In Re Grand Jury Investigation V.
This text of In Re Grand Jury Investigation V. (In Re Grand Jury Investigation V.) 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.
Opinion
FILED NOT FOR PUBLICATION SEP 08 2016 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: GRAND JURY INVESTIGATION Nos. 16-50234 16-55640
UNITED STATES OF AMERICA, D.C. No. 2:15-cm-01014-UA-1
Appellee, MEMORANDUM* v.
DOE APPELLANTS AND CORPORATIONS,
Respondents-Appellants.
Appeal from the United States District Court for the Central District of California Philip S. Gutierrez, District Judge, Presiding
Submitted August 31, 2016** Pasadena, California
Before: SILVERMAN, FISHER, and WATFORD, Circuit Judges.
* 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). Page 2 of 4 1. Under Perlman v. United States, 247 U.S. 7 (1918), we have jurisdiction
to review the order requiring production of documents entered on June 27, 2016.
Because appellants’ former attorneys would likely produce the allegedly privileged
documents to the government rather than risk a contempt citation, appellants may
appeal the order to protect the privilege. See United States v. Krane, 625 F.3d 568,
572 (9th Cir. 2010). We lack jurisdiction over all other orders appellants
challenge.
2. Appellants argue that the district court erred by not revisiting its finding
of a prima facie case of crime-fraud, which is step one of the crime-fraud inquiry.
See In re Napster, Inc. Copyright Litig., 479 F.3d 1078, 1090 (9th Cir. 2007),
abrogated in part on other grounds by Mohawk Indus., Inc. v. Carpenter, 558 U.S.
100 (2009). This court previously affirmed the district court’s finding of a prima
facie case of crime-fraud, however, and remanded to the district court to conduct
only the second step of the crime-fraud inquiry. In re Grand Jury Investigation,
810 F.3d 1110, 1114 (9th Cir. 2016); In re Grand Jury Investigation, 628 F. App’x
482, 483 (9th Cir. 2016). Under the law of the case doctrine, we are “precluded
from reexamining” this finding. United States v. Smith, 389 F.3d 944, 948 (9th
Cir. 2004). We therefore decline to reach any of appellants’ arguments challenging
the district court’s finding of a prima facie case of crime-fraud. Page 3 of 4 3. Appellants contend that the district court erred by ordering production of
certain documents under the crime-fraud exception. We find none of these
contentions meritorious.
Appellants argue that the district court’s analysis in the June 2016 order
erred in two ways: first by not specifying the factual basis for each communication,
and second by requiring an insufficient nexus between the communications and the
alleged crime-fraud. We disagree. The district court discussed its evaluation
process as applied to each document, and the court reviewed each document
individually. Only emails that were “sufficiently related to” and “made in
furtherance of the alleged illegality” because they “provided information necessary
for [the attorneys] to draft and complete the FDA letters” were ordered produced.
The district court clearly explained both its process as applied to each document
and its factual basis for ordering production of each document. Document-by-
document factual findings did not need to be specified in the order.
We also reject appellants’ argument that none of the communications that
post-dated the attorneys’ letters to the FDA were in furtherance of the crime-fraud.
We agree with the district court that these communications were subject to
production because they were in furtherance of an ongoing fraud. See Napster,
479 F.3d at 1090. Page 4 of 4 Lastly, we reject appellants’ contention that the Noerr-Pennington doctrine
precludes the district court’s production order. The Noerr-Pennington doctrine has
no application on the facts of this case. See In re Richard Roe, Inc., 168 F.3d 69
(2d Cir. 1999).
AFFIRMED.
The mandate shall issue forthwith. All pending motions concerning these
appeals are denied.
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