Professional Documents
Culture Documents
Michael
W.
Reilly, with whom
Tommasino
&
Tommasino and
Michael G. West were on joint brief for appellants the Client and
the Owner.
John P. Pucci, with whom Jeanne M. Kaiser and Fierst & Pucci
were on brief for appellant Law Firm.
Andrea
N.
Ward, Assistant United States Attorney, with whom
Donald K. Stern
, United States Attorney, was on brief for appellee
United States.
____________________
August 13, 1997
____________________
TORRUELLA, Chief
Judge. The case before us is a small
piece in a much larger puzzle. A federal grand jury, sitting in
Massachusetts, has been investigating possible criminal activity
the part of a firm ("firm" or "client") and its owner ("owner").
The firm was in the business of assisting inventors in promoting
Seal),
748 F.2d 871 (4th Cir. 1984).
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See Motion to
client and the law firm have appealed the denial of the motion to
quash.
I. Appellate Jurisdiction
As an initial matter, we must determine whether this
court has jurisdiction to hear the appeal.
It is established that, under normal circumstances, a
party seeking to quash a subpoena cannot appeal a court order to
United
States, 309 U.S. 323, 328 (1940);
Corporacion
Insular
de
Seguros v. Garcia, 876 F.2d 254, 257 (1st
Cir. 1989).
This rule disposes of the law firm's appeal. The law
firm has not been cited for contempt and, therefore, we lack
jurisdiction to hear the appeal. The client's appeal, however,
implicates a more complex jurisdictional analysis.
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Perlman and
to the grand jury. Perlman appealed. The Supreme Court ruled that
his appeal should be allowed on the grounds that "Perlman was
powerless to avert the mischief of the order."
that reverses a prior panel to all the active judges of the court
for pre-publication comment.
See,
e.g., Gallagher v.
Wilton
Enters.,
Inc., 962 F.2d 120, 124 n.4 (1st Cir. 1992);
Trailer
Marine Transp. Co. v. Rivera Vazquez, 977 F.2d 1, 9 n.4 (1st Cir.
1992);
United States
v.
Elmwood
Sensors,
Inc., 110 F.3d
Perlman is directly
mercy of his or her attorney and can only gain a review of the
district court's order if the attorney is prepared to risk a
contempt citation. The real possibility of a serious conflict of
interest cannot be overlooked or denied.
Perlman."
Oberkoetter was
incorrect.
See
Conkling v. Turner, 883 F.2d 431, 433-34 (5th Cir. 1989) (order
directing the testimony of appellant's attorney is immediately
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Perlman as
a holding that clients always are entitled to appeal as soon as
one who files the motion to quash, or intervenes, is not the pers
to whom the subpoena is directed, and the movant or intervenor
In
re
Grand
Jury
Proceedings,
Appeal of Twist, 689 F.2d 1351, 1352 n.1 (11th Cir. 1982) (same);
In
re
Grand
Jury
Subpoena
Served
Upon
Doe, 759 F.2d 968, 971 n.1
(2d Cir. 1985) (same);
In re Grand Jury Proceedings
owner of the documents, but does not allow immediate appeal where
the attorney is currently representing the owner.
See,
e.g.,
In re
Grand
Jury
Subpoenas
Dated
December
10,
, 754
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F.2d 395, 399 (D.C. Cir. 1985). The Tenth Circuit does not allow
contempt citation or the owner of the records can "prove that the
attorney will produce the records rather than risk contempt."
In
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Billmyer, 57 F.3d
31, 34 (1st Cir. 1995). We are unpersuaded by the government's
argument. It cites to no authority, nor do we find any, that
entertain this appeal. Upon review of the record and the briefs o
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What matters is not the form of the information, but its content.
See, e.g., United
States v. Olano, 62 F.3d 1180, 1205 (9th Cir.
1995);
In re Grand Jury Proceedings
Jury,
729 F.2d 489, 495 (7th Cir. 1984). Whatever the form of the
be, a client of the law firm; (2) the lawyer acted as a lawyer in
connection with the information at issue; (3) the information
See
United
States v.
entries that are clearly not privileged, and one entry that names
that reads "IRS Power of Atty. forms and corp. penalty abatements
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See In
re
Grand
Jury
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See
Oberkoetter, the
parties and the district court may have been operating under the
assumption that no appeal from the district court's ruling would
possible. Based on this reasonable, though ultimately incorrect,
assumption, those involved may have failed to produce a record
sufficient for appellate purposes. Our remand allows for the
production of such a record.
Cf.
Millipore
Corp. v.
Travelers
Indemnity Co., 115 F.3d 21, 34 (1st Cir. May 30, 1997).
This issue was raised by both parties below but was not decided b
the district court. Accordingly, we need not reach the issue. We
leave the issue to be decided, in the first instance, by the
district court on remand.
III. Conclusion
For the foregoing reasons, we
appeal,
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