Opinion
7045-19 12364-20 12379-20
11-29-2023
PICAYUNE PEARL AGGREGATES, LLC, PICAYUNE PEARL AGGREGATES INVESTORS, LLC, TAX MATTERS PARTNER, ET AL., Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Courtney D. Jones Judge
Pending before the Court are respondent's Motion to Compel Production of Documents (Motion to Compel) (Doc. 88) and Motion to Set Pretrial Scheduling Order (Doc. 105). This Order sets forth the Quick Peek Procedure to be followed for certain documents subject to the Motion to Compel.
All document references are to the docket record of the lead case (Docket No. 7045-19) in the consolidated group.
Background
After concessions by each side, 143 documents identified in the Motion to Compel remain in dispute. In an effort to resolve the dispute, the undersigned held a remote hearing on August 16, 2023, and discussed with the parties the possibility of further narrowing the dispute through the "quick peek" process described in the Advisory Committee Notes to the 2006 Amendment to Rule 26 of the Federal Rules of Civil Procedure. (Doc. 106, Tr. 15:9-16:1).
Following the hearing, the parties advised in a Status Report that petitioner proposed a framework to allow for a quick peek of some of the disputed documents, but the parties could not reach an agreement. (Doc. 101). To determine whether the parties might find a way forward, the Court scheduled a follow-up hearing for September 15, 2023, with Chief Special Trial Judge Lewis R. Carluzzo. (Doc. 102).
At that hearing, petitioner represented that it is willing to submit approximately half of the disputed documents for a quick peek, and respondent represented that it will review such documents. (Doc. 107, Tr. 21:24, 22:25-23:1).
However, respondent stated that a privilege dispute may remain, even if the quick peek procedure is used. (Doc. 107, Tr. 23:1-21).
Nonetheless, the parties seemed to agree that petitioner could identify the documents it is willing to share by using Exhibit C from respondent's Motion to Compel. Accordingly, the Court directed petitioner to file a corresponding list. (Doc. 108). On November 3, 2023, petitioner filed a Response to Motion to Set Pretrial Scheduling Order (Response) and attached Exhibit 2, identifying approximately half of the disputed 143 documents that it proposed for the quick peek process. (Doc. 110).
Quick Peek Procedure
The "quick peek" process is intended to minimize the costs and delays associated with reviewing documents that are-or might be-subject to disputed claims of privilege. See Salem Fin., Inc. v. United States, 102 Fed.Cl. 793, 800 (2012). The procedure is facilitated by Federal Rule of Evidence 502(d), which provides:
(d) Controlling Effect of a Court Order. A federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court--in which event the disclosure is also not a waiver in any other federal or state proceeding.
In an effort to narrow the dispute regarding petitioner's privilege claims, petitioner has agreed to make available for inspection approximately 73 documents identified in Exhibit 2 of petitioner's Response. (Doc. 110). However, petitioner's agreement is contingent upon the entry of an order confirming that petitioner is not waiving its claims of privilege as to those 73 documents.
Upon due consideration, it is
ORDERED that petitioner shall make the 73 documents identified in Exhibit 2 to the Response to Motion to Set Pretrial Scheduling Order (Doc. 110) available for "quick peek" inspection. The Court directs the parties to meet on or before January 5, 2024, to review the documents identified in Exhibit 2. The parties may meet virtually or in person at a place and time agreed upon by the parties, for a period not to exceed 8 hours. Respondent is permitted to take notes only to identify a document by document number and only to indicate whether or not it continues to seek production of that document. It is further
ORDERED that during their meeting, the parties shall confer in an effort to narrow the list of documents, if any, remaining in dispute. If the parties agree that a document is no longer in dispute, a copy of the document shall be immediately produced and given to respondent. If a document(s) remains in dispute, respondent is not permitted to retain or copy such document until the dispute is resolved by the parties or the Court. It is further
ORDERED that petitioner's act of disclosing to respondent's counsel the documents available for "quick peek" inspection will not constitute a waiver of petitioner's current or future claims of privilege and/or protection (including the attorney-client privilege, the work-product doctrine, the deliberative-process privilege, or the common-interest privilege) as to the information or subject matters included in the documents available for "quick peek" inspection. See Fed. R. Evid. 502(d). Further, the privilege and/or protection is not waived in this litigation or in any other federal or state proceeding. It is further
ORDERED that petitioner's act of disclosing to respondent's counsel the documents available for "quick peek" inspection will not undermine any reasonable steps petitioner has taken to prevent disclosure under Federal Rule of Evidence 502(b)(2). It is further
ORDERED that the parties shall file a status report (jointly, if possible; otherwise, separately) on or before January 12, 2024, after they have concluded their "quick peek" procedure. In that status report, the parties shall inform the Court whether any documents remain in dispute, including the remainder of the 143 documents not included in the "quick peek" process.
The Court expects that the parties will work cooperatively and diligently to resolve the issues relating to claims of privilege. If any party desires to modify the above procedures in any respect, they shall immediately notify the Court.