EFTA00209806.pdf

Westlaw. Pagel 749 F.3d 999, 24 Fla. L. Weekly Fed. C 1270 (Cite as: 749 F.3d 999) H United States Court of Appeals, Eleventh Circuit. Jane DOE NO. 1, Jane Doe No. 2, Plaintiffs-Appellees, 1. UNITED STATES of America, Defendant. Roy Black, Martin G. Weinberg, Jeffrey Epstein, Intervenors-Appellants. No. 13-12923. April 18, 2014. Background: Alleged minor victims of federal sex crimes brought action against the United States alleging violations of the Crime Victims' Rights Act ( CVRA) re- lated to the United States Attorney Office's execution of non-prosecution agree- ment with alleged perpetrator. After the victims moved for disclosure of corres- pondence concerning the non-prosecution agreement, the alleged perpetrator and his criminal defense attorneys intervened to assert privilege to prevent the disclos- ure of their plea negotiations. The United States District Court for the Southern District of Florida Court, No. 9:08-CV-80736-KAM, ordered disclosure. The inter- venors filed interlocutory appeal. Holdings: The Court of Appeals, Pryor, Circuit Judge, held that: (1) Court of Appeals had jurisdiction over interlocutory appeal; (2) plea negotiations were not protected from disclosure by federal rule of evid- ence barring admission of plea negotiations; (3) intervenors waived work-product privilege; and (4) plea negotiations were not protected from disclosure by any common-law priv- ilege. Affirmed. West Headnotes (1] Federal Courts 170E E..t.. 3581(1) 170B Federal Courts 170BXVII Courts of Appeals 170BXVII(K) Scope and Extent of Review 170BXVII(K)2 Standard of Review 170Bk3576 Procedural Matters 170Bk3581 Jurisdiction 170Bk3581(1) k. In general. Most Cited Cases The court of appeals reviews de novo whether it has jurisdiction to decide an O 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. EFTA00209806 Page 2 749 F.3d 999, 24 Fla. L. Weekly Fed. C 1270 (Cite as: 749 F.3d 999) interlocutory appeal. [2] Federal Courts 170B 13598(1) 170B Federal Courts 170BXVII Courts of Appeals 170BXVII(K) Scope and Extent of Review 170BXVII(K)2 Standard of Review 170Bk3576 Procedural Matters 1702k3598 Evidence 170Bk3598(1) k. In general. Most Cited Cases The court of appeals reviews de novo the interpretation of the Federal Rules of Evidence. [3] Federal Courts 170E C=3599(1) 170B Federal Courts 170BXVII Courts of Appeals 170BXVII(K) Scope and Extent of Review 170BXVII(K)2 Standard of Review 170Bk3576 Procedural Matters 170Bk3599 Witnesses 170Bk3599(1) k. In general. Most Cited Cases The issue of whether to recognize a privilege is a mixed question of law and fact that is reviewed de novo. Fed.Rules Evid.Rule 501, 28 U.S.C.A. [4] Federal Courts 1708 er.3603(2) 170B Federal Courts 170BXVII Courts of Appeals 170BXVII(K) Scope and Extent of Review 170BXVII(K)2 Standard of Review 1708k3576 Procedural Matters 170Bk3603 Findings 170Bk3603(2) k. "Clearly erroneous" standard of re- view in general. Most Cited Cases The court of appeals reviews for clear error factual findings made by a dis- trict court. [5] Federal Courts 1708 C.'7,3305 1708 Federal Courts 170BXVII Courts of Appeals 170BXVII(C) Decisions Reviewable 170BXVII(C)2 Particular Decisions, Matters, or Questions as Review- able 1702k3305 k. Preliminary proceedings; depositions and discov- 0 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. EFTA00209807 Page 3 749 F.3d 999, 24 Fla. L. Weekly Fed. C 1270 (Cite as: 749 F.3d 999) ery. Most Cited Cases Court of Appeals had jurisdiction over interlocutory appeal from District Court's discovery order requiring disclosure of plea negotiations between United States Attorney Office (USAO) and criminal defense attorneys who represented al- leged perpetrator of federal sex crimes against alleged minor victims, in alleged victims' Crime Victims' Rights Act ( CVRA) action against United States, in con- nection with USAO's execution of non-prosecution agreement with alleged perpetrat- or; appeal was filed by alleged perpetrator and defense attorneys, who were inter- venors for limited purpose and could not challenge final judgment in victims' ac- tion against United States, the victims' action was ancillary to criminal invest- igation, and absent an interlocutory appeal, alleged perpetrator and attorneys would be left with no recourse to appeal the disclosure order. 18 U.S.C.A. § 3771 [6] Federal Courts 170E C=3319(2) 170B Federal Courts 170BXVII Courts of Appeals 170BXVII(C) Decisions Reviewable 170BXVII(C)2 Particular Decisions, Matters, or Questions as Review- able 170Bk3317 Judgment 170Bk3319 Finality of Judgment 170Bk3319(2) k. What constitutes final judgment. Most Cited Cases A final decision, for purpose of appellate jurisdiction, is one by which a dis- trict court disassociates itself from the case, and ends the litigation on the merits and leaves nothing more for the court to do but execute the judgment. 28 U.S.C.A. § 1291. [7] Federal Courts 170B 13305 170B Federal Courts 170BXVII Courts of Appeals 170BXVII(C) Decisions Reviewable 170BXVII(C)2 Particular Decisions, Matters, or Questions as Review- able 170Bk3305 k. Preliminary proceedings; depositions and discov- ery. Most Cited Cases Discovery orders are ordinarily not final orders that are immediately appeal- able. [8] Federal Courts 1708 ft.r3305 170B Federal Courts 170BXVII Courts of Appeals 0 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. EFTA00209808 Page 4 749 F.3d 999, 24 Fla. L. Weekly Fed. C 1270 (Cite as: 749 F.3d 999) 17OBXVII(C) Decisions Reviewable 17O8XVII(C)2 Particular Decisions, Matters, or Questions as Review- able 17OBk33O5 k. Preliminary proceedings; depositions and discov- ery. Most Cited Cases The Perlman doctrine allows an intervenor to file an interlocutory appeal of an order denying a motion to quash a grand jury subpoena. (9) Federal Courts 17O8 6=3305 170B Federal Courts 1708XVII Courts of Appeals 17OBXVII(C) Decisions Reviewable 17O8XVII(C)2 Particular Decisions, Matters, or Questions as Review- able 17OBk33O5 k. Preliminary proceedings; depositions and discov- ery. Most Cited Cases Under Perlman, a discovery order directed at a disinterested third party is treated as an immediately appealable final order because the third party presum- ably lacks a sufficient stake in the proceeding to risk contempt by refusing com- pliance. [10] Federal Courts 1708 C.7O3278 170B Federal Courts 17O8XVII Courts of Appeals 17OBXVII(C) Decisions Reviewable 17O8XVII(C)1 In General 17O8k3277 Interlocutory and Collateral Orders 17OBk3278 k. In general. Most Cited Cases The "collateral order doctrine" provides an exception to the general bar of in- terlocutory appeals if an order (1) conclusively determines the disputed question; (2) resolves an important issue completely separate from the merits of the action; and (3) is effectively unreviewable on appeal from a final judgment. [11] Criminal Law 110 ezr122O 110 Criminal Law 11OXXVI Incidents of Conviction 11Ok122O k. Civil liabilities to persons injured; reparation. Most Cited Cases Correspondence documenting plea negotiations between the United States Attorney Office (USAO) and criminal defense attorneys for alleged perpetrator of federal sex crimes against minor victims were not protected from disclosure, in alleged victims' Crime Victims' Rights Act ( CVRA) action challenging the USAO's execution of non-prosecution agreement with alleged perpetrator, by federal rule of evidence OD 2O14 Thomson Reuters. No Claim to Orig. US Gov. Works. EFTA00209809 Page 5 749 F.3d 999, 24 Fla. L. Weekly Fed. C 1270 (Cite as: 749 F.3d 999) barring admission of plea negotiations; the alleged victims intended to admit the evidence of the plea negotiations to prove violations of the CVRA by the United States, not to be used against the alleged perpetrator. Fed.Rules Evid.Rule 410, 28 U.S.C.A. [12] Federal Civil Procedure 170A f=1604(2) 170A Federal Civil Procedure 170AX Depositions and Discovery 170AX(E) Discovery and Production of Documents and Other Tangible Things 170AX(E)3 Particular Subject Matters 170Ak1604 Work Product Privilege; Trial Preparation Materials 170Ak1604(2) k. Waiver. Most Cited Cases Alleged perpetrator of federal sex crimes against minor children and his crim- inal defense attorneys waived any work-product privilege in correspondence docu- menting plea negotiations with the United States Attorney Office (USAO), in al- leged victims' Crime Victims' Rights Act ( CVRA) action challenging the USAO's ex- ecution of non-prosecution agreement with alleged perpetrator, where the attorneys voluntarily sent the correspondence to the United States during plea negotiations. 18 U.S.C.A. § 3771. [13] Federal Civil Procedure 170A f=1604(2) 170A Federal Civil Procedure 170AX Depositions and Discovery 170AX(E) Discovery and Production of Documents and Other Tangible Things 170AX(E)3 Particular Subject Matters 170Ak1604 Work Product Privilege; Trial Preparation Materials 170Ak1604(2) k. Waiver. Most Cited Cases Disclosure of work-product materials to an adversary waives the work-product privilege. (14] Privileged Communications and Confidentiality 311H er.. 377 311H Privileged Communications and Confidentiality 311HVI Public Officers and Records 31111k377 k. Criminal records. Most Cited Cases Correspondence documenting plea negotiations between the United States Attorney Office (USAO) and criminal defense attorneys for alleged perpetrator of federal sex crimes against minor victims were not protected from disclosure by any common- law privilege, in alleged victims' Crime Victims' Rights Act ( CVRA) action chal- lenging the USAO's execution of non-prosecution agreement with alleged perpetrat- or. 18 U.S.C.A. § 3771; Fed.Rules Evid.Rule 501, 28 U.S.C.A. (15] Privileged Communications and Confidentiality 311H C=.1. 311H Privileged Communications and Confidentiality 0 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. EFTA00209810 Page 6 749 F.3d 999, 24 Fla. L. Weekly Fed. C 1270 (Cite as: 749 F.3d 999) 311HI In General 311Hk1 k. In general. Most Cited Cases There is a presumption against common-law privileges which may only be overcome when it would achieve a public good transcending the normally predominant prin- ciple of utilizing all rational means for ascertaining truth. Fed.Rules Evid.Rule 501, 28 U.S.C.A. Paul Cassell, University of Utah College of Law, Salt Lake Cty, UT, Bradley James Edwards, Farmer Jaffe Weissing Edwards Fistos & Lehman, PL, Fort Lauderdale, FL, Jay C. Howell, J. Howell & Associates, Jacksonville, FL, for Plaintiffs-Appellees. Martin G. Weinberg, Martin G. Weinberg, PC, Boston, MA, Roy Black, Jacqueline L. Perczek, Black Srebnick Kornspan & Stumpf, PA, Miami, FL, Jay P. Lefkowitz, Kirk- land & Ellis, LLP, New York, NY, for Intervenors-Appellants. Appeals from the United States District Court for the Southern District of Flor- ida. D.C. Docket No. 9:08-cv-80736-KAM. Before PRYOR and MARTIN, Circuit Judges, and HONEYWELL,FN* District Judge. FN* Honorable Charlene Edwards Honeywell, United States District Judge for the Middle District of Florida, sitting by designation. PRYOR, Circuit Judge: This appeal requires us to decide two issues: whether we have jurisdiction over an interlocutory appeal by criminal defense attorneys and their client who intervened in a proceeding ancillary to a criminal investigation to claim a priv- ilege that would prevent the disclosure of their plea negotiations; and, if so, whether a privilege bars crime victims from discovering plea negotiations. The United States investigated Jeffrey Epstein's sexual abuse of minors, but failed to confer with the victims before entering a non-prosecution agreement with Epstein. Two victims filed suit against the United States to enforce their rights under the Crime Victims' Rights Act, 18 U.S.C. § 3771, and sought to discover the corres- pondence between Epstein's attorneys and the United States regarding the non- prosecution agreement. Epstein and his attorneys then intervened to object to that discovery as privileged. The district court overruled their objection and ordered the United States to disclose the correspondence to the victims. After the intervenors filed this appeal, the victims moved to dismiss it for lack of jurisdiction. Because we conclude that we have jurisdiction to decide this ap- peal and that the plea negotiations are not privileged from discovery, we affirm. O 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. EFTA00209811 Page 7 749 F.3d 999, 24 Fla. L. Weekly Fed. C 1270 (Cite as: 749 F.3d 999) I. BACKGROUND In 2006, the Federal Bureau of Investigation began investigating allegations that Jeffrey Epstein had sexually abused several minor girls. The United States Attorney's Office for the Southern District of Florida accepted Epstein's case for prosecution, and the Federal Bureau of Investigation issued victim notification letters to two minors, Jane Doe No. 1 and Jane Doe No. 2, in June and August 2007. Extensive plea negotiations ensued between the United States and Epstein. On September 24, 2007, the United States entered into a non-prosecution agreement with Epstein in which the United States agreed not to file any federal charges against Epstein in exchange for his offer to plead guilty to the Florida offenses of solicitation of prostitution and procurement of minors to engage in prostitu- tion. Fla. Stat. §,§ 796.07, 796.03. Not only did the United States neglect to confer with the victims before it entered into the agreement with Epstein, it also failed to notify them of its ex- istence for at least nine months. The United States sent post-agreement letters to the victims reporting that the "case is currently under investigation" and ex- plaining that "[t]his can be a lengthy process and we request your continued pa- tience while we conduct a thorough investigation." And in June 2008, the United States asked the victims to explain why federal charges should be brought against Epstein without mentioning the agreement to them. On June 27, 2008, the United States informed the victims that Epstein planned to plead guilty to the Florida charges three days later, on June 30, 2008. But the United States failed to disclose that Epstein's pleas to those state charges arose from his federal non-prosecution agreement and that the pleas would bar a federal prosecution. The victims did not attend the state court proceedings. On July 7, 2008, Jane Doe No. 1 filed a petition alleging that she was a victim of federal crimes committed by Esptein involving sex trafficking of children by fraud and enticing a minor to commit prostitution and that the United States had wrongfully excluded her from plea negotiations and violated the Crime Victims' Rights Act. 18 U.S.C. § 3771. She alleged that the United States violated her right to confer with federal prosecutors, her right to be treated with fairness, her right to receive timely notice of relevant court proceedings, and her right to receive information about restitution. The United States answered that it used its "best efforts" to comply with the rights afforded to victims under the Act, but that the Act did not apply to pre-indictment negotiations with potential fed- eral defendants. After Jane Doe No. 2 joined the initial petition, the district court found that both women qualified as "crime victims" under the Act. 18 U.S.C. 3771(e). Among other relief, the victims sought rescission of the non- prosecution agreement. The victims' petition remained dormant for years while they pursued a federal civil suit against Epstein and reached a settlement agreement with him. As a basis for relief against Epstein in the civil suit, the victims relied on Ep- O 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. EFTA00209812 Page 8 749 F.3d 999, 24 Fla. L. Weekly Fed. C 1270 (Cite as: 749 F.3d 999) stein's waiver of his right to contest liability in the non-prosecution agreement. Over Epstein's objection, the district court in that civil suit ordered the United States to produce the documents given to Epstein's attorneys during his plea nego- tiations. The victims received correspondence written by the United States, but they never received any correspondence written by Epstein's attorneys during the plea negotiations with the United States. In 2011, the victims renewed the prosecution of their petition against the United States. The victims moved to use correspondence between the United States and Esptein's attorneys during the plea negotiations to prove violations of their rights under the Act. And the victims later moved the district court to compel the United States to produce all requested discovery about the plea negotiations. Epstein and his criminal defense attorneys, Roy Black and Martin Weinberg, moved to intervene for the limited purpose of challenging the disclosure and use of the correspondence they wrote during plea negotiations. After the district court granted their permissive intervention, Fed.R.Civ.P. 24(b), the intervenors moved for protective orders. The intervenors argued that the work-product priv- ilege protects their correspondence; that Federal Rule of Evidence 410 and Feder- al Rule of Criminal Procedure 11 create a privilege for plea negotiations; and that their correspondence contained confidential grand jury material. They also urged the district court to recognize a common-law privilege for plea negoti- ations. The United States responded that the court should consider the corres- pondence privileged, but that it would disclose the correspondence if the court ordered it to do so. Epstein later filed two other motions to intervene in a limited capacity—one to challenge the disclosure of grand jury materials and another to challenge any rem- edy that would violate constitutional and contractual rights under the non- prosecution agreement. The attorney-intervenors did not join either of these mo- tions. The district court has not yet ruled on Epstein's motion to intervene to prevent disclosure of grand jury materials, but the district court has "allowed [him] to intervene with regard to any remedy issue concerning the non-prosecution agreement." The district court then issued two discovery orders, both of which the inter- venors challenge in this appeal. In the first, the district court denied the in- tervenors' motions for protective orders and granted the victims the right to proffer the correspondence between the United States and Epstein's attorneys, but the district court reserved "ruling on the relevance or admissibility" of any of the correspondence to prove violations of the Act. In the second, the district court required the United States to file answers to all outstanding requests for admissions and to produce documents in response to the requests for production by the victims, including "any documentary material exchanged by or between the fed- eral government and persons or entities outside the federal government (including without limitation all correspondence generated by or between the federal govern- O 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. EFTA00209813 Page 9 749 F.3d 999, 24 Fla. L. Weekly Fed. C 1270 (Cite as: 749 F.3d 999) ment and Epstein's attorneys)." After the intervenors filed this interlocutory appeal, the victims moved to dismiss the appeal for lack of jurisdiction. This Court later entered a stay of the second order, which required the United States to disclose the correspondence to the victims. II. STANDARDS OF REVIEW (1](21(3](4] Two standards of review govern the issues in this appeal. We re- view de novo whether we have jurisdiction to decide this interlocutory appeal be- fore addressing the merits. United States I. Cartwright, 413 F.3d 1295, 1299 (11th Cir.2005). We also review de novo the interpretation of the Federal Rules of Evidence. See United States I. Campa, 459 F.3d 1121, 1174 (11th Cir.2006); Pickett I. Iowa Beef Processors, 209 F.3d 1276, 1279 (11th Cir.2000). And the issue of whether to recognize a privilege under Federal Rule of Evidence 501 is a mixed question of law and fact that we review de novo. Adkins I. Christie, 488 F.3d 1324, 1327 (11th Cir.2007). But we review for clear error factual findings made by a district court. Morrissette-Brown I. Mobile Infirmary Med. Ctr., 506 F.3d 1317, 1319 (11th Cir.2007). III. DISCUSSION We divide our discussion in two parts. First, we explain that we have juris- diction over this interlocutory appeal by limited intervenors who, as claimants of a privilege, challenge a disclosure order directed at the United States, a disin- terested party. Second, we explain that the plea negotiations are not privileged from disclosure. A. We Have Jurisdiction To Decide This Interlocutory Appeal. (5] The victims argue that we should dismiss this appeal for lack of jurisdic- tion for two reasons. First, they argue that the Perlman doctrine, which per- mits a claimant of a privilege to appeal a non-final judgment, applies only to grand jury subpoenas. Perlman I. United States, 247 U.S. 7, 38 S.Ct. 417, 62 L.Ed. 950 (1918). Second, they argue that a decision of the Supreme Court, Mo- hawk Industries, Inc. I. Carpenter, 558 U.S. 100, 130 S.Ct. 599, 175 L.Ed.2d 458 (2009), forecloses an interlocutory appeal of a denial of a claim of privilege. (6](71 The courts of appeals "have jurisdiction of appeals from all final de- cisions of the district courts of the United States, ... except where a direct re- view may be had in the Supreme Court." 28 U.S.C. § 1291. A "final decision" is one "by which a district court disassociates itself from the case," Mohawk, 558 U.S. at 106, 130 S.Ct. at 604-05 (alteration omitted) (quoting Swint I. Chambers Cnty. Comm'n, 514 U.S. 35, 42, 115 S.Ct. 1203, 1208, 131 L.Ed.2d 60 (1995)), and "ends the litigation on the merits and leaves nothing more for the court to do but execute the judgment," Carpenter I. Mohawk Indus., Inc., 541 F.3d 1048, 1052 (11th Cir.2008) (quoting McMahon I. Presidential Airways, Inc., 502 F.3d 1331, 1338 (11th Cir.2007)), aff'd, 558 U.S. 100, 130 S.Ct. 599, 175 L.Ed.2d 458 (2009). Discovery orders are ordinarily not final orders that are immediately appealable. Id. Five notable exceptions to this rule exist: the Perlman doctrine; the col- 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. EFTA00209814 Page 10 749 F.3d 999, 24 Fla. L. Weekly Fed. C 1270 (Cite as: 749 F.3d 999) lateral-order doctrine, Cohen I. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949); a certification provided by statute, 28 U.S.C. 1292(b); a petition for a writ of mandamus; or an appeal of a contempt cita- tion. [8][91 The Perlman doctrine allows an intervenor to file an interlocutory ap- peal of an order denying a motion to quash a grand jury subpoena. See, e.g., In re Grand Jury Proceedings, 832 F.2d 554, 556-58 (11th Cir.1987). "This exception, derived from Perlman I. United States,... permits an order denying a motion to quash to be `considered final as to the injured third party who is otherwise powerless to prevent the revelation.' " Id. at 558 (quoting In re Grand Jury Proceedings (Fine), 641 F.2d 199, 202 (5th Cir. Unit A 1981)). Under Perlman,"a discovery order directed at a disinterested third party is treated as an immedi- ately appealable final order because the third party presumably lacks a sufficient stake in the proceeding to risk contempt by refusing compliance." Church of Sci- entology of Cal. I. United States, 506 U.S. 9, 18 n.11, 113 S.Ct. 447, 452 n. 11, 121 L.Ed.2d 313 (1992); see also In re Air Crash at Belle Harbor, N.Y. on Nov. 12, 2001, 490 F.3d 99, 106 (2d Cir.2007) ("[T]he Perlman exception is relevant only to appeals brought by the holder of a privilege where the disputed subpoena is directed at someone else."). We have exercised jurisdiction under the Perl- man doctrine when the party ordered to disclose the information "has no direct and personal interest in the suppression of the information" and would be reluctant to risk a contempt citation, such that "the order is definitely final as to the [claimant of the privilege)." Fine, 641 F.2d at 201-02. We have not invoked the Perlman doctrine to exercise jurisdiction over an interlocutory appeal out- side the context of a grand jury proceeding. See, e.g., In re Fed. Grand Jury Proceedings (Cohen), 975 F.2d 1488, 1491-92 (11th Cir.1992); In re Grand Jury Proceedings, 832 F.2d at 558; Fine, 641 F.2d at 201-02. Rut we have exercised jurisdiction over interlocutory appeals by claimants of a privilege in some civil proceedings. See Castle I. Sangamo Weston, Inc., 744 F.2d 1464, 1465-66 (11th Cir.1984) (exercising jurisdiction because the appellant "claims a privilege of non-disclosure relating to materials that another party has been directed to pro- duce"); Int'l Horizons, Inc. I. Comm. of Unsecured Creditors (In re Int'l Hori- zons, Inc.), 689 F.2d 996, 1001-02 (11th Cir.1982) (holding that an order compel- ling production of allegedly privileged material is immediately appealable because "the privilege-holder has no power to compel the custodian of the material to risk a contempt citation for his refusal to comply" (internal quotation marks omit- ted)); Overby I. U.S. Fid. & Guar. Co., 224 F.2d 158, 162 & n. 5 (5th Cir.1955) (exercising interlocutory jurisdiction and citing Perlman in a civil action to recover damages for breach of a bond against a surety company where "denial of the privilege could (not] be reviewed on appeal either from the final judgment or from a contempt order"). The victims argue that we should not extend Perlman beyond an intervenor's ap- peal of a grand jury subpoena, but we decline to draw an arbitrary line. The OD 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. EFTA00209815 Page 11 749 F.3d 999, 24 Fla. L. Weekly Fed. C 1270 (Cite as: 749 F.3d 999) victims' argument has an ipse dixit quality—that is, because our Court has never before applied the Perlman doctrine outside of the grand jury context, we should not do so now. Rut we must ask instead whether applying the doctrine here makes sense. The logic of the Perlman doctrine applies with equal force in this appeal. Like a claimant objecting to a grand jury subpoena cannot challenge an indictment to remedy the disclosure of his privileged information, the intervenors cannot challenge a final judgment in this proceeding to remedy the disclosure of their plea negotiations. And the victims' petition, like a grand jury proceeding, is ancillary to a criminal investigation. The rights and remedies provided by the Act arise in a criminal prosecution and affect how the United States prosecutes that action. Seel8 U.S.C. § 3771(a), (d). The victims argue that Epstein has made himself an ordinary litigant through his intervention, but we disagree. The district court has allowed Epstein's at- torneys to intervene only to contest the disclosure of their correspondence, and the district court has granted Epstein limited intervention to challenge only the disclosure of his attorneys' correspondence and any remedy that involves the non- prosecution agreement. Epstein's only opportunity to challenge the disclosure order is now because there will not be an adverse judgment against him or his at- torneys. The district court instead will enter any judgment against either the victims or the United States. And, even if the victims succeed in their petition to rescind the non-prosecution agreement, Epstein can challenge only that remedy, not the judgment respondence from Act, which is an violation. And remedy that does were to conclude Epstein of that remedy. against the United States. Epstein's attorneys to prove issue separate from the kind it is all the more likely that the district court would fashion a not involve the non-prosecution agreement, if the district court that rescission is unavailable, which might then bar an appeal by The victims intend to use the cor- that the United States violated the of relief necessary to remedy that The intervenors claim a privilege, and only claimants of a privilege may appeal under the Perlman doctrine. In re Grand Jury Proceedings, 832 F.2d at 558-59. Contrary to the victims' argument, jurisdiction under the Perlman doctrine does not rise or fall with the merits of an appellant's underlying claim for relief. See, e.g., id. at 558-60 (permitting an interlocutory appeal based on Perlman, but holding that "we find that the privilege asserted by appellants is without a basis in Florida law" and that appellants ^have no privilege of nondisclosure un- der state law"); Ross I. City of Memphis, 423 F.3d 596, 599 (6th Cir.2005) ("( Perlman] jurisdiction does not depend on the validity of the appellant's underly- ing claims for relief."); at 420 (reviewing Perlman's tion of the Fifth Amendment see also, e.g., Perlman, 247 U.S. at 13-15, 38 S.Ct. claim on interlocutory appeal, but finding no viola- in later use by the United States of exhibits made public in previous litigation). The intervenors claim a privilege based on Rule 410, the work-product privilege, and the Sixth Amendment right to effective as- OD 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. EFTA00209816 Page 12 749 F.3d 999, 24 Fla. L. Weekly Fed. C 1270 (Cite as: 749 F.3d 999) sistance of counsel as well as a new common-law privilege for plea negotiations. These claims of privilege, however tenuous, are sufficient to establish jurisdic- tion under Perlman. Absent an interlocutory appeal, the intervenors would be left with no recourse to appeal the disclosure order. The intervenors cannot defy the disclosure order and risk a contempt citation because the order is directed at the United States, which has expressed an intent to comply with the order. The United States is a disinterested party because it does not purport to hold the privilege claimed by the intervenors. Even if the United States resolving the criminal investigation quickly interest of the United States in asserting a sipated when Epstein disclosed the correspondence written by the United States to the victims in the civil suit. earlier shared the common goal of and without a federal indictment, any privilege for plea negotiations dis- The intervenors are also likely unable to pursue their claims through the re- maining ^established mechanisms for [immediate] appellate review." See Mohawk, 558 U.S. at 112, 130 S.Ct. at 608. Because a crime victim's petition under the Act arises in a criminal action, the text of section 1292(b), which applies to a ^civil action," renders a certification of this appeal unavailable. See also In re Grand Jury Proceedings, 832 F.2d at 557 (holding that grand jury proceedings are not civil actions for purposes of section 1292(b)). And if the intervenors were to seek a writ of mandamus, it is unlikely that the disclosure order would amount to a ^judicial usurpation of power or a clear abuse of discretion" or ^otherwise work( ] a manifest injustice." Mohawk, 558 U.S. at 111, 130 S.Ct. at 607 (internal quotation marks omitted). [10] The victims argue that, even if the logic of the Perlman doctrine applies here, the decision of the Supreme Court in Mohawk forecloses this interlocutory appeal, but they misconstrue both the decision in Mohawk and the Perlman doc- trine. Mohawk considered whether the Court had jurisdiction under the collater- al-order doctrine, which provides an exception to the general bar of interlocutory appeals if an order "(1) conclusively determines the disputed question; (2) re- solves an important issue completely separate from the merits of the action; and (3) is effectively unreviewable on appeal from a final judgment." Id. at 105, 130 S.Ct. at 604. In Mohawk, the Supreme Court foreclosed an interlocutory ap- peal of an order requiring the disclosure of materials protected by the attorney- client privilege because the claimant was a party who could appeal a final judg- ment. Id. at 114, 130 S.Ct. at 609. The Supreme Court explained that an ap- peal from a final judgment suffices "to protect the rights of litigants and ensure the vitality of the attorney-client privilege" because ^[a]ppellate courts can remedy the improper disclosure of privileged material in the same way they remedy a host of other erroneous evidentiary rulings: by vacating an adverse judgment and remanding for a new trial in which the protected material and its fruits are excluded from evidence." Id. at 109, 130 S.Ct. at 606-07. The Court found un- persuasive that these disclosures may ^have implications beyond the case at hand" OD 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. EFTA00209817 Page 13 749 F.3d 999, 24 Fla. L. Weekly Fed. C 1270 (Cite as: 749 F.3d 999) and ruled that, although imperfect, postjudgment review is sufficient. Id. at 108-12, 130 S.Ct. at 606-09. The Court also explained that three traditional routes of immediate review could still afford the claimant of the privilege ad- equate relief in a civil action: the claimant could ask the district court to certify the appeal of "a controlling question of law," the resolution of which "may materially advance the ultimate termination of the litigation"; the claimant could petition the court of appeals for a writ of mandamus; or the claimant could defy a disclosure order and appeal a sanction for contempt. Id. at 110-11, 130 S.Ct. at 607-08 (internal quotation marks omitted). The Supreme Court in Mohawk never cited Perlman nor discussed appeals by claimants of a privilege who are limited intervenors in a proceeding ancillary to a criminal investigation and seek to prevent the disclosure of information held by a disinterested party. See In re Grand Jury, 705 F.3d 133, 146 (3d Cir.2012) ("[T]he Mohawk Court ... did not discuss, mention, or even cite Perlman...."). Understandably so—claimants of a privilege under the Perlman doctrine remain "powerless to avert the mischief of [a discovery] order," Perlman, 247 U.S. at 12-13, 38 S.Ct. at 419, because the ma- terials in question are held by a disinterested party who is likely "to forgo suf- fering a contempt citation and appealing in favor of disclosure," United States I. Krane, 625 F.3d 568, 573 (9th Cir.2010). As the Seventh Circuit explained about the scope of the Perlman doctrine after Mohawk,"[o]nly when the person who as- serts a privilege is a nonlitigant will an appeal from a final decision be inad- equate." Wilson I. O'Brien, 621 F.3d 641, 643 (7th Cir.2010); see also In re Grand Jury, 705 F.3d at 145-46 & n.11 (rejecting that Mohawk narrowed Perlman"at least in the grand jury context"); Holt-Orsted I. City of Dickson, 641 F.3d 230, 239 (6th Cir.2011) (recognizing that Perlman jurisdiction remains when a nonparty asserts a privilege); Krane, 625 F.3d at 572 (ruling that " Perlman and Mohawk are not in tension" when the claimant of a privilege is not a party). But see United States I. Copar Pumice Co., Inc., 714 F.3d 1197, 1207-09 (10th Cir.2013) (holding that jurisdiction under the Perlman doctrine is limited to only the grand jury context, but declining jurisdiction because the privilege holder was also a party to the litigation). And, as we explained above, the intervenors cannot appeal a final judgment against the United States, which leaves them without an avenue to appeal the denial of their claims of privilege. B. The Intervenors' Correspondence Is Not Privileged. [11] The intervenors argue that the district court erred when it ordered the disclosure of the plea negotiations because three privileges protect the corres- pondence: a privilege under Federal Rule of Evidence 410, the work-product priv- ilege of attorneys, and a common-law privilege for plea negotiations in criminal proceedings. We disagree. No privilege prevents the disclosure of the plea ne- gotiations. 1. Federal Rule of Evidence 410 Provides No Privilege for Plea Negotiations. Federal Rule of Evidence 410 does not protect against the discoverability of plea negotiations and, even if it did, Epstein clearly falls outside its protec- O 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. EFTA00209818 Page 14 749 F.3d 999, 24 Fla. L. Weekly Fed. C 1270 (Cite as: 749 F.3d 999) tion because he entered a guilty plea and the victims intend to use the corres- pondence against the United States, not against Epstein. Rule 410^create(s), in effect, a privilege of the defendant," United States I. Mezzanatto, 513 U.S. 196, 205, 115 S.Ct. 797, 803, 130 L.Ed.2d 697 (1995) (internal quotation marks and al- teration omitted), but not a privilege of non-disclosure as the intervenors as- sert. The text of Rule 410 unambiguously states that the evidence "is not ad- missible against the defendant who made the plea or participated in the plea dis- cussions" if the ^guilty plea ... was later withdrawn" or ^did not result in a guilty plea." Fed.R.Evid. 410(a). Rule 410 governs the admissibility of plea negotiations, not the discoverability of them. Moreover, Epstein cannot invoke Rule 410 because he pleaded guilty to state charges based on the same conduct and has not withdrawn those pleas. See, e.g., United States I. Holmes, 794 F.2d 345, 349 (8th Cir.1986) (admitting guilty plea from state court in federal pro- ceeding). The victims intend to admit the correspondence to prove violations of the Act allegedly committed by the United States, not ^against" Epstein. And even if rescission of the non-prosecution agreement abuts Epstein's interests, the purpose of the admission does not change. Rule 410 does not bar disclosure of the correspondence written by the attorney-intervenors. 2. The Intervenors Waived Any Work-Product Privilege. [12)(13) The intervenors next contend that the correspondence falls under the work-product privilege, but the finding of waived any privilege when they voluntarily States during the plea negotiations is not work-product materials to an adversary waives the work-product privilege. See, e.g., In re Chrysler Motors Corp. Overnight Evaluation Program Litig., 860 F.2d 844, 846 (8th Cir.1988); In re Doe, 662 F.2d 1073, 1081-82 (4th Cir.1981). Even if it shared the common goal of reaching a quick settlement, the United States was undoubtedly adverse to Epstein during its investigation of him for fed- eral offenses, and the intervenors' disclosure of their work product waived any claim of privilege. the district court that the intervenors sent the correspondence to the United clearly erroneous. Disclosure of As a last-ditch effort, the intervenors addition to the plain language of Rule 410 pondence to plaintiffs, it can be found in product privilege, and the Sixth Amendment counsel in the plea bargaining process," but this novel argument fails too. As explained above, Rule 410 does not create a privilege and the intervenors waived any work-product privilege. The intervenors concede too that the right to coun- sel under the Sixth Amendment had not yet attached when the correspondence was ex- changed. See Lumley I. City of Dade City, Fla., 327 F.3d 1186, 1195 (11th Cir.2003) (^[Ilhe Sixth Amendment right to counsel ordinarily does not arise until there is a formal commitment by the government to prosecute," such as a ^formal charge, preliminary hearing, indictment, information, or arraignment."). The ^conjunctive" power of three false claims of privilege does not rescue the corres- contend that ^(i)f more is needed in to preclude disclosure of the corres- the conjunction of Rule 410, the work- right to the effective assistance of O 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. EFTA00209819 Page 15 749 F.3d 999, 24 Fla. L. Weekly Fed. C 1270 (Cite as: 749 F.3d 999) pondence from disclosure. 3. We Decline To Recognize a Common-Law Privilege for Plea Negotiations. (14](15] The intervenors also invite us to recognize a common-law privilege for plea negotiations, Fed.R.Evid. 501, but we decline to do so. The intervenors have not established a ^compelling justification" to prevent the discovery of plea negotiations in criminal proceedings. In re Int'l Horizons, 689 F.2d at 1004. Although Congress empowered the federal courts through Rule 501 to ^continue the evolutionary development of testimonial privileges," Trammel 1. United States, 445 U.S. 40, 47, 100 S.Ct. 906, 910, 63 L.Ed.2d 186 (1980), we disfavor newly minted privileges, which ^contravene the fundamental principle that the public has a right to every man's evidence," Adkins I. Christie, 488 F.3d 1324, 1328 (11th Cir.2007) (quoting Univ. of Pa. I. EEOC, 493 U.S. 182, 189, 110 S.Ct. 577, 582, 107 L.Ed.2d 571 (1990)). ^Accordingly, there is a presumption against privileges which may only be overcome when it would achieve a `public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.' " Id. (quoting Trammel, 445 U.S. at 50, 100 S.Ct. at 912). The Supreme Court has identified several considerations relevant to whether a court should recognize an evidentiary privilege—the needs of the public, whether the privilege is rooted in the imperative for confidence and trust, the eviden- tiary benefit of the denial of the privilege, and any consensus among the states, Jaffee I. Redmond, 518 U.S. 1, 10-15, 116 S.Ct. 1923, 1928-31, 135 L.Ed.2d 337 (1996)-but none of these considerations weighs in favor of recognizing a new priv- ilege to prevent discovery of the plea negotiations. Although plea negotiations are vital to the functioning of the criminal justice system, a prosecutor and tar- get of a criminal investigation do not enjoy a relationship of confidence and trust when they negotiate. Their adversarial relationship, unlike the confiden- tial relationship of a doctor and patient or attorney and client, warrants no privilege beyond the terms of Rule 410. See Jaffee, 518 U.S. at 10, 116 S.Ct. at 1928. But the victims would enjoy an evidentiary benefit from the disclosure of plea negotiations to prove whether the United States violated their rights un- der the Act. As for any consensus among the states, the majority of the state statutes the intervenors cite adopted Rule 410 verbatim. Compare, e.g., Fla. Stat. § 90.410 (^Evidence of a plea of guilty, later withdrawn; a plea of nolo contendere; or an offer to plead guilty or nolo contendere to the crime charged or any other crime is inadmissible in any civil or criminal proceeding."), with Fed.R.Evid. 410. Even if we were to accept the intervenors' argument that plea negotiations are de facto confidential in criminal practice, that custom alone would not protect them from discovery because Rule 410 militates against the establishment of a new privilege. The Supreme Court has cautioned federal courts to be ^especially re- luctant to recognize a privilege in an area where it appears that Congress has considered the relevant competing concerns but has not provided the privilege it- self." Univ. of Pa., 493 U.S. at 189, 110 S.Ct. at 582. Congress weighed the O 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. EFTA00209820 Page 16 749 F.3d 999, 24 Fla. L. Weekly Fed. C 1270 (Cite as: 749 F.3d 999) evidentiary concerns related to criminal plea negotiations when it enacted Rule 410, which enables a defendant to negotiate without fear that the prosecutor will use his statements against him. Rule 410 contemplates that plea negotiations should ordinarily be inadmissible against a defendant, but not always. The rule does not bar the admission of plea negotiations, for example, when the defendant pleads guilty, in a proceeding for perjury, or when the defendant introduces the statements so long as they are not self-serving hearsay. If we were to recognize a privilege for plea negotiations, we would upset the balance that Congress struck when it adopted Rule 410. See In re MSTG, Inc., 675 F.3d 1337, 1344 (Fed.Cir.2012) (rejecting a privilege for settlement negotiations because Con- gress, by enacting Rule 408, "did not take the additional step of protecting set- tlement negotiations from discovery."). We will not go further than Congress stated was necessary to promote the public good in criminal plea negotiations. IV. CONCLUSION We AFFIRM the disclosure order and LIFT the stay of the order compelling the United States to disclose the correspondence. C.A.11 (Fla.),2014. Doe No. 1 U.S. I. 749 F.3d 999, 24 Fla. L. Weekly Fed. C 1270 END OF DOCUMENT O 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. EFTA00209821