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.1The 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 1 Ellis v. United States, 2015 WL 7289497 (S.D. Miss.)(November 16, 2015) “The BBA contains profound changes affecting both partnerships and partners.” FOCUS ON TAX CONTROVERSY AND LITIGATION FEBRUARY 2016 8 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.2Because 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.”3Plaintiff’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.”4Moreover, 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.”6Plaintiff’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.7The court held that Kovel did not apply because tax preparation is not viewed as within the purview 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) 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.” FOCUS ON TAX CONTROVERSY AND LITIGATION FEBRUARY 2016 9 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. Richard A. Nessler Amendments to the Federal Rules of Civil Procedure Amendments to the Federal Rules of Civil Procedure (“Federal Rules”) covering discovery rules and exchange of information in civil lawsuits, which were adopted by the Supreme Court in April 2015 and accepted by Congress, took effect in December. The changes, which are the result of five years of review and debate, affect civil rules 1, 4, 16, 26, 30, 31, 33, 34, 37, 55 and 84. The amendments will govern all federal civil proceedings commenced on or after December 1, 2015, and all civil proceedings then pending “insofar as just and practicable.” The overarching goal of the amendments is to secure a just, speedy and inexpensive determination of every federal civil action and proceeding. The new rules attempt to achieve this goal, in part, by limiting the amount of document discovery “proportional to the needs of the case,” which is meant to curb overbroad document requests that traditionally drove up costs, and delay an early case management.8 Case Management The changes to early case management focus on expediting the initial stages of litigation. The amendments that impact the surge of discovery emphasize proportionality and reasonableness and require more specificity in objecting to discovery requests. The amendments also directly address preservation and sanctions for spoliation of electronically stored information (“ESI”). Significant changes to the Federal Rules include, among others: 1. Rule 1 has been amended to state that lawyers and parties as well as courts have an obligation to secure the just, speedy, and inexpensive determination of every action. 2. The time for service of process under rules 4(m) is shortened from 120 days to 90 days. 3. The time for holding the initial case management conference under rule 16(b) has been shortened by 30 days, and new topics for the Rule 26(f) and Rule 16 conferences have been added. 8 Fed. R. Civ. P. 26(b) The new rules attempt to limit the amount of document discovery “proportional to the needs of the case,” which is meant to curb overbroad document requests. FOCUS ON TAX CONTROVERSY AND LITIGATION FEBRUARY 2016 10 4. The scope of discovery in Rule 26(b)(1) has been amended, and the need for proportional discovery tailored to the reasonable needs of the case has been highlighted. 5. Rule 37(e) has been rewritten to address the preservation and loss of electronically stored information. The purpose of the amendments are clear—to reduce delay and improve cooperation in civil litigation. Amendments to Rules 1, 4 and 16 Federal Rule 1 is designed to improve cooperation and encourage active judicial case management. Rule 1 seeks to make it clear that the parties have an obligation to make litigation efficient, adding that the Rules “should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.”9The amended rule requires judges and lawyers to work cooperatively in controlling the expense and time demands of litigation.10The amendments to Federal Rules 4 and 16 seek to reduce delay in the early stages of litigation through more active gradual case management and reduced timelines in distinct ways. Rule 4(m) reduces the time to serve a defendant with the complaint from 120 to 90 days.11Rule 16(b)(2) reduces the time to issue a scheduling order to the earlier of 90 days (down from 120 days) after any defendant has been served with the complaint, or 60 days (down from 90 days) after any defendant has appeared.12 However, the rule permits that a court may set a later date for issuing the scheduling order upon a finding of “good cause.” Rule 16(b)(3) identifies three additional topics for discussion and possible inclusion in the scheduling order: (i) the preservation of ESI; (ii) whether any agreement can be reached under FRE 502 pertaining to the disclosure of privileged information or work product protected material; and (iii) whether the parties should be required to request an informal conference with the court prior to filing any discovery motions.13 Amendments to Rule 26 The key change to Rule 26 replaces language that is often used to argue that the scope of discovery should be broad and crystalizes the concept of reasonable limits on discovery. Thus, the “reasonably calculated to lead to the discovery of admissible evidence,” has been replaced with the language “and proportional to the needs of the case.”14The new rule requires attorneys to limit discovery requests to what is needed to prove a claim or defense and to eliminate unnecessary or wasteful discovery.15 9 Fed. R. Civ. P. 1 10 See Chief Judge John Roberts Annual Report of the Judiciary, at 6 (December 31, 2015). 11Fed. R. Civ. P. 4(m) 12Fed. R. Civ. P. 16(b)(2) 13Fed. R. Civ. P. 16(b)(3) 14 Fed. R. Cir. P. 26 15Chief Judge John Roberts Annual Report of the Judiciary, at 7 (December 31, 2015). “The amended rule requires judges and lawyers to work cooperatively in controlling the expense and time demands of litigation.” FOCUS ON TAX CONTROVERSY AND LITIGATION FEBRUARY 2016 11 Rule 26(b) also deleted language authorizing the court to “order discovery of any relevant subject-matter involved in the action.” Rule 26(b)(1) now makes proportionality considerations part of the definition of the scope of discovery and reinforces parties’ obligations to consider proportionality in making discovery requests, responses, and objections.16The court will consider the following proportionality factors: The importance of the issues at stake; The amount in controversy; The parties’ relative access to relevant information; The parties’ resources; The importance of the discovery in resolving the issues; and Whether the burden or expense of the proposed discovery outweighs its likely benefit. In addition, Rule 26(c)(1)(B) will authorize courts to issue cost-shifting orders, determining the “allocation of expenses” for certain discovery.17Parties will need to consider these factors and draft discovery requests with the proportionality limits in mind and consider the costs associated with responding to the requests. In addition, in negotiating the scope of its response, the responding party should be prepared to discuss specifics about the burdens and expenses they assert. Amendments to Rules 30, 31, 33 and 36 The initial proposal to these Federal Rules imposed numerical limits to discovery requests to encourage efficiency and cooperation through early case management. The August 2013 Rules had proposed reducing the presumptive limits on the number of depositions (from 10 to five depositions per party); length of depositions (from seven to six hours each); number of interrogatories (from 25 to 15); and number of requests for admission (from no limit to 25). But public comments opposed these limits and many feared that the proposed limits would become hard limits and deprive parties of evidence needed to prove their claims or defenses. The Committee withdrew the limits, concluding that the goals of proportionality and effective case management could be achieved through other rule changes. The Committee instead amended Rules 30, 31, and 33 to refer to Rule 26(b)(1) and incorporate its emphasis on proportionality. Amendments to Rules 26(d), 34(b), and 37(a) Amendments to three rules result in a number of changes to the timing of requests for production of documents (“RFPs”) and substance and timing of responses to RFPs. Rule 26(d)(2) will now permit a party to serve RFPs in advance to the Rule 26(f) conference, but no earlier than 21 days after the receiving party was served in 16 Fed. R. Civ. P. 26(b)(1) 17Fed. R. Civ. P. 26(c)(1)(B) FOCUS ON TAX CONTROVERSY AND LITIGATION FEBRUARY 2016 12 the litigation. RFPs served prior to a Rule 26(f) conference will be deemed to have been served at the first Rule 26(f) conference. Rule 34(b)(2) requires responding parties to (i) be more specific in objections to RFPs; (ii) state whether documents actually will be withheld pursuant to each objection; (iii) state whether they will produce copies or permit inspection; and (iv) complete production “no later than the time for inspection specified in the request or another reasonable time specified in the response.”18No more boilerplate objections are permitted. Rule 37(a)(3)(B)(iv) permits a party to move for an order compelling production if another party fails to produce documents. Amendments to Rule 37(e) Federal Rule 37(e) covers preservation issues regarding Electronically Stored Information (“ESI”). The amended Rule 37(e) adopts the common law principle that duty to preserve arises when litigation is reasonably anticipated. The rule now provides broad discretion for courts to cure prejudice caused by loss of ESI and resolves a circuit split as to when courts may impose more severe sanctions for failure to preserve ESI. The proposed rule as originally drafted applied to all types of discoverable information, but the final amendment is limited to ESI. The Committee decided to confine Rule 37(e) to ESI because “the law of spoliation for evidence other than ESI is well developed and longstanding, and should not be supplanted without good reason.”19Rule 37(e) provides that “If [ESI] that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to present it, and it cannot be restored or replaced through additional discovery” the court, if prejudice exists, may “order measures no greater than necessary to cure the prejudice.”20 As the first step, therefore, a party moving for sanctions for failure to preserve ESI must show: (i) the relevant ESI “should have been preserved in the anticipation or conduct of litigation”; (ii) relevant ESI was lost because the party charged with safeguarding the lost ESI “failed to take reasonable steps to preserve” the information; and (iii) the lost ESI “cannot be restored or replaced through additional discovery.”21 If this predicate showing is made, then the court “ upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice. The amended rule requires only “reasonable steps” to preserve ESI. Perfection is not required and courts may consider the parties’ resources and sophistication. If the loss of ESI results from a party’s intent to deprive another party of the ESI’s use in the litigation, the court may impose “very severe” sanctions, including: (i) presumption that the lost information was unfavorable to the jury; (ii) instruct the jury that it may or must presume the information was unfavorable to the party; or (iii) dismiss the action or enter a default judgment. 18Fed. R. Civ. P. 34(b)(2) 19 2015 Notes of Advisory Committee to Fed. R. Civ. P. 37 20 Fed. R. Civ. P. 37(e) “Rule 37 now provides broad discretion for courts to cure prejudice caused by loss of ESI and resolves a circuit split as to when courts may impose more severe sanctions for failure to preserve ESI.” FOCUS ON TAX CONTROVERSY AND LITIGATION FEBRUARY 2016 13 The amended rules and supporting documentation related to their recent adoption— including excerpts from the reports of the Judicial Conference Committee on Rules— are posted on the Judiciary’s website at: www.uscourts.gov/rules-policies/current-rules-practice-procedure.