In Re Grand Jury ABC Corp.

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 12-1697
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IN RE: GRAND JURY

ABC CORP.; JOHN DOE 1; JOHN DOE 2,
Appellants

_______________

On Appeal from the United States District Court
For the Eastern District of Pennsylvania
(D.C. Grand Jury Action No. 2-09-gj-00006)
District Judge: Honorable Harvey Bartle, III
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Argued April 19, 2012
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Before: AMBRO, HARDIMAN and
VANASKIE, Circuit Judges

(Opinion file: May 24, 2012)
Stephen R. LaCheen, Esq. (ARGUED)
LaCheen, Wittels & Greenberg, LLP
1429 Walnut Street, 13th Floor
Philadelphia, PA 19102

Counsel for Appellants ABC Corp. and John Doe 1

Ian M. Comisky, Esq. (ARGUED)
Matthew D. Lee, Esq.
Blank Rome LLP
One Logan Square
130 North 18th Street
Philadelphia, PA 19103

Counsel for Appellant John Doe 2

Frank P. Cihlar, Esq.
S. Robert Lyons, Esq.
Alexander P. Robbins, Esq. (ARGUED)
United States Department of Justice, Tax Division
P.O. Box 502
Washington, DC 20044

Karen L. Grigsby, Esq.
Office of the United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106

Counsel for the Government
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OPINION OF THE COURT
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2
AMBRO, Circuit Judge

ABC Corp., John Doe 1, and John Doe 2 seek to
appeal an order of the District Court requiring ABC Corp.,
Blank Rome LLP, and LaCheen, Wittels & Greenberg, LLP
to produce certain documents to the Government as part of an
ongoing grand jury investigation. 1 The sought-after
documents are currently in the custody of Blank Rome, a law
firm that represents John Doe 2. Blank Rome is housing the
documents at the request of LaCheen Wittels, a law firm
representing ABC Corp. and John Doe 1. Appellants claim
the attorney-client privilege — ABC Corp. is the privilege
holder — and the work product rule shield the documents
from disclosure. The District Court disagreed, concluding
that the crime-fraud doctrine vitiates any privilege or work
product protection.

When a district court orders the production of
supposedly privileged documents, its order usually is not an
immediately appealable final decision. To obtain immediate
appellate review, an objecting privilege holder must disobey
the disclosure order, be held in contempt, and then appeal the
contempt order. Appellants argue that Perlman v. United
States, 247 U.S. 7 (1918), provides an exception to the
contempt rule here because the documents are in the custody
of a third party (Blank Rome) who is not willing to suffer
contempt for the sake of an immediate appeal.

We disagree, and hold instead that Perlman does not
allow an immediate appeal of a district court’s order
mandating the production of supposedly privileged
documents when (1) the court’s order directs the privilege
1
To maintain the secrecy of the investigation, we refer to the
facts in general terms.

3
holder itself to produce the documents and (2) the privilege
holder has, or may obtain, custody of the documents. In
short, Perlman does not apply when the traditional contempt
route is open to the privilege holder. 2 That route is open to
ABC Corp. The District Court ordered the company to
produce the documents, and it may obtain custody of the
documents from its agents. If ABC Corp. wants pre-
conviction appellate review of the District Court’s crime-
fraud ruling, it must take possession of the documents and
defy that Court’s disclosure order before appealing any
resulting contempt sanctions. Because it has not yet met
these preconditions, we dismiss for lack of appellate
jurisdiction.

I. Background
ABC Corp. is an administratively “dissolved”
corporation. It was formed in early 2004 and it ceased
business operations in late 2005. John Doe 1 was the
company’s President and sole indirect shareholder and John
Doe 2 is his son. To repeat, LaCheen Wittels represents ABC
Corp. and John Doe 1 while Blank Rome represents John Doe
2. The law firms have, however, a joint-defense agreement
with respect to the three Appellants.

In mid-2010, Appellants learned that the Government
was investigating the tax implications of ABC Corp.’s
acquisition and sale of certain closely held companies. In
December 2010, the Government issued a grand jury
subpoena to ABC Corp.’s former vice president of corporate
acquisitions as the company’s custodian of records. The
subpoena sought any and all records relating to transactions
2
As we explain below, there is a sui generis exception to our
holding for the President of the United States. See infra note
4.

4
and business dealings between ABC Corp. and specific
entities and individuals.

At some point the Government received access to, or
copies of, certain ABC Corp. documents from a law firm that
previously represented the company. The firm withheld
certain documents it claimed were privileged, but it did not
supply the Government with a privilege log. After LaCheen
Wittels and Blank Rome assumed their current
representations, the former firm of ABC Corp. transferred the
documents to Blank Rome. According to Appellants,
LaCheen Wittels did not have sufficient space to store the
documents, so Blank Rome agreed to hold them as custodian.

In a January 2011 letter, LaCheen Wittels took the
position that the Government did not effectively serve the
subpoena issued to ABC Corp.’s former vice president.
Nonetheless, in March 2011, LaCheen Wittels and Blank
Rome provided the Government with a privilege log, which
they revised in April 2011, for the documents ABC Corp.’s
former firm once withheld.

Because ABC Corp. refused to accept service of the
subpoena issued to its former employee, the Government
issued grand jury subpoenas to LaCheen Wittels and Blank
Rome in May 2011. The subpoenas sought all documents the
two firms received from ABC Corp.’s former law firm
relating to ABC Corp. and another entity. In response to
these subpoenas, the law firms produced approximately 24
boxes of documents. These were the same documents that
ABC Corp.’s former firm had previously produced. They
continued to withhold, however, the documents listed on the
April 2011 privilege log, and provided the Government with
another privilege log in June 2011 for additional documents
withheld.

5
 The Government then filed an ex parte motion to
compel ABC Corp., Blank Rome, and LaCheen Wittels to
produce 171 of the 303 documents identified on the privilege
logs. It argued that the documents should be produced based
on the crime-fraud doctrine, which provides that evidentiary
privileges may not be used to shield “communications made
for the purpose of getting advice for the commission of a
fraud or crime.” United States v. Zolin, 491 U.S. 554, 563
(1989) (internal quotations omitted).

On March 8, 2012, the District Court granted the
Government’s motion and, in a two-page order, directed ABC
Corp., Blank Rome, and LaCheen Wittels to produce 167 of
the 171 requested documents by March 16. The 167
documents comprise roughly 800 pages. In an accompanying
42-page opinion, the District Court concluded that the crime-
fraud doctrine barred ABC Corp.’s privilege and work
product claims. It did not resolve whether the Government
properly served ABC Corp. with a subpoena by serving its
former vice president, but noted that “[t]his issue is of no
moment here. There is no allegation that the subpoenas were
served improperly on Blank Rome and LaCheen Wittels[,]
who are presently in the possession of the documents the
government seeks.” Dist. Ct. Op. at 9.

Five days later, Appellants filed a timely notice of
appeal and a motion for a stay pending appeal. We granted
the stay and expedited the appeal. 3

3
This is the second time Appellants have attempted a
Perlman appeal in this matter. See In re Grand Jury Matter
#4, No. 11-4105 (3d Cir. Dec. 20, 2011) (summarily
dismissing for lack of jurisdiction). According to Appellants,
the documents at issue in that appeal had already been turned

6
II. Discussion

The District Court had jurisdiction under 18 U.S.C.
§ 3231. Our jurisdiction is in dispute, but we have
jurisdiction to determine our jurisdiction. Alaka v. Att’y Gen.,
456 F.3d 88, 94 n.8 (3d Cir. 2006).
A. Finality and the Contempt Rule

“[T]he right to a judgment from more than one court is
a matter of grace and not a necessary ingredient of justice . . .
.” Cobbledick v. United States, 309 U.S. 323, 325 (1940).
Congress has bestowed such grace by granting the Courts of
Appeals jurisdiction over “final decisions” of the district
courts. 28 U.S.C. § 1291. Whether a decision is “final”
depends on its effects. Marcus v. Twp. of Abington, 38 F.3d
1367, 1370 (3d Cir. 1994). “Ordinarily, a final decision will
have two effects. First, the decision will fully resolve all
claims presented to the district court. Second, after the
decision has been issued, there will be nothing further for the
district court to do.” Aluminum Co. of America v. Beazer
East, Inc., 124 F.3d 551, 557 (3d Cir. 1997); see also Catlin
v. United States, 324 U.S. 229, 233 (1945) (“A ‘final
decision’ generally is one which ends the litigation on the
merits and leaves nothing for the court to do but execute the
judgment.”).

When a district court orders a witness — whether a
party to an underlying litigation, a subject or target of a grand
jury investigation, or a complete stranger to the proceedings

over to and reviewed by the Government by the time the
panel issued its order. Here, in contrast, the documents are
not in the Government’s possession and the Government has
not reviewed them.

7
— to produce documents, the district court’s order generally
is not considered an immediately appealable “final
decision[]” under § 1291. See United States v. Ryan, 402
U.S. 530, 532–34 (1971); Cobbledick, 309 U.S. at 326–29;
Alexander v. United States, 201 U.S. 117, 118–22 (1906). It
is well-settled that a witness who “seeks to present an
objection to a discovery order immediately to a court of
appeals must refuse compliance, be held in contempt, and
then appeal the contempt order.” Church of Scientology of
Cal. v. United States, 506 U.S. 9, 18 n.11 (1992); see also
Ryan, 402 U.S. at 532–34; Cobbledick, 309 U.S. at 326–29;
Alexander, 201 U.S. at 118–22; DeMasi v. Weiss, 669 F.2d
114, 121–23 (3d Cir. 1982). A district court’s contempt order
is itself immediately appealable because it is a final judgment
imposing penalties on the willfully disobedient witness in
what is effectively a separate proceeding. The Supreme
Court has explained that
if the witnesses refuse to comply
with [a disclosure order] and the
court then exercises its authority
either to punish them or to coerce
them into compliance, that will
give rise to another case or cases
to which the witnesses will be
parties on the one hand, and the
government, as a sovereign
vindicating the dignity and
authority of one of its courts, will
be a party on the other hand.
Alexander, 201 U.S. at 122 (quotations omitted). “[A]
judgment adverse to the witnesses in that proceeding or case
will be a final decision.” Id.

8
 The contempt route to an immediately appealable final
decision is a firmly established feature of federal appellate
procedure, stretching back to at least the Supreme Court’s
1906 decision in Alexander, but the decision to travel that
route must not be made lightly. In this regard the Supreme
Court has

consistently held that the
necessity for expedition in the
administration of the criminal law
justifies putting one who seeks to
resist the production of desired
information to a choice between
compliance with a trial court’s
order to produce prior to any
review of that order, and
resistance to that order with the
concomitant possibility of an
adjudication of contempt if his
claims are rejected on appeal.

Ryan, 402 U.S. at 533. The rule, “though at times a harsh
one, was formulated to discourage appeals in all but the most
serious cases.” In re Grand Jury Proceedings (Appeal of
FMC Corp.), 604 F.2d 798, 800 (3d Cir. 1979). Requiring a
person who objects to a disclosure order to “refuse to comply,
be subjected to sanctions in contempt, and then appeal from
the sanctions. . . . [,] puts the objecting person’s sincerity to
the test by attaching a price to the demand for immediate
review.” Wilson v. O’Brien, 621 F.3d 641, 643 (7th Cir.
2010). It forces the objector to weigh carefully the likelihood
of success of its challenge to the underlying disclosure order
against the seriousness of the sanctions it would face —
whether a hefty monetary fine, incarceration, or some other
penalty — if it ignores the order to disclose. It also forces the

9
objector to assess the importance it attaches to avoiding the
ordered disclosure and protecting any associated privileges.

The severity of the contempt rule is well justified
because immediate appellate review of disclosure orders
creates great delay in our justice system and runs especially
against the principle of speedy trials for allegations of
criminal conduct. See Di Bella v. United States, 369 U.S.
121, 126 (1962) (“[T]he delays and disruptions attendant
upon intermediate appeal are especially inimical to the
effective and fair administration of the criminal law.”);
Cobbledick, 309 U.S. at 325 (“These considerations of policy
are especially compelling in the administration of criminal
justice. . . . [E]ncouragement of delay is fatal to the
vindication of the criminal law.”). Although an appeal of a
contempt order may itself involve a disruption of the
underlying proceedings, “not to allow this interruption would
forever preclude review of the witness’ claim, for his
alternatives are to abandon the claim or languish in jail.”
Cobbledick, 309 U.S. at 328.

B. The Perlman Exception to the Contempt Rule

In Perlman, the Supreme Court carved out an
exception to the rule that a custodian of documents must
stand in contempt of a discovery order before an immediate
appeal may be taken. 247 U.S. at 8–13. In that case, Louis
Perlman testified on behalf of his company in a patent
infringement suit in District Court. Id. at 8. When the
company moved to dismiss its suit without prejudice, the
District Court granted the company’s motion but it ordered
the court clerk to impound the exhibits Perlman used during
his testimony and to maintain them under seal. Id. at 8–9.

Soon after, the Government began a grand jury
investigation of Perlman, suspecting him of having

10
committed perjury during his testimony. Id. at 11–12. To
assist in the investigation, the Government sought an order
from the District Court directing the court clerk to produce
the exhibits Perlman used during his testimony. Id. at 9–10.
Perlman objected, claiming that use of the exhibits as a basis
for indictment against him would be an unreasonable search
and seizure and would make him a compulsory witness
against himself in violation of the Constitution’s Fourth and
Fifth Amendments. Id. at 10, 13. The District Court rejected
Perlman’s challenge and ordered the clerk to produce the
exhibits to the Government. Id. at 10–11.

When Perlman ultimately appealed to the Supreme
Court, which heard the case under its then-obligatory
appellate jurisdiction, the Government argued that the District
Court’s disclosure order was not appealable. Id. at 12. The
Court disagreed, saying only that

[t]he second contention of the
government is somewhat strange,
that is, that the order granted upon
its solicitation was not final as to
Perlman but interlocutory in a
proceeding not yet brought and
depending upon it to be brought.
In other words, that Perlman was
powerless to avert the mischief of
the order but must accept its
incidence and seek a remedy at
some other time and in some other
way. We are unable to concur.
Id. at 12–13.

Whatever else Perlman may require, we can discern
the sine qua non: when a court orders a custodian that is not

11
a privilege holder to produce purportedly privileged
documents, the privilege holder may immediately appeal the
disclosure order only when it is impossible for the privilege
holder itself to disobey the order, be held in contempt, and
appeal any contempt sanctions. In Perlman, the District
Court did not order Perlman to produce any documents. Its
order was directed only to the court clerk. There was simply
no court order for Perlman to disobey. Furthermore, Perlman
could not have obtained custody of the exhibits from the court
clerk (and then stood in contempt of a later disclosure order
directed at him) because a previous court order directed the
clerk to impound the exhibits and maintain custody of them
under seal. Perlman thus was “powerless to avert the
mischief of the [disclosure] order” because he could not take
the traditional contempt route to a final decision. 4

4
To be clear, it is a necessary (but not sufficient) prerequisite
to Perlman’s application that the traditional contempt route is
closed to the privilege holder. See 15B Charles Alan Wright
et al., Federal Practice & Procedure § 3914.23 (2d ed. 1992)
(“The Perlman decision never has meant that appeal can be
taken simply because the alternative of disobedience and
contempt is not available. Orders denying discovery do not
afford any opportunity for disobedience, yet are not
appealable on this theory.”).

There is a unique exception to our holding that Perlman
cannot apply when the contempt route remains open to the
objector. It applies when the objector is the President of the
United States. See United States v. Nixon, 418 U.S. 683,
691–92 (1974) (applying Perlman and holding that to require
the President to travel the contempt route “would be
unseemly, and would present an unnecessary occasion for

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 In this vein, we have explained that “the Alexander-
Cobbledick-Ryan [contempt] rule restricting appellate review
is limited to situations where the contempt route to a final
order is available to the appellant.” In re Matter of Grand
Jury Applicants (C. Schmidt & Sons, Inc.), 619 F.2d 1022,
1025 (3d Cir. 1980). In contrast, appellants in Perlman and
its progeny “were not the targets of the subpoena itself, which
meant that the contempt route for obtaining an appeal was not
available to them.” In the Matter of Grand Jury Empanelled
Aug. 14, 1979 (Appeal of TRW Credit Data, Inc.), 638 F.2d
1235, 1237 (3d Cir. 1981).

Consistent with this understanding of the contempt
rule and the Perlman exception, we have permitted an appeal
of a disclosure order adverse to the attorney-client privilege
when the privilege holder was not subpoenaed. See In re
Grand Jury Proceedings (Appeal of FMC Corp.), 604 F.2d
798 (3d Cir. 1979). In FMC Corp., the Government issued a
grand jury subpoena to Douglas Kliever, FMC’s former
outside counsel. Id. at 799–800. Kliever refused to produce
certain documents, asserting the attorney-client privilege and
work product protection. Id. The District Court granted the
Government’s motion to compel and ordered Kliever to
produce the documents, finding that the crime-fraud
exception barred any privilege or work product protection.
Id.

constitutional confrontation between two branches of the
Government”); 15B Wright, supra, § 3914.23 (“The Court’s
language [in Nixon] suggested that it was not anxious to
create a corrosive principle that might allow others to bypass
the disobedience and contempt path to appeal.”). Appellants
do not suggest that Nixon by analogy supports jurisdiction
here.

13
 FMC appealed “as the nonsubpoenaed holder of the
attorney-client privilege and assert[ed] a right to raise the
work product privilege as well.” Id. at 801 (emphasis added).
It claimed that Kliever would not disobey the district court’s
order nor would it ask him to do so. Id. at 800. We began
our jurisdictional analysis of FMC’s appeal by noting that the
company had “not been subpoenaed to produce the
documents and therefore would not [have been] held in
contempt were they not produced.” Id. A contempt citation
would apply only to its former attorney, Kliever. We then
turned to our precedent, and noted that “[r]easoning
pragmatically that a witness will not usually undergo the
penalties of contempt in order to preserve someone else’s
privilege, the courts permit appeal by an intervenor [i.e., the
privilege holder] without the necessity of a sentence for
contempt.” Id. at 800-01 (quoting In re Grand Jury
Proceedings (Appeals of Cianfrani & Kalman), 563 F.2d 577,
580 (3d Cir. 1977)) (citing Perlman, 247 U.S. at 7, 15). Thus
we concluded that we had jurisdiction. Id. at 801.

Some of our sister Courts of Appeals also have
recognized that Perlman does not apply when the contempt
route is open to the privilege holder. For example, the
Second Circuit has explained that “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.’” In re Air
Crash at Belle Harbor, N.Y. on Nov. 12, 2001, 490 F.3d 99,
105 (2d Cir. 2007) (quoting Nat’l Super Spuds, Inc. v. N.Y.
Mercantile Exch., 591 F.2d 174, 179 (2d Cir. 1979)). “[T]he
Perlman exception is relevant only to appeals brought by the
holder of a privilege where the disputed subpoena is directed
at someone else.” Id. at 106 (emphasis added). “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

14
by the district court.” Id. Opinions from the Seventh and
Tenth Circuits reflect a similar understanding. See Wilson,
621 F.3d at 642–43 (“contrast[ing]” Perlman with those
situations in which “an order of disclosure is directed against
a person whose legal interests are affected” because “that
person has a means to obtain appellate review” — namely,
the contempt route) (emphasis in original); In re Motor Fuel
Temperature Sales Practice Litig., 641 F.3d 470, 485-86
(10th Cir. 2011) (refusing to apply Perlman when non-party
trade associations who objected to disclosing purportedly
privileged information could “refuse to comply with the
subpoenas directed to themselves, incur contempt citations,
and appeal from the contempt orders”).

C. Whether the Contempt Route Remains Open to ABC
Corp.

ABC Corp. is subject to a court order to produce
documents. Unlike Louis Perlman, the company has been
required to do something. Appellants nonetheless contend
that the contempt route is not open to ABC. While we are
sensitive to some of Appellants’ practical concerns, we
cannot agree that Perlman permits this appeal.

Appellants assert that the District Court’s order
“erroneously included” ABC Corp. and in fact “should not
have been directed to [the company] at all.” Appellants’
Reply Br. at 5. It therefore cannot be held in contempt for
disobeying the order. According to Appellants, the District
Court should not have ordered ABC Corp. to produce the
documents because the Government never properly served the
company with a subpoena and, in any event, ABC Corp. does
not have custody of the documents.

These arguments miss the mark. An order does not
become immediately appealable simply because a putative

15
appellant believes that it is, in one way or another, wrong or
improper. If ABC Corp. believes that the District Court’s
order is reversible for whatever reason — whether because it
was not preceded by proper service of a subpoena, because it
is the result of an improper crime-fraud ruling, or for any
other reason — and it wishes to present its challenge in an
immediate appeal, it must disobey the order and take the
contempt route. Until and unless it is vacated, the District
Court’s order — not the grand jury’s subpoena — binds the
company and compels production of the documents. See
Brown v. United States, 359 U.S. 41, 49 (1959) (“A grand
jury is clothed with great independence in many areas, but it
remains an appendage of the court, powerless to perform its
investigative function without the court’s aid, because
powerless itself to compel the testimony of witnesses.”),
overruled on other grounds by Harris v. United States, 382
U.S. 162, 167 (1965).
Appellants then claim that, even if the District Court’s
order were valid, ABC Corp. could not disobey that order
because it does not have custody of the documents. To
repeat, Blank Rome is currently holding the requested
documents and it holds them at the request of ABC Corp.’s
counsel, LaCheen Wittels. The Government’s response is
simple: ABC Corp. may take the documents from Blank
Rome. It is undisputed that Appellants and their respective
law firms have a joint-defense agreement in place. If the
privilege holder-client ABC Corp. directs its counsel
LaCheen Wittels to direct the custodian Blank Rome to
transfer the documents to ABC Corp.’s custody, then the
agents must oblige the principal. See In re Grand Jury, 821
F.2d 946, 951 (3d Cir. 1987) (noting that, in the context of
responding to a subpoena, “possession” means “legal
control”). We agree with the Government.

16
 Appellants contend the Government’s position ignores
the seriousness of a grand jury subpoena and court order.
Appellants’ Reply Br. at 8. After all, the law firms are
subject to the same court order as the company. According to
Appellants,

[h]ad Blank Rome, after receipt of
a grand jury subpoena, done
anything other than preserve the
documents, the government would
surely charge that [ABC Corp.]
and, for that matter, the law firms,
were guilty of obstruction of
justice by engaging in behavior
intended to thwart the grand
jury’s investigation. See 18
U.S.C. §1503 (obstruction of
grand jury investigation). No law
firm, under these circumstances,
would transfer documents subject
to subpoena to the privilege
holder and the government’s
suggestion that this should be the
“routine practice” finds no
support in case law.

Id. at 8–9.

These concerns are understandable. Indeed we too
have not found any case in which a court has approved a
transfer of documents between multiple parties subject to a
disclosure order so that the privilege holder could take the
contempt route to immediate appellate review while leaving
the other parties free of contempt fears. But here we put
those fears to bed. It would not be obstruction of justice, as
the Government conceded at oral argument, if Blank Rome

17
transfers the documents to ABC Corp. — after giving the
Government and the District Court sufficient notice of the
time, place, and other circumstances of the transfer — so that
the company can go down the well-established path of
disobeying a disclosure order, suffering contempt, and then
appealing any contempt sanctions.

Of course, this is not a license for Blank Rome to send
the documents out of the jurisdiction or to act in bad faith in
any way when transferring the documents to ABC Corp. We
have no reason to believe that the firm would do anything of
the sort, however. We leave the logistics of how ABC Corp.
might take physical custody of documents to the Appellants,
the Government, and the District Court if, after considering
our opinion here, ABC Corp. wishes to test its luck in a
contempt appeal. Should it choose that route, the District
Court will exercise its discretion and determine in the first
instance the severity of any sanctions it wishes to impose on
the company. Although we hold that ABC Corp. must stand
in contempt before obtaining pre-conviction appellate review,
we do not mean to suggest that the District Court should
simply impose a “soft” sanction on the company so that it
may do so with ease. As we discuss above, the contempt rule,
“though at times a harsh one, was formulated to discourage
appeals in all but the most serious cases.” In re Grand Jury
Proceedings (Appeal of FMC Corp.), 604 F.2d at 800. 5

5
As Judge Vanaskie points out, even if ABC Corp. chooses
to proceed with a contempt appeal, Blank Rome and LaCheen
Wittels would appear, in theory, to be just as much in
contempt of the District Court’s order as ABC Corp. We are
confident, however, that the Government, consistent with its
representations to our Court, will not seek to hold the law
firms in contempt if Blank Rome transfers the documents to

18
 Next, Appellants posit that even if ABC Corp. could
take custody of the documents and disobey the District
Court’s order, Perlman does not require it to do so. Under
Appellants’ view of the law, what ABC Corp. may be able to
do is irrelevant; it is enough in this case that the documents
are currently in the custody of a disinterested third-party
(Blank Rome) who has made clear that it will not disobey the
District Court’s order. See Church of Scientology, 506 U.S.

ABC Corp. following an agreed procedure. We are equally
confident, if not more so, that the District Court will
appreciate the impropriety of any contempt sanctions against
the law firms here. If the Government, ABC Corp., and the
law firms agree to, and execute, a procedure that results in a
timely contempt appeal to our Court, the company should
bear the full risk of that appeal and be the sole target of any
sanctions, absent any bad faith dealings. If our confidence is
misplaced, any contempt sanctions imposed on the law firms
would be susceptible to reversal as an abuse of the District
Court’s discretion. See Green v. United States, 356 U.S. 165,
188 (1958) (“Appellate courts have here a special
responsibility for determining that the [contempt] power is
not abused, to be exercised if necessary by revising
themselves the sentences imposed”), overruled on other
grounds by Bloom v. Illinois, 391 U.S. 194 (1968). It is well-
established that “only ‘[t]he least possible power adequate to
the end proposed’ should be used in contempt cases.” United
States v. Wilson, 421 U.S. 309 (1975) (quoting Anderson v.
Dunn, 19 U.S. 204, 231 (1821)). Here, the District Court may
vindicate the defiance of its order and ensure that the decision
to seek pre-conviction appellate review of its privilege ruling
is not made lightly by imposing sanctions only on ABC
Corp., not the law firms.

19
at 18 n.11 (noting in a dictum that “under the so-called
Perlman doctrine . . . a discovery order directed at a
disinterested third party is treated as an immediately
appealable final order because the third party presumably
lacks a sufficient stake in the proceeding to risk contempt by
refusing compliance”).

We disagree. It may be true that the Perlman
exception also requires the disclosure order to be directed at a
“disinterested third party.” But we do not need to decide in
this appeal whether Blank Rome is a “disinterested third
party” because the contempt route is open to ABC Corp. 6 As
we explain above, whatever else the Perlman exception may
require, the contempt route must be closed to the objecting
privilege holder. That is the very reason the doctrine exists.
A privilege holder is not “powerless to avert the mischief,”
Perlman, 247 U.S. at 13, of a disclosure order if it has the
power to disobey the order and appeal a contempt sanction.

Finally, Appellants caution that dismissing for lack of
appellate jurisdiction in this case would signal the death knell

6
In a pre-Church of Scientology case, we permitted a
Perlman appeal when the privilege holder’s former counsel
held the documents. In re Grand Jury Proceedings (Appeal
of FMC Corp.), 604 F.3d at 799–801. That decision did not
explicitly discuss, however, a distinction between former and
current counsel of the privilege holder. The Tenth Circuit has
expressly rejected any distinction between former and current
counsel when determining whether documents are held by a
“disinterested third party.” See In re Grand Jury
Proceedings, 616 F.3d 1172, 1179–80 (10th Cir. 2010). In
contrast, the Ninth Circuit does recognize a distinction
between current and former counsel. See United States v.
Krane, 625 F.3d 568, 572 n.2 (9th Cir. 2010).

20
of Perlman and its 90-plus years of case law. They say that if
a Perlman appeal does not lie here, then “privileged
documents in the client’s possession that are turned over to
the attorneys as part of their representation to secure legal
advice could never support a claim of appellate jurisdiction
under Perlman.” Appellants’ Reply Br. at 7. But if the
District Court’s order applies to the client and the contempt
route is open to it, that is precisely the law. As they conceded
at oral argument, Appellants have not pointed us to a single
case in which a Court of Appeals has allowed a Perlman
appeal even though the challenged disclosure order
commanded the privilege holder itself to disclose the sought-
after documents. This is hardly surprising because such a
ruling would undermine the contempt rule first announced in
Alexander and its 100-plus years of case law. If this were not
the law, as the Government correctly points out, “no
subpoena recipient would ever have to be held in contempt in
order to appeal an adverse privilege determination. . . . A
subpoena recipient could simply give the subpoenaed
documents to his lawyer and then invoke Perlman.”
Appellee’s Br. at 19. 7

D. Mohawk and its Effect on the Perlman Exception

Although not necessary for the disposition of this case,
we would be remiss not to address the Supreme Court’s
recent decision in Mohawk Indus., Inc. v. Carpenter, 130
S.Ct. 599 (2009). The Government argues that, as several of
our sister Courts of Appeals have suggested, the decision

7
We do not mean to suggest that Appellants and their counsel
transferred to Blank Rome the documents at issue simply to
create grounds for a Perlman appeal. Our point is solely one
about the consequences for future cases of finding jurisdiction
here.

21
narrows the traditionally understood scope of the Perlman
exception. We do not have to decide today the effect of
Mohawk on the Perlman exception because we hold that
Perlman — even in its pre-Mohawk form — does not permit
this appeal. Nonetheless, the Mohawk Court’s reasoning
explains why refusing a Perlman appeal in these
circumstances does not make the District Court’s crime-fraud
ruling effectively unreviewable.
The Supreme Court in Mohawk considered “whether
disclosure orders adverse to the attorney-client privilege
qualify for immediate appeal under the collateral order
doctrine,” and held that they do not. Id. at 603. The Court
did not discuss, mention, or even cite Perlman, which is not
surprising because the Perlman doctrine and the collateral
order doctrine recognize separate exceptions to the general
rules of finality under § 1291. The collateral order doctrine,
first announced in Cohen v. Beneficial Indus. Loan Corp., 337
U.S. 541 (1949), provides that there is a “small class” of
collateral rulings that, although they do not terminate the
litigation, are appropriately deemed “final” under § 1291.
Mohawk, 130 S.Ct. at 605 (quoting Cohen, 337 U.S. at 545–
46). “That small category includes only decisions [1] that are
conclusive, [2] that resolve important questions separate from
the merits, and [3] that are effectively unreviewable on appeal
from the final judgment in the underlying action.” Swint v.
Chambers Cnty. Comm’n, 514 U.S. 35, 45 (1995). Focusing
exclusively on the third requirement of the collateral order
doctrine, the Mohawk Court held that “collateral order
appeals are not necessary to ensure effective review of orders
adverse to the attorney-client privilege.” Mohawk, 130 S.Ct.
at 606.

Before reaching its conclusion, the Court first pointed
out that “[p]ermitting piecemeal, prejudgment appeals . . .
undermines ‘efficient judicial administration’ and encroaches

22
upon the prerogatives of district court judges, who play a
‘special role’ in managing ongoing litigation.” Id. at 605
(quoting Firestone Tire & Rubber Co. v. Risjord, 449 U.S.
368, 374 (1981)). 8 Mindful of these costs, the Court did not
engage in an “individualized jurisdictional inquiry” based on
the facts of the particular case before it, but instead focused
on the “entire category” of disclosure orders adverse to the
attorney-client privilege. Id. (quotations omitted).

Doing so, the Court concluded that “postjudgment
appeals generally suffice to protect the rights of litigants and
assure the vitality of the attorney-client privilege.” Id. at 606.
“Appellate courts can remedy the improper disclosure of
privileged material in the same way they remedy a host of
other erroneous evidentiary rulings: by vacating an adverse
judgment and remanding for a new trial in which the
protected material and its fruits are excluded from evidence.”
Id. at 606–07.
The Court also surveyed other appellate options
available to aggrieved privilege holders. It pointed out that,
when confronted with an adverse decision from the district
court, a party in a civil proceeding can ask the district court to
certify, and the court of appeals to accept, an interlocutory
appeal pursuant to 28 U.S.C § 1292(b). Id. at 607. In
extraordinary circumstances, it also can petition the court of
appeals for a writ of mandamus. Id. Importantly, the Court

8
See also Richardson-Merrell, Inc. v. Koller, 472 U.S. 424,
436 (1985) (“Implicit in § 1291 is Congress’ judgment that
the district judge has the primary responsibility to police the
prejudgment tactics of litigants, and that the district judge can
better exercise that responsibility if the appellate courts do not
repeatedly intervene to second-guess prejudgment rulings.”)
(emphasis in original).

23
reiterated the “long-recognized option . . . for a party to defy a
disclosure order and incur court-imposed sanctions.” Id. at
608.

Mohawk’s reasoning about the effective reviewability
of disclosure orders adverse to the attorney-client privilege
may narrow the scope of the Perlman exception. More
specifically, we will have to decide whether Mohawk
prohibits applying the Perlman exception when the person
asserting privilege is a party in the underlying litigation with
recourse to other avenues of appellate review, as some other
Courts of Appeals either have held or suggested. See Holt-
Orsted v. City of Dickson, 641 F.3d 230, 238 (6th Cir. 2011)
(holding that, after Mohawk, “where the privilege holder is a
party to the litigation with recourse in a post-judgment
appeal, . . . Perlman no longer affords jurisdiction to hear [an]
interlocutory appeal”); Wilson v. O’Brien, 621 F.3d 641, 643
(7th Cir. 2010) (noting that “Mohawk Industries calls
Perlman and its successors into question,” and suggesting
that, after-Mohawk, the Perlman exception no longer applies
when the person asserting privilege is a “litigant” in the
underlying litigation); see also United States v. Krane, 625
F.3d 568, 573 (9th Cir. 2010) (holding, in a case in which
“neither the privilege holder nor the custodian of the relevant
documents [were] parties to the underlying criminal
proceedings,” that “[t]he Perlman rule survives . . .
Mohawk”).

An order requiring the disclosure of privileged
materials is as effectively reviewable, absent an immediate
appeal, for subjects of a grand jury investigation as it is for
parties in civil litigation. If the grand jury’s investigation
leads to an indictment and later a conviction, we can remedy
an “improper disclosure of privileged material . . . by vacating
the adverse judgment and remanding for a new trial in which
the protected material and its fruits are excluded from

24
evidence.” Mohawk, 130 S.Ct. at 606-07. Of course, a
subject of a grand jury investigation may never be indicted.
Appellants are correct that “[e]ven if the subject is charged,
the charges may be dismissed or the subject may be acquitted
following trial. In each of these circumstances, there would
be no way to vindicate the privilege or protection that has
been breached.” Appellants’ Br. at 27. The Court in
Mohawk, however, rejected similar arguments in the civil
litigation context. After an unfavorable privilege ruling, a
civil litigant may nonetheless settle, obtain summary
judgment, or win a favorable verdict, leaving the privilege
broken and the District Court’s ruling unchallenged.

The Court’s reasoning in Mohawk underscores how
denying ABC Corp. a Perlman appeal will still leave the
company with sufficient (though admittedly not perfect)
means for making its privilege claims. However, we leave
for another day the broader question of whether Mohawk
forecloses Perlman appeals when the privilege holder is a
subject or target of an underlying grand jury investigation.

* * * * *

For these reasons, we dismiss for lack of appellate
jurisdiction. 9

9
For the sake of judicial economy, we have directed the
Clerk to assign to this panel any further appeals in this matter.

25
 PRECEDENTIAL

In re: Grand Jury, No. 12-1697

VANASKIE, Circuit Judge, concurring in part and dissenting
in part.

I agree with the majority that we lack jurisdiction to
review the District Court’s order to the extent that it requires
production directly by ABC Corporation, because the ABC
Corporation may obtain appellate jurisdiction over that
portion of the order by standing in contempt. I write
separately, however, because I believe that we have
jurisdiction pursuant to the Perlman doctrine to review the
District Court’s order to the extent that it requires production
by Blank Rome LLP (“Blank Rome”) and LaCheen, Wittels
& Greenberg, LLP (“LaCheen Wittels”), and therefore
disagree with the majority’s decision to dismiss this appeal in
its entirety for lack of jurisdiction. See Perlman v. United
States, 247 U.S. 7, 15 (1918). I would instead reach the
merits and affirm.

I. Jurisdiction

ABC Corporation, John Doe 1, and John Doe 2
(collectively, the “Subjects”) contend that we have
jurisdiction under the Perlman doctrine because the
Government subpoenaed the ABC Corporation and two law
firms representing the Subjects, LaCheen Wittels and Blank
Rome, for various documents concerning the Subjects.
Despite the Subjects’ claim of privilege in the documents, the
District Court ordered production by both ABC Corporation
and by the law firms. Because the District Court ordered

1
production in part by the law firms, the Subjects argue that
the Perlman doctrine confers appellate jurisdiction. For the
reasons set forth below, I agree with the majority that the
Perlman doctrine does not confer jurisdiction to review the
District Court’s order to the extent that it requires production
directly by ABC Corporation. I believe that the Subjects are
correct, however, that we have jurisdiction pursuant to the
Perlman doctrine to review the order insofar as it requires
production by the law firms. 1

A. The Perlman Doctrine

As discussed in the majority’s opinion, a witness
ordered to produce documents before a grand jury may not
ordinarily bring an interlocutory appeal challenging the order
requiring production. See In re Grand Jury Proceedings
(FMC Corp.), 604 F.2d 798, 800 (3d Cir. 1979). To obtain
review, the witness must instead stand in contempt and appeal
the contempt order. Id.

The Supreme Court, however, carved out an exception,
known as the Perlman doctrine, permitting privilege holders
to bring interlocutory appeals of orders requiring production
by third-party custodians. See Perlman, 247 U.S. at 15; see
also In re Grand Jury Proceedings (Cianfrani), 563 F.2d 577,
580 (3d Cir. 1977); In re Grand Jury Proceedings (FMC

1
I would not hold that we have jurisdiction to consider
the Subjects’ argument that the District Court abused its
discretion in declining to state whether a particular individual
testified before the grand jury. The Subjects fail to explain
how this issue bears any relationship whatsoever to the
Perlman doctrine.

2
Corp.), 604 F.2d at 800; In re Grand Jury, 111 F.3d 1066,
1076-77 (3d Cir. 1997); In re Grand Jury, 286 F.3d 153, 157
(3d Cir. 2002). In applying the Perlman doctrine, we
reasoned that a non-subpoenaed privilege holder does not
have the option of standing in contempt to obtain jurisdiction
over an order directing production by a third-party custodian,
because the order is not directed to the privilege holder. See
In re Grand Jury (C. Schmidt & Sons, Inc.), 619 F.2d 1022,
1024-25 (3d Cir. 1980); In re Grand Jury, 111 F.3d at 1077.
Moreover, a third-party custodian in possession of
subpoenaed documents will more likely comply with a
district court’s order than stand in contempt to protect the
privilege holder’s rights. See In re Grand Jury Proceedings
(Cianfrani), 563 F.2d at 580. Because the privilege holder
cannot stand in contempt or force the third-party custodian to
stand in contempt, the privilege holder becomes effectively
“powerless to avert the mischief of the [district court’s]
order.” Perlman, 247 U.S. at 13. To prevent this result, we
have held that a district court order requiring production by a
third-party custodian is final as to the privilege holder, and
permit the privilege holder to take immediate appeal pursuant
to 28 U.S.C. § 1291. See In re Grand Jury (C. Schmidt &
Sons, Inc.), 619 F.2d at 1025 (“[W]hen a party, other than the
one to whom a subpoena has been addressed, moves to quash
the subpoena, the denial of his motion disposes of his claim
fully and finally.”) (citations omitted).

Applying the logic of Perlman to this appeal, I agree
with the majority that the Subjects cannot appeal the portion
of the District Court’s order requiring ABC Corporation to
produce the documents directly. ABC Corporation is an
ordinary subpoenaed party, rather than a privilege holder
challenging production by a third-party, with respect to the

3
portion of the District Court’s order requiring its production. 2
It must therefore stand in contempt to confer jurisdiction over
this part of the District Court’s order. 3 See In re Grand Jury
Proceedings (FMC Corp.), 604 F.2d at 800.

In my view, however, the portions of the District
Court’s order requiring production by the law firms directly
are a different matter. With respect to the portions
concerning the law firms, the Subjects are purported privilege
holders challenging a district court order requiring production
by third-party custodians. As in In re Grand Jury (C. Schmidt
& Sons, Inc.), the Subjects cannot stand in contempt of the
District Court’s order as to the law firms, because that part of

2
I recognize that John Doe 1 and John Doe 2 also
appeal the District Court’s order compelling production.
They raise no argument, however, that they have a right to
challenge the District Court’s order to the extent that it
requires production by ABC Corporation, or that their claims
of privilege are independent of ABC Corporation’s. See In re
Bevill, Bresler & Schulman Asset Mgmt. Corp., 805 F.2d 120,
124 (3d Cir. 1986) (“[A]ny privilege that exists as to a
corporate officer’s role and functions within a corporation
belongs to the corporation, not the officer.”) (citation
omitted). I therefore draw no distinction based on John Doe
1’s and John Doe 2’s involvement in this appeal.
3
The Subjects argue that the District Court included
ABC Corporation in its order by mistake and that the District
Court intended to require production only by the law firms. I
agree with the majority, however, that if ABC Corporation
wishes to make this argument on appeal, it must first stand in
contempt.

4
the order is not directed to them. See 619 F.2d at 1024-25.
The Subjects’ appeal, with respect to the law firms, is thus
more or less the same as the long line of cases in which we
have applied the Perlman doctrine.

B. Effect of the Order Against ABC Corporation

The majority distinguishes this appeal principally on
the grounds that both the law firms and the ABC Corporation
are subject to the District Court’s order requiring production.
Therefore, in the majority’s view, ABC Corporation can
obtain immediate appellate review by demanding that the law
firms return the documents to it and by sustaining a contempt
sanction. The majority’s argument rests, in part, on its
assertion that if the Subjects can appeal under Perlman, then
any client will be able to bring an interlocutory appeal by
giving its documents to its law firm.

I cannot agree with the majority’s logic. The purpose
of the Perlman doctrine, as discussed in Section I(A) supra, is
to enable a privilege holder to appeal an order requiring
production when he or she “lacks the opportunity to contest
the subpoena by disobedience because it is not directed to
him or her.” In re Grand Jury, 111 F.3d at 1077 (quoting In
re Grand Jury Matter (Dist. Council 33 Health & Welfare
Fund), 770 F.2d 36, 38 (3d Cir. 1985)). That is exactly the
situation that we now face with respect to the orders
compelling production of the contested documents by the law
firms. Because Blank Rome, rather than ABC Corporation,
has physical custody over the documents, the Subjects cannot
unilaterally stand in contempt. Regardless of ABC
Corporation’s intent to stand in contempt, Blank Rome can

5
comply with the District Court’s order and produce the
documents.

I disagree that ABC Corporation has the option of
obtaining jurisdiction by taking physical custody of the
documents and refusing to produce them to the Government.
Although the majority rules out the possibility of the
Government charging the law firms with obstruction of
justice, it cannot rule out the possibility that the District Court
will hold the law firms in contempt. The Government
subpoenaed the law firms individually and moved to compel
them to produce the documents. The District Court issued an
order requiring production by the law firms directly.
Transferring the documents back to ABC Corporation will
not negate the law firms’ duty to comply with the District
Court’s order. See Couch v. United States, 409 U.S. 322, 329
n.9 (1973) (“The rights and obligations of the parties
bec[o]me fixed when [a] summons [is] served, and [a post-
summons document] transfer [does] not alter them.”)
(citations omitted); In re Grand Jury Empanelled, 597 F.2d
851, 865 (3d Cir. 1979) (holding that an employer cannot
defeat a subpoena served on its employee by taking the
requested documents from the employee and claiming that the
documents are no longer in the employee’s possession);
United States v. Asay, 614 F.2d 655, 660 (9th Cir. 1980)
(stating that a recipient of a summons cannot defeat the
summons by relinquishing possession of the requested
documents); United States v. Three Crows Corp., 324 F.
Supp. 2d 203, 206 (D. Me. 2004) (“[T]he law does not allow
a custodian of records to send [the requested documents]
away after receiving a summons and then claim he cannot
produce them, because they are no longer in his possession.”).
Accordingly, if the law firms ignore the District Court’s order

6
and instead turn over the documents to ABC Corporation,
they will be just as much in contempt as ABC Corporation. 4
See Nilva v. United States, 352 U.S. 385, 392 (1957) (“[A]
criminal contempt is committed by one who, in response to a
subpoena calling for corporation or association records,
refuses to surrender them when they are in existence and
within his control.”) (citations omitted); Fed. R. Crim. P.
17(g) (“The court . . . may hold in contempt a witness who,
without adequate excuse, disobeys a subpoena issued by a
federal court in that district.”); 28 U.S.C. § 1826(a)
(authorizing district courts to impose civil contempt sanctions
when “a witness . . . refuses without just cause shown to
comply with an order of the court to testify or provide other
information”).

I recognize, as the majority highlights, that the
Government proposed the document transfer, but I disagree
that we can infer from the Government’s proposal that it will
forego seeking contempt sanctions against the law firms. As
an initial matter, the Government has given us no indication
that it will ask the District Court to release the law firms from

4
The majority attempts to reduce the likelihood that
the District Court will hold the law firms in contempt by
cautioning that our Court will likely view contempt sanctions
against the law firms under these facts as an abuse of
discretion. Regardless of whether we may reverse contempt
sanctions on appeal, however, we will be forcing the law
firms to accept the possibility that the District Court will
impose what may be severe contempt sanctions in the interim.
As discussed in Section I(A) supra, the purpose of the
Perlman doctrine is to avoid burdening the custodian with
that possibility.

7
the order. Much to the contrary, Blank Rome informed us
following oral argument that it contacted the Government
regarding the proposed document transfer, but that the
Government refused to permit any transfer until receiving our
ruling.

The Government’s hesitation regarding the document
transfer is not surprising. The Government readily admits
that it subpoenaed the law firms because it had difficulty
serving ABC Corporation. If we effectively relinquish the
law firms from the District Court’s order by allowing them to
turn over the documents to ABC Corporation without the
possibility of sanctions, ABC Corporation will presumably
again argue that it was never properly served. This argument,
if successful, will prevent the Government from demanding
the documents from any party, at least until it properly serves
ABC Corporation. Given the significance placed by the
Government on the order against the law firms, and the
Government’s apparent refusal to allow a document transfer
thus far, I disagree that we can assume, without an express
stipulation, that the Government will permit a document
transfer without pursuing sanctions against the law firms. 5

5
During oral argument, the Government proposed that
ABC Corporation name an employee within the jurisdiction
to take the documents and for that employee to accept service
on behalf of ABC Corporation. Although not explicit from
the Government’s argument, the Government would
presumably release the law firms from the possibility of
sanctions for disobeying the District Court’s order as part of
this arrangement. I would have no objection to dismissing for
lack of jurisdiction if the parties entered into such an
agreement. I would likewise have no objection to dismissing

8
 The majority emphasizes that the law firms are ABC
Corporation’s agents, so they have a duty to return the
documents to ABC Corporation upon ABC Corporation’s
demand. Although I agree in general that a client can require
his or her attorney to return documents, I disagree that ABC
Corporation can do so in light of the District Court’s order. A
client generally cannot require his or her attorney to violate a
district court order to protect his or her privilege. An
attorney, after asserting all non-frivolous objections to
producing client confidences, may ethically comply with a
court order requiring production. See Model Rules of Prof’l
Conduct R. 1.6(6) & cmt. 13 (2010); Pa. Rules of Prof’l
Conduct R. 1.6 & cmt. 19 (2011); see also In re Grand Jury
Proceedings in Matter of Fine, 641 F.2d 199, 202 (5th Cir.
1981) (stating that an attorney may ethically reveal client
confidences pursuant to a court order). Because the District
Court’s order requires the law firms to produce the

if the Government successfully requested that the District
Court release the law firms from the order. Neither of these
events, however, has occurred. Whether we have jurisdiction
depends upon the facts existing at the time that we must
determine jurisdiction. Because there is no doubt that a
document transfer will expose the law firms to the possibility
of contempt sanctions, and the Perlman doctrine provides
jurisdiction when the custodian is subject to possible
contempt sanctions, we have jurisdiction. We cannot avoid
jurisdiction, and the concomitant responsibility to decide the
merits of the case, based on the theoretical possibility that the
parties might reach an agreement that would deprive us of
jurisdiction.

9
documents, ABC Corporation cannot force the law firms to
instead return the documents to it.

Moreover, I disagree that applying Perlman when the
privilege holder is also subject to the District Court’s order
will enable any client to take a Perlman appeal by turning
over all documents to his or her attorney. As the majority
agrees, the Government may request documents by subpoena
that are subject to the subpoena recipient’s legal control. See
In re Grand Jury, 821 F.2d 946, 951 (3d Cir. 1987) (“A
party’s lack of possession or legal control over documents
requested by a subpoena is normally a valid defense to a
subpoena and justification for a motion to quash.”). As the
Government appears to agree, a client maintains control over
documents that he or she turns over to his or her current
attorney, because the client may ordinarily request the
documents’ return. (Appellee’s Br. 16) (“[T]he subjects [of
the grand jury investigation] do not suggest that the privilege-
holder corporation no longer has the ability to obtain its
documents from [its lawyer].”); see also Mercy Catholic Med.
Ctr. v. Thompson, 380 F.3d 142, 160 (3d Cir. 2004) (holding
that control under Fed. R. Civ. P. 34(a) is “the legal right or
ability to obtain the documents from another source upon
demand”). In the majority of future cases, the Government
will be able to avoid a Perlman appeal by subpoenaing
records solely from the client-privilege holder and obligating
the privilege holder to request his or her attorney to produce
the documents. A Perlman issue arises in this instance only
because the Government chose to subpoena the law firms

10
directly, thereby subjecting them to possible contempt
sanctions should they refuse to comply. 6

Finally, I am concerned that the majority’s rule will
effectively eviscerate the Perlman doctrine in all instances
where, as here, the privilege holder can direct the custodian to
produce the subpoenaed documents, but cannot necessarily
prevent the custodian from releasing the documents in the
event a court orders production. In such cases, the
Government will have every incentive to subpoena both the
privilege holder and the custodian, obtain orders against both,
and use the order against the privilege holder to artificially
prevent the privilege holder from taking a Perlman appeal.
Creating such a loophole, in my view, is inconsistent with our
Court’s interpretation of Perlman as enabling privilege
holders to obtain jurisdiction when they cannot obtain
jurisdiction by standing in contempt.

C. Effect of Mohawk Industries, Inc. v. Carpenter

Next, the Government contends that the Supreme
Court’s recent decision in Mohawk Industries, Inc. v.
Carpenter abrogates Perlman in instances in which the

6
As discussed supra, I appreciate that the Government
subpoenaed the law firms because it was having difficulty
subpoenaing ABC Corporation, and that similar situations
may recur in the future. Part of the tradeoff to subpoenaing
law firms directly, however, is the possibility of a Perlman
appeal. Additionally, the Government concedes that there is
no evidence suggesting that the law firms in this case took the
documents in bad faith. We therefore do not need to address
whether to apply Perlman in the event of bad faith conduct.

11
privilege holder is the subject or target of a grand jury
investigation. See 130 S. Ct. 599, 603 (2009). Although the
majority discusses this argument without relying on it, I
would reach this argument and hold that Mohawk Industries,
Inc. does not abrogate Perlman under these facts.

In Mohawk Industries, Inc., the district court
compelled Mohawk Industries, Inc. (“Mohawk”) to produce
communications with counsel in a civil suit, finding that
Mohawk had waived its attorney-client privilege. Id. at 604.
Mohawk appealed the order compelling production, asserting
jurisdiction pursuant to the collateral order doctrine. Id. The
Supreme Court held that the collateral order doctrine does not
permit immediate appeal of “disclosure orders adverse to the
attorney-client privilege.” Id. at 609. The Supreme Court
reasoned that “postjudgment appeals generally suffice to
protect the rights of litigants and assure the vitality of the
attorney-client privilege,” because “[a]ppellate courts can
remedy the improper disclosure of privileged material . . . by
vacating an adverse judgment and remanding for a new trial
in which the protected material and its fruits are excluded
from evidence.” Id. at 606-07.

Because Mohawk Industries, Inc. does not purport to
overrule Perlman, it remains binding precedent post-Mohawk
Industries, Inc. in at least some instances. Further, as the
Ninth Circuit explains, “Perlman and Mohawk are not in
tension,” at least in the context of proceedings in which the
privilege holder is a non-litigant. United States v. Krane, 625
F.3d 568, 572 (9th Cir. 2010). Mohawk Industries, Inc. holds
only that civil litigants may not appeal orders adverse to the
attorney-client privilege, because they can vindicate their
rights by appealing from the final judgment. Id. Non-litigant

12
privilege holders, by contrast, cannot necessarily appeal from
a final judgment. See Holt-Orsted v. City of Dickson, 641
F.3d 230, 238 (6th Cir. 2011) (stating that although Mohawk
Industries, Inc. narrows Perlman when the privilege holder is
a litigant, non-litigants do not have recourse in a final
judgment) (citing Wilson v. O’Brien, 621 F.3d 641, 643 (7th
Cir. 2010)). At a minimum, Perlman thus continues to afford
jurisdiction in appeals by non-litigants.

Grand jury subjects, such as the privilege holders in
this case, are non-litigants. See Cobbledick v. United States,
309 U.S. 323, 327 (1940) (“[A] grand jury proceeding has no
defined litigants . . . .”); In re Witness before Special Oct.
1981 Grand Jury, 722 F.2d 349, 351 (7th Cir. 1983)
(“[T]here are no parties to a grand jury investigation . . . .”).
Although the Government argues that grand jury subjects are
equivalent to litigants because they can appeal a final decision
if they are convicted, the grand jury need not return an
indictment. We therefore have no guarantee that grand jury
subjects will ever have the opportunity to appeal a final
decision.

I understand the majority’s point that an order
requiring production is not necessarily any more reviewable
in the civil context than in the grand jury context, because the
parties in civil litigation may settle or receive a favorable
decision that does not address the privilege claims. The
parties in civil litigation, however, have at least some degree
of control in shaping the litigation and can, in many instances,
decide whether or not to leave their privileges broken. For
example, a privilege holder in a civil suit can decide whether
or not to settle. Grand jury subjects, unless later charged,

13
have no equivalent control over the proceedings and no final
judgment from which to appeal.

Furthermore, Perlman expressly provides that a
privilege holder in the grand jury context need not wait to
“seek a remedy at some other time and in some other way.”
247 U.S. at 13. The privilege holder can instead challenge
the order immediately. Id. Applying the logic of Mohawk
Industries, Inc. to a grand jury proceeding and holding that
grand jury subjects must wait to appeal a final decision is thus
the equivalent of holding that Mohawk Industries, Inc.
abrogates Perlman entirely. Absent a Supreme Court
decision explicitly overruling Perlman, I do not believe that
we should assume that Perlman is no longer binding
precedent.

D. Effect of Current Representation by the Law Firms

Finally, although not addressed by the majority, the
Government argues that the Perlman doctrine does not apply
in this instance because the law firms are not “[d]isinterested
[t]hird [p]arties” due to their current representation of the
Subjects. (Appellee’s Br. 15.) I believe that the Perlman
doctrine applies to current attorneys and would reject this
argument.

As an initial matter, our Court’s interpretation of the
Perlman doctrine does not require strict disinterest, at least in
the sense of requiring total non-affiliation with the privilege
holder. 7 We have instead tended to focus our analysis on

7
The description of the Perlman doctrine as applying
to “disinterested third parties” stems from dicta in Church of

14
whether the privilege holder “is in a position to control the
[subpoenaed custodian’s] decision whether to produce the
records,” and on whether the third-party’s personal stake in
the matter is substantial enough for it to likely stand in
contempt to protect the privilege holder’s rights. In re Grand
Jury Matter, 802 F.2d at 99; see In re Grand Jury (C. Schmidt
& Sons, Inc.), 619 F.2d at 1024-25 (holding that the privilege
holder’s employees are third-parties under Perlman because
employees are unlikely to stand in contempt to protect their
employer). Applying this framework, we have already held
that a privilege holder’s former attorney qualifies as a third-
party custodian under the Perlman doctrine, reasoning that a
former attorney is not guaranteed to stand in contempt to
protect his or her former client’s privilege. See In re Grand
Jury Proceedings (FMC Corp.), 604 F.2d at 800-01.

I believe, as do the majority of other circuits that have
addressed this issue, that there is no reason to apply a
different rule to current attorneys. 8 See, e.g., In re Grand

Scientology v. United States that our Court has not adopted.
506 U.S. 9, 18 n.11 (1992).
8
A small number of circuits do not hold that current
attorneys are categorically third-party custodians under
Perlman, instead applying Perlman “when circumstances
make it unlikely that an attorney would risk a contempt
citation in order to allow immediate review of a claim of
privilege.” In re Sealed Case, 754 F.2d 395, 399 (D.C. Cir.
1985); see also In re Grand Jury Proceedings, 616 F.3d 1172,
1180 n.11 (10th Cir. 2010) (“A court may, but is not required
to, draw an inference that a current attorney is more likely to
risk contempt in order to protect a client’s privilege than a
former attorney or a third party.”). I would reach the same

15
Jury Subpoenas, 123 F.3d 695, 699 (1st Cir. 1997) (“[W]e
adopt the majority rule and apply the Perlman exception to
those cases wherein a client seeks immediate appeal of an
order compelling production of a client’s records from his
attorney.”); In re Grand Jury Proceedings in Matter of Fine,
641 F.2d at 203 (holding that current attorneys qualify as
third-parties under Perlman); In re Grand Jury Proceedings
(Gordon), 722 F.2d 303, 307 (6th Cir. 1983) (“This Court . . .
joins the majority of other Circuits in applying the Perlman
exception in those cases wherein a client seeks immediate
appeal of an order compelling testimony from his attorney.”);
In re Klein, 776 F.2d 628, 632 (7th Cir. 1985) (applying the
Perlman doctrine to current attorneys); In re Grand Jury
Proceedings, 655 F.2d 882, 885 (8th Cir. 1981) (“[T]he
Perlman exception is available to a client-intervenor when he
is appealing an order compelling testimony or documents
from his attorney.”); In re Grand Jury Proceedings, 689 F.2d
1351, 1352 n.1 (11th Cir. 1982) (explaining that the Eleventh
Circuit is bound by the Fifth Circuit’s rule holding that
attorneys are third-parties under Perlman). While a client’s
interests may be more closely aligned with his or her current
attorney than with a former attorney, a client cannot control
whether his or her attorney chooses to stand in contempt. As
discussed in Section I(B) supra, after asserting all non-
frivolous arguments against disclosing a client’s privileged
information, attorneys are generally permitted to comply with
a district court order compelling production. See Model
Rules of Prof’l Conduct R. 1.6(6) & cmt. 13 (2010).

result under this rule as under the categorical approach,
because Blank Rome has already indicated that it will not
stand in contempt.

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 Moreover, to the extent that current attorneys are
“interested parties,” they, like former attorneys, are unlikely
to be so interested that they will stand in contempt to protect
their client’s privilege. See In re Grand Jury Proceedings in
Matter of Fine, 641 F.2d at 203 (“we can say without
reservation that some significant number of client-intervenors
might find themselves denied all meaningful appeal by
attorneys unwilling to” stand in contempt on their client’s
behalf). Accordingly, because an attorney need not, and
probably will not, stand in contempt to protect his or her
client’s privilege, I believe that our Court’s longstanding
interpretation of the Perlman doctrine requires finding that
current attorneys are third-parties.

Additionally, requiring attorneys to stand in contempt
to enable their clients to appeal unnecessarily fosters conflicts
of interest between attorneys and their clients. As the First
Circuit explained in overruling its prior decision excluding
attorneys from the Perlman doctrine, requiring attorneys to
stand in contempt “pits lawyers against their clients” by
requiring attorneys to choose between protecting their clients’
interests and protecting themselves against potentially serious
contempt sanctions. In re Grand Jury Subpoenas, 123 F.3d at
699 (citing United States v. Edgar, 82 F.3d 499, 507-08 (1st
Cir. 1996)). I share the First Circuit’s view that placing
attorneys in this predicament “hinders the fair representation
of the client.” Id.

I am aware that the Ninth Circuit does not ordinarily
permit Perlman appeals when the custodian is the privilege
holder’s current attorney. See, e.g., In re Grand Jury
Subpoena, 825 F.2d 231, 237 (9th Cir. 1987) (declining to
apply the Perlman doctrine when the custodian is the

17
privilege holder’s current attorney). I cannot agree, however,
with the Ninth Circuit’s logic. The Ninth Circuit implies that
a current attorney is more likely to stand in contempt than a
former attorney, because a current attorney “is both subject to
the control of the person or entity asserting the privilege and
is a participant in the relationship out of which the privilege
emerges.” Id. (quoting In re Grand Jury Subpoena Served
upon Niren, 784 F.2d 939, 941 (9th Cir. 1986)). This
reasoning disregards the fact that a privilege holder’s control
over his or her attorney does not extend to deciding whether
his or her attorney stands in contempt. Because the
custodian’s likelihood of standing in contempt is the relevant
type of control under the Perlman doctrine, I do not find the
Ninth Circuit’s reasoning to be persuasive and would hold
that we have jurisdiction.

II. Merits

Instead of dismissing for lack of jurisdiction, I would
affirm the District Court’s decision on the merits. The
Subjects raise a plethora of legal arguments challenging the
District Court’s order compelling production, none of which
has any merit. The Subjects’ chief contention is that the
District Court erred in finding that the crime-fraud exception
vitiates their purported attorney-client and work-product
privileges because, in their view, the District Court applied
“an improper standard” for determining whether the crime-
fraud exception applies. (Appellants’ Br. 45.) I do not agree
that the District Court committed any such error.

The crime-fraud exception overrides the attorney-
client and work-product privileges “only when the legal
advice ‘gives direction for the commission of [a] future fraud

18
or crime.’” In re Grand Jury Subpoena, 223 F.3d 213, 217
(3d Cir. 2000) (quoting Haines v. Liggett Grp. Inc., 975 F.2d
81, 90 (3d Cir. 1992)). The Government may invoke the
crime-fraud exception by “mak[ing] a prima facie showing
that (1) the client was committing or intending to commit a
fraud or crime, . . . and (2) the attorney-client
communications were in furtherance of that alleged crime or
fraud.” Id. (citations omitted). The Government satisfies its
prima facie showing by “present[ing] . . . ‘evidence which, if
believed by the fact-finder, would be sufficient to support a
finding that the elements of the crime-fraud exception were
met.’” Id. (quoting Haines, 975 F.2d at 95-96).

The Subjects argue that, in deciding whether the
Government satisfied its prima facie case, the District Court
improperly relied on what they assert was dicta from our
decision in In re Grand Jury Investigation, 445 F.3d 266, 275
(3d Cir. 2006), instead of requiring the Government to present
evidence “sufficient to support a finding that the elements of
the crime-fraud exception were met.” In re Grand Jury
Subpoena, 223 F.3d at 217 (quoting Haines, 975 F.2d at 90).
Specifically, the Subjects contend that the District Court
improperly lowered the standard for the Government’s prima
facie case by requiring evidence “demonstrating [only] a
reasonable basis to suspect the perpetration of a crime.” (S.A.
31) (quoting In re Grand Jury Investigation, 445 F.3d at 275).

The District Court included both prongs of the prima
facie case and the “sufficient to support a finding” standard in
its opinion. (S.A. 16.) It then thoroughly reviewed the
record, including the submissions from both the Government
and from the Subjects, to ascertain whether the Government
showed adequate evidence of a crime or fraud. Thus,

19
regardless of whether the District Court should not have used
the “reasonable basis to suspect” language, its comprehensive
review of the record demonstrates that it applied a standard as
high as, if not higher than, the “sufficient to support”
standard. Accordingly, I would reject the Subjects’ argument
concerning whether the District Court applied the correct
standard for assessing the crime-fraud exception. As for the
Subjects’ remaining arguments, I would affirm for
substantially the reasons given by the District Court in its
thoughtful opinion.

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