Opinion
17379-19 17380-19 17381-19 17382-19
11-03-2023
GREEN VALLEY INVESTORS, LLC, BOBBY A. BRANCH, TAX MATTERS PARTNER, ET AL.,[1] Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Kathleen Kerrigan Chief Judge
These consolidated cases are calendared for trial at the Court's special session in Winston-Salem, North Carolina, beginning November 13, 2023.
On August 11, 2023, petitioner issued one subpoena duces tecum to SRK Consulting (U.S.), Inc., (SRK) and issued a second subpoena duces tecum to Jones Lang LaSalle Incorporated (JLL). Each subpoena ordered its respective addressee to appear before this Court on September 6, 2023. On September 1, 2023, JLL filed a Motion to Quash or Modify subpoena. A remote hearing before the undersigned judge was held on September 6, 2023 (September Hearing) for the purpose of returning the two foregoing subpoena duces tecum. At the September Hearing, representatives from JLL and SRK were heard, and petitioner agreed to modify and limit the scope of their subpoenas issued to JLL and SRK.
On October 6, 2023, petitioner filed two Motions to Enforce Subpoenas pursuant to Rule 147, requesting that this Court enforce the subpoena duces tecum against JLL and the subpoena duces tecum against SRK. Petitioner's Motions cite to Rule 27(a) requiring redaction of documents in limited instances. Petitioner also contends how JLL and SRK have furnished redacted responsive documents; however both JLL and SRK have failed to explain their redactions or assert privilege over any redacted information.
Unless otherwise indicated, all Rule references are to the Tax Court Rules of Practice and Procedure.
On October 19, 2023, JLL filed a Response to Motion to Enforce Supboena, indicating how it has furnished all responsive documents to petitioner and there are no other responsive documents, based on a declaration from Annie Baxendale. With respect to redaction of documents, JLL proposes to submit the unredacted documents for an in camera inspection to confirm its redactions do not relate to compensation nor are they related to facts or assumptions provided by respondent's counsel.
On October 30, 2023, respondent filed a response to petitioner's two Motions to Enforce Subpoenas, indicating that expert reports from both JLL and SRK have been lodged with the Court, and - other than what has been produced in response to the subpoenas - petitioner is not entitled to the information being sought since the request is beyond the scope of Rule 70(c)(4)(B)(i), (ii) and (iii).
To determine the scope of the redaction and compliance with Rule 70(c)(4)(B)(i), (ii) and (iii), the Court deems it appropriate to review the documents in camera.
Considering the foregoing, it is
ORDERED that (i) JLL's Motion to Quash or Modify Subpoena, filed on September 1, 2023; (ii) petitioner's Motion to Enforce Subpoena pursuant to Rule 147, requesting that this Court enforce the subpoena duces tecum against JLL, filed on October 6, 2023, and (iii) petitioner's Motion to Enforce Subpoena pursuant to Rule 147, requesting that this Court enforce the subpoena duces tecum against SRK, filed on October 6, 2023, shall be assigned to Special Trial Judge Zachary S. Fried. It is further
ORDERED that, on or before November 7, 2023, respondent, with the assistance of JLL and SRK, shall upload using a secured portal, all previously produced documents in an unredacted format and provide Judge Zachary S. Fried access to this secured portal, so that he may perform an in camera inspection of these documents.