PUBLIC COPY- SEALED INFORMATION DELETED 

~nii£o ~tai£s Qlourt of J\pp£als 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

Argued September 25, 2012 Decided March 5, 2013 

Reissued May 16, 2013 

No. 12-5147 

IN RE: SEALED CASE 

Consolidated with 12-5148 

Appeal from the United States District Court 

for the District of Columbia 

(No. 1:12-mc-00196) 

Before: GARLAND, Chief Judge, GRIFFITH and 

KAVANAUGH, Circuit Judges. 

jury 

Opinion for the Court filed by Circuit Judge GRIFFITH. 

Concurring opinion filed by Circuit Judge KAvANAUGH. 

ts executed search 

as part of a grand 

r. .. ,T.¥'.£'T court that some of the 

1 NOTE: Portions of this opinion contain Sealed Material, 

which has been redacted. 
2 

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documents seized were beyond the scope of the warrants and 

others were protected by the attorney-client privilege, 

appellant moved for their return pursuant to Federal Rule of 

Criminal Procedure 41 (g). The district court denied. motion, 

and this appeal ensued. We dismiss this interlocutory appeal 

for want of jurisdiction. 

I 

The agents seized more than sixty boxes of physical 

property, as well as computers, hard drives, cell phones, and 

other devices that contained electronic records. The boxes and 

the electronic devices contained more than twenty-three 

the 

government 

million 

contents 

pages 

had 

of 

of 

copied 

most 

documents. 

of 

and 

the 

returned 

Within 

electronic 

to-

~ 

devices.~ 

unclear whether several cell phones seized from -

-have yet been returned. Tr. 54-55.) The government 

also made copies or originals of the documents available. Each 

party proposed protocols to identify documents the 

government could review without exceeding the scope of the 

search warrants or breaching the attorney-c~ 

When they were unable to reach an agreement,-

- moved under Federal Rule of Criminal Procedure 

41 (g) for the return o~ documents the government lacked 

authority to review. - did not assert that. had been 
3 

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denied access to documents essential for. affairs. Instead, 

urged the adoption of protocols • 

propo on grounds that the government retained 

documents protected from review by the Fourth Amendment 

and the attorney-client privilege. 

On May 3, 2012, the district court denied. motions 

and on 11 sou t review from this court. 

January 14, 2013, 

government notified us that they had re agreement on 

how to identify privileged material. Because we may act only 

to resolve "actual, ongoing controversies," Honig v. Doe, 484 

U.S. 305, 317 (1988), we dismiss as moot the portion of 

- appeal that challenged the district court's refusal 

to order the parties to implement the protocols had 

proposed to identify privileged documents~ 

appeal is now limited to • claim that the court 

improper!"-declined to order the parties to implement the 

protocols. proposed to identify documents beyond the scope 

of the search warrants. 

II 

Before we can take up the merits of-claim, we 

must determine whether we have jurisdiction to hear the appeal 

of the denial of. Rule 41(g) motions. Under 28 U.S.C. 

§ 1291, Congress has limited our jurisdiction to appeals of 

final decisions of the district court- a policy that requires 

most litigants to await the termination of their cases before 

seeking appellate review. This limit aims to prevent 

"leaden-footed" judicial administration and avoid "the 

obstruction to just claims that would come from permitting the 
4 

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harassment and cost of a succession of separate appeals from 

the various rulings to which a litigation may give rise." 

Cobbledick v. United States, 309 U.S. 323, 325 (1940). This 

concern with efficiency is most pronounced in criminal 

proceedings. Id. at 324-25. "[T]he delays and disruptions 

attendant upon intermediate appeal are especially inimical to 

the effective and fair administration of the criminal law." 

DiBella v. United States, 369 U.S. 121, 126 (1962). Allowing 

review of the decisions district courts make during the course 

of ongoing criminal prosecutions may, for example, "make of 

appeal an instrument of harassment, jeopardizing by delay the 

availability of ... essential evidence." Id. at 129. Weighed 

against these costs, the value of an immediate appeal is 

diminished because there is likely to be "an adequate remedy at 

law by motion in the [forthcoming] criminal trial." Id. at 128. 

Rule 41 (g) allows the owner of propert1' the government 

has seized in a search to seek its return. Sometimes, the 

government has seized the property for the purposes of a 

criminal investigation or prosecution that is ongoing when the 

motion is filed. Even if assigned its own docket number in the 

district court, 3 that motion is likely a "component element[] in 

2 Prior to 1989, only an unlawful search or seizure could trigger 

the rule, which provided for automatic suppression of any property 

returned. See In re Warrant Dated Dec. 14, 1990, 961 F.2d 1241, 

1243 n.4 (6th Cir. 1992) (describing the 1989 amendment). After the 

1989 amendment to Rule 41, that restriction is See FED. R. 

CRIM. P. 41(g). Accordingly, not 

contested the lawfulness of the government's 

3 Because the grand jury has not yet returned an indictment 

l

ainst -, no criminal number exists for II case. Instead, 

motions were assigned miscellaneous numbers. 
5 

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a unified [criminal case]," Cobbledick, 309 U.S. at 325, rather 

than an "independent proceeding begetting finality ... for 

purposes of appealability." DiBella, 369 U.S. at 131. We 

threaten to disrupt "the conduct of a criminal trial" when we 

permit appeals from these motions. Id. at 129. For that reason, 

an appellant seeking review of the denial of a Rule 41 (g) 

motion must show that the decision is independent of any 

ongoing criminal prosecution, such that its appeal will not lead 

to piecemeal review of a unified criminal case or impede the 

progress of the prosecution. 

In DiBella v. United States, the Supreme Court announced 

a test to determine whether a Rule 41 (g) proceeding is 

independent of a criminal prosecution. 369 U.S. at 131-32. 

DiBella consolidated appeals of conflicting decisions from the 

Second and Fifth Circuits. In the appeal from the Second 

Circuit, Mario DiBella had been arrested pursuant to a warrant 

issued upon a complaint charging unlawful sales of narcotics. 

ld. at 122. After his arrest but before his indictment, DiBella 

moved under the predecessor to Rule 41 (g) to suppress 

evidence he claimed was unlawfully seized at the time of his 

arrest. !d. Shortly after DiBella filed his motion, the grand jury 

returned an indictment, and the district court denied his motion 

without prejudice to a motion to suppress at trial. Id. The 

Second Circuit permitted his appeal because the motion was 

filed before the indictment was returned. Id. at 122-23. In the 

appeal from the Fifth Circuit, Daniel Koenig was arrested and 

his property was seized in the Southern District of Florida on a 

complaint charging a bank robbery in the Southern District of 

Ohio. Jd. at 123. Four days after Koenig filed a motion to 

suppress and for return of property in Florida, a federal grand 

jury in Ohio returned an indictment against him. Id. The 

District Court for the Southern District of Florida granted 
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suppression of the evidence but denied Koenig its return. !d. 

The government appealed, and the Fifth Circuit dismissed the 

appeal on the ground that the order was interlocutory and 

therefore not appealable. 4 !d. 

The Supreme Court held that a court of appeals could 

entertain the denial of a motion for the return of seized property 

"[ o ]nly if the motion is solely for return of property and is in no 

way tied to a criminal prosecution in esse 

5 against the 

movant." !d. at 131-32. The Court concluded that the movant 

failed both prongs in each case. The movant's goal was not 

"solely ... return of property," but the suppression of evidence 

at an upcoming trial. !d. Far from being independent of the 

trial, each motion was an integral part of a trial strategy. !d. at 

127 (holding that a motion to suppress "presents an issue that is 

involved in and will be part of a criminal prosecution in 

process at the time the order is issued"). The Court reasoned 

that it could not treat a motion as "independent" when its 

"disposition ... 'will necessarily determine the conduct of the 

trial and may vitally affect the result."' !d. (quoting Cogen v. 

United States, 278 U.S. 221,223 (1929)). The Court also found 

that each motion was "tied to a criminal prosecution in esse" 

because both movants had been arrested and indicted at the 

time of appeal. DiBella, 369 U.S. at 131-32. When a criminal 

prosecution is in esse - or when it is "in being" -the "delays 

and disruptions attendant upon intermediate appeal" jeopardize 

"the effective and fair administration of the criminal law." !d. 

at 126. In short, the orders were not final. They were 

4 Today, a statute permits the United States to appeal orders 

granting Rule 41 (g) motions. See 18 U.S.C. § 3731. 

5 In esse is defined as "[i]n actual existence" or "in being." 

BLACK'S LAW DICTIONARY 846 (9th ed. 2009). 
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inextricably intertwined with issues that would be more fully 

developed at trial, and allowing their appeal would disrupt an 

ongoing criminal proceeding. 

- Rule 41 (g) motions are not independent. 

Instead, they are part of a ~how best to respond to a 

grand jury investigation. - aries • motions are 

"solely for return of property" because does not seek the 

suppression of evidence gathered from the documents. 

Appellant's Reply Br. 3-4. In so arguing,- seems to 

assume that every Rule 41 (g) motion falls into one of two 

categories: motions that seek "solely" return of property, and 

those that seek return of property and suppression of evidence. 

But at the time the Court decided DiBella, the dichotomy 

- imagines did not exist: granting a Rule 41 (g) 

motion automatic-It resulted in suppression of the returned 

evidence. 6 Thus, cannot be right that the test for 

whether a motion is "solely for return of property" turns on 

whether the motion also seeks suppression. The Court's 

objective in crafting the first prong was to distinguish some 

motions from others: those that are inextricably intertwined 

with issues to ~ed at a forthcoming trial from those 

that are not. If-were correct about its meaning, then 

the first prong would not have served the Court's desired 

culling function because seeking the return of property went 

hand-in-glove with seeking its suppression. See In re Warrant 

Dated Dec. 14, 1990, 961 F.2d 1241, 1243-44 (6th Cir. 1992) 

("[N]o motion ... could ever literally comply with the [first 

prong because] any motion for return of property was 

automatically treated as a suppression motion as well." 

6 Rule 41 has since been amended and does not automatically 

result in suppression. See supra note 2. 
8 

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(internal quotation marks omitted)). Sensitive to this peril, 

courts of appeals have in~reted DiBella to stand for a 

broader principle than - acknowledges - one that 

requires us to look beyond the mere effect of the motion to 

ascertain its true purpose. See, e.g., id. ("[W]e must look 

behind the ... motion and determine whether the motion 

essentially sought return of seized property or suppression, 

delay, or some other such purpose apart from the return of the 

property."); Matter of949 Erie Street, Racine, Wis., 824 F.2d 

538, 541 (7th Cir. 1987); In re Grand Jury Proceedings, 716 

F.2d 493,495 (8th Cir. 1983); Imperial Distribs., Inc. v. United 

States, 617 F.2d 892, 895 (1st Cir. 1980); United States v. 

Premises Known as 608 Taylor Ave., 584 F.2d 1297, 1300 (3d 

Cir. 1978). 

The question is more fundamental than whether the 

movant seeks only to suppress evidence. The question is 

whether a Rule 41 (g) motion is being used for strategic gain at 

a future hearing or trial. Our sister circuits have identified 

factors probative of purpose. For example, many have 

considered the movant's need for the property. As such, when 

the movant has already recovered the property from the 

government, those courts are reluctant to find that the motion is 

"solely" for its return. See, e.g., In re Grand Jury, 635 F .3d 

101, 104-05 (3d Cir. 2011); Matter of949 Erie Street, 824 F.2d 

at 541; Imperial Distribs., 617 F .2d at 895-96. Courts have also 

considered whether granting the motion would have some 

effect on the presentation of evidence at a future hearing or 

trial. See, e.g., In re Grand Jury, 635 F.3d at 104 (holding that a 

Rule 41 (g) motion was actually a motion to suppress because it 

"request[ ed] ... any copies of the seized documents and ... an 

order directing the government to cease inspecting the 

evidence pending a ruling" (emphasis in original)); In re 3021 
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6th Ave. North, 237 F.3d 1039, 1041 (9th Cir. 2001); Imperial 

Distribs., 617 F .2d at 896. 

On both of these counts, - motions are not 

"solely for return of property."~ no argument that I has some need for the seized property. We think it 

~hat the government has already made almost all of 

- property available to., and it has expressed a 

willingness to return at least copi~cuments it retains. 

It is also telling that the injury - asserts is not the 

deprivation of property but the unlawful revelation of • 

private information. - preoccupation with 

disclosure rather than return underscores that. invocation of 

Rule 41 (g) is not about securing • property's return. See 

United States v. Ryan, 402 U.S. 530, 533 (1971) (describing 

the interest at stake when a motion is "solely for return of 

property" as the "right to possession"). 

To be sure, - motions do not, by their terms, 

seek suppression of evidence. Granting them, however, would 

have a profound effect on the presentation of evidence at a 

future hearing or trial. For example, - motions 

include a request that the district court require the government 

to waive the ?lain view doctrine with respect to the electronic 

documents. If - motions were granted, the 

government could not use any electronic evidence outside the 

scope of the warrant at trial - even evidence in plain view 

during the search of the device on which the evidence was 

7 The plain view doctrine permits the seizure of evidence 

outside the scope of the warrant discovered during the course of a 

lawful search, provided its criminal nature is immediately apparent. 

See Horton v. California, 496 U.S. 128, 135-36 (1990). 
10 

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stored. That would be a benefit to ~nd it has 

nothing to do with the return ofpr~i· motions 

are strategic in another way, too. seeks to prevent the 

government from revi~ most of the evidence for a 

period of time, while -' and an independent third 

party screen the seized material. Tr. 13. By "jeopardizing ... 

the availability of other essential evidence," DiBella, 369 U.S. 

at 129, the delay could shape the course of the criminal 

investigation and the content of the case the government will 

present at trial. In these ways,- motions for return 

of property are designed to achieve more than "solely" the 

return of property. Rather, they are an integral part of. 

strategy before the grand jury and at a possible trial. 

Because - motions fail the first prong of the 

DiBella test, we need not consider wheth~ also "tied 

to a criminal prosecution in esse against"-.• Rule 

41 (g) motions below were not independent proceedings, and 

the district court's order denying those motions is not final. 

III 

Congress and the courts have fashioned exceptions to the 

finality rule, see DiBella, 369 U.S. at 124-26, andinvokes one of them to argue that we have jurisdiction to 

review the district court's denial of. Rule 41 (g) motions. 

The Perlman doctrine permits appeals from some 

decisions that are not final but that allow the disclosure of 

property or evidence over which the appellant asserts a right or 

privilege. The doctrine originates in the Supreme Court's 

decision in Perlman v. United States, 247 U.S. 7 (1918). Louis 

Perlman owned several exhibits that his company, Perlman 
11 

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Rim Corporation, used during its patent suit against Firestone 

Tire & Rubber Company. Id. at 8. At the close of the trial, the 

district court ordered all exhibits impounded in the custody of 

the clerk, pending an investigation into perjury Perlman may 

have committed at trial. I d. at 8-9. The court then ordered the 

two companies to show cause why the exhibits should not be 

turned over to a federal prosecutor. Id. at 9. Because neither 

party objected, the court directed the clerk to grant the federal 

prosecutor access to the exhibits. I d. at 9-10. Perlman, who was 

not a party to the patent suit and did not receive notice of the 

order to show cause, subsequently sought an order restraining 

the government from using the exhibits. Id. at 9-11. He argued 

that their disclosure to the government had violated his Fourth 

and Fifth Amendment rights. Id. at 13. He lost, but appealed 

the denial of his petition to the Supreme Court, which heard the 

case under its then-obligatory appellate jurisdiction. Id. at 11. 

Sometime before his appeal reached the Supreme Court, 

Perlman was indicted for perjury. Id. The government opposed 

Perlman's appeal, arguing that the district court's decision was 

"part of a criminal proceeding," and "not final, but merely 

interlocutory, and therefore not reviewable by this court." I d. at 

12. 

In a brief paragraph, the Supreme Court rejected the 

government's argument, calling it "somewhat strange," and 

warning that, if adopted, it would render 

"Perlman ... powerless to avert the mischief of the order" and 

would require him to "accept its incidence and seek a remedy 

at some other time and in some other way." ld. at 12-13. In that 

language, which Judge Friendly would later describe as 

"Delphic," Nat'! Super Spuds, Inc. v. NY. Mercantile Exch., 

591 F.2d 174, 178 (2d Cir. 1979),- grounds. 
12 

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argument that we have jurisdiction to consider the district 

court's denial of. Rule 41(g) motions. 

It is not clear to us from the filings whether- still 

thinks the Perlman doctrine provides jurisdictio~peal 

now that the dispute over the attorney-client p~ moot. 

Apart from Perlman itself, all of the cases - cites 

concern privileges, rather than Fourth Amendment rights. In 

any event, we rest our disposition not on the nature of the rights 

or privileges- asserts, but on the conclusion that the 

Perlman doctrine cannot be stretched to cover appeals from 

denials of Rule 41 (g) motions.- points us to no court 

that has relied upon Perlman's "Delphic" language to permit 

an appeal from the denial of a Rule 41 (g) motion, and we will 

not be the first to do so. 

Typically, Perlman permits a privilege-holder to appeal a 

disclosure order "directed at a disinterested third 

party ... 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.l1 (1992) (citing Perlman); see also United 

States v. Williams Companies, Inc., 562 F.3d 387, 392 (D.C. 

Cir. 2009). 8 Few courts have departed from this formula, as 

8 Every other circuit has invoked a similar formulation. See In 

re Grand Jury, Nos. 12-1697 & 12-2878, 2012 U.S. App. LEXIS 

25318, *20 (3d Cir. Dec. 11, 2012); In re Motor Fuel Temperature 

Sales Practices Litig., 641 F.3d 470,485 (lOth Cir. 2011); Wilson v. 

O'Brien, 621 F.3d 641, 642-43 (7th Cir. 2010); United States v. 

Krane, 625 F.3d 568, 573 (9th Cir. 2010); United States v. Myers, 

593 F.3d 338, 345 (4th Cir. 2010); John B. v. Goetz, 531 F.3d 448, 

458 n.6 (6th Cir. 2008); In re Air Crash at Belle Harbor, 490 F.3d 

99, 106 (2d Cir. 2007); Gill v. Gulfstream Park Racing Ass 'n, 399 
13 

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~s 

~ 

to do in order to find jurisdiction over. 

relies on two cases to press • argument 

that the Perlman doctrine is more flexible than the formula 

suggests. According to., the doctrine permits interlocutory 

appeals whenever the holder of a right put in jeopardy by a 

court's order cannot defy its command and appeal the resulting 

contempt citation. In In re Grand Jury Investigation of Ocean 

Transportation, we considered a motion for return of 

privileged documents that Sea-Land Services, Inc., had 

mistakenly turned over to the grand jury in response to a 

subpoena. 9 604 F.2d 672, 673 (D.C. Cir. 1979) (per curiam). 

We found jurisdiction on "the rationale of Perlman," reasoning 

that Sea-Land "had not for some time enjoyed possession of 

the documents [and] could not have pursued the traditional 

route for contesting t~enying its motion] by standing 

in contempt." I d. - argues that this language 

demonstrates that Perlman applies not only to disclosure 

orders, but also to motions for return of property. In In re 

Berkley & Co., Inc., the Eighth Circuit recognized its 

jurisdiction over an appeal from an order that directed the 

disclosure to the grand jury of certain seized documents over 

which the appellant asserted the attorney-client privilege. 629 

F .2d 548, 549-51 (8th Cir. 1980). The court chose to treat the 

order as "the functional equivalent of an order denying a 

F.3d 391, 397-98 (1st Cir. 2005); In re Grand Jury Subpoena, 190 

F.3d 375, 382-83 (5th Cir. 1999); In re Grand Jury Proceedings, 142 

F.3d 1416, 1420 n.9 (11th Cir. 1998); In re Grand Jury Subpoenas 

Duces Tecum, 85 F.3d 372, 374-75 (8th Cir. 1996). 

9 Although it sought return of property, the motion was not a 

Rule 41 (g) motion. Rule 41 (g) provides only for return of seized 

property, not all property in government custody. 
14 

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motion to quash a grand jury subpoena." Id. at 551. 

Acknowledging that the Perlman doctrine applies to appeals 

from subpoenas, the Eighth Circuit reasoned that the relatively 

unique order fell "within the rationale of the Perlman 

doctrine." Id. - acknowledges that neither Ocean 

Tra~ortation nor In re Berkley involved Rule 41(g) motions, 

but. reasons that, together, these decisions support extending 

the Perlman doctrine to motions for return of seized property. 

We disagree. These two isolated, decades-old decisions 

involved unique circumstances. Both we and the Eighth Circuit 

recognized the novelty of the orders and cautiously relied on 

"the rationale of Perlman." In re Grand Jury Investigation of 

Ocean Transp., 604 F .2d at 673 (emphasis added); see also In 

re Berkley & Co., Inc., 629 F.2d at 551. Most important, 

neither we nor the Eighth Circuit had the benefit of a 

jurisdictional doctrine crafted explicitly for the type of order at 

issue in those cases, as we do with DiBella in the Rule 41 (g) 

context. Thus, earlier decisions to analogize to Perlman in 

cases that did not involve Rule 41 (g) are not instructive to us in 

cases that do. 

We hold that DiBella is the exclusive test for determining 

whether we have jurisdiction over appeals from orders denying 

Rule 41 (g) motions. To use Perlman to find jurisdiction here 

would threaten to swallow DiBella's carefully reasoned 

limitation on Rule 41 (g) appeals. The DiBella test prohibits 

appeals after an indictment has issued. See DiBella, 369 U.S. at 

131. By contrast, even a movant who has been indicted may be 

able to avail himself of the Perlman doctrine. Perlman, 24 7 

U.S. at 9-10. Thus, extending Perlman to appeals from orders 

denying Rule 41 (g) motions would allow appellate courts to 

exercise jurisdiction over those appeals even when the 
15 

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movant's attempts to recover the property are "tied to a 

criminal prosecution in esse" for the purposes of DiBella. 

Given the concerns the Supreme Court expressed about 

"disruption to the conduct of a criminal trial," DiBella, 369 

U.S. at 129, we are hesitant to recognize this end-run around 

the jurisdictional limitations in DiBella. 

The Supreme Court recently cautioned that "the class of 

collaterally appealable orders must remain 'narrow and 

selective in its membership.' This admonition has acquired 

special force in recent years with the enactment of legislation 

designating rulemaking, 'not expansion by court decision,' as 

the preferred means for determining whether and when 

prejudgment orders should be immediately appealable." 

Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 130 S. Ct. 

599, 609 (2009) (quoting Will v. Hallock, 546 U.S. 345, 350 

(2006); Swint v. Chambers Cnty. Comm 'n, 514 U.S. 35, 48 

(1995)) (referring to the Rules Enabling Act and subsequent 

amendments to the Act's codified provisions); see also id. at 

610 (Thomas, J ., concurring). We would be ill-advised to 

expand Perlman's scope because its "Delphic" language is 

capable of capturing a broad swathe of district court orders 

without the indicia of finality. The danger of applying the 

Perlman rationale too readily is that Perlman itself "does not 

wrestle with the broad policy issues [relating to finality] which 

perhaps had to await Cobbledick to be adequately disclosed." 

In re Oberkoetter, 612 F.2d 15, 18 (1st Cir. 1980), overruled 

on other grounds by In re Grand Jury Subpoenas, 123 F.3d 

695, 697 (1st Cir. 1997). Appellants most commonly invoke 

the doctrine in the context of an ongoing grand jury 

investigation. 15B CHARLES ALAN WRIGHT, ET AL., FEDERAL 

PRACTICE & PROCEDURE § 3914.23 at 166-67 (2d ed. 1992). 

By permitting appeals during the pendency of these 
16 

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investigations, an expanded Perlman doctrine would "interfere 

with the administration of the criminal law, postpone trials of 

matters of utmost urgency, and ... overload crowded appellate 

dockets." In re Oberkoetter, 612 F.2d at 18. Heeding the 

admonition in Mohawk, we decline - invitation to 

work this unprecedented extension of Perlman. 

Because we hold that the Perlman doctrine does not apply 

to appeals from orders denying Rule 41 (g) motions, it cannot 

afford this court jurisdiction over this appeal. 

IV 

For the forgoing reasons, the appeal is dismissed for lack 

of appellate jurisdiction. 

So ordered. 
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KAVANAUGH, Circuit Judge, concurring: I join the 

Court's fine opinion but note that our decision does not 

foreclose interlocutory appellate jurisdiction under Perlman 

when (i) the underlying action is not a Rule 41 (g) motion for 

return of property and (ii) the party whose documents were 

seized raises an attorney-client privilege objection. See In re 

Berkley & Co., Inc., 629 F.2d 548, 549-51 (8th Cir. 1980). 

Here, however, the attorney-client privilege issue has become 

moot during the pendency of the appeal. Therefore, the Court 

properly does not address the merits of petitioner's attorneyclient privilege arguments.