In In re Grand Jury 2021 Subpoenas, No. 22-1654 (4th Cir. Nov. 22, 2023), the Fourth Circuit holds that because of Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100 (2009) – which scaled back the collateral-order doctrine as applied to attorney-client privilege – it must reassess the continued viability of the Perlman doctrine (Perlman v. United States, 247 U.S. 7 (1918)) as a means for criminal defendants to take interlocutory appeals to challenge grand jury subpoenas.
Doe is a medical malpractice attorney. He is charged with attempted extortion in violation of 18 U.S.C. §§ 1951 and 1952. It is alleged that he approached the University of Maryland Medical System (UMMS), ostensibly to settle a wrongful death case for client Roe, but with a scheme to shake it down for a $25 million personal payout. He threatened that if the hospital did not comply, he would launch a massive internet campaign to tie the institution to a series of failed organ transplants.
“In addition to describing where he would advertise and publish unsavory information about UMMS, Doe played a mock television commercial that he and Roe created, which explained Roe’s story and showed images of her husband’s necrotic fingertips and amputated leg—both symptoms attributable to the failed transplant . . . . Doe effectively threatened to go public with the video—in particular, he threatened to create an ‘internet bomb’ whereby he would fund disparaging advertisements that would display to prospective patients on the UMMS website itself.”
“[T]he grand jury issued multiple subpoenas duces tecum to the lawyers and firms that assisted in Doe’s representation of Roe—and in the formation of the alleged extortion scheme. Doe and Roe moved to quash the subpoenas, which the district court overseeing the grand jury proceedings denied. That court then granted in part a subsequent motion filed by the government to compel production.” Criminal defendant Doe and client Roe immediately appealed those orders.
The Fourth Circuit, while allowing client Roe’s appeal to continue, dismisses defendant Does’s appeal for lack of appellate jurisdiction under 28 U.S.C. § 1291. The genesis of this decision was the Mohawk decision, in which the Supreme Court “declined to exercise collateral-order jurisdiction in a putative appeal involving a pretrial discovery order that rejected a claim of attorney-client privilege,” holding that the interest in privilege can effectively be reviewed on direct appeal of a final judgment.
“The government argues that we lack appellate jurisdiction over Doe because, as to him alone, the district court’s orders denying his motion to quash and granting the government’s motion to compel neither are ‘final’ for purposes of appellate review nor qualify for an exception to the final-judgment rule. Instead, the government contends that Doe should vindicate his challenges on direct appeal at the conclusion of his criminal case, if necessary. Despite the Supreme Court’s narrowing of interlocutory appellate review in the context of the collateral-order doctrine [in Mohawk], Doe responds that this Court retains jurisdiction over his appeal under the Perlman doctrine.”
Perlman predates the origins of the collateral-order doctrine in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949). “Generally speaking, a ‘long-recognized option’ for a party to effectively receive immediate, interlocutory treatment of a disclosure order is to defy the order, receive a criminal contempt citation, and then seek review of that contempt ruling . . . . But under the 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.’”
In the original Perlman case, “the Supreme Court allowed immediate review of an order directing a third party to produce documents that belonged to the appellant . . . . The appellant claimed that these documents were immune from production, but the third party that possessed them, the clerk of court, had no interest in defying a disclosure order . . . . According to the Court, to have denied immediate review would have left the appellant without recourse because the clerk could not have been expected to risk a contempt citation to secure for the appellant an opportunity for immediate judicial review.”
“Importantly, though, the fate of the Perlman doctrine in the wake of Mohawk’s express narrowing of the collateral-order doctrine is up for debate.” The panel notes the growing split in the circuits about the continuing viability of Perlman. Though noting that is a “close[] question,” the panel “conclude[s] that the doctrine likewise fails to justify this Court’s exercise of jurisdiction over Doe’s arguments at this stage. Insofar as Doe himself seeks immediate review, Perlman’s applicability is irreconcilable with the Supreme Court’s extreme narrowing of interlocutory appeals via the collateral-order doctrine in Mohawk. This is because, even in the context of a disclosure order directed at a third party—of which Perlman would traditionally permit immediate review—an aggrieved litigant can still simply press the alleged privilege on direct appeal in a manner no different than that required by the Supreme Court in the context of the collateral-order doctrine.”
“Doe seeks to vindicate a privilege interest that Mohawk expressly recognized should be addressed on post-judgment review. Whether the compelled disclosure to which he objects ultimately comes from him (a collateral-order context) or from a third party (a Perlman context) is entirely inconsequential insofar as his access to post-judgment review is unchanged either way. As such, we conclude that the Supreme Court’s narrowing of the collateral-order exception to the final-judgment rule in Mohawk applies equally to the Perlman doctrine—thereby excluding immediate litigant-sought review.”
The panel notes that criminal defendants might still have the option of certifying an appeal under 28 U.S.C. § 1292(b). “[I]t seems at least plausible that this Court could have comfortably exercised jurisdiction over Doe’s arguments under 28 U.S.C. § 1292(b). But Appellants appealed pursuant to § 1291—or, rather, pursuant to an exception to the statute—not § 1292. The Supreme Court in Mohawk expressly recognized that litigants can—and should—pursue interlocutory appeals concerning privilege issues under § 1292(b).”
Nevertheless, the panel holds that as to the client Roe’s appeal, there was standing and finality. “Roe’s interest is . . . highly specific given that any abuse of the grand jury process almost assuredly implicates at least some privileged materials in which she arguably retains a confidentiality interest . . . . Furthermore, Roe actively participated in the proceedings below in hopes of vindicating her alleged interests. Thus, we decline to dismiss Roe’s challenges insofar as they relate to her privilege interests.”
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