In re: Air Crash at Belle Harbor

07-1190
In re: Air Crash at Belle Harbor

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2006

(Argued: April 10, 2007 Decided: May 8, 2007)

Docket No. 07-1190-cv

IN RE : AIR CRASH AT BELLE HARBOR , NEW YORK ON NOVEMBER 12, 2001

MARGARITA DEL CARMEN MONTAN , individually, as personal representative and administrator of the
Estate of Jose Angel Rosa and on behalf of all heirs and next of kin of Jose Angel Rosa, deceased and
JESUS R. ARAUJUO, as personal representative and administrator of the Estate of Lillian Valoy, deceased,
individually and on behalf of the next of kin,

Plaintiffs,

JEFFREY W. GOLAN ,

Non-Party-Appellant,

v.

AMERICAN AIRLINES, INC ., AIRBUS INDUSTRIE , G.I.E., A AIRBUS S.A.S., AIRBUS SERVICE COMPANY,
INC ., EUROPEAN AERONAUTIC DEFENSE AND SPACE COMPANY EA, BAE SYSTEMS,

Defendants-Appellees.

Before: LEVAL, CABRANES, and RAGGI, Circuit Judges.

Non-party-appellant, a licensed attorney, appeals from an order compelling him to produce

certain documents and appear for a deposition in compliance with a subpoena, despite his assertions of

attorney-client privilege, the work product doctrine, and protections under the reporters’ shield laws of

New York and Germany. We conclude that (1) the order is not final for the purposes of 28 U.S.C. §

1291, because appellant has not disobeyed the order and been held in contempt; (2) the District Court

did not have authority under Federal Rule of Civil Procedure 54(b) to designate the order as “final”;

and (3) the collateral order doctrine does not apply. Therefore, we lack appellate jurisdiction and grant

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defendant-appellee’s motion to dismiss the appeal.

JEFFREY W. GOLAN , pro se.

IRA M. FEINBERG, Hogan & Hartson L.L.P., New York, NY
(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

Federal Rule of Civil Procedure 54(b) (“Rule 54(b)”).1 Golan appealed, and Airbus moved to dismiss

1
As discussed below, Rule 54(b) permits a district court, upon a finding of “no just reason for delay,” to direct
entry of a final judgm ent as to “fe wer than all claim s or parties.”

2
the appeal for lack of appellate jurisdiction because the order was not a “final decision” under 28 U.S.C.

§ 1291.2 Golan responded that (1) under a line of cases deriving from the Supreme Court’s opinion in

Perlman v. United States, 247 U.S. 7 (1918), he was exempt from the general rule requiring a subpoenaed

non-party in a criminal or civil proceeding to “disobey the subpoena, be held in civil or criminal

contempt, and then appeal the contempt order,” Stolt-Nielsen SA v. Celanese AG, 430 F.3d 567, 574 (2d

Cir. 2005); (2) the District Court’s invocation of Rule 54(b) rendered the order a final decision for the

purposes of 28 U.S.C. § 1291; and (3) in any event, we should accept his appeal pursuant to the

collateral order doctrine. By order dated April 17, 2007, we summarily granted Airbus’s motion to

dismiss the appeal. We write now to explain our reasons for doing so.

BACKGROUND

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 28 U.S.C.

§ 1407. The transferred cases were assigned to Judge Sweet for consolidated pretrial proceedings with

related actions already before him. He subsequently appointed a Plaintiffs’ Executive Committee

(“PEC”) to coordinate the work of plaintiffs’ counsel. Plaintiffs in the underlying litigation seek relief

under various theories, including wrongful death, products liability, and breach of warranty.

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

2
In pertinent part, 28 U.S.C. § 1291 provides: “The courts of appeals . . . shall have jurisdiction of appeals from
all final dec isions of the district cou rts of th e United States . . . .”

3
The issuance of a subpoena in a civil action does not in itself reflect the District Court’s endorsement of the
demand s made therein. See Fed . R. Civ. P. 45(a) (describing the proc edure for issuance of a subpoena); see also 9A Wright

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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

& M iller, Federal Practice & Procedure § 2451 (1995) (“A ‘subpoena’ is a mandate lawfully issued in the name of the
court, usually by the clerk there of, but under curre nt practice, by attorneys.”).

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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.

The District Court issued a memorandum opinion on March 1, 2007, granting Airbus’s motion

to compel. In re: Air Crash at Belle Harbor, New York on November 12, 2001, Nos. 02 Civ. 0439 (RWS), 02

MDL 1448 (RWS), 2007 WL 635723 (S.D.N.Y. Mar. 1, 2007). The District Court concluded that (1)

Golan failed to establish the existence of an attorney-client relationship with either the unnamed

German reporter or the PEC; (2) even if Golan could prove an attorney-client relationship, the reporter

waived the attorney-client privilege with respect to any material that had been shared with the PEC,

and the PEC waived the attorney-client privilege with respect to any material that had been shared with

other persons; (3) under an earlier discovery decision of the District Court, the work product doctrine

was inapplicable to any materials admitted to contain Airbus documents or information; (4) in any

event, Golan waived application of the work product doctrine by failing to submit a privilege log in

accordance with the requirements of S.D.N.Y. Local Rule 26.2;4 (5) Golan failed to engage in any

choice-of-law analysis that would lead to the application of Germany’s shield law and did not present

4
Pursuant to Local Rule 26.2, “[w]here a claim of privilege is asserted in objecting to any means of discovery or
disclosure . . . the attorney asserting the privilege shall identity the nature of the privilege,” and provide information such
as the type, subject matter, and date of allegedly privileged documents and the date, subject matter, and recipients of
allegedly priv ileged co mmunic ations.

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evidence of any connection between the reporter and Germany; and (6) the protections afforded by

New York’s shield law do not apply to any information that the reporter shared with Golan. See id. at

*1-2.

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.” 28 U.S.C. § 1291. “Under traditional finality principles, a district court’s decision to

compel compliance with a subpoena or to deny a motion to quash a subpoena is generally not a ‘final

decision’ and therefore is not immediately appealable.” Stolt-Nielsen SA, 430 F.3d at 574. This general

rule applies whether the subpoena is issued in connection with civil and criminal actions, or grand jury

proceedings, see United States v. Constr. Prods. Research, Inc., 73 F.3d 464, 468 (2d Cir. 1996), and whether

the person (or entity) seeking to prevent enforcement of the subpoena is a party to the litigation or a

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non-party witness, see Stolt-Nielsen SA, 430 F.3d at 574. To obtain appellate review, the subpoenaed

person ordinarily “must defy the district court’s enforcement order, be held in contempt, and then

appeal the contempt order, which is regarded as final under § 1291.” Constr. Prods. Research, Inc., 73 F.3d

at 469; see also United States v. Nixon, 418 U.S. 683, 690-91 (1974); Alexander v. United States, 201 U.S. 117,

121-22 (1906); Stolt-Nielsen SA, 430 F.3d at 574; Dove v. Atl. Capital Corp., 963 F.2d 15, 17 (2d Cir. 1992);

Nat’l Super Spuds, Inc. v. N.Y. Mercantile Exch., 591 F.2d 174, 177 (2d Cir. 1979) (Friendly, J.). Under this

rule, “[t]he remedy of the party witness wishing to appeal is to refuse to answer and subject himself to

criminal contempt; that of the non-party witness is to refuse to answer and subject himself to civil or

criminal contempt.”5 Nat’l Super Spuds, Inc., 591 F.2d at 177.

Requiring the subject of a subpoena to submit to contempt before appealing promotes the

“strong congressional policy”—embodied in 28 U.S.C. § 1291—“against piecemeal reviews, and against

obstructing or impeding an ongoing judicial proceeding by interlocutory appeals.” Nixon, 418 U.S. at

690. As Judge Friendly has explained, even the “softened” application of this requirement “serves a

useful purpose in curtailing appeals, with consequent delay in litigation . . . .”6 Nat’l Super Spuds, Inc.,

591 F.2d at 180. “Both sides benefit from having a second look.” Id. The subpoenaed person “may

decide . . . that the importance of the issue and the risk of adverse appellate determination do not

5
It is arguably possible that a party witness could obtain review of the rulings und erlying a challenged d iscovery
order by allowing his case to be dismissed for non-prod uction (if the party witness is a plaintiff) or by allowing sum mary
judgm ent to be entered based on adv erse inferences drawn from non-production (if the party witness is a defend ant).
We are not presented with such a scenario, and we express no opinion as to the feasibility of these course s of action.

6
The “softened” application referred to by Judge Friendly involved the assertion of governmental privilege by
a non-pa rty G overnm ent employee at his agency’s request. Nat’l Super Spuds, Inc., 591 F.2d at 180. In su ch a case, a
“citation fo r civil contempt withou t any other immediate sanction pending prom pt application fo r review will ordina rily
suffice.” Id. If the appeal were unsuccessful, “damages (in a case like this primarily counsel fees) would be an
appropriate remedy, and these should be paid by the Governm ent and not by the employee.” Id. (citations om itted).

We need not consider here whether it would be permissible, much less sufficient, for a district court to apply an
“softer” approach than was discussed by Judge Friendly, such as by holding a putative appellant in contempt with the
explicit or implicit understanding that the citation would be expunged even if the appeal were unsuccessful and the
contemnor then promptly complied.

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warrant being branded as a contemnor,” while “the person seeking information . . . may decide that the

quest is not important enough to seek a contempt citation, thereby entailing the delay of an appeal . . .

.” Id.

“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

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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 contends that, like the clerk in Perlman, it is unimaginable that he would defy the District

Court’s order to assert privileges belonging to his reporter client. Golan claims that because he is a

licensed attorney who often appears on a pro hac vice basis in the Southern District of New York, it

would be “virtually impossible” for him to risk a citation for contempt. Although Golan does not

explain the basis for this impossibility in his submissions to this Court, at oral argument he implied that

a mere citation for contempt would have adverse professional consequences, primarily affecting his

appointment to plaintiffs’ executive committees in other complex litigation.

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 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

7
At oral argum ent, G olan suggested tha t we shou ld allow his appeal to proceed be cau se his reporter clien t is
not a party to the underlying litigation and therefore cannot bring the appeal on the client’s own behalf. However, in In
re Katz, we permitted the client of a non-party attorney to appeal under the Perlman exception after moving to intervene

10
 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 Nixon v. United States. 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

as of right before the district court pursuant to F ederal Rule of C ivil Procedure 24(a). See In re Katz, 623 F.2d at 123-25.
Moreover, an order com pelling discovery does not become final under 28 U.S.C. § 1291 merely because the privilege
holder cannot appeal and the target of the order has not submitted to contempt. For instance, such an order may not be
final if th e target is an em ployee of the p rivilege holder and appears willing to su bm it to contem pt rather than com ply
with the order. See Nat’l Super Spuds, Inc., 591 F.2d at 179-81 (dismissing an appeal from a district court order directing
the employee of a government agency to answer certain questions at a deposition, where the employee had not
submitted to contempt and the Perlman exception did not perm it the agency itself to appeal).

We need not consider whether the Perlman exception would allow Golan’s client to appeal in a situation where,
as here, the attorney has resisted the subpoena and the client has authorized the attorney to obey an order compelling
com pliance in the event of an unsucc essfu l appeal by the attorney himself. See id. at 179 n.7 (“Whatever the validity of
this exception m ay be in cases w here the [privilege holder] is disintere sted or independent, it becomes more difficu lt to
sustain where the target of the disclosure order is both subject to the control of the person or entity asserting the
privilege and is a participant in the re lationship out of which the privilege em erge s.” (citations o mitted)); cf. Stolt-Nielsen,
SA, 430 F.3d at 475 (applying the Perlman exception where the subject of the subpoena “dem onstrated that he is more
than willing to comply w ith the subpoena w ithou t any add itional prom pting”); In re Sealed Case, 141 F.3d at 34 0 n.1 (“In
som e cases the attorney will indicate an intention to com ply with the subpoena, and on those facts the [D.C . Circuit]
regards Perlman as controlling.”); In re Katz, 623 F.2d at 124-25 (applying the Perlman exception where the attorney’s client
asserted his “fifth amendment privilege against self-incrimination” and the attorney had already appeared before the
grand jury and given the allegedly privileged docum ents to the district cou rt under seal).

Go lan also ask ed at oral argu ment that, if we conclu de he is unable to appeal, we grant leave to have his
reporter client substituted on the notice of appeal. We decline to depart from the ordinary rules for intervention and
perfection of an appeal from an order compelling compliance with a subpoena.

11
of his claim of privilege and the ultimate termination of the underlying criminal action for which his

evidence [was] sought.” Id. at 692.

Such concerns have no bearing on the instant case. We have declined to dispense with the

ordinary contempt requirement “where the government, whether state or federal, asserts governmental

or ‘executive’ privilege in cases where it is not a party,” Nat’l Super Spuds, Inc., 591 F.2d at 177, and we

decline to dispense with it in cases where a non-party lawyer asserts either his own or his client’s

privileges. As other lawyers have had to do, Golan must submit to contempt before the district court’s

order to appear for a deposition and produce documents will be appealable. See In re Grand Jury

Proceedings, 604 F.2d 798, 799-800 (3d Cir. 1979) (dismissing the appeal of a non-party attorney who had

not submitted to contempt by defying an order to produce documents in a grand jury proceeding); In re

Murphy, 560 F.2d 326, 332-33 & n.10 (8th Cir. 1977) (permitting appeals by non-party law firms and

lawyers because they were cited for civil contempt after refusing to turn over documents to the district

court)

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

12
 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.

Fed. R. Civ. P. 54(b). As we summarized in Ginett v. Computer Task Group, Inc., 962 F.2d 1085 (2d

Cir. 1992), Rule 54(b) contains three prerequisites for concluding that a decision or order is a “final

judgment”:

(1) multiple claims or multiple parties must be present, (2) at least one claim, or
the rights and liabilities of at least one party, must be finally decided within
the meaning of 28 U.S.C. § 1291, and (3) the district court must make an
“express determination that there is no just reason for delay” and expressly
direct the clerk to enter judgment.

Id. at 1091. “Factors (1) and (2) address the issue of whether rule 54(b) applies at all to the

circumstances of the case,” and are reviewed de novo. Id. at 1091-92.

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 28 U.S.C. § 1291.8 Rule 54(b) did not grant the District Court

authority to change the order’s status regarding appealability merely by a pronouncement that the

order was “final.”

III. The Collateral Order Doctrine

Golan argues in the alternative that, regardless of whether the District Court’s order is

8
Although resistance to an order compelling compliance w ith a su bpoena may lead directly to being held in
contem pt, it is the contem pt order itself that rep resents the final ste p in effecting com pliance w ith the subpoena. See
Alexander, 201 U.S. at 121 (“In a certain sense finality can be asserted of the orders under review, so, in a certain sense,
finality can be asserted of any order of a court. And such an order may coerce a witness, leaving him no alternative but
to obey or be punished. It may have the effect and the same characteristic of finality as the orders under review, but
from such a ruling it will not be contended there is an appeal. Let the court go farther and punish the witness for
contempt of its order, then arrives a right of review, and this is adequate for his protection without unduly impeding the
progress of the case.”).

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“final” for the purposes of 29 U.S.C. § 1291, we should exercise appellate jurisdiction pursuant to

the collateral order doctrine, which allows us to hear an appeal from an interlocutory order “if such

order (1) ‘conclusively determined the disputed question’; (2) ‘resolved an important question

completely separate from the merits of the action’; and (3) ‘was effectively unreviewable on appeal

from a final judgment.’” SEC v. TheStreet.Com, 273 F.3d 222, 228 (2d Cir. 2001) (quoting Whiting v.

Lacara, 187 F.3d 317, 320 (2d Cir. 1999)). See generally Cohen v. Beneficial Indus. Loan Corp., 337 U.S.

541 (1949). This argument is foreclosed by our holding in Chase Manhattan Bank, N.A., v. Turner &

Newall, PLC, 964 F.2d 159 (2d Cir. 1992), where we rejected application of the collateral order

doctrine in an appeal from a discovery order that required disclosure of thousands of documents

allegedly protected by attorney-client privilege, see id. at 160, 162-63.9 Indeed, in that case the

putative appellant was a party to the underlying civil action, id. at 160, and could not have appealed

even from a civil contempt order, see OSRecovery, Inc. v. One Groupe Int’l, Inc., 462 F.3d 87, 89-90 (2d

Cir. 2006) (civil contempt orders are not final as to parties, but are final as to non-parties). Golan,

on the other hand, could have disobeyed the District Court’s order, been cited for civil contempt,

and then appealed from the contempt order, which is considered final for the purposes of 28 U.S.C.

§ 1291. In other words, the District Court’s order compelling compliance with the subpoena was

not “effectively unreviewable on appeal from a final judgment.”

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

9
We have, in circum stances not relev ant here, applied the collateral order doctrine “in allowing a party to
appeal an order denying discovery of a non-party where the order is made by a district court other than the one in which
the underlying action is pending,” Barrick G roup, Inc., v. Mosse, 849 F.2d 70, 73 (2d Cir. 1988), but only where “effective
review” is unavailable because the district cou rts are in two different circu its, see id. at 73-74.

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undermining” the asserted privileges. Chase Manhattan Bank, 964 F.2d at 163 (explaining the

prerequisites for mandamus review of a discovery order).

* * *

For the foregoing reasons, and pursuant to our order of April 17, 2007, Airbus’s motion to

dismiss the appeal is GRANTED.

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