In the 1917 case of Perlman v. United States, the Supreme Court ruled that an individual could appeal a court order to produce evidence even if they were not yet under indictment. The case involved William Perlman, who had patented certain inventions related to steel manufacturing and was being investigated for possible antitrust violations. When third parties in possession of models of his inventions were subpoenaed by a grand jury, Perlman sought to prevent their use as evidence on grounds they would incriminate him. Lower courts rejected this argument but the Supreme Court reversed these decisions stating that forcing production of such materials constituted a violation of his Fifth Amendment rights against self-incrimination.

In the dissenting opinion for Perlman v. United States, Justice Holmes argued that the court should not have taken jurisdiction of the case because it was an appeal from a decision in favor of the government and there was no statute authorizing such an appeal. He also disagreed with the majority's interpretation of what constitutes contempt of court, arguing that Perlman had not disobeyed any order but merely failed to comply with a subpoena duces tecum (a type of subpoena that requires production of documents). Furthermore, he believed that even if Perlman could be said to have disobeyed an order, his actions did not amount to contempt because they were not disrespectful or obstructive towards the court. Finally, he took issue with how quickly and easily Perlman was found guilty without being given adequate opportunity to defend himself.