U.S. COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 24-1984
PACE-O-MATIC, INC.
v.
ECKERT, SEAMANS CHERIN & MELLOTT LLC; MARK S. STEWART; KEVIN M. SKJOLDAL
*GREENWOOD GAMING AND ENTERTAINMENT, INC., d/b/a Parx Casino, Appellant
*(Pursuant to Fed. R. App. P. Rule 12(a)) _____________________________ Appeal from U.S. District Court for the Middle District of Pennsylvania Judge Jennifer P. Wilson No. 1:20-cv-00292
Submitted Under Third Circuit L.A.R. 34.1(a) November 10, 2025
Before: RESTREPO, McKEE and AMBRO, Circuit Judges
Decided: February 12, 2026 _____________________________
NONPRECEDENTIAL OPINION 1
1 This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding precedent. RESTREPO, Circuit Judge.
I.
This case involves a dispute between Appellee Pace-O-Matic, Inc. (“POM”), an
electronic games manufacturer, and the law firm Eckert Seamans Cherin & Mellott LLC
(“Eckert”). POM contends that while serving as counsel to POM, Eckert also represented
POM’s competitor Appellant Greenwood Gaming & Entertainment, Inc. d/b/a Parx Casino
(“Parx”) without POM’s knowledge. POM filed suit against Eckert, claiming breach of
fiduciary duty, fraud, and abuse of process stemming from Eckert’s representation of Parx,
and seeking a declaratory judgment to prevent Eckert from representing interests adverse
to POM. Parx is not a party to the underlying litigation.
During discovery, POM moved to compel the production of 120 documents that
Eckert asserted were protected by the attorney-client privilege, belonging to Parx and other
clients, and the work-product doctrine. After in camera review, the Magistrate Judge found
that all but four documents were not privileged and should be produced in their entirety.
Eckert and Parx appealed to the District Court, which largely upheld the Magistrate Judge’s
decision. Parx then filed a motion for reconsideration of the District Court’s decision, or in
the alternative, certification for immediate appeal under 28 U.S.C. § 1292(b), and filed the
present appeal. The District Court denied the motion and stayed enforcement of the
discovery order pending this appeal.
POM moved to dismiss this appeal for lack of appellate jurisdiction, and the parties
briefed the issue. This Court referred the jurisdiction issue to the merits panel. Because
2 Parx has failed to establish jurisdiction, we will dismiss this appeal and decline to address
the merits of Parx’s appeal.
II.
“We always have jurisdiction to determine our own jurisdiction.” Bobrick
Washroom Equip., Inc. v. Scranton Prods., Inc., 152 F.4th 507, 512 (3d Cir. 2025). With
few exceptions, this Court has appellate jurisdiction only after a “final decision[] of the
district court[].” 28 U.S.C. § 1291. For purposes of determining appellate jurisdiction, a
final decision ends the litigation on the merits and “leaves nothing for the court to do but
execute the judgment.” Crystallex Int’l Corp. v. Bolivarian Republic of Venezuela, 24 F.4th
242, 249 (3d Cir. 2022) (quoting Hall v. Hall, 584 U.S. 59, 64 (2018)). A discovery order
generally does not meet that requirement and is not immediately appealable. In re Grand
Jury Subpoena, 745 F.3d 681, 686 (3d Cir. 2014). If a litigant seeks immediate review of
a discovery ruling, they typically must defy the ruling, be held in contempt, and then appeal
the contempt order, id., or pursue a writ of mandamus, Glenmede Tr. Co. v. Thompson, 56
F.3d 476, 482 (3d Cir. 1995). Neither scenario is present here.
Parx contends that its appeal is proper pursuant to Perlman v. United States, 247
U.S. 7 (1918). Under the Perlman doctrine, privilege holders can immediately appeal
adverse disclosure orders directed to a “disinterested third party who is likely to disclose
that information rather than be held in contempt for the sake of an immediate appeal.” In
re Grand Jury, 705 F.3d 133, 138 (3d Cir. 2012). Parx contends that Perlman applies
because Parx is the privilege holder of the documents while Eckert—the subject of the
3 disclosure order—is a disinterested party controlling the documents. We disagree that
Eckert is disinterested.
We have limited the Perlman exception to instances “where the subject of the
discovery order (characteristically the custodian of documents) and the holder of a
privilege are different, [because] the custodian might yield up the documents rather than
face the hazards of contempt, and would thereby destroy the privilege.” In re Flat Glass
Antitrust Litig., 288 F.3d 83, 90 n.9 (3d Cir. 2002) (quoting In re Sealed Case, 141 F.3d
337, 340 (D.C. Cir. 1998)). Conversely, Perlman will not apply where the custodian holds
an interest in the privileged material such that it may risk contempt rather than disclose the
records. See id. Thus, although the fact that a custodian is the privilege holder’s attorney
will not disqualify the custodian from being considered a disinterested third party, Perlman
will bar an appeal where an attorney-custodian has their own incentives to resist disclosure.
Compare In re Grand Jury Subpoena, 745 F.3d at 686 (considering privilege issue where
the custodian, an attorney, was a disinterested third party), with In re Naranjo, 768 F.3d
332, 345 (4th Cir. 2014) (refusing to find attorneys disinterested where they “are alleged
to have committed greater misdeeds than any attributed to the clients”), and In re Grand
Jury Subpoena, 190 F.3d 375, 385 (5th Cir. 1999) (rejecting Perlman’s application where
the attorneys in possession of the documents were the target of the underlying action).
Similarly, we have recognized that Perlman would not permit an appeal where the
custodian “asserts its own interests in the work product,” because it then has “the requisite
incentives . . . to risk contempt.” Flat Glass, 288 F.3d at 90 n.9 (quoting In re Sealed Case,
141 F.3d at 340); see also Naranjo, 768 F.3d at 345 (holding that Perlman did not apply
4 where attorney-custodians argued that the documents were protected work product because
they “put their own interests in play, so it is reasonable to expect the [attorney-custodians]
to defend them”).
Here, Eckert is a defendant in the underlying lawsuit alleging that it, on behalf of
Parx, improperly advocated to government actors for measures contrary to POM’s
interests. The documents at issue in the discovery dispute were responsive to a discovery
request from POM relating to “Eckert’s . . . impermissible actions against POM.” ECF No.
5 at 4. Thus, if these documents are disclosed, Eckert may be exposed to increased liability
in the litigation and potentially disciplinary consequences for violating the Rules of
Professional Conduct. See Pa. R. P. C. 1.7 (prohibiting attorneys from representing clients
presenting concurrent conflicts of interest).
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U.S. COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 24-1984
PACE-O-MATIC, INC.
v.
ECKERT, SEAMANS CHERIN & MELLOTT LLC; MARK S. STEWART; KEVIN M. SKJOLDAL
*GREENWOOD GAMING AND ENTERTAINMENT, INC., d/b/a Parx Casino, Appellant
*(Pursuant to Fed. R. App. P. Rule 12(a)) _____________________________ Appeal from U.S. District Court for the Middle District of Pennsylvania Judge Jennifer P. Wilson No. 1:20-cv-00292
Submitted Under Third Circuit L.A.R. 34.1(a) November 10, 2025
Before: RESTREPO, McKEE and AMBRO, Circuit Judges
Decided: February 12, 2026 _____________________________
NONPRECEDENTIAL OPINION 1
1 This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding precedent. RESTREPO, Circuit Judge.
I.
This case involves a dispute between Appellee Pace-O-Matic, Inc. (“POM”), an
electronic games manufacturer, and the law firm Eckert Seamans Cherin & Mellott LLC
(“Eckert”). POM contends that while serving as counsel to POM, Eckert also represented
POM’s competitor Appellant Greenwood Gaming & Entertainment, Inc. d/b/a Parx Casino
(“Parx”) without POM’s knowledge. POM filed suit against Eckert, claiming breach of
fiduciary duty, fraud, and abuse of process stemming from Eckert’s representation of Parx,
and seeking a declaratory judgment to prevent Eckert from representing interests adverse
to POM. Parx is not a party to the underlying litigation.
During discovery, POM moved to compel the production of 120 documents that
Eckert asserted were protected by the attorney-client privilege, belonging to Parx and other
clients, and the work-product doctrine. After in camera review, the Magistrate Judge found
that all but four documents were not privileged and should be produced in their entirety.
Eckert and Parx appealed to the District Court, which largely upheld the Magistrate Judge’s
decision. Parx then filed a motion for reconsideration of the District Court’s decision, or in
the alternative, certification for immediate appeal under 28 U.S.C. § 1292(b), and filed the
present appeal. The District Court denied the motion and stayed enforcement of the
discovery order pending this appeal.
POM moved to dismiss this appeal for lack of appellate jurisdiction, and the parties
briefed the issue. This Court referred the jurisdiction issue to the merits panel. Because
2 Parx has failed to establish jurisdiction, we will dismiss this appeal and decline to address
the merits of Parx’s appeal.
II.
“We always have jurisdiction to determine our own jurisdiction.” Bobrick
Washroom Equip., Inc. v. Scranton Prods., Inc., 152 F.4th 507, 512 (3d Cir. 2025). With
few exceptions, this Court has appellate jurisdiction only after a “final decision[] of the
district court[].” 28 U.S.C. § 1291. For purposes of determining appellate jurisdiction, a
final decision ends the litigation on the merits and “leaves nothing for the court to do but
execute the judgment.” Crystallex Int’l Corp. v. Bolivarian Republic of Venezuela, 24 F.4th
242, 249 (3d Cir. 2022) (quoting Hall v. Hall, 584 U.S. 59, 64 (2018)). A discovery order
generally does not meet that requirement and is not immediately appealable. In re Grand
Jury Subpoena, 745 F.3d 681, 686 (3d Cir. 2014). If a litigant seeks immediate review of
a discovery ruling, they typically must defy the ruling, be held in contempt, and then appeal
the contempt order, id., or pursue a writ of mandamus, Glenmede Tr. Co. v. Thompson, 56
F.3d 476, 482 (3d Cir. 1995). Neither scenario is present here.
Parx contends that its appeal is proper pursuant to Perlman v. United States, 247
U.S. 7 (1918). Under the Perlman doctrine, privilege holders can immediately appeal
adverse disclosure orders directed to a “disinterested third party who is likely to disclose
that information rather than be held in contempt for the sake of an immediate appeal.” In
re Grand Jury, 705 F.3d 133, 138 (3d Cir. 2012). Parx contends that Perlman applies
because Parx is the privilege holder of the documents while Eckert—the subject of the
3 disclosure order—is a disinterested party controlling the documents. We disagree that
Eckert is disinterested.
We have limited the Perlman exception to instances “where the subject of the
discovery order (characteristically the custodian of documents) and the holder of a
privilege are different, [because] the custodian might yield up the documents rather than
face the hazards of contempt, and would thereby destroy the privilege.” In re Flat Glass
Antitrust Litig., 288 F.3d 83, 90 n.9 (3d Cir. 2002) (quoting In re Sealed Case, 141 F.3d
337, 340 (D.C. Cir. 1998)). Conversely, Perlman will not apply where the custodian holds
an interest in the privileged material such that it may risk contempt rather than disclose the
records. See id. Thus, although the fact that a custodian is the privilege holder’s attorney
will not disqualify the custodian from being considered a disinterested third party, Perlman
will bar an appeal where an attorney-custodian has their own incentives to resist disclosure.
Compare In re Grand Jury Subpoena, 745 F.3d at 686 (considering privilege issue where
the custodian, an attorney, was a disinterested third party), with In re Naranjo, 768 F.3d
332, 345 (4th Cir. 2014) (refusing to find attorneys disinterested where they “are alleged
to have committed greater misdeeds than any attributed to the clients”), and In re Grand
Jury Subpoena, 190 F.3d 375, 385 (5th Cir. 1999) (rejecting Perlman’s application where
the attorneys in possession of the documents were the target of the underlying action).
Similarly, we have recognized that Perlman would not permit an appeal where the
custodian “asserts its own interests in the work product,” because it then has “the requisite
incentives . . . to risk contempt.” Flat Glass, 288 F.3d at 90 n.9 (quoting In re Sealed Case,
141 F.3d at 340); see also Naranjo, 768 F.3d at 345 (holding that Perlman did not apply
4 where attorney-custodians argued that the documents were protected work product because
they “put their own interests in play, so it is reasonable to expect the [attorney-custodians]
to defend them”).
Here, Eckert is a defendant in the underlying lawsuit alleging that it, on behalf of
Parx, improperly advocated to government actors for measures contrary to POM’s
interests. The documents at issue in the discovery dispute were responsive to a discovery
request from POM relating to “Eckert’s . . . impermissible actions against POM.” ECF No.
5 at 4. Thus, if these documents are disclosed, Eckert may be exposed to increased liability
in the litigation and potentially disciplinary consequences for violating the Rules of
Professional Conduct. See Pa. R. P. C. 1.7 (prohibiting attorneys from representing clients
presenting concurrent conflicts of interest). Eckert also asserted federal and state work-
product privilege over the documents at issue. By raising its own work-product privilege,
Eckert is not considered disinterested, and Parx may not appeal the discovery order under
the Perlman doctrine.
Parx also contends that the collateral order doctrine permits this appeal because the
discovery ruling implicates the privilege of a non-party, Parx. Under the collateral order
doctrine, appellate jurisdiction extends to non-final orders that: (1) “conclusively
determine the disputed question”; (2) “resolve an important issue completely separate from
the merits of the action”; and (3) are “effectively unreviewable on appeal from a final
judgment.” Saint-Jean v. Palisades Interstate Park Comm’n, 49 F.4th 830, 835 (3d Cir.
2022). In Mohawk Industries v. Carpenter, the Supreme Court made clear that adverse
attorney-client privilege rulings are not appealable under the collateral order doctrine. 558
5 U.S. 100, 103 (2009). Parx argues, however, that Mohawk does not “foreclose a non-party
appeal of an adverse privilege ruling under the collateral-order doctrine.” Reply Br. 18.
But Parx provides no authority supporting the position that Mohawk distinguishes between
appeals brought by parties and appeals brought by non-parties.
We are not compelled by Parx’s argument that Mohawk does not apply to non-party
appeals, and we find nothing in Mohawk to indicate this. In fact, our case law suggests
otherwise, as we have applied Mohawk to bar third parties from immediately appealing
privilege orders under the collateral order doctrine. See United States v. Nocito, 64 F.4th
76, 83 n.4. (3d Cir. 2023) (declining jurisdiction over interlocutory appeal brought by
intervenors relating to return of privileged documents and noting that “the Supreme Court
has held ‘orders adverse to the attorney-client privilege’ do not warrant immediate appeal
under the collateral order doctrine’” (quoting Mohawk, 558 U.S. at 108–09)). We conclude
that neither the Perlman doctrine nor the collateral order doctrine permit this appeal.
III.
For the above reasons, we will dismiss this appeal for lack of subject matter
jurisdiction. We also grant POM’s motion to supplement the appendix and Eckert’s motion
to seal the supplemental appendix. 3d Cir. L.A.R. 30.3(b) (2011).