                  FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
MCKESSON CORPORATION,
             Intervenor-Appellant,
                                            No. 03-10511
                v.
ALBERT J. BERGONZI,                          D.C. No.
                                           CR-00-00505-MJJ
                         Defendant,
                                              OPINION
               and
JAY M. LAPINE; CHARLES W.
MCCALL,
            Defendants-Appellees.
                                       
        Appeal from the United States District Court
          for the Northern District of California
         Martin J. Jenkins, District Judge, Presiding

                 Argued and Submitted
      September 15, 2004—San Francisco, California

                     Filed April 1, 2005

     Before: Robert R. Beezer, William A. Fletcher and
            Raymond C. Fisher, Circuit Judges.

                    Per Curiam Opinion




                            3931
                  UNITED STATES v. BERGONZI                3933


                         COUNSEL

Keith D. Krakaur, Skadden, Arps, Slate, Meagher & Flom,
New York, New York, for the intervenor-appellant McKesson
Corporation.

Tim Crudo, Assistant United States Attorney, San Francisco,
California, for the plaintiff-appellee United States of America.

William M. Goldman, Topel & Goodman, San Francisco,
California, for the defendant-appellee Jay M. Lapine.

Alex Oh, Paul, Weiss, Rifkind, Wharton & Garrison, New
York, New York, for the defendant-appellee Charles W.
McCall.

Edward C. Schweitzer, Jr., Washington, D.C., for the amicus
curiae The Securities and Exchange Commission, in support
of intervenor-appellant McKesson Corporation.

James J. Farrell, Latham & Watkins, Los Angeles, California,
for the amicus curiae Securities Industry Association, in sup-
port of intervenor-appellant McKesson Corporation.


                          OPINION

PER CURIAM:

   Intervenor-appellant McKesson Corporation (“McKesson”)
brings this interlocutory appeal of a discovery disclosure
order in a criminal case. The district court ordered the govern-
3934                  UNITED STATES v. BERGONZI
ment to produce to defendants McCall and Lapine materials
McKesson had provided to the government under a confiden-
tiality agreement that acknowledged the government’s right to
use the materials in any criminal proceedings. McKesson
argued, however, that as to others the materials should remain
protected by the attorney client privilege and work product
doctrine. The district court disagreed, and ordered disclosure
to the defendants in accordance with Rule 16 of the Federal
Rules of Criminal Procedure and Brady v. Maryland, 373
U.S. 83 (1963). See United States v. Bergonzi et al., 216
F.R.D. 487, 494 (N. D. Cal. 2003). We dismiss McKesson’s
appeal of the district court’s order as moot.

   [1] McKesson now concedes that the defendants are enti-
tled to use the materials in their defense, and thus no longer
challenges the district court’s Brady and Rule 16 rulings.1
Because McKesson does not seek reversal of the disclosure
order as to these defendants, there is no other relief we can
provide and the appeal is now moot. See Public Utilities
Comm’n v. Federal Energy Regulatory Comm’n, 100 F.3d
1451, 1458 (9th Cir. 1996). The only parties before us seeking
the materials are these criminal defendants, whose access to
the materials is not in dispute. Moreover, because McKesson
appealed before the district court had been presented with or
   1
     Defendants McCall and Lapine obtained the materials pursuant to a
state court order in the related California state court proceeding, McKes-
son HBOC, Inc. v. Superior Court, 115 Cal. App. 4th 1229, 1241 (1st Dist.
2004). The disclosure was governed by a protective order that does not
permit the defendants to use the materials in this criminal action. Id. At
oral argument before us, McKesson’s counsel stated, “It’s not our position
as we sit here today, given the way the factual record has developed, that
[the defendants] should be prohibited from using those materials in the
criminal case. Our position, rather, is that given that they have the report
already from the other proceeding, the accommodation that the district
court should be clearly instructed by this court to make is that a protective
order has to be put in place . . . [that] precludes the sharing of the report
or interview memoranda with anyone who is not themselves bound by the
terms of the protective order.”
                      UNITED STATES v. BERGONZI                      3935
considered a protective order that might have addressed
McKesson’s privacy concerns, any potential prejudicial con-
sequences of the district court’s disclosure order are specula-
tive.

   [2] Given our finding of mootness, we do not reach
McKesson’s argument that we should recognize a form of
“selective” or “partial” waiver that would allow a corporation
to disclose the results of an internal investigation to an inves-
tigating government agency without waiving attorney client
privilege or work product protection as to the outside world.2
Whether the sort of selective waiver McKesson seeks is avail-
able in this Circuit is an open question. See Bittaker v. Wood-
ford, 331 F.3d 715, 720 n.5 (9th Cir. 2003) (en banc) (“[T]he
law [regarding selective waiver] is not . . . settled.”).

   Appeal DISMISSED as moot.




  2
    Both the Securities and Exchange Commission and the Securities
Industry Association have appeared as amici to argue that it is in the pub-
lic interest for courts to recognize some form of selective waiver when
corporations cooperate with the SEC in investigations of this sort. Cf.
Department of Justice Memorandum, Principles of Federal Prosecution of
Business Organizations, Deputy Attorney General Larry D. Thompson
(January 20, 2003) (discussing need to gain waivers of privileges from
corporations during investigations).
