On May 9, 1988, we issued an order dismissing this appeal for lack of jurisdiction, denying appellees' motion for sanctions, and declining to treat the appeal as a petition for a writ of mandamus. By this opinion, we state our reasons for doing so.
NMEC is not a stranger to this court. It has appealed four prior discovery orders issued by the district court in this multidistrict litigation on the ground that the information sought is privileged. See e.g., In re National Mortgage Equity Corp. Mortgage Pool Certificate Litig., 821 F.2d 1422 (9th Cir.1987) (hereinafter In re NMEC). As in prior appeals, NMEC does not challenge the general rules that an order compelling discovery is not a final judgment under 28 U.S.C. § 1291 and that to attack a discovery order before final judgment in the case, the party seeking review must refuse to comply with the order and be found in contempt. Id. at 1423. NMEC contends, however, that this court has jurisdiction to review the discovery order at this time under the exception created by Perlman v. United States, 247 U.S. 7, 1213, 38 S.Ct. 417, 419-20, 62 L.Ed. 950 (1918). We conclude that Perlman does not apply in the context of ongoing civil litigation.
The underlying case in the district court is composed of a number of cases from the Northern and Central Districts of California that were consolidated for pretrial discovery and motions by the panel on multidistrict litigation. All cases concern the promotion and sale of mortgage pool certificates by National Mortgage Equity Corporation and David Feldman (collectively NMEC).
Appellee Bank of America (B of A) moved for an order requiring the Chicago law firm of Lord, Bissell, and Brook, which had represented NMEC from December, 1982, to November, 1984, to produce documents concerning the sale and promotion of the certificates. B of A claimed the crime-fraud exception abrogated the protection of the attorney-client privilege and work product doctrine. The magistrate to whom the motion was referred granted the motion, finding that B of A had made out a prima facie case of a scheme to defraud that was wholly pervasive through all of NMEC's activities. The order required Lord, Bissell, and Brook to produce all documents and communications that were related to the promotion and sale of mortgage pool certificates. The order allowed NMEC to submit any documents it felt were unrelated to the fraud or otherwise protected by the attorney client privilege to the magistrate for an in camera review and ruling prior to production. Judge Tashima affirmed the order, stating that the magistrate's findings were "amply supported by the evidence" and that NMEC's evidence that no fraud was committed did not "detract from the substantial evidence of fraud."
NMEC filed a notice of appeal and an emergency motion for a stay pending appeal. We denied the emergency motion for a stay on May 4, and dismissed the appeal by order on May 9.
The problem with NMEC's argument is that it ignores both the justification for the rule and the case law construing it. The rule is designed to provide for review "where denial of immediate review would render impossible any review whatsoever of an individual's claim." United States v. Ryan, 402 U.S. 530, 533, 91 S.Ct. 1580, 1582, 29 L.Ed.2d 85 (1971). The classic application of the Perlman rule is where the aggrieved party's motion or petition is the only pending proceeding in any federal court. See Eastland v. U.S. Servicemen's Fund, 421 U.S. 491, 514, 95 S.Ct. 1813, 1827, 44 L.Ed.2d 324 (1975) (Marshall, J. concurring) (motion in district court to quash U.S. Senate subpoena directed at third party); Go-Bart Importing Co. v. United States, 282 U.S. 344, 356, 51 S.Ct. 153, 157-58, 75 L.Ed. 374 (1931) (no criminal case pending when motion made); Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1921) (same); Perlman, 247 U.S. 7, 38 S.Ct. 417, 62 L.Ed. 950 (1918) (same); Goodman v. United States, 369 F.2d 166, 168 (9th Cir.1966); (suit to compel return of property; no other proceeding pending); Weldon v. United States, 196 F.2d 874 (9th Cir.1952) (same); Freeman v. United States, 160 F.2d 69 (9th Cir.1946) (same).
The rule has also been applied to appeals from the issuance of subpoenas or orders to produce documents in grand jury proceedings. See Gravel v. United States, 408 U.S. 606, 608 n. 1, 92 S.Ct. 2614, 2619 n. 1, 33 L.Ed.2d 583 (1972); In re Grand Jury Proceeding (Schofield), 721 F.2d 1221 (9th Cir.1983); In re Grand Jury Subpoena
NMEC requests that we consider the appeal as a petition for a writ of mandamus. We decline to do so. See In re NMEC, 821 F.2d at 1425. The appellees' have moved for sanctions. We have discretion to award just damages and single or double costs where an appeal is frivolous. Fed.R.App.P. 38; Grimes v. Commissioner of Internal Revenue, 806 F.2d 1451, 1454 (9th Cir.1986). We decline to do so.
The appeal is dismissed.