THOMAS, Circuit Judge:
This interlocutory appeal presents, inter alia, the question of whether the Perlman rule survives Mohawk Industries, Inc. v. Carpenter, ___ U.S. ___, 130 S.Ct. 599, 175 L.Ed.2d 458 (2009). Under these circumstances, we conclude that it does, and that we have jurisdiction over this appeal. However, we also conclude that there is no longer a justiciable controversy at issue, and we dismiss the appeal as moot. See In re Grand Jury Proceedings Klayman, 760 F.2d 1490, 1491 (9th Cir.1985) ("We have jurisdiction under 28 U.S.C. § 1291. We agree that the controversy is moot and do not reach the merits.").
Intervenor-appellant Quellos Group, LLC ("Quellos"), appeals the district court's order compelling Skadden, Arps, Slate, Meagher & Flom LLP ("Skadden"), Quellos's former counsel, to comply with a
The criminal case underlying the present interlocutory appeal alleges that the defendants violated federal law in creating a fraudulent tax shelter called "POINT." A federal grand jury indicted the defendants on eighteen counts, including conspiring to defraud the Internal Revenue Service, tax evasion, counseling false tax filings, wire fraud, and conspiring to launder monetary instruments. The government alleges that the defendants "developed and marketed" POINT on behalf of Quellos.
Quellos intervened to assert attorney-client privilege against a pretrial subpoena duces tecum served on Skadden in April 2010. The government claims that key to the success of the POINT transaction were opinion letters Quellos obtained from "respected law firms" that assured POINT clients that POINT was "more likely than not" to survive an IRS challenge. Before the district court, the government alleged that the defendants consulted Skadden regarding the development of POINT, with an eye toward having the firm produce an opinion letter on the shelter's legality. The district court permitted the government to serve Skadden with a pretrial subpoena duces tecum. See Fed. R.Crim.P. 17(c). The government sought all materials from January 1999 through December 2000 relating to POINT, as well as materials prepared during that period at the behest of certain Quellos employees that related to tax opinions, financial instruments, and partnerships.
Quellos informed Skadden that it was asserting attorney-client privilege as to the materials the government sought. Accordingly, Skadden produced a privilege log identifying three categories of documents—one set of attorney billing records and two sets of handwritten attorney notes (the "Skadden Documents")—as responsive to the subpoena and indicating that attorney-client privilege was being asserted as to all of them. The government moved to compel and Quellos moved to intervene. The district court granted Quellos's motion to intervene and Quellos filed an opposition to the government's motion to compel. The district court granted the government's motion to compel, and this interlocutory appeal ensued. Upon Quellos's motion, this court stayed the district court's order pending appeal.
Subsequently, the defendants entered into plea agreements and the criminal trial was cancelled. Thereafter, the government informed Quellos that it would continue to seek the Skadden Documents. The government served a second subpoena duces tecum on Skadden, identical to the first in all relevant respects, with a return date set for the defendants' sentencing hearing.
We have jurisdiction to entertain this interlocutory appeal. "This court generally has jurisdiction to review only `appeals from all final decisions of the district courts.'" United States v. Griffin, 440 F.3d 1138,
Skadden has not been cited in contempt. However, we maintain jurisdiction over this interlocutory appeal under the so-called Perlman rule. See Perlman v. United States, 247 U.S. 7, 38 S.Ct. 417, 62 L.Ed. 950 (1918). Under Perlman, "a discovery order directed at a `disinterested third-party custodian of privileged documents' is immediately appealable because `the third party, presumably lacking a sufficient stake in the proceeding, would most likely produce the documents rather than submit to a contempt citation.'" Griffin, 440 F.3d at 1143 (quoting United States v. Austin, 416 F.3d 1016, 1024 (9th Cir. 2005)). Here, Skadden is such a disinterested third party.
The Perlman rule survives the Supreme Court's recent decision in Mohawk Industries, Inc. v. Carpenter, ___ U.S. ___, 130 S.Ct. 599, 175 L.Ed.2d 458 (2009). In Mohawk, the Supreme Court held that "disclosure orders adverse to the attorney-client privilege" are not subject to interlocutory review under the Cohen "collateral order" exception to the final-judgment rule of 28 U.S.C. § 1291. 130 S.Ct. at 609. See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949).
Perlman and Mohawk are not in tension. When assessing the jurisdictional basis for an interlocutory appeal, we have considered the Perlman rule and the Cohen collateral order exception separately, as distinct doctrines. See, e.g., Griffin, 440 F.3d at 1141-43; Austin, 416 F.3d at 1024 (after assessing the collateral order doctrine's potential applicability, describing the Perlman rule as "an alternative jurisdictional basis to review the District Court's order"); United States v. Amlani, 169 F.3d 1189, 1191-92 & 1192 n. 2 (9th Cir.1999); see also United States v. Myers, 593 F.3d 338, 345-48 (4th Cir.2010) (assessing the Perlman rule and Mohawk's effect on Cohen's collateral order doctrine separately).
Mohawk forecloses interlocutory appeal of some district court orders in reliance on the fact that "postjudgment appeals generally suffice to protect the rights of litigants and assure the vitality of the attorney-client privilege." 130 S.Ct. at 606; see also id. at 607-08 (surveying "several potential avenues" by which "litigants confronted with a particularly injurious or
For all these reasons, we conclude that, under the Perlman rule and 28 U.S.C. § 1291, we have jurisdiction to hear Quellos's claims.
Turning to the issues before us, we agree with Quellos's suggestion that the guilty plea of the defendants, and subsequent vacation of the trial, have rendered the trial subpoenas moot. See Harter v. Iowa Grain Co., No. 98-7108, 1998 WL 796131, at *1 (D.C.Cir. Oct.28, 1998) (per curiam) (dismissing as moot an appeal from an order compelling compliance with a subpoena upon termination of the underlying proceeding (citing El Paso v. Reynolds, 887 F.2d 1103, 1105-06 (D.C.Cir.1989) (per curiam) (appeal regarding trial subpoena is moot when there is no pending trial))); Central Wyoming Law Assoc. v. Denhardt, 60 F.3d 684, 686 (10th Cir.1995) (noting that the subpoenas became moot when the criminal case was settled); In re Steinberg, 837 F.2d 527, 527 n. 1 (1st Cir. 1988) (noting that the conclusion of trial proceedings rendered the appeal from a contempt citation issued for failure to comply with a subpoena moot); United States v. Miller, 685 F.2d 123, 124 (5th Cir. 1982) (per curiam) (holding that the conclusion of criminal trial proceedings rendered an appeal concerning a pre-trial subpoena moot); United States v. Christo, 614 F.2d 486, 495 n. 10 (5th Cir.1980) (retrial rendered issues regarding quashal of subpoena moot).
United States v. Nixon, 418 U.S. 683, 699-700, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974) (footnote omitted).
In granting the pre-trial subpoena duces tecum, the district court necessarily engaged in a "discretionary, case-by-case inquiry" in which the court considered these factors and the purposes for which the government sought the Skadden Documents. United States v. Bergeson, 425 F.3d 1221, 1225 (9th Cir.2005); see Fed. R. Crim. P. 17(c)(2). Primary among the government's reasons was obtaining evidence that the defendants had engaged in fraud. Now that the defendants have entered guilty pleas, developing evidence of their guilt is no longer necessary. The defendants' guilty pleas are "an intervening event" by virtue of which this court "cannot grant any effectual relief." Calderon v. Moore, 518 U.S. 149, 150, 116 S.Ct. 2066, 135 L.Ed.2d 453 (1996) (internal quotes and citation omitted). To fashion "effectual relief" in this case, this court would have to assess the effectiveness of a Rule 17 pretrial subpoena as against allegations of privilege when there will be no trial.
Therefore, we must dismiss this appeal as moot and instruct the district court to vacate its order directing compliance with the subpoena. See United States v. Munsingwear, Inc., 340 U.S. 36, 39-40, 71 S.Ct. 104, 95 L.Ed. 36 (1950) (a district court decision that becomes moot prior to the appellate court's disposition must be vacated); Harter, 1998 WL 796131, at *1 (applying Munsingwear in the subpoena context); Miller, 685 F.2d at 124 (same); see also Idaho v. Horiuchi, 266 F.3d 979 (9th Cir.2001) (en banc).
The government argues that it needs the Skadden Documents for sentencing. Indeed, a "pretrial" criminal subpoena can be issued for a sentencing proceeding. See United States v. Winner, 641 F.2d 825, 833 (10th Cir.1981). However, such a right is not unfettered, as the Tenth Circuit explained:
Id. (citing Nixon, 418 U.S. at 699-700, 94 S.Ct. 3090). In short, if a pre-sentencing subpoena is sought, the trial court must apply the Nixon factors in the specific context of sentencing.
We do not opine on the propriety of the government's second subpoena duces tecum, but we note that the district court has not had the opportunity to apply the Nixon factors in the sentencing context. The government concedes that the entry of the defendant's guilty pleas has caused its
Therefore, we dismiss this appeal as moot, vacate the district court's order compelling compliance with the April 2010 subpoena duces tecum, and remand for further proceedings consistent with this opinion. We need not, and do not, reach any other question presented by the parties.