Perlman Appeals in the Grand Jury Context
In In re Grand Jury Subpoeans Dated Sep. 13, 2023, the Second Circuit held that the target of a grand jury investigation could appeal an order directing the target’s attorneys to disclose documents over a claim of attorney-client privilege. The order was appealable via the Perlman doctrine, which generally allows privilege claimants to appeal from discovery orders directed at third parties. And the Supreme Court’s 2009 decision in Mohawk Industries, Inc. v. Carpenter did not affect Perlman appeals in the context of grand jury proceedings.
The Grand Jury Subpoena
Grand Jury Subpoeana stemmed from a grand jury investigation into the former CEO of a publicly traded company. The grand jury sought documents from the former CEO’s attorneys. When the former CEO challenged that subpoena, the district court rejected the claim of attorney-client privilege. The former CEO then appealed.
Perlman Appeals in the Grand Jury Context
The Second Circuit held that it had jurisdiction over the appeal. Orders refusing to quash a grand jury subpoena are normally not appealable under 28 U.S.C. § 1291. If the target of a subpoena wants to appeal, they normally must first be held in contempt. But under Perlman v. United States, a privilege claimant may appeal the refusal to quash an order directed at third parties. Third parties—which, the Second Circuit explained, include a privilege claimant’s attorneys—cannot be expected to risk contempt to secure an appeal. Were privilege claimants not able to appeal in this scenario, they would be powerless to challenge the rejection of privilege before the disclosure of potentially protected material.
Perlman & Mohawk
The Second Circuit went on to say that grand jury targets can still take Perlman appeals despite the Supreme Court’s decision in Mohawk Industries, Inc. v. Carpenter. Several courts of appeals (including the Second Circuit) have held that parties to ongoing litigation can no longer take Perlman appeals after Mohawk. (For anyone interested, I’ve written about how these cases are wrong in an article creatively titled Perlman Appeals After Mohawk.) But Mohawk did not limit Perlman’s application in the very context in which Perlman arose: a privilege claimant’s attempt to prevent the disclosure of documents to a grand jury.
In re Grand Jury Subpoeans Dated Sep. 13, 2023, 2025 WL 428359 (2d Cir. Feb. 7, 2025), available at CourtListener and Westlaw
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