Bank of America v. Feldman

821 F.2d 1422
CourtCourt of Appeals for the Ninth Circuit
DecidedJuly 15, 1987
DocketNo. 86-5880
StatusPublished
Cited by1 cases

This text of 821 F.2d 1422 (Bank of America v. Feldman) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bank of America v. Feldman, 821 F.2d 1422 (9th Cir. 1987).

Opinion

SKOPIL, Circuit Judge:

Defendants/appellants National Mortgage Equity Corporation and David Feldman (NMEC) appeal the district court’s order denying their motion for a protective order and stay. The district court granted a motion to compel the production of documents from a third-party witness. ■ We dismiss the appeal for lack of jurisdiction.

FACTS AND PROCEEDINGS BELOW

The dispute arises out of litigation by Bank of America (B of A) against NMEC, David Feldman, and others concerning a series of transactions in which NMEC sold certificates representing ownership of pools of mortgage loans to numerous institutional investors.

B of A served NMEC’s accounting firm, Pat Stein Accountancy Corporation, and Pat Stein with a deposition subpoena requiring her to produce documents. Stein appeared for the deposition but, on instructions from NMEC’s counsel, refused to answer substantive questions or to produce any documents. NMEC asserted at the deposition that the documents were protected by a privilege rooted in state law. NMEC claimed an accountant-client privilege as well as a privilege to the confidentiality of tax returns and tax return information.

B of A then obtained from the magistrate an order compelling Stein’s testimony and the production of the subpoenaed documents, except tax returns, by May 15, 1986. The district court upheld the order but interpreted the exclusion of tax returns to include “(1) tax returns; (2) drafts of tax returns; and (3) working papers prepared directly in the process of preparing tax returns.” The district court denied NMEC’s request for a protective order and a stay of the order pending appeal. Both the magistrate and the district court imposed sanctions.

NMEC appealed to this court. It first sought to stay implementation of the order compelling the deposition and a protective order concerning the documents at issue. B of A sought to dismiss the appeal for lack of jurisdiction. On May 14, 1986 a motions panel denied the motion for a stay and referred the motion to dismiss the appeal to this panel. The deposition was held as scheduled. Stein answered questions and produced some of the requested documents. Eventually, all the disputed documents were turned over to B of A pursuant to a stipulation that the documents would be returned if NMEC is successful on appeal.

DISCUSSION

An order compelling discovery is not a final judgment under 28 U.S.C. § 1291 (1982). See City of Las Vegas v. Foley, 747 F.2d 1294, 1297 (9th Cir.1984). The general rule is that a party not wishing to comply with a subpoena must risk a contempt order before it may appeal the issue. See In re Grand Jury Subpoena (Niren), 784 F.2d 939, 941 (9th Cir.1986) (citing United States v. Ryan, 402 U.S. [1424]*1424530, 533, 91 S.Ct. 1580, 1582, 29 L.Ed.2d 85 (1971), Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783 (1940)). NMEC attempts to obtain jurisdiction invoking an exception to the rule prohibiting interlocutory appeals.

A. The Perlman Rule

NMEC’s first contention is that this case falls within an exception created by Perlman v. United States, 247 U.S. 7, 38 S. Ct. 417, 62 L.Ed. 950 (1918). Under the Perlman rule an immediate appeal is proper if it is unlikely that the third party will risk a contempt citation simply to create a final order for the person asserting the privilege. Newton v. National Broadcasting Co., 726 F.2d 591, 593 (9th Cir.1984) (citing United States v. Nixon, 418 U.S. 683, 691, 94 S.Ct. 3090, 3099, 41 L.Ed.2d 1039 (1974)). We have applied the Perl-man rule in a grand jury setting when a party sought immediate review of an order compelling testimony or documents from the party’s attorney. See In re Grand Jury Proceedings (Schofield), 721 F.2d 1221, 1222 (9th Cir.1983); In re Grand Jury Subpoenas Duces Tecum (Lahodny), 695 F.2d 363, 364-65 (9th Cir.1982). But see Niren, 784 F.2d at 941 (finding that the Perlman rule does not apply to an order directed to a party’s in-house counsel).

This court has never considered whether an appeal under the Perlman doctrine is permissible in a civil setting or to an accountant-client relationship, and we do not reach those issues in this case. We decline to find jurisdiction here because Stein has already testified and produced the documents requested by B of A. It would therefore be impossible for us to provide effective relief. See Newton, 726 F.2d at 593 (“Any evidentiary privilege ... is liable to being irretrievably breached once the material for which the privilege is claimed has been disclosed”). In William T. Thompson Co. v. General Nutrition Corp., 671 F.2d 100, 103 (3rd Cir.1982), the Third Circuit permitted an appeal even though the information had already been revealed. In that case, however, the deposition was noticed for a circuit other than that in which the action was pending. Id. at 102. Thus in Thompson no review of the enforcement proceeding would have been available after a final judgment on the merits. Id.

NMEC suggests that we direct the district court to issue a protective order preventing use of the material in this and other related proceedings. It argues that we can “control the damage” by limiting the use of the alleged privileged information. Because it has taken every possible measure to avoid disclosure of the information, NMEC maintains that disclosure of the information does not affect our jurisdiction under Perlman.

The fashioning of such a remedy does not, however, fall within the scope of the Perlman rule. Perlman applies only if its application will prevent the disclosure of privileged information. .If the third party has already disclosed the information, the reason for expedited review no longer exists. Review is not available to determine whether previously disclosed material should be the subject of a protective order or whether the material is admissible at trial. These matters are for the district court and will properly be before us after the district court has issued its final judgment. Perlman does not confer jurisdiction in this case.

B. Collateral Order Doctrine

NMEC also attempts to establish jurisdiction under the collateral order doctrine. See Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 547, 69 S.Ct. 1221, 1226, 93 L.Ed. 1528 (1949).

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821 F.2d 1422, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bank-of-america-v-feldman-ca9-1987.