In re: Air Crash at Belle Harbor ( 2007 )


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  • 07-1190
    In re: Air Crash at Belle Harbor
    
    
    
                                       UNITED STATES COURT OF APPEALS
                                          FOR THE SECOND CIRCUIT
                                                August Term, 2006
    
    (Argued: April 10, 2007                                                         Decided: May 8, 2007)
    
                                              Docket No. 07-1190-cv
    
    IN RE : AIR CRASH AT BELLE HARBOR , NEW YORK ON NOVEMBER 12, 2001
    
    MARGARITA DEL CARMEN MONTAN , individually, as personal representative and administrator of the
    Estate of Jose Angel Rosa and on behalf of all heirs and next of kin of Jose Angel Rosa, deceased and
    JESUS R. ARAUJUO, as personal representative and administrator of the Estate of Lillian Valoy, deceased,
    individually and on behalf of the next of kin,
    
                      Plaintiffs,
    
    JEFFREY W. GOLAN ,
    
                      Non-Party-Appellant,
    
                      v.
    
    AMERICAN AIRLINES, INC ., AIRBUS INDUSTRIE , G.I.E., A AIRBUS S.A.S., AIRBUS SERVICE COMPANY,
    INC ., EUROPEAN AERONAUTIC DEFENSE AND SPACE COMPANY EA, BAE SYSTEMS,
    
                      Defendants-Appellees.
    
    Before: LEVAL, CABRANES, and RAGGI, Circuit Judges.
    
             Non-party-appellant, a licensed attorney, appeals from an order compelling him to produce
    
    certain documents and appear for a deposition in compliance with a subpoena, despite his assertions of
    
    attorney-client privilege, the work product doctrine, and protections under the reporters’ shield laws of
    
    New York and Germany. We conclude that (1) the order is not final for the purposes of 28 U.S.C. §
    
    1291, because appellant has not disobeyed the order and been held in contempt; (2) the District Court
    
    did not have authority under Federal Rule of Civil Procedure 54(b) to designate the order as “final”;
    
    and (3) the collateral order doctrine does not apply. Therefore, we lack appellate jurisdiction and grant
    
                                                        1
    defendant-appellee’s motion to dismiss the appeal.
    
    
                                                    JEFFREY W. GOLAN , pro se.
    
                                                    IRA M. FEINBERG, Hogan & Hartson L.L.P., New York, NY
                                                           (George F. Hritz, Hogan & Hartson L.L.P., New York,
                                                           NY; Thad T. Dameris, Trevor R. Jeffries, and Bruce D.
                                                           Oakley, Hogan & Hartson L.L.P., Houston TX; and
                                                           David J. Weiner, Hogan & Hartson L.L.P., Washington,
                                                           DC, on the brief), for Defendant-Appellee Airbus Industrie
                                                           G.I.E.
    JOSÉ A. CABRANES, Circuit Judge:
    
             We consider here whether we may exercise appellate jurisdiction over a non-party lawyer’s
    
    appeal from a district court order directing him to produce documents and appear for a deposition,
    
    despite his assertions of various privileges belonging to himself and his client, where the lawyer has not
    
    disobeyed the order and been held in contempt.
    
             The appeal arises out of lawsuits filed against, inter alia, defendant-appellee Airbus Industrie
    
    G.I.E. (“Airbus”) following the crash of American Airlines Flight 587 at Belle Harbor, New York, on
    
    November 12, 2001. During consolidated pretrial proceedings, the United States District Court for the
    
    Southern District of New York (Robert W. Sweet, Judge) granted Airbus’s motion to compel non-party-
    
    appellant Jeffrey W. Golan (“Golan”), a lawyer licensed in Pennsylvania, to produce certain documents
    
    and appear for a deposition in compliance with a subpoena, over his objections based on attorney-
    
    client privilege, the work product doctrine, and the reporters’ shield laws of New York and Germany.
    
    Golan asserts that he represents a German reporter, who is not a party to these proceedings, and that
    
    he serves as a consultant for plaintiffs’ counsel in the underlying litigation. The District Court
    
    subsequently designated the order as a “final order” and directed its immediate entry pursuant to
    
    Federal Rule of Civil Procedure 54(b) (“Rule 54(b)”).1 Golan appealed, and Airbus moved to dismiss
    
    
    
             1
                As discussed below, Rule 54(b) permits a district court, upon a finding of “no just reason for delay,” to direct
    entry of a final judgm ent as to “fe wer than all claim s or parties.”
    
                                                                   2
    the appeal for lack of appellate jurisdiction because the order was not a “final decision” under 28 U.S.C.
    
    § 1291.2 Golan responded that (1) under a line of cases deriving from the Supreme Court’s opinion in
    
    Perlman v. United States, 
    247 U.S. 7
     (1918), he was exempt from the general rule requiring a subpoenaed
    
    non-party in a criminal or civil proceeding to “disobey the subpoena, be held in civil or criminal
    
    contempt, and then appeal the contempt order,” Stolt-Nielsen SA v. Celanese AG, 
    430 F.3d 567
    , 574 (2d
    
    Cir. 2005); (2) the District Court’s invocation of Rule 54(b) rendered the order a final decision for the
    
    purposes of 28 U.S.C. § 1291; and (3) in any event, we should accept his appeal pursuant to the
    
    collateral order doctrine. By order dated April 17, 2007, we summarily granted Airbus’s motion to
    
    dismiss the appeal. We write now to explain our reasons for doing so.
    
                                                         BACKGROUND
    
             On April 24, 2002, the Judicial Panel on Multidistrict Litigation transferred all lawsuits
    
    concerning the November 12, 2001 crash to the Southern District of New York pursuant to 28 U.S.C.
    
    § 1407. The transferred cases were assigned to Judge Sweet for consolidated pretrial proceedings with
    
    related actions already before him. He subsequently appointed a Plaintiffs’ Executive Committee
    
    (“PEC”) to coordinate the work of plaintiffs’ counsel. Plaintiffs in the underlying litigation seek relief
    
    under various theories, including wrongful death, products liability, and breach of warranty.
    
             On October 13, 2005, Airbus served the PEC with a document request for any material in its
    
    possession obtained from current and former Airbus employees. On March 9, 2006, the PEC provided
    
    Airbus with a privilege log identifying three memoranda written and transmitted to the PEC by Golan.
    
    On November 3, 2006, Airbus served Golan with a subpoena issued and signed by Airbus’s counsel on
    
    behalf of the District Court.3 The subpoena commanded Golan to appear for a deposition and to
    
    
             2
                 In pertinent part, 28 U.S.C. § 1291 provides: “The courts of appeals . . . shall have jurisdiction of appeals from
    all final dec isions of the district cou rts of th e United States . . . .”
    
             3
              The issuance of a subpoena in a civil action does not in itself reflect the District Court’s endorsement of the
    demand s made therein. See Fed . R. Civ. P. 45(a) (describing the proc edure for issuance of a subpoena); see also 9A Wright
    
                                                                    3
    produce thirteen categories of documents, including all documents received from any current and
    
    former Airbus employees, all documents concerning the November 12, 2001 crash and certain Airbus
    
    aircraft, and all documents provided to any other person regarding the litigation. Golan served
    
    objections to the subpoena on November 21, 2006, and amended objections on November 30, 2006.
    
             Golan’s amended objections to the subpoena consisted of six “General Objections,” a
    
    discussion of the basis for the general objections, statements in response to each category of documents
    
    requested by Airbus, and broad descriptions of the documents being withheld. Golan asserted that the
    
    subpoena (1) called for the production of materials protected by the attorney-client privilege; (2) called
    
    for the production of materials protected by the attorney work product doctrine; (3) was overly broad,
    
    unduly burdensome, and harassing; (4) sought information protected by reporters’ shield laws in the
    
    United States and Europe; (5) attempted to “end-run the plaintiffs’ [March 9, 2006] designation of
    
    privileged documents”; and (6) required him to appear for a deposition on a day when he had other
    
    professional commitments. Golan explained that he became aware of information relevant to the
    
    litigation as a result of serving as counsel for a European journalist, and that any information Golan
    
    shared with the PEC was done (1) in anticipation of potential litigation the journalist might bring, (2) to
    
    aid the journalist “in the pursuit of an eventual investigative publication,” or (3) to assist the PEC.
    
             On January 30, 2007, Airbus filed a motion to compel Golan to produce the documents and
    
    appear for the deposition. Both Golan and the PEC opposed the motion. In a declaration filed in
    
    support of his opposition to the motion, Golan specified that several months after the November 12,
    
    2001 crash, he was contacted by a reporter at a well-established German publication who was seeking
    
    legal counsel regarding, inter alia, whether a person not injured in the crash could bring a private action
    
    in the United States and how to obtain information disclosed in the course of litigation that had already
    
    
    
    & M iller, Federal Practice & Procedure § 2451 (1995) (“A ‘subpoena’ is a mandate lawfully issued in the name of the
    court, usually by the clerk there of, but under curre nt practice, by attorneys.”).
    
                                                                 4
    commenced. Golan stated that he continued to serve as the reporter’s attorney after the reporter
    
    decided not to initiate any litigation; Golan also claimed that he entered into a consulting relationship
    
    with the PEC “for the purpose of investigating and communicating information pertinent to the crash.”
    
    In sum, Golan claimed that “all of the information and documents that [he possesses] have come into
    
    [his] possession solely as a result of [his] providing legal advice to [his] client, the reporter, and later, as
    
    a consultant to Plaintiffs’ counsel.” Purporting to assert a “good faith and sufficient basis for
    
    protecting from production . . . all documents in [his] possession and all information that [he] may have
    
    learned relevant to this matter,” Golan invoked the attorney-client privilege, the attorney work product
    
    doctrine, and the reporters’ shield laws of New York and Germany.
    
             The District Court issued a memorandum opinion on March 1, 2007, granting Airbus’s motion
    
    to compel. In re: Air Crash at Belle Harbor, New York on November 12, 2001, Nos. 02 Civ. 0439 (RWS), 02
    
    MDL 1448 (RWS), 
    2007 WL 635723
     (S.D.N.Y. Mar. 1, 2007). The District Court concluded that (1)
    
    Golan failed to establish the existence of an attorney-client relationship with either the unnamed
    
    German reporter or the PEC; (2) even if Golan could prove an attorney-client relationship, the reporter
    
    waived the attorney-client privilege with respect to any material that had been shared with the PEC,
    
    and the PEC waived the attorney-client privilege with respect to any material that had been shared with
    
    other persons; (3) under an earlier discovery decision of the District Court, the work product doctrine
    
    was inapplicable to any materials admitted to contain Airbus documents or information; (4) in any
    
    event, Golan waived application of the work product doctrine by failing to submit a privilege log in
    
    accordance with the requirements of S.D.N.Y. Local Rule 26.2;4 (5) Golan failed to engage in any
    
    choice-of-law analysis that would lead to the application of Germany’s shield law and did not present
    
    
    
             4
                Pursuant to Local Rule 26.2, “[w]here a claim of privilege is asserted in objecting to any means of discovery or
    disclosure . . . the attorney asserting the privilege shall identity the nature of the privilege,” and provide information such
    as the type, subject matter, and date of allegedly privileged documents and the date, subject matter, and recipients of
    allegedly priv ileged co mmunic ations.
    
                                                                    5
    evidence of any connection between the reporter and Germany; and (6) the protections afforded by
    
    New York’s shield law do not apply to any information that the reporter shared with Golan. See id. at
    
    *1-2.
    
            On March 8, 2007, the District Court entered an order directing Golan to appear for the
    
    deposition on or before March 12 and to produce all documents responsive to Airbus’s subpoena on or
    
    before March 9. The March 8 order also directed plaintiffs to produce related documents. On March
    
    9, 2007, Golan filed a notice of appeal from the March 8 order. Also on March 9, 2007, in response to
    
    a request from Golan, the District Court issued a further order in which it designated “the portions of
    
    the March 8 Order pertaining to Golan” as a “Final Order with respect to Golan.” The District Court
    
    found no just reason for delay in the entry of the “Final Order” and directed its immediate entry
    
    pursuant to Rule 54(b). Golan filed an amended notice of appeal on March 14, 2007, which indicated
    
    that the March 8 order had been entered as a final order under Rule 54(b) pursuant to the District
    
    Court’s instructions.
    
            At oral argument before this Court, Golan informed us that if his appeal were to prove
    
    unsuccessful, he would abide by the District Court’s order compelling compliance with the subpoena,
    
    and that he has received his reporter client’s authorization to do so in that event.
    
                                                   DISCUSSION
    
            This Court “shall have jurisdiction of appeals from all final decisions of the district courts of the
    
    United States.” 28 U.S.C. § 1291. “Under traditional finality principles, a district court’s decision to
    
    compel compliance with a subpoena or to deny a motion to quash a subpoena is generally not a ‘final
    
    decision’ and therefore is not immediately appealable.” Stolt-Nielsen SA, 430 F.3d at 574. This general
    
    rule applies whether the subpoena is issued in connection with civil and criminal actions, or grand jury
    
    proceedings, see United States v. Constr. Prods. Research, Inc., 
    73 F.3d 464
    , 468 (2d Cir. 1996), and whether
    
    the person (or entity) seeking to prevent enforcement of the subpoena is a party to the litigation or a
    
    
                                                          6
    non-party witness, see Stolt-Nielsen SA, 430 F.3d at 574. To obtain appellate review, the subpoenaed
    
    person ordinarily “must defy the district court’s enforcement order, be held in contempt, and then
    
    appeal the contempt order, which is regarded as final under § 1291.” Constr. Prods. Research, Inc., 73 F.3d
    
    at 469; see also United States v. Nixon, 
    418 U.S. 683
    , 690-91 (1974); Alexander v. United States, 
    201 U.S. 117
    ,
    
    121-22 (1906); Stolt-Nielsen SA, 430 F.3d at 574; Dove v. Atl. Capital Corp., 
    963 F.2d 15
    , 17 (2d Cir. 1992);
    
    Nat’l Super Spuds, Inc. v. N.Y. Mercantile Exch., 
    591 F.2d 174
    , 177 (2d Cir. 1979) (Friendly, J.). Under this
    
    rule, “[t]he remedy of the party witness wishing to appeal is to refuse to answer and subject himself to
    
    criminal contempt; that of the non-party witness is to refuse to answer and subject himself to civil or
    
    criminal contempt.”5 Nat’l Super Spuds, Inc., 591 F.2d at 177.
    
             Requiring the subject of a subpoena to submit to contempt before appealing promotes the
    
    “strong congressional policy”—embodied in 28 U.S.C. § 1291—“against piecemeal reviews, and against
    
    obstructing or impeding an ongoing judicial proceeding by interlocutory appeals.” Nixon, 418 U.S. at
    
    690. As Judge Friendly has explained, even the “softened” application of this requirement “serves a
    
    useful purpose in curtailing appeals, with consequent delay in litigation . . . .”6 Nat’l Super Spuds, Inc.,
    
    591 F.2d at 180. “Both sides benefit from having a second look.” Id. The subpoenaed person “may
    
    decide . . . that the importance of the issue and the risk of adverse appellate determination do not
    
    
    
             5
               It is arguably possible that a party witness could obtain review of the rulings und erlying a challenged d iscovery
    order by allowing his case to be dismissed for non-prod uction (if the party witness is a plaintiff) or by allowing sum mary
    judgm ent to be entered based on adv erse inferences drawn from non-production (if the party witness is a defend ant).
    We are not presented with such a scenario, and we express no opinion as to the feasibility of these course s of action.
    
             6
                The “softened” application referred to by Judge Friendly involved the assertion of governmental privilege by
    a non-pa rty G overnm ent employee at his agency’s request. Nat’l Super Spuds, Inc., 591 F.2d at 180. In su ch a case, a
    “citation fo r civil contempt withou t any other immediate sanction pending prom pt application fo r review will ordina rily
    suffice.” Id. If the appeal were unsuccessful, “damages (in a case like this primarily counsel fees) would be an
    appropriate remedy, and these should be paid by the Governm ent and not by the employee.” Id. (citations om itted).
    
              We need not consider here whether it would be permissible, much less sufficient, for a district court to apply an
    “softer” approach than was discussed by Judge Friendly, such as by holding a putative appellant in contempt with the
    explicit or implicit understanding that the citation would be expunged even if the appeal were unsuccessful and the
    contemnor then promptly complied.
    
    
                                                                    7
    warrant being branded as a contemnor,” while “the person seeking information . . . may decide that the
    
    quest is not important enough to seek a contempt citation, thereby entailing the delay of an appeal . . .
    
    .” Id.
    
             “The requirement of submitting to contempt, however, is not without exception and in some
    
    instances the purposes underlying the finality rule require a different result.” Nixon, 418 U.S. at 691.
    
    Thus, for example, “a district court order enforcing a subpoena issued by a government agency in
    
    connection with an administrative investigation may be appealed immediately without first performing
    
    the ritual of obtaining a contempt order,” because the administrative proceeding is self-contained and,
    
    unlike in the case of a grand jury or trial, there is no “further judicial inquiry which would be halted
    
    were the offending [subpoenaed party] permitted to appeal.” Constr. Prods. Research, Inc., 73 F.3d at 469
    
    (alteration in original) (quoting Cobbledick v. United States, 
    309 U.S. 323
    , 330 (1940)) (internal quotation
    
    mark omitted).
    
    I. The Perlman Exception
    
             Golan argues that his appeal falls under the so-called Perlman exception to the rule requiring the
    
    subject of a subpoena to submit to contempt before a district court’s order compelling compliance with
    
    the subpoena is appealable. In Perlman v. United States, 
    247 U.S. 7
     (1918), the Supreme Court permitted
    
    Perlman, the target of a grand jury investigation, to immediately appeal the district court’s denial of his
    
    motion for an order restraining the United States Attorney from using property belonging to him that
    
    had been impounded and deposited with the clerk of the court, after the clerk had been ordered by the
    
    district court to produce the property. See id. at 12-13; Nat’l Super Spuds, Inc., 591 F.2d at 178
    
    (discussing Perlman’s facts and procedural history). Thus, in Perlman, “the contempt avenue for
    
    ultimately securing review” of the district court’s production order “was not available since Perlman
    
    was not being required to do anything,” Nat’l Super Spuds, Inc., 591 F.2d at 179 (citing Cobbledick, 309
    
    U.S. at 328-29). Moreover, it was “unimaginable” that the disinterested clerk would defy the district
    
    
                                                          8
    court’s order so that Perlman—who had no connection to the clerk—could appeal. Id.
    
            Perlman has since come to stand for the principle that the holder of an asserted privilege may
    
    immediately appeal the enforcement of a subpoena when the subpoena is directed at another person
    
    who does not object to providing the testimony or documents at issue. See Stolt-Nielsen SA, 430 F.3d at
    
    575 (“[W]here a subpoenaed third-party witness does not object to testifying, but someone else
    
    does—often on the grounds of privilege—a district court’s refusal to quash the subpoena is
    
    immediately appealable by the objecting party.”); In re Katz, 
    623 F.2d 122
    , 124 (2d Cir. 1980) (“[W]here
    
    the subpoena is directed against a third party, the movant who claims that production of the subpoened
    
    material would violate his fifth amendment privilege against self-incrimination is permitted an
    
    immediate appeal.”); see also In re Grand Jury Proceedings, 
    219 F.3d 175
    , 182 n.3 (2d Cir. 2000) (interpreting
    
    In re Katz as concluding that the “holder of [an] asserted privilege may appeal when [a] subpoena is
    
    directed at a third party because of the risk that the third party will surrender the privilege rather than
    
    risk a contempt citation”). The Perlman exception applies to appeals both from orders denying motions
    
    to quash, see, e.g., In re Katz, 623 F.2d at 124, and orders granting motions to compel, see, e.g., In re Grand
    
    Jury Proceedings, 219 F.3d at 181-82 & n.3. It also applies to appeals from orders issued in both grand
    
    jury proceedings, see, e.g., In re Katz, 623 F.2d at 123-24, and criminal and civil actions, see Nat’l Super
    
    Spuds, Inc., 591 F.2d at 176-81.
    
            Golan contends that, like the clerk in Perlman, it is unimaginable that he would defy the District
    
    Court’s order to assert privileges belonging to his reporter client. Golan claims that because he is a
    
    licensed attorney who often appears on a pro hac vice basis in the Southern District of New York, it
    
    would be “virtually impossible” for him to risk a citation for contempt. Although Golan does not
    
    explain the basis for this impossibility in his submissions to this Court, at oral argument he implied that
    
    a mere citation for contempt would have adverse professional consequences, primarily affecting his
    
    appointment to plaintiffs’ executive committees in other complex litigation.
    
    
                                                           9
             Golan’s argument fails, and the Perlman exception is inapplicable to his appeal, for two reasons.
    
    First, the Perlman exception is relevant only to appeals brought by the holder of a privilege where the
    
    disputed subpoena is directed at someone else. It is impossible for such an appellant to pursue the normal
    
    avenue of review—submission to contempt—because, like Perlman, that appellant has not been
    
    required to do anything by the district court. In the instant case, however, Golan is both the appellant
    
    and the subject of the subpoena. The power to abide by or defy the district court’s order is in his hands
    
    alone. See In re Am. Tobacco Co., 
    866 F.2d 552
    , 556 (2d Cir. 1989) (“Perlman may not be extended to
    
    permit the party in possession of the subpoenaed documents to appeal prior to contempt simply
    
    because other persons might have been able to do so.”); cf. In re Grand Jury Subpoena for N.Y. State Income
    
    Tax Records, 
    607 F.2d 566
    , 571 (2d Cir. 1979) (“Since the State is both the holder of the privilege and
    
    the custodian of the records the Perlman doctrine does not permit this appeal.”).
    
             Second, unlike the court clerk in Perlman, a lawyer in Golan’s position—even one concerned
    
    about the effects of a contempt citation on his practice—does not lack countervailing motivations to
    
    submit to contempt, as well as ethical obligations to assert his client’s privileges. As the United States
    
    Court of Appeals for the District of Columbia Circuit has noted in a similar situation, a lawyer who
    
    “assert[s] [his] own interests in work product and in not being subject to what [he] claims is
    
    burdensome and abusive discovery, plus the privilege of [his] client (which [he] is normally duty-bound
    
    to assert) . . . has the requisite incentives (as well as the clear ability) to risk contempt and thereby force
    
    review into the usual channel.” In re Sealed Case, 
    141 F.3d 337
    , 340 (D.C. Cir. 1998) (citations omitted).
    
    Moreover, if a mere citation for civil contempt might hinder an attorney’s attempts at obtaining
    
    representation in future cases, the refusal to submit to such contempt under any circumstances might
    
    drive away clients in the future.7
    
    
             7
                At oral argum ent, G olan suggested tha t we shou ld allow his appeal to proceed be cau se his reporter clien t is
    not a party to the underlying litigation and therefore cannot bring the appeal on the client’s own behalf. However, in In
    re Katz, we permitted the client of a non-party attorney to appeal under the Perlman exception after moving to intervene
    
    
                                                                    10
              Because Golan cannot take advantage of the Perlman exception to obtain review of the District
    
    Court’s order, the ordinary contempt requirement would prevent immediate appeal unless we were to
    
    create a new exception for lawyers that is similar to the exception established for the President of the
    
    United States by the Supreme Court in Nixon v. United States. In that case, the Supreme Court held that
    
    the President, who had been issued a subpoena to produce certain tapes and documents in connection
    
    with a criminal proceeding where he was named as an unindicted co-conspirator, could immediately
    
    appeal the district court’s denial of his motion to quash the subpoena, even though he had not first
    
    submitted to contempt. Nixon, 418 U.S. at 686, 691-92. The Court emphasized that the ordinary rule
    
    was “peculiarly inappropriate due to the unique setting” in which the issue arose. Id. at 691. Requiring
    
    the President to submit to contempt would have “present[ed] an unnecessary occasion for
    
    constitutional confrontation between two branches of the Government,” placed the federal judge in an
    
    unusually difficult position, and threatened to “itself engender protracted litigation” over whether the
    
    district court had the power to hold the President in contempt, thereby delaying review “on the merits
    
    
    as of right before the district court pursuant to F ederal Rule of C ivil Procedure 24(a). See In re Katz, 623 F.2d at 123-25.
    Moreover, an order com pelling discovery does not become final under 28 U.S.C. § 1291 merely because the privilege
    holder cannot appeal and the target of the order has not submitted to contempt. For instance, such an order may not be
    final if th e target is an em ployee of the p rivilege holder and appears willing to su bm it to contem pt rather than com ply
    with the order. See Nat’l Super Spuds, Inc., 591 F.2d at 179-81 (dismissing an appeal from a district court order directing
    the employee of a government agency to answer certain questions at a deposition, where the employee had not
    submitted to contempt and the Perlman exception did not perm it the agency itself to appeal).
    
              We need not consider whether the Perlman exception would allow Golan’s client to appeal in a situation where,
    as here, the attorney has resisted the subpoena and the client has authorized the attorney to obey an order compelling
    com pliance in the event of an unsucc essfu l appeal by the attorney himself. See id. at 179 n.7 (“Whatever the validity of
    this exception m ay be in cases w here the [privilege holder] is disintere sted or independent, it becomes more difficu lt to
    sustain where the target of the disclosure order is both subject to the control of the person or entity asserting the
    privilege and is a participant in the re lationship out of which the privilege em erge s.” (citations o mitted)); cf. Stolt-Nielsen,
    SA, 430 F.3d at 475 (applying the Perlman exception where the subject of the subpoena “dem onstrated that he is more
    than willing to comply w ith the subpoena w ithou t any add itional prom pting”); In re Sealed Case, 141 F.3d at 34 0 n.1 (“In
    som e cases the attorney will indicate an intention to com ply with the subpoena, and on those facts the [D.C . Circuit]
    regards Perlman as controlling.”); In re Katz, 623 F.2d at 124-25 (applying the Perlman exception where the attorney’s client
    asserted his “fifth amendment privilege against self-incrimination” and the attorney had already appeared before the
    grand jury and given the allegedly privileged docum ents to the district cou rt under seal).
    
              Go lan also ask ed at oral argu ment that, if we conclu de he is unable to appeal, we grant leave to have his
    reporter client substituted on the notice of appeal. We decline to depart from the ordinary rules for intervention and
    perfection of an appeal from an order compelling compliance with a subpoena.
    
    
                                                                      11
    of his claim of privilege and the ultimate termination of the underlying criminal action for which his
    
    evidence [was] sought.” Id. at 692.
    
             Such concerns have no bearing on the instant case. We have declined to dispense with the
    
    ordinary contempt requirement “where the government, whether state or federal, asserts governmental
    
    or ‘executive’ privilege in cases where it is not a party,” Nat’l Super Spuds, Inc., 591 F.2d at 177, and we
    
    decline to dispense with it in cases where a non-party lawyer asserts either his own or his client’s
    
    privileges. As other lawyers have had to do, Golan must submit to contempt before the district court’s
    
    order to appear for a deposition and produce documents will be appealable. See In re Grand Jury
    
    Proceedings, 
    604 F.2d 798
    , 799-800 (3d Cir. 1979) (dismissing the appeal of a non-party attorney who had
    
    not submitted to contempt by defying an order to produce documents in a grand jury proceeding); In re
    
    Murphy, 
    560 F.2d 326
    , 332-33 & n.10 (8th Cir. 1977) (permitting appeals by non-party law firms and
    
    lawyers because they were cited for civil contempt after refusing to turn over documents to the district
    
    court)
    
    II. Rule 54(b)
    
             Golan contends further that even if he would ordinarily have to submit to contempt before he
    
    could appeal the District Court’s order, the District Court’s invocation of Rule 54(b) rendered the order
    
    final and immediately appealable. This argument fails, however, because Rule 54(b) does not provide
    
    district courts with the authority to make “final” an order compelling a non-party to comply with a
    
    subpoena.
    
             Rule 54(b) provides:
    
                        When more than one claim for relief is presented in an action,
                whether as a claim, counterclaim, cross-claim, or third-party claim, or when
                multiple parties are involved, the court may direct the entry of a final
                judgment as to one or more but fewer than all of the claims or parties only
                upon an express determination that there is no just reason for delay and
                upon an express direction for the entry of judgment. In the absence of such
                determination and direction, any order or other form of decision, however
    
    
                                                        12
                   designated, which adjudicates fewer than all the claims or the rights and
                   liabilities of fewer than all the parties shall not terminate the action as to any
                   of the claims or parties, and the order or other form or decision is subject to
                   revision at any time before the entry of judgment adjudicating all the claims
                   and the rights and liabilities of all the parties.
    
    Fed. R. Civ. P. 54(b). As we summarized in Ginett v. Computer Task Group, Inc., 
    962 F.2d 1085
     (2d
    
    Cir. 1992), Rule 54(b) contains three prerequisites for concluding that a decision or order is a “final
    
    judgment”:
    
                   (1) multiple claims or multiple parties must be present, (2) at least one claim, or
                   the rights and liabilities of at least one party, must be finally decided within
                   the meaning of 28 U.S.C. § 1291, and (3) the district court must make an
                   “express determination that there is no just reason for delay” and expressly
                   direct the clerk to enter judgment.
    
    Id. at 1091. “Factors (1) and (2) address the issue of whether rule 54(b) applies at all to the
    
    circumstances of the case,” and are reviewed de novo. Id. at 1091-92.
    
             The circumstances of the instant case cannot satisfy factor (2). A district court may
    
    designate its order as final only if the order “meets the standard of finality governing independent
    
    litigation.” Horn v. Transcon Lines, Inc., 
    898 F.2d 589
    , 594 (7th Cir. 1990). For the reasons discussed
    
    above, the District Court’s order directing Golan to produce documents and appear for a deposition
    
    is not final for the purposes of 28 U.S.C. § 1291.8 Rule 54(b) did not grant the District Court
    
    authority to change the order’s status regarding appealability merely by a pronouncement that the
    
    order was “final.”
    
    III. The Collateral Order Doctrine
    
                 Golan argues in the alternative that, regardless of whether the District Court’s order is
    
             8
                Although resistance to an order compelling compliance w ith a su bpoena may lead directly to being held in
    contem pt, it is the contem pt order itself that rep resents the final ste p in effecting com pliance w ith the subpoena. See
    Alexander, 201 U.S. at 121 (“In a certain sense finality can be asserted of the orders under review, so, in a certain sense,
    finality can be asserted of any order of a court. And such an order may coerce a witness, leaving him no alternative but
    to obey or be punished. It may have the effect and the same characteristic of finality as the orders under review, but
    from such a ruling it will not be contended there is an appeal. Let the court go farther and punish the witness for
    contempt of its order, then arrives a right of review, and this is adequate for his protection without unduly impeding the
    progress of the case.”).
    
    
                                                                 13
    “final” for the purposes of 29 U.S.C. § 1291, we should exercise appellate jurisdiction pursuant to
    
    the collateral order doctrine, which allows us to hear an appeal from an interlocutory order “if such
    
    order (1) ‘conclusively determined the disputed question’; (2) ‘resolved an important question
    
    completely separate from the merits of the action’; and (3) ‘was effectively unreviewable on appeal
    
    from a final judgment.’” SEC v. TheStreet.Com, 
    273 F.3d 222
    , 228 (2d Cir. 2001) (quoting Whiting v.
    
    Lacara, 
    187 F.3d 317
    , 320 (2d Cir. 1999)). See generally Cohen v. Beneficial Indus. Loan Corp., 
    337 U.S. 541
     (1949). This argument is foreclosed by our holding in Chase Manhattan Bank, N.A., v. Turner &
    
    Newall, PLC, 
    964 F.2d 159
     (2d Cir. 1992), where we rejected application of the collateral order
    
    doctrine in an appeal from a discovery order that required disclosure of thousands of documents
    
    allegedly protected by attorney-client privilege, see id. at 160, 162-63.9 Indeed, in that case the
    
    putative appellant was a party to the underlying civil action, id. at 160, and could not have appealed
    
    even from a civil contempt order, see OSRecovery, Inc. v. One Groupe Int’l, Inc., 
    462 F.3d 87
    , 89-90 (2d
    
    Cir. 2006) (civil contempt orders are not final as to parties, but are final as to non-parties). Golan,
    
    on the other hand, could have disobeyed the District Court’s order, been cited for civil contempt,
    
    and then appealed from the contempt order, which is considered final for the purposes of 28 U.S.C.
    
    § 1291. In other words, the District Court’s order compelling compliance with the subpoena was
    
    not “effectively unreviewable on appeal from a final judgment.”
    
             Although we ultimately exercised mandamus review to overturn the discovery order in Chase
    
    Manhattan Bank, Golan has not petitioned for this extraordinary writ and has neither indicated which
    
    issues addressed in the District Court’s order are “of importance and of first impression” nor
    
    explained how “immediate resolution will avoid the development of discovery practices or doctrine
    
    
    
             9
                We have, in circum stances not relev ant here, applied the collateral order doctrine “in allowing a party to
    appeal an order denying discovery of a non-party where the order is made by a district court other than the one in which
    the underlying action is pending,” Barrick G roup, Inc., v. Mosse, 
    849 F.2d 70
    , 73 (2d Cir. 1988), but only where “effective
    review” is unavailable because the district cou rts are in two different circu its, see id. at 73-74.
    
    
                                                                14
    undermining” the asserted privileges. Chase Manhattan Bank, 964 F.2d at 163 (explaining the
    
    prerequisites for mandamus review of a discovery order).
    
                                     *               *              *
    
           For the foregoing reasons, and pursuant to our order of April 17, 2007, Airbus’s motion to
    
    dismiss the appeal is GRANTED.
    
    
    
    
                                                    15
    

Document Info

DocketNumber: 07-1190

Filed Date: 5/8/2007

Precedential Status: Precedential

Modified Date: 12/21/2014

Authorities (22)

Alexander v. United States , 201 U.S. 117 ( 1906 )

Perlman v. United States , 247 U.S. 7 ( 1918 )

Cobbledick v. United States , 309 U.S. 323 ( 1940 )

Cohen v. Beneficial Industrial Loan Corp. , 337 U.S. 541 ( 1949 )

United States v. Nixon , 418 U.S. 683 ( 1974 )

In Re: Sealed Case , 141 F.3d 337 ( 1998 )

in-re-subpoena-addressed-to-samuel-w-murphy-jr-and-the-law-firm-of , 560 F.2d 326 ( 1977 )

national-super-spuds-inc-v-new-york-mercantile-exchange-commodity , 591 F.2d 174 ( 1979 )

In Re Grand Jury Proceedings. Appeal of Fmc Corporation, ... , 604 F.2d 798 ( 1979 )

In Re Grand Jury Subpoena for New York State Income Tax ... , 607 F.2d 566 ( 1979 )

In Re Grand Jury Proceedings Gary Katz, Witness. Benjamin ... , 623 F.2d 122 ( 1980 )

the-barrick-group-inc-delphi-associates-limited-partnership-jayarm , 849 F.2d 70 ( 1988 )

in-the-matter-of-the-application-of-the-american-tobacco-company-mount , 866 F.2d 552 ( 1989 )

Frank J. Ginett, Cross-Appellant v. Computer Task Group, ... , 962 F.2d 1085 ( 1992 )

Guy O. Dove, Iii, Spargos Mining Nl v. Atlantic Capital ... , 963 F.2d 15 ( 1992 )

chase-manhattan-bank-na-v-turner-newall-plc-formerly-known-as , 964 F.2d 159 ( 1992 )

United States v. Construction Products Research, Inc. Five ... , 73 F.3d 464 ( 1996 )

joseph-m-whiting-v-garrett-r-lacara-the-incorporated-village-of-old , 187 F.3d 317 ( 1999 )

In Re: Grand Jury Proceedings United States of America v. ... , 219 F.3d 175 ( 2000 )

securities-and-exchange-commission-new-york-stock-exchange-inc , 273 F.3d 222 ( 2001 )

View All Authorities »