In Re: GRAND JURY INVESTIGATION ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 20 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: GRAND JURY INVESTIGATION, No. 18-50119
Central District of California,
______________________________ D.C. No.
2:15-cm-01070-VAP-8
UNITED STATES OF AMERICA,
Plaintiff-Appellee, MEMORANDUM*
v.
JOHN DOE,
Third-party-defendant-
Appellant.
Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, Chief Judge, Presiding
Submitted December 7, 2018**
Pasadena, California
Before: WARDLAW and OWENS, Circuit Judges, and DORSEY,*** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Jennifer A. Dorsey, United States District Judge for
the District of Nevada, sitting by designation.
Third-Party Appellant John Doe appeals from the district court’s order
authorizing the disclosure of documents that Doe contends are protected by the
work-product doctrine (“Relevant Documents”). We “maintain jurisdiction over
this interlocutory appeal under the so-called Perlman rule,” which allows
immediate appeal of a discovery order directed at a disinterested third-party
custodian. United States v. Krane, 625 F.3d 568, 572 (9th Cir. 2010) (citing
Perlman v. United States, 247 U.S. 7 (1918)). We review de novo the district
court’s rulings on the scope of the work-product doctrine, and for clear error the
related factual findings. See United States v. Richey, 632 F.3d 559, 564 (9th Cir.
2011). As the parties are familiar with the facts, we do not recount them here. We
affirm.
Doe argues that the district court erred in holding that evidentiary support
for a work-product assertion must come only from a supporting declaration, rather
than from other competent evidence. Contrary to Doe’s contention, the district
court did not reject Doe’s work-product assertion solely because he failed to
provide a declaration. Rather, the district court correctly held that Doe presented
no evidence—declaration or otherwise—to support his claims.
In addition to failing to provide his own evidence, Doe failed to carry his
burden of proof by relying on undisputed evidence submitted by the government.
Doe argues that six undisputed facts, which he draws from evidence submitted by
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the government, prove that Doe’s lawyer created the Relevant Documents in
anticipation of litigation. To determine whether a document was prepared in
anticipation of litigation, we require evidence of “[t]he circumstances surrounding
the document’s preparation,” including “the nature of the document and the factual
situation of the particular case.” United States v. Torf (In re Grand Jury
Subpoena), 357 F.3d 900, 908 (9th Cir. 2004) (emphasis in original) (citation
omitted). Here, the undisputed facts do not reveal “[t]he circumstances
surrounding the [Relevant Documents’] preparation.” Id. Most importantly, the
undisputed facts do not reveal why Doe and his lawyer created the Relevant
Documents.
The record only indicates, from the Relevant Documents’ actual use, that
Doe’s attorney created them to support Doe’s tax filing, which does not equate to
anticipating litigation. See id. at 909 (“[T]ax return preparation is a readily
separable purpose from litigation preparation and ‘using a lawyer in lieu of another
form of tax preparer’ does nothing to blur that distinction.” (citation omitted)). To
qualify for work-product protection, Doe had to establish that the Relevant
Documents used to prepare the tax return were created “because of” litigation,
meaning they “would not have been created in substantially similar form but for
the prospect of that litigation.” Id. at 908 (citation and alteration marks omitted).
Doe failed to provide such evidence.
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Accordingly, the district court properly ordered the disclosure of the
Relevant Documents.
AFFIRMED.
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