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
Final Decisions PLLC is an appellate boutique and consultancy that focuses on federal appellate jurisdiction. We partner with lawyers facing appellate-jurisdiction issues, working as consultants or co-counsel to achieve positive outcomes on appeal. Contact us to learn how we can work together.
Learn More ContactRelated Posts
In CPC Patent Technologies Pty Ltd. v. Apple Inc., the Ninth Circuit held that a 28 U.S.C. § 1782 discovery proceeding was not final because the district court had not definitively resolved the scope of discovery. Although the district court had authorized a subpoena, the court had not addressed the discovery target’s objections to the scope of […]
Continue reading....
In In Re Grand Jury Investigation, the Eleventh Circuit held that a privilege claimant could not appeal orders compelling it and third parties to produce documents. The analysis of the order directed at the privilege claimant was straightforward. Privilege claimants normally must take contempt appeals to challenge a discovery order. The privilege claimant in Grand […]
Continue reading....
In In re Search Warrants Issued February 18, 2022, the Fourth Circuit dismissed an appeal that challenged the filter protocols for seized evidence. The district court had approved certain protocols to weed out potentially protected evidence. The district court later denied a privilege claimant’s motion seeking to alter those protocols. The Fourth Circuit held that […]
Continue reading....
In Asante-Chioke v. Dowdle, the Fifth Circuit reviewed an order refusing to limit the scope of discovery to qualified-immunity issues. The court said that it could immediately review this sort of order via the collateral-order doctrine. But I have my doubts. The Fifth Circuit relied on a line of cases holding that defendants can appeal […]
Continue reading....
In In re Grand Jury 2021 Subpoenas, the Fourth Circuit joined several other circuits in holding that only non-parties can take Perlman appeals. I wrote about this issue a few years ago when the Second Circuit did the same. This cutting back on Perlman appeals is as wrong now as it was then.
Continue reading....Recent Posts
This month’s roundup features two decisions on litigants’ attempts to voluntarily dismiss some of their claims. In one, a defendant filed a written, pretrial notice that it abandoned one of its counterclaims. In another, the parties stipulated to a dismissal, but one defendant did not sign the stipulation. In both cases, the court deemed the […]
Continue reading....
In Gessele v. Jack in the Box Inc., the Ninth Circuit held that when a district court alters its judgment by granting a post-judgment motion, the time to appeal runs from the entry of an amended judgment. Unlike orders denying post-judgment motions, the appeal clock does not start with the order itself.
Continue reading....
In Simmons v. USI Insurance LLC, the Eleventh Circuit held that the purported abandonment of a counterclaim before trial was ineffective and thus precluded appellate jurisdiction. The counterclaim was the only theory of relief that had not been resolved at summary judgment or trial. And in a written notice before trial, the defendant had said […]
Continue reading....
September’s biggest development in federal appellate jurisdiction concerned appeals from denials of anti-SLAPP motions under California law. The Ninth Circuit overruled its longstanding rule that defendants can immediately appeal from these denials via the collateral-order doctrine. But only a week later, the Federal Circuit followed that now-overruled caselaw and heard an anti-SLAPP appeal. It will […]
Continue reading....
Last month saw the Ninth Circuit apply its rule that a minute order can count as a separate document for purposes of starting the appeal clock. The Sixth Circuit explained when it cannot review contract-formation issues in an arbitration appeal. And the Fourth Circuit declined to exercise pendent appellate jurisdiction over standing and ripeness issues […]
Continue reading....