Preserving Appellate Review Of Fifth Amendment Privilege Claim

Tenth Circuit lacks jurisdiction to consider interlocutory appeal of Fifth Amendment privilege claim to documents subpoenaed by the grand jury; circuit notes limited avenues to seek interlocutory appellate review; potential circuit split under the Perlman doctrine and tension between two key Supreme Court cases involving interlocutory review are also noted, in In re Grand Jury Subpoena, 709 F.3d 1027 (10th Cir. March 1, 2013) (No. 12-1330)

When a witness refuses to turn over subpoenaed records in a grand jury investigation based on a claim of the Fifth Amendment privilege, under what circumstances can the witness seek appellate review of a district court order demanding compliance? The Tenth Circuit recently considered this issue. In doing so, the circuit also highlighted a potential circuit split on the application of a limited interlocutory appeal option under the Perlman doctrine and a possible open issue on reconciling the doctrine with another recent Supreme Court case.


In the case, a federal grand jury was investigating the federal income taxes of a limited liability company. A grand jury subpoena for records was issued to the “Custodian of Records”. The custodian moved to quash the subpoena duces tecum asserting his personal Fifth Amendment privilege against self-incrimination. The motion to quash was denied. The witness made the following decisions:

Witness appealed the denial and moved the district court for a stay pending appeal. The court refused to grant a stay and ordered Witness to produce the records within eight days. Witness complied.

In re Grand Jury Subpoena, 709 F.3d at 1028. The witness then appealed the district court ruling.

No Appellate Jurisdiction

The Tenth Circuit concluded that it lacked jurisdiction and dismissed the appeal. In doing so, the circuit noted the manner in which a Fifth Amendment claim may be preserved for interlocutory review:

A protesting witness may seek appellate review only after he refuses to obey the subpoena and is held in contempt. “At that point, the witness’ situation becomes so severed from the main proceeding as to permit an appeal.” Cobbledick v. United States, 309 U.S. 323, 328 (1940). As the Supreme Court has explained:

If . . . the subpoena is unduly burdensome or otherwise unlawful, [the witness] may refuse to comply and litigate those questions in the event that contempt or similar proceedings are brought against him. Should his contentions be rejected at that time by the trial court, they will then be ripe for appellate review. But we have consistently held that the necessity for expedition in the administration of the criminal law justifies putting one who seeks to resist the production of desired information to a choice between compliance with a trial court’s order to produce prior to any review of that order, and resistance to that order with the concomitant possibility of an adjudication of contempt if his claims are rejected on appeal.

United States v. Ryan, 402 U.S. 530, 532–33 (1971) (footnote omitted).

In re Grand Jury Subpoena, 709 F.3d at 1029.

Perlman Doctrine Inapplicable

As another avenue, the circuit noted that the Perlman doctrine recognized a limited exception to the rule that a custodian of documents must stand in contempt of a discovery order before an immediate appeal may be taken where the records are in the possession of an third party. See Perlman v. United States, 247 U.S. 7 (1918). However, the circuit concluded that the doctrine did not apply as the individual wishing to appeal “unlike Perlman, is not at the mercy of a third party who can produce records in compliance with the subpoena at issue” as the individual “had full control of whether to refuse disclosure and risk contempt.” In re Grand Jury Subpoena, 709 F.3d at 1030.

Looming Circuit Split?

The Tenth Circuit acknowledged that its narrow application of the Perlman doctrine differed from other circuits: “We recognize that this circuit reads Perlman more narrowly than the great majority of the other circuits, which generally allow a third party to appeal the denial of a motion to quash without any showing that the person subpoenaed is likely to comply with the subpoena. But we doubt that any would extend Perlman to the situation presented here.” In re Grand Jury Subpoena, 709 F.3d at 1030 (footnote omitted).

Emerging Open Issue

The circuit also noted some “tension” between Perlman and another recent Supreme Court case: “In Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 130 S.Ct. 599, 175 L.Ed.2d 458 (2009), the Supreme Court held that an order in a civil case to disclose documents allegedly protected by the attorney-client privilege could not be immediately appealed under the collateral-order doctrine because the privilege issue could be effectively reviewed post judgment and through other means. We discern some tension betweenPerlman and Mohawk, but need not address the matter. See, e.g., In re Grand Jury, 705 F.3d 133, 144–46 (3d Cir. 2012) (discussing the matter).” (n. 1)


The Supreme Court and lower courts have wrestled through the years with the circumstances in which an interlocutory appeal may be permitted when a district court compels potentially privileged materials to be disclosed or discovered. The Tenth Circuit case highlights some of the current issues in this area. For more information on the noted Mohawk Industries case, see Supreme Court Watch: Mohawk Industries Case Limits Interlocutory Review Of Attorney-Client Privilege Rulings.


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