Opinion
12362-21
12-14-2023
BEAVERDAM CREEK HOLDINGS, LLC, BEAVERDAM CREEK INVESTORS, LLC, TAX MATTERS PARTNER, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Joseph Robert Goeke, Judge
By Order dated December 5, 2023, we directed third-party Bridge Capital Associates, Inc (BCA), to produce three documents responsive to a subpoena for in camera review. BCA claimed attorney client privilege with respect to all three of the documents. BCA also claimed work product privilege with respect to two of the documents.
BCA's privilege log, and the documents themselves, show that BCA is neither a sending nor receiving party for any of the documents. Furthermore, it appears that none of the documents reference BCA.
The attorney client privilege is generally waived by voluntary disclosure to a third-party. See Bernardo v. Commissioner, 104 T.C. 677, 683-85 (1995). However, "The scope of the protection provided by the work product doctrine is broader than the protection afforded by the attorney-client privilege" and may extend to documents prepared by or for another party. Id. at 687-88.
BCA has not shown that the attorney client privilege or the work product are applicable to any of these documents. We will give BCA the opportunity to convince us and the parties an opportunity to respond. BCA may wish to address: 1) why it has possession of the documents; 2) what work it provided with respect to petitioners and if it received compensation for such work; and 3) the fact that one document was created in 2017, well before any litigation occurred. See Bernardo at 687-88 (providing that "The work product doctrine protects documents and other materials prepared in anticipation of litigation by a representative of a party, regardless of whether the representative was retained by the party directly or by his attorney.").
In our Order dated December 5, 2023, we also directed BCA to remove redactions on 179 other documents and provide them to respondent. We stated that "If some redactions should remain for reasons other than responsiveness or relevancy, BCA shall provide documents with only those redactions, alongside a privilege log, to respondent by December 20, 2023." Should BCA assert any such privileges, they shall attach their privilege log and provide an update to the Court with any necessary background information and/or argument as part of their response to this Order. This will assist the Court and the parties in resolving issues related to the subpoena issued to BCA in an expeditious manner.
Considering the foregoing, it is
ORDERED that BCA shall file with the Court a response to this Order on or before December 29, 2023. It is further
ORDERED that petitioners and respondent may file a reply to BCA's response on or before January 8, 2024. It is further
ORDERED that in addition to the usual service upon the parties, the Clerk of the Court is directed to serve a copy of this Order on John M. Alten,1660 West 2nd Street, Suite 1100, Cleveland, OH 44113.