In Re: GRAND JURY INVESTIGATION

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 20, 2018
• Docket: 18-50119
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 20 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT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

2 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.

3 Accordingly, the district court properly ordered the disclosure of the

Relevant Documents.

AFFIRMED.