Opinion
24703-21
12-01-2023
NORTH DONALD LA PROPERTY, LLC, NORTH DONALD LA INVESTORS, LLC, TAX MATTERS PARTNER, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Albert G. Lauber Judge
This case is calendared for trial at an initial special session of the Court beginning September 9, 2024, and a second special session beginning October 7, 2024, both in New Orleans, Louisiana. On November 9, 2023, respondent filed a Motion for Document Subpoena Hearing, requesting that this case be calendared for a remote hearing to enable respondent to issue third-party subpoenas for documents returnable at that hearing. Respondent represents that he seeks to issue subpoenas to 16 individuals and entities who "possess documents relevant to this case." By Order served November 13, 2023, we directed petitioner to file a Response to the Motion by November 27, 2023.
On November 17, 2023, petitioner filed a Response to the Motion. Petitioner does not object to the scheduling of a subpoena hearing per se. Rather it contends that some individuals respondent intends to subpoena "could have documents that are privileged or contain work product under the Common Interest Doctrine and such individuals may not be represented." Because these individuals might "inadvertently disclose documents to which [p]etitioner has a claim of privilege," petitioner proposes a procedure under which it would have the opportunity to review the documents produced by the subpoenaed parties, for possible claims of privilege, before those documents are viewed by respondent's attorneys.
On November 29, 2023, the Court held an informal conference call with the parties, during which they agreed to a procedure governing document review. This case will be scheduled for a regular Wednesday hearing convened specifically for the return of third-party subpoenas. Respondent will forward all documents produced by the subpoenaed parties-before, during, or after the hearing-for review by petitioners, without respondent's attorneys having viewed them first. After reviewing the documents for any privileged material, petitioner will return all non-privileged documents to respondent and supply a privilege log substantiating the basis for withholding any documents not so returned. We expect that documents supplied by some witnesses will present no close questions regarding privilege, and we expect petitioner to return such documents to respondent very promptly. In any event, petitioner shall return all documents to respondent (or supply privilege logs for withheld documents) within 45 days of receiving the documents.
In consideration of the foregoing, it is
ORDERED that respondent's Motion for Document Subpoena Hearing, filed November 9, 2023, is granted. It is further
ORDERED that this case is calendared for a hearing on the status of the case at a special Washington, D.C., hearing session to be conducted remotely at a time certain of 1:00 p.m. (Eastern Time) on Wednesday, January 31, 2024, at which time any third-party subpoenas may be returnable. If all subpoenaed parties supply all subpoenaed documents to the requesting party in advance of the hearing, the hearing will be canceled. Special Trial Judge Siegel will be presiding at the above-referenced hearing as previously assigned by Chief Judge. It is further
ORDERED that the Clerk of the Court shall serve on the parties a Notice of Remote Proceeding that shall contain comprehensive instructions on how to participate in the above-referenced remote proceeding. It is further
ORDERED that, no later than January 29, 2024, respondent shall file a status report advising the Court whether all third parties have complied with all subpoenas, so that a hearing is no longer necessary. It is further
ORDERED that respondent shall, in due course, provide to petitioner for privilege review all documents produced in response to the subject subpoenas. Petitioner shall, within 45 days of receiving a subpoenaed document, return that document to respondent or supply a privilege log that justifies withholding the document on the basis of privilege.