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Posted: April 16, 2014

Order Allowing Defendant’s Proffer To Be Disclosed To His Co-Defendants Not Appealable

On April 14, 2014, the Second Circuit issued a decision in United States v. Doe, Docket No. 14-572, dismissing an appeal from “an oral order of the” EDNY “granting the government’s motion for a protective order that would allow proffer statements made by” defendant Doe “to be disclosed to his codefendants” because the order was not appealable.

The Second Circuit determined that the EDNY’s discovery order was not appealable under the collateral order doctrine, notwithstanding the circumstances of the disclosure ordered, explaining:

Typically, this Court lacks jurisdiction to entertain an appeal until the district court renders a final judgment. Doe, however, argues his appeal properly brought pursuant to the collateral order doctrine, or as a petition for a writ of mandamus. The collateral order doctrine permits an appeal of a small class of collateral rulings that, although they do not end the litigation, are appropriately deemed final. Only decisions that are conclusive, that resolve important questions separate from the merits, and that are effectively unreviewable on appeal from the final judgment the underlying action fall within this exception to the rule of finality. In making this determination, we do not engage in an individualized jurisdictional inquiry. Rather, our focus is on the entire category to which a claim belongs. The policy embodied in 28 U.S.C. § 1291 is at its strongest in the field of criminal law. As Doe’s counsel concedes, disclosure of these proffer statements is a routine practice; we therefore cannot conclude that the entire category, of orders sanctioning the disclosure of proffer statements raises issues of such importance as to justify an exception to the final judgment rule. We conclude that we lack jurisdiction to hear Doe’s appeal.

(Internal quotations and citations omitted) (emphasis added). The court went on, however, to note that its

disposition does not endorse the district court’s decision, nor limit the ability of the court to reconsider its order, including giving further consideration to the advisability of more restrictive conditions on the government’s proposed disclosures

and to discuss alternatives to the proposed disclosure.

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