Berkley and Co., Inc., In re

Decision Date27 August 1980
Docket Number80-1313,Nos. 80-1187,s. 80-1187
Citation629 F.2d 548
Parties6 Fed. R. Evid. Serv. 1165 In Re Grand Jury Proceedings Involving Berkley and Company, Inc. and Others. In re BERKLEY AND COMPANY, INC., Appellant. In Re Grand Jury Proceedings Involving Berkley and Company, Inc. and Others. In re BERKLEY AND COMPANY, INC., Petitioner.
CourtU.S. Court of Appeals — Eighth Circuit

Roger J. Magnuson, Dorsey, Windhorst, Hannaford, Whitney & Halladay, Minneapolis, Minn., for appellant.

Daniel W. Schermer, Asst. U. S. Atty., Minneapolis, Minn., for petitioner.

Before HEANEY, Circuit Judge, GIBSON, Senior Circuit Judge, and ROSS, Circuit Judge.

ROSS, Circuit Judge.

Berkley and Company, Inc. (Berkley) appeals 1 from an order of the district court 2 requiring disclosure to the grand jury of documents Berkley claims are subject to the attorney-client privilege. The government seeks dismissal of the appeal contending that this court lacks jurisdiction because the order appealed from is not a final appealable order. For reasons stated below we hold that we have jurisdiction to entertain the appeal and affirm the order of the district court subject to the qualifications stated in this opinion.

I. Procedural History.

Berkley is an Iowa corporation headquartered in Spirit Lake, Iowa, and engaged in the manufacture and distribution of rods and reels and other fishing equipment. Berkley International Company, Ltd. (BIC) is, insofar as relevant to this appeal, a wholly owned subsidiary of Berkley, based in and incorporated under the laws of the Republic of China (Taiwan), and similarly engaged in the manufacture of fishing equipment, primarily for sale to the parent corporation.

Berkley and certain of its employees and officers, and an attorney formerly retained by Berkley (hereinafter, the attorney), 3 are the subjects of a Minnesota federal grand jury investigation into alleged customs violations. The grand jury seeks access to numerous Berkley and BIC company documents which are presently in the government's custody. One group of documents, the "Devine documents," was allegedly stolen by Frank Devine, formerly the General Manager of BIC, who disclosed the documents to the government in 1978. A second group of documents was seized from Berkley's Spirit Lake headquarters pursuant to a search warrant on December 12, 1978.

Berkley initiated the present action by filing several motions with the district court. Berkley moved the court (1) pursuant to Fed.R.Crim.P. 41(e) to suppress evidence seized under the search warrant, (2) in the alternative, to prevent disclosure to the grand jury of documents protected by the attorney-client privilege, and (3) to order the government to provide Berkley with copies of the Devine documents. In March 1979 the court filed an opinion expressly declining to issue preindictment rulings on the motion to suppress and the motion for disclosure of the Devine documents, and ordering in camera inspection of all allegedly privileged documents. In Re Grand Jury Proceedings Involving Berkley & Co., 466 F.Supp. 863 (D.Minn.1979). 4

On January 28, 1980, after in camera inspection of the documents, the court filed an order listing some 264 documents it determined to be relevant to the grand jury investigation but not protected by either the attorney-client privilege or the work product doctrine and ordering disclosure of the documents to the grand jury. By order dated March 22, 1980, this court stayed enforcement of the disclosure order pending an expedited appeal. Subsequent to oral argument, on motion of the attorney, we remanded the case, while retaining jurisdiction of the appeal, to permit the district court, in its discretion, to reconsider its decision in light of additional documents not previously available to it. The court reopened proceedings to consider the additional documents and has now certified to this court an opinion reaffirming its original determination.

II. Jurisdiction.

Pursuant to 28 U.S.C. § 1291 we have jurisdiction of appeals from all "final decisions" of the district courts. The government contends that this court lacks jurisdiction and must dismiss this appeal because the January 28 order of disclosure is not such a final decision. 5 The traditional formulation of a final order is "one which ends the litigation * * * and leaves nothing for the court to do but execute the judgment." Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945); Iowa Beef Processors, Inc. v. Bagley, 601 F.2d 949, 952 (8th Cir.), cert. denied, 441 U.S. 907, 99 S.Ct. 1997, 60 L.Ed.2d 376 (1979). Clearly the order appealed from does not meet this test. There is, however, a judicially-created exception to the finality doctrine which we hold applies to permit immediate appeal in this case. 6

The district court's order rejecting Berkley's claim of privilege and ordering disclosure of documents to the grand jury is the functional equivalent of an order denying a motion to quash a grand jury subpoena. The general rule is that a person to whom a grand jury subpoena is directed cannot appeal from the denial of a motion to quash the subpoena, but must first refuse to comply with the subpoena and litigate his claims in contempt proceedings. United States v. Ryan, 402 U.S. 530, 532, 91 S.Ct. 1580, 1581, 29 L.Ed.2d 85 (1971); Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783 (1940); Alexander v. United States, 201 U.S. 117, 26 S.Ct. 356, 50 L.Ed. 686 (1906). Contra, Covey Oil Co. v. Continental Oil Co., 340 F.2d 993, 996-97 (10th Cir.), cert. denied, 380 U.S. 964, 85 S.Ct. 1110, 14 L.Ed.2d 155 (1965).

A well-established exception to this rule, however, permits an individual claiming a privilege or other interest in subpoenaed documents to appeal from an order to produce directed to a third party custodian of the documents. The theory for allowing immediate appeal is that the appellant himself cannot resist compliance in order to obtain review in contempt proceedings, and the third party custodian cannot be expected to risk contempt to secure review on his behalf. United States v. Ryan, supra, 402 U.S. at 533, 91 S.Ct. at 1582. The exception was first articulated in Perlman v. United States, 247 U.S. 7, 38 S.Ct. 417, 62 L.Ed. 950 (1918), and has since been invoked on numerous occasions. E. g., In Re Matter of Grand Jury Applicants, C. Schmidt & Sons, Inc., 619 F.2d 1022, at 1024 (3d Cir. 1980); In re Grand Jury Investigation of Ocean Transportation, 604 F.2d 672 (D.C. Cir.), cert. denied, 444 U.S. 915, 100 S.Ct. 229, 62 L.Ed.2d 169 (1979); In re Grand Jury Proceedings (FMC Corp.), 604 F.2d 798, 800-01 (3d Cir. 1979); In Re Faltico, 561 F.2d 109, 110 n.2 (8th Cir. 1977); Velsicol Chemical Corp. v. Parsons, 561 F.2d 671, 674 (7th Cir. 1977), cert. denied, 435 U.S. 942, 98 S.Ct. 1521, 55 L.Ed.2d 538 (1978); United States v. Doe, 455 F.2d 753, 756-57 (1st Cir.), vacated on other grounds sub nom. Gravel v. United States, 408 U.S. 606, 92 S.Ct. 2614, 33 L.Ed.2d 583, rehearing denied, 409 U.S. 902, 93 S.Ct. 98, 34 L.Ed.2d 165 (1972). See United States v. Ryan, supra (recognizing Perlman rule). But see In Re Oberkoetter, 612 F.2d 15 (1st Cir. 1980); and National Super Spuds v. New York Mercantile, 591 F.2d 174 (2d Cir. 1979) (questioning the soundness of the Perlman rule and declining to follow it where the individuals subject to disclosure orders were, respectively, the attorney and employee of the entities seeking immediate review and could, therefore, be expected on their behalf to risk contempt to secure immediate review). See generally 15 C. Wright & A. Miller, Federal Practice & Procedure § 3914 at 567-77 (1976).

We believe Berkley's appeal from the district court's order of disclosure falls within the rationale of the Perlman doctrine and the authorities cited above. If the documents had been sought by grand jury subpoena directed to Berkley, 7 Berkley could have protected its claim of privilege by refusing to comply and by appealing any order holding it in contempt. Instead, as a result of the disclosure by Divine and the seizure pursuant to search warrant, the allegedly privileged documents are presently in government custody. The disclosure order is not directed to Berkley. Berkley thus does not have the option of defying the order and securing appellate review in contempt proceedings. In these circumstances immediate appeal is authorized. Perlman v. United States, supra.

The cases cited by the government which hold orders denying motions to suppress nonappealable are simply inapposite. The district court expressly deferred ruling on Berkley's motion to suppress. 466 F.Supp. at 866-67. Moreover, a claim of illegal search and seizure, the basis of a Rule 41(e) motion to suppress, is not grounds for excluding evidence from the grand jury. United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974). In contrast, the grand jury may not violate a valid claim of privilege. Id. at 346, 94 S.Ct. at 619. Finally, even a disclosure for limited purposes, as to the grand jury, necessarily impairs the confidentiality considerations which underlie the attorney-client privilege. There are therefore sound policy reasons for allowing immediate appeal of claims of privilege which do not necessarily apply in the context of motions to suppress. But see In Re Oberkoetter, supra, 612 F.2d at 17 (finding no strong reason for providing any form of review of claims of attorney-client privilege).

III. The Attorney-Client Privilege.

In a memorandum opinion, sealed to protect the confidentiality of the ongoing grand jury investigation, the district court explained its decision that certain documents are not protected by the attorney-client privilege and may be disclosed. In summary, the court concluded (1) some documents "do not contain communications made to an attorney or his associate, or were not intended to be confidential"; ...

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