Subpoenas Duces Tecum Marcus v. Parker

972 F.2d 1343

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

In re SUBPOENAS DUCES TECUM dated March 16, 1992.
Stephen H. MARCUS; Frandzel & Share, a Law Corporation;
and the Official Committee of Unsecured Creditors
for Parker North American Corporation, Appellants,
v.
Michael E. PARKER, Appellee.
UNITED STATES of America, Plaintiff,
v.
Michael E. PARKER, Defendant.

1

No. 92-50198.

2

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 17, 1992.
Decided Aug. 26, 1992.

3

Before TANG and CYNTHIA HOLCOMB HALL, Circuit Judges, and JENSEN,* District Judge.

4

MEMORANDUM**

5

The appeal is hereby dismissed for lack of jurisdiction. The district court's denial of the motion to quash the subpoena is an interlocutory order and, as such, is not appealable. Does I through IV (In re Grand Jury Subpoenas Dated Dec. 10, 1987), 926 F.2d 847, 852-53 (9th Cir.1991). Marcus and the law firm must be cited for contempt for failure to comply with the subpoena before appellate jurisdiction will attach. See id. at 853.

6

The exception permitting the holder of an attorney/client privilege (such as the Official Committee of Unsecured Creditors for Parker North American Corporation) to appeal when the subpoena is directed to a third party does not apply when the target of the subpoena is an attorney currently representing the client. Id.; Doe v. United States (In re Grand Jury Subpoena Dated June 5, 1985), 825 F.2d 231, 237 (9th Cir.1987); United States v. Niren (In re Grand Jury Subpoena Served upon Niren), 784 F.2d 939, 941-42 (9th Cir.1986).1

7

We decline to treat the appeal as a petition for a writ of mandamus. An appeal from a contempt citation constitutes an adequate alternative avenue for relief. See Bauman v. United States, 557 F.2d 650, 654-55 (9th Cir.1977) (listing criteria for treating an appeal as a petition for writ of mandamus).

The appeal is

8

DISMISSED.

*

Honorable D. Lowell Jensen, United States District Judge for the Northern District of California, sitting by designation

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

1

Nothing in this decision should be construed as a ruling on the merits of the district court's determination that the Committee of Unsecured Creditors' communications with its attorneys are not protected by the attorney/client privilege. Compare In re Baldwin-United Corp., 38 B.R. 802 (Bankr.S.D. Ohio 1984) with In re Christian Life Ctr., 16 B.R. 35 (Bankr.N.D.Cal.1981)