United States: District Court Upholds Summons And Rejects Attorney-Client And Work Product Privilege

On November 16, 2015, the United States District Court, Southern District of Mississippi, dismissed a petition to quash a third-party summons served on taxpayer's tax return preparer, and rejected the tax return preparer's assertion that documents requested by the summons were protected by the attorney-client privilege and the work-product doctrine.1 The court ordered the tax preparer to appear before the Service for the purpose of testifying and producing requested documents to comply with the summons.

Background

The IRS issued a third-party summons to plaintiff, Alice Ellis ("Ellis"), to testify and produce documents to an IRS Special Agent, who was conducting an investigation of possible criminal offenses by Ellis' client McCool. The summons requested the production of documents related to financial transactions involving McCool. Ellis was listed as the tax return preparer on numerous federal tax forms related to McCool. Plaintiff's counsel responded to the summons and produced some of the requested documents but asserted the attorney-client privilege on all matters related to McCool. Shortly thereafter, plaintiff served a petition to quash the summons and Ellis did not appear to testify in response to the summons. The IRS filed a motion to dismiss the petition and to enforce the summons.

Discussion

The determination of whether the district court has jurisdiction to hear the petition to quash the summons depends on whether the Unites States has waived sovereign  immunity. To resolve the jurisdictional issue, the district court looked to whether the Code provided plaintiff the right to bring a motion to quash the summons. The court considered Code § 7609 and concluded that only the taxpayer can initiate an action to quash a summons (not the third party tax preparer). The court found no authority where a summoned party who was not the taxpayer successfully quashed an IRS summons—noting that several court have rejected the argument that summoned parties can bring a pre-enforcement action to quash a summons.2 Because Ellis was not a party entitled to notice, the United States had not waived sovereign immunity for her to challenge the summons. Accordingly, the court held that it lacked subject matter jurisdiction to hear Ellis' petition to quash the summons.

In response to the summons request for the production of documents, plaintiff asserted that the requested information was protected by the attorney-client privilege and work-product doctrine. Plaintiff raised her privilege defense in a letter to the Service stating that her counsel "will be asserting privilege on all matters pertaining to [] McCool and their entities with regard to the May & Co., issues based on our on-going relationship and verbal contacts."3 Plaintiff's letter failed to list or describe any of the documents withheld based on her assertion of the attorney-client privilege or work product doctrine.

The Federal Rules of Civil Procedure require a party claiming a privilege to "(i) expressly make the claim; and (ii) describe the nature of the documents, communications or tangible things not produced or disclosed and to do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assert the claim."4 Moreover, the district court's local rules require a party withholding privileged information to produce a privilege log that at a minimum included the names of the document, description of the document, requisite elements of the claimed privilege, date, authors, and nature of the privilege.5

The court concluded that plaintiff's blanket assertion of the attorney-client privilege made it impossible for the court to determine if all or any of the requested documents fell within the privilege. The court emphasized that it was the plaintiff's responsibility "to make specific assertions concerning particular documents and provide some justification as to why the attorney-client privilege applied."6 Plaintiff's claim of privilege did not satisfy the requirements of Local Rule 26(a)(1) and the FRCP 26(b)(5) in that plaintiff did not provide the government or the court with any type of privilege log with reference to specific documents. In addition, the court rejected plaintiff's claim that the documents fell under the Kovel standard.7 The court held that Kovel did not apply because tax preparation is not viewed as within the purview of the attorney-client privilege and plaintiff produced no facts to demonstrate how her communications were to assist McCool's legal representation.

With regard to plaintiff's work-product claim, the court found that plaintiff's conclusory statements that the documents were covered by the work-product doctrine "fell woefully short of meeting his burden." To qualify for the privilege, the documents must be created in anticipation of litigation. The court reviewed the summons and concluded that the summons "reflects documents created in the normal course of business without any obvious nexus to anticipated litigation." As such, the court concluded that the work product doctrine did not apply.

Footnotes

1 Ellis v. United States, 2015 WL 7289497 (S.D. Miss.)(November 16, 2015)

2 2015 WL 7289497 *

3 citing Gutierrez v. United States, 1996 WL 751342 (E.D. Wash. 1996); Foundation of Human Understanding v. United States, 2001 WL 1386051 (D. Or. 2001) 3 2015 WL 7289497 *6

4 Fed. R. Civ. P. 26(b)(5)(a)

5 Miss. District Court Local Rule 26(a)(1)

6 2015 WL 7289497 *6

7 United States v. Kovel, 296 F.2d. 918, 922 (2nd Cir. 1961)

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