Natural-Immunogenics Corp., a Florida corporation v. Scott J. Ferrell, a California resident; DAVID REID

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NATURAL-IMMUNOGENICS CORP., a
Florida corporation,
Plaintiff-Appellee,
v.
SCOTT J. FERRELL, a California resident;
DAVID REID,
Defendants-Appellants.
No. 17-55661
D.C. No.
8:15-cv-02034-JVS-JCG
MEMORANDUM*
NATURAL-IMMUNOGENICS CORP., a
Florida corporation,
Plaintiff-Appellee,
v.
NEWPORT TRIAL GROUP, a California
corporation,
Defendant,
v.
JOSHUA A. WEISS,
Movant-Appellant.
No. 17-55699
D.C. No.
8:15-cv-02034-JVS-JCG
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
MAR 13 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 6 --

2
Appeal from the United States District Court
for the Central District of California
James V. Selna, District Judge, Presiding
In re: NEWPORT TRIAL GROUP; SCOTT
J. FERRELL; RYAN M. FERRELL;
VICTORIA C. KNOWLES; DAVID REID;
ANDREW LEE BASLOW; ANDREW
NILON; SAM PFLEG; MATTHEW
DRONKERS; TAYLOR DEMULDER;
SAM SCHOONOVER; GIOVANNI
SANDOVAL,
______________________________
NEWPORT TRIAL GROUP, a California
Corporation; SCOTT J. FERRELL, a
California resident; RYAN M. FERRELL,
an Arizona resident; VICTORIA C.
KNOWLES, a California resident; DAVID
REID; ANDREW LEE BASLOW, a
California resident; ANDREW NILON, a
California resident; SAM PFLEG, a
California resident; SAM SCHOONOVER,
a California resident; GIOVANNI
SANDOVAL, an Arizona resident;
MATTHEW DRONKERS, a California
resident; TAYLOR DEMULDER, a Nevada
resident,
Petitioners,
v.
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF
CALIFORNIA, SANTA ANA,
Respondent,
No. 18-72122
D.C. No.
8:15-cv-02034-JVS-JCG

-- 2 of 6 --

3
NATURAL-IMMUNOGENICS CORP., a
Florida corporation,
Real Party in Interest.
Petition for Writ of Mandamus
Argued and Submitted February 8, 2019
Pasadena, California
Before: GOULD and NGUYEN, Circuit Judges, and MARBLEY,** District
Judge.
We address two appeals and one petition for writ of mandamus from the
same district court case. In that case, Plaintiff-Appellee Natural-Immunogenics
Corp. (“NIC”) sued Defendant Newport Trial Group (“NTG”) and several of its
attorneys (together, the “NTG Defendants”), including Defendants-Appellees Scott
Ferrell and David Reid. NIC alleges that NTG created sham business entities and
improperly induced plaintiffs to threaten and file sham lawsuits against NIC and
other companies.
The appeals and petition for writ of mandamus concern the district court’s
orders compelling disclosure of certain privileged communications on the basis of
the crime-fraud exception.
** The Honorable Algenon L. Marbley, United States District Judge for
the Southern District of Ohio, sitting by designation.

-- 3 of 6 --

4
1. In appeal no. 17-55661, Ferrell and Reid appeal the district court’s order
compelling a third party, Continuity Products LLC (“Continuity”), to disclose
emails discovered on its servers that relate to the formation of one of NTG’s
allegedly-sham entities. Continuity disclosed those emails to the court, and NIC
has seen them.
Generally, courts of appeal have jurisdiction to review only “final decisions
of the district courts of the United States.” 28 U.S.C. § 1291; see also Mohawk
Indus., Inc. v. Carpenter, 558 U.S. 100, 106 (2009). The collateral order exception
and the Perlman exception are two exceptions to that rule. See United States v.
Krane, 625 F.3d 568, 572 (9th Cir. 2010); Perlman v. United States, 247 U.S. 7
(1918). Neither applies here. The Supreme Court made clear in Mohawk that the
collateral order exception is not available to challenge an order compelling
attorney-client-privileged disclosures. 558 U.S. at 108–14. And after Mohawk, the
Perlman exception confers jurisdiction only where neither the privilege holder nor
the communications’ custodian is a party to the litigation. Krane, 625 F.3d at
572−73. Here, Ferrell and Reid are parties to the litigation, so we lack jurisdiction
to hear their interlocutory appeal. Their request to intervene is improper. See Fed.
R. App. P. 15(d).
Appeal no. 17-55661 is DISMISSED for lack of jurisdiction. Ferrell and
Reid’s motion to take judicial notice (Docket No. 31) and motion to strike portion

-- 4 of 6 --

5
of the supplemental excerpts of record (Docket No. 52), and NIC’s motion to
supplement the record (Docket No. 57) are DENIED as moot.
2. In appeal no. 17-55699, a nonparty, Movant-Appellant Joshua Weiss,
appeals that same order underpinning appeal no. 17-55661. Weiss worked with
Ferrell and Reid to establish the allegedly-sham entity. He received the emails in
question when he worked for Continuity. In Krane, we interpreted Mohawk to
permit review where, as here, neither the privilege holder nor the custodian of the
communications was a party to the litigation. Krane, 625 F.3d at 572−73.
However, Krane further clarifies that where the communications have been
disclosed, either in compliance with a court order or inadvertently, an appeal from
the order is rendered moot. Id. at 573−74 (citing Fed. Ins. Co. v. Maine Yankee
Atomic Power Co., 311 F.3d 79, 81 (1st Cir. 2002)); see also Wilson v. O’Brien,
621 F.3d 641, 643 (7th Cir. 2010). Here, the communications have already been
disclosed to NIC and the court. Weiss has not shown what further harm he faces or
what further relief we could provide. See Krane, 625 F.3d at 573 (“If [the third-
party] had produced the documents, [the nonparty] would have been deprived of
the opportunity to challenge the subpoena.”).
Appeal no. 17-55699 is DISMISSED as moot. Weiss’s motion to take
judicial notice (Docket No. 20) and motion to strike (Docket No. 36), and NIC’s
motion to supplement the record (Docket No. 39) are DENIED as moot.

-- 5 of 6 --

6
3. In the petition for writ of mandamus, no. 18-72122, the NTG Defendants
appeal a different order from the district court compelling disclosure of privileged
communications under the crime-fraud exception. Though the documents have
been disclosed, the appeal is not moot because our decision could still provide
relief. See United States v. Jicarilla Apache Nation, 564 U.S. 162, 169 n.2 (2011);
see also Perry v. Schwarzenegger, 591 F.3d 1147, 1156–57 (9th Cir. 2010).
Absence of clear error as a matter of law “will always defeat a petition for
mandamus.” Calderon v. U.S. Dist. Court, 163 F.3d 530, 534 (9th Cir. 1998) (en
banc), abrogated on other grounds by Woodford v. Garceau, 538 U.S. 202 (2003);
see also Bauman v. U. S. Dist. Court, 557 F.2d 650, 654–55 (9th Cir. 1977). There
is no clear error here. The NTG Defendants argue that they were entitled to an ex
parte hearing before the district court compelled production. But our precedent
does not require an ex parte hearing, and in fact gives district courts discretion in
how they evaluate claims of attorney-client privilege. See In re Napster, Inc.
Copyright Litig., 479 F.3d 1078, 1093 (9th Cir. 2007), abrogated on other grounds
by Mohawk, 558 U.S. 100. Under that same precedent, the district court had
adequate support for its conclusion that the relevant communications between the
attorneys and clients were subject to the crime-fraud exception. See id.
The petition for writ of mandamus, no. 18-72122, is DENIED.

-- 6 of 6 --