In the Matter of the Subpoena to Philip H. Lowthian v. United States

An attorney subpoenaed to testify and bring documents to a federal grand jury moves for an order staying the order of the district court directing compliance. We deny the stay.

The subpoena duces tecum ordered the attorney to bring with him certain books and papers which, he asserts, were delivered to him in his capacity as an attorney defending a client in a criminal investigation. The attorney brought the documents under seal to the district court, and requested an in camera examination by the district judge. The district judge examined the documents and ordered the attorney to comply with the subpoena.

The usual method for challenging a subpoena duces tecum or other order requiring the production of information after the court denies a motion to quash is to refuse to produce the information and then to appeal the judgment which follows the resulting contempt citation.

The denial of the motion to quash is not itself an appealable order. United States v. Ryan, 402 U.S. 530 , 91 S.Ct. 1580 , 29 L.Ed.2d 85 (1971); Cobbledick v. United States, 309 U.S. 323 , 60 S.Ct. 540 , 84 L.Ed. 783 (1940).

An attorney need not, however, surrender his client’s documents and wait for the…