cases).
13 We are aware of no other exception that provides us with appellate
14 jurisdiction in this case. For the foregoing reasons, this appeal is DISMISSED for
15 lack of appellate jurisdiction.
16 FOR THE COURT:
17 Catherine O=Hagan Wolfe, Clerk of Court
18
4