REVISED 12/28/2022

United States Court of Appeals

for the Fifth Circuit

No. 21-30705

In re: Grand Jury Subpoena

Appeal from the United States District Court

for the Eastern District of Louisiana

Grand Jury No. 06-21-26

Before Higginbotham, Southwick, and Higginson, Circuit

Judges.

Leslie H. Southwick, Circuit Judge:

An individual and an advocacy group seek to appeal from the denial of 

a motion to quash two grand jury subpoenas and an order compelling 

compliance with one of them. There is no jurisdiction for appeals challenging 

a grand jury subpoena for production of documents unless (1) the appellant 

has been held in contempt, or (2) a client-intervenor asserts that documents 

in the possession of a subpoenaed, disinterested third party are protected by 

attorney-client privilege. Neither exception applies here. We DISMISS.

FACTUAL AND PROCEDURAL BACKGROUND

The Department of Justice conducted an investigation of Dr. Shiva 

Akula for healthcare fraud in connection with his ownership of Canon 

Hospice. On August 5, 2021, a grand jury for the Eastern District of 

Louisiana indicted Dr. Akula on 23 counts of healthcare fraud. Putative 

appellants here are Physicians Against Abuse (“PAA”), an advocacy group 

United States Court of Appeals

Fifth Circuit

FILED

December 14, 2022

Lyle W. Cayce

Clerk
No. 21-30705

2

that aids doctors in healthcare fraud investigations, and Christina Paylan 

Black, Executive Director of PAA. 

At some point, Dr. Akula retained PAA to advise him on the 

investigation. PAA’s services include (1) assisting defense counsel in 

comprehending Medicare billing and coding, medical terminology, and 

practices and norms in the medical profession, (2) public relations, and (3) 

identifying qualified expert witnesses to explain Medicare billing and other 

healthcare-related issues. Prior to Dr. Akula’s indictment, in July 2021, 

Black, in her capacity as PAA’s Executive Director, sent a letter to the 

Assistant United States Attorney (“AUSA”) handling Dr. Akula and Canon 

Hospice’s investigation and asked to discuss the investigation.

After Dr. Akula’s indictment in August 2021, the government issued 

a press release summarizing the charges against him. PAA then issued its 

own press release. It included a statement that the AUSA had “relied on a 

disgruntled former employee of Dr. Akula . . . to make false accusations 

against Dr. Akula.” PAA’s press release alleged the employee had an 

“employment rap sheet . . . a mile long with threats and extortion.” It also 

alleged she reported Dr. Akula because she was upset she did not receive a 

raise after requesting one. Additionally, PAA’s press release claimed the 

AUSA was “inexperienced” and did a poor job investigating Dr. Akula and 

Canon Hospice.

On August 20, 2021, the government served both PAA and Black with 

grand jury subpoenas. The AUSA contended the subpoenas were issued 

because of concern that PAA and Black engaged in witness tampering and/or 

obstruction of justice by issuing their press release. The subpoena issued to 

Black sought production of the following: 

1. All records reviewed related to Canon Hospice, as 

referenced in correspondence dated July 29, 2021, page two, 
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paragraph one: “We have reviewed substantial information 

regarding employees, provider services, contractual 

agreements as well as the organizational structure for billing 

services at Canon Hospice;”

2. The “employment rap sheet for [the person],” asreferenced 

in the attached press release issued by Physicians Against Legal 

Abuse;

3. A list of all individuals and entities who received the attached 

press release from Physicians Against Legal Abuse, in the 

matter of Shiva Akula; and

4. Identify when, and individuals to whom, you represented 

yourself as an attorney.

The subpoena issued to PAA sought production of the same first three 

categories listed in Black’s subpoena. It also demanded: “Any and all billing 

records from Canon Hospice or Shiva Akula to Physicians Against Abuse or 

anyone associated with Physicians Against Abuse.”

After Black and PAA failed to comply with the subpoenas, the 

government moved to compel Black’s compliance. The district court 

entered a show cause order against Black. Black and PAA then filed a motion 

to disqualify the AUSA, contending she was using the grand jury to censor 

speech. They also moved to quash the subpoenas, alleging the information 

sought was protected by the First Amendment and attorney-client privilege. 

Regarding the claim of attorney-client privilege, PAA and Black argued PAA 

was hired to assist Dr. Akula to prepare his defense and to explain medical 

processes. Accordingly, their communications with him were privileged 

under the reasoning of another circuit court that the attorney-client privilege 

may bar disclosures made by a client to nonlawyers employed as agents of the 

attorney. See United States v. Kovel, 296 F.2d 918 (2d Cir. 1961).
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The district court heard oral argument, reviewed in camera Dr. 

Akula’s retainer agreement with PAA, and met ex parte with the AUSA to 

inquire about the purpose of the grand jury investigation, considering Dr. 

Akula had already been indicted. Regarding the latter, the AUSA assured the 

court the subpoenas were issued for the witness-tampering investigation, not 

to investigate Dr. Akula. Ultimately, the district court granted the 

government’s motion to compel Black’s compliance and denied Black and 

PAA’s motions to quash and to disqualify the AUSA. The court held 

attorney-client privilege did not apply under Kovel and the subpoenas did not 

violate the First Amendment. Accordingly, PAA and Black were ordered to 

comply with the subpoenas.

Instead of responding to the subpoenas, PAA and Black filed a motion 

for clarification. Allegedly, they had identified hundreds of documents 

protected by attorney-client privilege because the documents consisted of 

communications between Dr. Akula and his counsel. PAA and Black argued 

the court should permit Dr. Akula to intervene to assert his privilege, and 

they asked the court to stay their court-ordered document production until 

Dr. Akula could intervene. The court ordered the parties to produce the 

allegedly privileged documents for in camera review and the non-privileged 

documents to the government. Before the court ruled on the clarification

motion and without complying with the subpoena, PAA and Black filed a 

notice of appeal from the court’s denial of their motion to quash the two 

subpoenas and the order compelling Black’s compliance. The court denied 

a motion to stay pending appeal and a motion for clarification. Further, Dr. 

Akula was denied intervention.

DISCUSSION

PAA and Black argue (1) this court has jurisdiction to review the denial 

of their motion to quash two grand jury subpoenas and the order compelling 
No. 21-30705

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Black’s compliance; (2) the subpoenas violate the First Amendment; and (3) 

their communications with Dr. Akula are entitled to attorney-client privilege 

under Kovel.

We begin by analyzing jurisdiction de novo. In re Grand Jury 

Proceedings, 115 F.3d 1240, 1243 (5th Cir. 1997). Our jurisdiction is generally 

limited to reviewing final decisions of a district court. 28 U.S.C. § 1291; 

Henry v. Lake Charles Am. Press, L.L.C., 566 F.3d 164, 170–71 (5th Cir. 2009). 

This rule applies to appeals of orders issued in grand jury proceedings. In re 

Grand Jury Subpoena, 190 F.3d 375, 380 (5th Cir. 1999). There are two 

exceptions. First, if a witness chooses not to comply with a grand jury 

subpoena compelling production of documents and is held in contempt, that 

witness may immediately appeal the court’s interlocutory order. Cobbledick 

v. United States, 309 U.S. 323, 327–28 (1940). Second, under what is called 

the Perlman doctrine, a party need not be held in contempt prior to filing an 

interlocutory appeal if “the documents at issue are in the hands of a third 

party who has no independent interest in preserving their confidentiality.” In 

re Grand Jury Subpoena, 220 F.3d 406, 409 (5th Cir. 2000) (citing Perlman v. 

United States, 247 U.S. 7, 38 (1918)) (emphasis added).

Pursuant to the Perlman doctrine, “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.” Church of Scientology of Cal. v. 

United States, 506 U.S. 9, 18 n.11 (1992). Importantly, “the subpoenaed third 

party’s lack of interest in protecting the confidentiality of the subpoenaed 

documents is the touchstone of the Perlman inquiry.” In re Grand Jury 

Subpoena, 190 F.3d at 383. We have held that “a client-intervenor may 

appeal an order compelling testimony from the client’s attorney” because,

“[a]lthough we cannot say that attorneys in general are more or less likely to 

submit to a contempt citation rather than violate a client’s confidence, . . . 
No. 21-30705

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some significant number of client-intervenors might find themselves denied 

all meaningful appeal by attorneys unwilling to make such a sacrifice.” In re 

Grand Jury Proceedings in Matter of Fine, 641 F.2d 199, 203 (5th Cir. 1981). In 

sum, the Perlman doctrine applies “when the subpoenaed party is one who 

has no direct and personal interest in the suppression of the information 

desired by the grand jury.” Id. at 201.

Turning to this purported appeal, neither Black nor PAA has been 

held in contempt for failure to comply with a subpoena. Therefore, no right 

to appeal arises from a contempt order. See Cobbledick, 309 U.S. at 328.

As to the Perlman doctrine, the subpoenaed documents are in the 

hands of PAA and Black. They are interested third parties in that they are 

being investigated for witness tampering. They have a direct and personal 

interest in suppressing the documents that could potentially corroborate the 

witness tampering accusation. See Fine, 641 F.2d at 201–02. Consequently, 

PAA and Black obviously have “a sufficient stake in the proceeding to risk 

contempt by refusing compliance.” See Church of Scientology of Cal., 506 U.S. 

at 18 n.11. We lack jurisdiction over the appeal, and PAA and Black must 

either comply with the subpoena or be held in contempt to seek this court’s 

review. APPEAL DISMISSED.