Reply Brief — In Re Grand Jury Investigation, Petitioner

No. 24-1184

IN THE

Supreme Court of the United States

____________________________

IN RE: GRAND JURY INVESTIGATION

____________________________

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

____________________________

REPLY BRIEF FOR PETITIONER

James P. Cooney III

Claire Rauscher

Sarah Motley Stone

WOMBLE BOND

DICKINSON (US) LLP

301 S. College Street

Suite 3500

Charlotte, NC 28202

Nicole Ries Fox

ORRICK, HERRINGTON &

SUTCLIFFE LLP

2050 Main Street

Suite 1100

Irvine, CA 92614

E. Joshua Rosenkranz

Counsel of Record

ORRICK, HERRINGTON &

SUTCLIFFE LLP

51 West 52nd Street

New York, NY 10019

(212) 506-5000

jrosenkranz@orrick.com

Brenna Ferris Neustater

Luiza Leão

ORRICK, HERRINGTON &

SUTCLIFFE LLP

2100 Pennsylvania

Avenue, NW

Washington, DC 20037

Counsel for Petitioners

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ..................................... ii

INTRODUCTION ..................................................... 1

I.

The Government Does Not Undermine

The Existence Of A Circuit Split On The

Question Presented. ........................................... 2

II. The Approach Of The Eighth And

Eleventh Circuits Is Wrong. .............................. 8

III. The Question Presented Is Important,

And This Case Presents An Ideal Vehicle

To Resolve It. .................................................... 11

CONCLUSION ........................................................ 12

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Ashcroft v. Iqbal,

556 U.S. 662 (2009) ................................................4

Church of Scientology of Cal. v. United States,

506 U.S. 9 (1992) ....................................................9

Cobbledick v. United States,

309 U.S. 323 (1940) ..............................................11

Doe v. United States,

571 U.S. 818 (2013) ..............................................12

FDIC v. Ogden Corp.,

202 F.3d 454 (1st Cir. 2000) ........................5, 6, 10

Gill v. Gulfstream Park Racing Ass’n,

399 F.3d 391 (1st Cir. 2005) ..................................9

In re Grand Jury (ABC Corp.),

705 F.3d 133 (3d Cir. 2012) ................... 6, 7, 10, 11

In re Grand Jury 2021 Subpoenas,

87 F.4th 229 (4th Cir. 2023) ................................12

In re Grand Jury Investigation,

966 F.3d 991 (9th Cir. 2020)................................10

In re Grand Jury Proc. (Company X),

857 F.2d 710 (10th Cir. 1988)........................4, 5, 9

iii

In re Grand Jury Subpoena,

190 F.3d 375 (5th Cir. 1999)..................................3

In re Grand Jury Subpoena,

274 F.3d 563 (1st Cir. 2001) ..............................3, 5

In re Grand Jury Subpoenas,

974 F.3d 842 (8th Cir. 2020)........................2, 3, 12

In re Grand Jury Subpoenas Dated Sept. 13,

2023,

128 F.4th 127 (2d Cir. 2025)................................12

Mohawk Indus., Inc. v. Carpenter,

558 U.S. 100 (2009) ..............................................10

In re Motor Fuel Temperature Sales Pracs.

Litig.,

641 F.3d 470 (10th Cir. 2011)................................4

Perlman v. United States,

247 U.S. 7 (1918) ........................................ 1, 2, 8, 9

United States v. Fluitt,

99 F.4th 753 (5th Cir. 2024) ..................................7

United States v. Gorski,

807 F.3d 451 (1st Cir. 2015) ..............................5, 6

United States v. Krane,

625 F.3d 568 (9th Cir. 2010)................................10

United States v. Ryan,

402 U.S. 530 (1971) ..........................................6, 10

iv

Other Authorities

Petition for Writ of Certiorari, In re Grand

Jury Proc., 857 F.2d 710 (10th Cir. 1988)

(No. 88-1243), 1989 WL 1174625 ..........................4

1

INTRODUCTION

Petitioner finds itself in a “classic Perlman situation.” Pet.15 (citation omitted). Just like Louis Perlman, Petitioner is “powerless to avert the mischief of

the order” issued by the district court compelling third

parties to produce Petitioner’s privileged communications. Perlman v. United States, 247 U.S. 7, 13 (1918).

As the petition established (at 8, 15-18), this appeal

falls squarely within the Perlman rule. And the Eleventh Circuit’s holding to the contrary conflicts with

case law from at least four circuits.

Faced with this clear and deepening split, the government’s only response is to deny any difference

among the circuits and to distinguish the various

cases on their facts. That attempt is unavailing. While

of course cases exhibit factual differences, the government has no response to Petitioner’s argument (at 10)

that under longstanding case law in the First, Third,

Fifth, and Tenth Circuits, Petitioner would be permitted to take an immediate appeal to protect its privileges under Perlman.

Unable to dismantle the acknowledged split, the

government focuses instead on defending the merits

of the decision below. That effort too falls short. The

fact that Petitioner could have stood in contempt of

the order compelling its own production of the privileged documents does not make Perlman any less applicable here. Rather, as in Perlman, Petitioner’s

assertion of privilege is “independent” of the underlying criminal proceeding and Petitioner is “powerless

to avert the mischief of the order”—namely, the third

2

parties’ production of privileged materials—absent an

immediate appeal. Perlman, 247 U.S. at 12-13.

I.

The Government Does Not Undermine The

Existence Of A Circuit Split On The

Question Presented.

As the petition established, the narrow interpretation of Perlman the Eighth and Eleventh Circuits

apply is at odds with the rule in the First, Third, Fifth

and Tenth Circuits. The government’s efforts to downplay and reconcile this split are unavailing.

The government begins with the surprising claim

that “none of the decisions on which petitioner relies

demonstrates a conflict regarding the circumstances

in this case.” Opp.10. At minimum, the court that issued one of those decisions disagrees. In fashioning

the rule that the Eleventh Circuit later adopted, the

Eighth Circuit expressly diverged from the Tenth Circuit’s interpretation of Perlman. In re Grand Jury

Subpoenas, 974 F.3d 842, 844-45 (8th Cir. 2020) (distinguishing the “ill-advised” decision of the Tenth Circuit, which “concluded that the willingness of a thirdparty custodian to produce documents was sufficient

reason to apply Perlman, even where the privilege

holder was subject to the same order of production”).

The Eleventh Circuit doubled down on this disagreement in the decision below. The court expressly

“agree[d] with the reasoning of” the Eighth Circuit,

which considered “a set of facts similar to these appeals.” Pet.App.14a-15a. Like the Eighth Circuit, the

Eleventh Circuit found dispositive the fact that “the

privilege holder is subject to the district court’s order.”

3

Pet.App.14a (cleaned up) (citing and quoting In re

Grand Jury Subpoenas, 974 F.3d at 844-45).

To avoid acknowledging this split, the government seizes on the narrow rule the Eighth and Eleventh Circuits adopted. Per the government, there is

no split because Perlman applies to situations where

“only the third party has custody of the allegedly privileged documents.” Opp.6 (emphasis added). But that

rule is not universal. Indeed, other courts have allowed Perlman appeals “even where the privilege

holder was subject to the same order of production”

and had custody over the same documents—the very

rule the Eighth Circuit rejected as “ill-advised.” In re

Grand Jury Subpoenas, 974 F.3d at 844-45. In the

First, Third, Fifth and Tenth Circuits, “the touchstone of the Perlman inquiry” is “the subpoenaed

third party’s lack of interest in protecting the confidentiality of the subpoenaed documents,” In re Grand

Jury Subpoena, 190 F.3d 375, 383 (5th Cir. 1999),

cert. denied, 529 U.S. 1062 (2000), not whether the appellant also faces a subpoena for the same documents.

Put differently, in most circuits “the essential fact” for

appealability under Perlman is whether, “absent an

immediate appeal, the allegedly privileged material

will be disclosed.” In re Grand Jury Subpoena, 274

F.3d 563, 570 (1st Cir. 2001).

The government next seeks to minimize this

acknowledged split by picking apart the various facts

and procedural postures of each of the cases the petition cites. Its attempt fails, as the distinctions it tries

to draw are inapposite.

4

Because the Eighth Circuit expressly departed

from the Tenth Circuit’s approach in In re Grand Jury

Proceedings, 857 F.2d 710 (10th Cir. 1988), cert. denied, 492 U.S. 905 (1989) (Company X), the government argues that the Tenth Circuit has since

disavowed that case in a later decision, In re Motor

Fuel Temperature Sales Practices Litigation, 641 F.3d

470 (10th Cir. 2011). Opp.10-12. But Motor Fuel involved appeals filed by defendants, joined by third

parties, in civil litigation. As the Tenth Circuit

pointed out, Perlman was always foreclosed in that

context. See 641 F.3d at 485 (“We are aware of no

case … that extends Perlman beyond criminal grand

jury proceedings. We decline to do so here.”). The government’s reliance on Motor Fuel is therefore unhelpful.

The government next suggests that Company X is

not analogous to this case because it was unclear in

that case whether the discovery orders—which were

directed at both the appellant and a third party—concerned the same set of documents. But the court explicitly acknowledged that the case involved

documents in the custody of “both the Company and

Law Firm Y.” Company X, 857 F.2d at 711; see also

Petition for Writ of Certiorari at 2, Company X, (No.

88-1243), 1989 WL 1174625 (describing the universe

of documents subject to both discovery orders). The

government then implies that Company X is somehow

not precedential on the key question here because the

government there “had ‘not argue[d]’ against jurisdiction.” Opp.11 (citation omitted). That is irrelevant.

Because appellate jurisdiction “cannot be forfeited or

waived,” Ashcroft v. Iqbal, 556 U.S. 662, 671 (2009),

the Tenth Circuit did—as it must—address the

5

jurisdiction question and resolved it under Perlman.

See Company X, 857 F.2d at 712 (“The fact that [the

disinterested third party] is now willing to produce

brings the instant case within the Perlman exception.”).

The government correctly observes that the Tenth

Circuit in Company X “did not appear to consider that

the privilege holder had also been subject to an order

to produce documents.” Opp.11. But this does not undermine the split between the Circuits. Rather, that

is the split: The Eleventh and Eighth Circuits consider whether the privilege holder is also subject to an

order as to the same records and deny Perlman review

if that is the case; the Tenth Circuit, as the government concedes, does not.

The government also misunderstands the relevant inquiry in United States v. Gorski, 807 F.3d 451

(1st Cir. 2015), and FDIC v. Ogden Corp., 202 F.3d

454 (1st Cir. 2000). In Gorski, the court’s analysis centered on the relationship between the appellant and

the disinterested third party, not the relationship between the appellant and the court. See 807 F.3d at 459

(explaining that “[u]nder Perlman, ‘a discovery order

addressed to a non-party sometimes may be treated

as an immediately appealable final order vis-à-vis a

party who claims to hold an applicable privilege.’” (citation omitted)); see also In re Grand Jury Subpoena,

274 F.3d at 570 (asking primarily whether “absent an

immediate appeal, the allegedly privileged material

will be disclosed” by a third party without the appellant’s control).

6

Moreover, the fact that the portion of the discovery order directed at the appellant in Gorski had been

stayed made no difference, because the only reason it

was stayed was to allow appeal of the portion of the

order directed at the third party. Gorski, 807 F.3d at

459 n.2. If the Perlman exception did not apply, there

would be no reason to stay the order at all. Contrary

to the government’s contention, the First Circuit does

not require the order to have been directed “solely” at

a disinterested third party. Compare Opp.14 with Ogden, 202 F.3d at 459 (“Courts frequently have invoked

Perlman when a[n appellant] … seeks to appeal an

order compelling [a third party] … to produce allegedly privileged materials.”). Only the Eighth and

Eleventh Circuits do.

The government next tries to distinguish In re

Grand Jury, 705 F.3d 133 (3d Cir. 2012), cert. denied,

571 U.S. 818 (2013) (ABC Corp.), because there, the

court allowed an appeal of the discovery order directed at the third party while denying jurisdiction

over an appeal from the order directed at the appellant. See Opp.12-13. But no one contends that an appellant could immediately appeal a discovery order

directed solely at itself without first standing in contempt. That would indeed contravene this Court’s

construction of Perlman. See United States v. Ryan,

402 U.S. 530, 532 (1971) (“one to whom a subpoena is

directed may not appeal the denial of a motion to

quash that subpoena” (emphasis added)).

In ABC Corp., it did not matter that the two separate orders concerned the same or overlapping set of

documents. What mattered was that one party could

not stand in contempt for an order directed at another

7

party. See ABC Corp., 705 F.3d at 144. ABC Corp. allowed an appeal for the order concerning the third

parties despite a separate order directed at the appellant, which is the opposite of what the Eleventh Circuit did here.

Finally, the government emphasizes the wrong

factor in the Fifth Circuit’s holding in United States

v. Fluitt, 99 F.4th 753 (2024). True, as the government

notes, the original request directed at the third parties in Fluitt was reformed by the magistrate judge

and redirected at the government instead. See id. at

759-60. But that was not the relevant issue in the

court’s Perlman analysis. Instead, what ultimately

matters in the Fifth Circuit—and the First, Third,

and Tenth—is that “the documents at issue are in the

hands of a third party who has no independent interest in preserving their confidentiality.” Id. at 761

(cleaned up). Because there a “party [held] the disputed materials” and was “different from the individuals or entities asserting privilege,” that party was

not expected to stand contempt to protect the privilege in question. Id. In effect, what was enough for the

Fifth Circuit in Fluitt was not enough for the Eleventh Circuit here.

The split between the First, Third, Fifth and

Tenth Circuits on the one hand and the Eighth and

Eleventh Circuits on the other is so undeniable that

the government’s best option is to misinterpret how

the circuits on the opposite side of the split from the

decision below apply Perlman. As demonstrated, the

government cannot persuasively reconcile the circuit

split raised here.

8

II. The Approach Of The Eighth And Eleventh

Circuits Is Wrong.

The Eleventh Circuit’s decision distorts the purpose of the Perlman exception. As the government

concedes (Opp.6), Perlman is an exception to the norm

where the privilege holder is “powerless to avert the

mischief of the order.” Perlman, 247 U.S. at 13. The

Eleventh Circuit’s application of Perlman disregards

that it is the “mischief”—the disclosure—that this

Court sought to allow the appellant to prevent. Instead, the approach it has borrowed from the Eighth

Circuit denies review even if a third party will comply

with a discovery order, and even if the appellant is

“powerless to avert” that disclosure. Id. In ignoring

the outcome Perlman expressly intended to prevent,

the Eleventh Circuit’s approach turns the exception

completely on its head.

The government contends that Petitioner could

have stood in contempt of its discovery order and obtained appellate review through that alternative

path. Opp.7. That misses the point: Even if Petitioner

had stood in contempt, it would have made no difference, because the third parties would divulge the privileged documents. Although a stay of that order

temporarily allowed Petitioner to pursue a Perlman

appeal, that stay was lifted after the Eleventh Circuit

erroneously ruled that the appeal could not proceed.

See Pet.App.25a-26a. In other words, Petitioner is

still “powerless to avert the mischief” of the discovery

order directed at the third parties here. Perlman, 247

U.S. at 13. That is precisely why this Court devised

the Perlman exception. Perlman’s objective is not to

force litigants to stand in contempt pointlessly, but

9

only to require contempt where that would protect the

privilege while review is sought.

Contrary to the government’s contention, this

Court has never required that the documents be only

in the custody of third parties (Opp.6), or that the order at issue be directed solely at those third parties

(Opp.7). See Church of Scientology of Cal. v. United

States, 506 U.S. 9, 18 n.11 (1992) (“[A] discovery order

directed at a disinterested third party is treated as an

immediately appealable final order because the third

party presumably lacks a sufficient stake in the proceeding to risk contempt by refusing compliance.”). To

read Perlman to include the circumstances here

would not be to “expand” the Perlman exception

(Opp.9), but to apply it faithfully, as the First, Third,

Fifth, and Tenth Circuits do.

As those circuits recognize, what matters for the

Perlman inquiry is not that an order is directed at the

appellant, but that an order is directed at the third

party. Because a disinterested third party alone could

cause the disclosure that the privilege holder would

be “powerless to avert,” Perlman, 247 U.S. at 13, it is

enough for the appellant privilege holder to “be able

to prove that the [disinterested third party] will produce the records rather than risk contempt.” Company X, 857 F.2d at 712 (citation omitted). Put

differently, the privilege holder “ha[s] no control over

the documents” because the third party here also

holds them. Gill v. Gulfstream Park Racing Ass’n, 399

F.3d 391, 398 (1st Cir. 2005). The third party can “let

the cat out of the bag, thus rendering an end-of-case

appeal nugatory,” and the privilege holder is

10

powerless to stop it. Ogden, 202 F.3d at 459. That is

why Perlman applies.

As the Third Circuit has observed, allowing review regardless of whether the appellant has also

been ordered to produce the same documents is consistent with Perlman because a party cannot stand in

contempt for another party’s failure to comply with a

discovery order. See ABC Corp., 705 F.3d at 149. Because Petitioner could not appeal the discovery order

directed at the third party, much less stand in contempt for violating that order, “denial of immediate

review would render impossible any review whatsoever” of its claims as to that specific order. Ryan, 402

U.S. at 533. It is irrelevant that there is a separate

order directed at the appellant.

The government is also incorrect that improper

disclosure could be remedied later, thus obviating the

need for immediate appeal. See Opp.9 (citing Mohawk

Indus., Inc. v. Carpenter, 558 U.S. 100, 109 (2009)). In

Mohawk, this Court narrowed the collateral order

doctrine in the civil litigation context, observing that

post-disclosure remedies can vindicate a defendant’s

privilege claims later. But the Perlman exception is

distinct from the collateral order doctrine. See United

States v. Krane, 625 F.3d 568, 572 (9th Cir. 2010). Because privilege claims are “one of the only non-procedural grounds on which a subpoenaed individual may

resist a grand jury subpoena,” In re Grand Jury Investigation, 966 F.3d 991, 996 (9th Cir. 2020), the

Perlman exception protects against risks in that

unique context. Unlike the defendant-appellant in

Mohawk, a nonparty to a grand jury investigation has

no means of curing privilege violations later: Once a

11

disinterested third party discloses privileged documents, those may be used by the government in additional investigations and form the basis of

indictments to come.

The government warns against “undue interruption” to grand jury proceedings. Opp.10 (quoting Cobbledick v. United States, 309 U.S. 323, 327 (1940)).

But the Perlman exception recognizes that “not to allow this interruption would forever preclude review of

the witness’ claim,” which is why appellate review is

justified. Cobbledick, 309 U.S. at 328. Moreover, the

government’s proposed solution—that Petitioner

stand in contempt against its discovery order—would

generate the same interruption. See Opp.7. Indeed,

such interruption could be even more significant, because it would be pointless where the third party discloses the documents in the interim.

III. The Question Presented Is Important, And

This Case Presents An Ideal Vehicle To

Resolve It.

In Perlman, this Court understood the need to

safeguard privilege documents from disclosure in

grand jury proceedings. The Eighth and Eleventh Circuits currently apply Perlman in a way that incentivizes the government to “eviscerate” its protections by

simply subpoenaing both a third-party custodian and

the privilege holder to “artificially prevent the privilege holder from taking a Perlman appeal.” ABC

Corp., 705 F.3d at 165-66 (Vanaskie, J., concurring).

The government’s rejoinder that this approach is consistent with Mohawk misunderstands how the Perlman exception and the collateral order doctrine

12

interact, and misapprehends the importance of the

protections Perlman creates.

As the government emphasizes (Opp.5), in the

years since this Court last addressed the Perlman exception, it has denied multiple petitions for certiorari

on the exception’s scope and application, including the

precise question presented here in Doe v. United

States, 571 U.S. 818 (2013). But as recent cases

demonstrate, rather than dissipate over time, the

split has only deepened. See In re Grand Jury Subpoenas, 974 F.3d 842; In re Grand Jury 2021 Subpoenas,

87 F.4th 229, 246 (4th Cir. 2023) (questioning Perlman’s “continued viability” after Mohawk); In re

Grand Jury Subpoenas Dated Sept. 13, 2023, 128

F.4th 127, 140 (2d Cir. 2025) (concluding that Perlman is reconcilable with Mohawk). This case presents

the perfect opportunity to resolve it, and only this

Court can do so. The government does not dispute

that the issue here turns solely on jurisdiction, nor

that it presents purely legal questions. This case

raises an issue of simple resolution, and this Court’s

input on this question is long overdue.

CONCLUSION

The Court should grant the petition.

13

Respectfully submitted,

James P. Cooney III

Claire Rauscher

Sarah Motley Stone

WOMBLE BOND

DICKINSON (US) LLP

301 S. College Street

Suite 3500

Charlotte, NC 28202

E. Joshua Rosenkranz

Counsel of Record

ORRICK, HERRINGTON &

SUTCLIFFE LLP

51 West 52nd Street

New York, NY 10019

(212) 506-5000

jrosenkranz@orrick.com

Nicole Ries Fox

ORRICK, HERRINGTON &

SUTCLIFFE LLP

2050 Main Street

Suite 1100

Irvine, CA 92614

Brenna Ferris Neustater

Luiza Leão

ORRICK, HERRINGTON &

SUTCLIFFE LLP

2100 Pennsylvania

Avenue, NW

Washington, DC 20037

August 4, 2025