JAMES F. HOLDERMAN, United States District Judge.
Pursuant to the Seventh Circuit's remand order of December 18, 2002, the district court is to make further findings regarding those documents to which the proposed intervenor-appellants claim a privilege under 26 U.S.C. § 7525. This court has endeavored to do so.
LEGAL STANDARD
Section 7525 is a 1998 statute that applies "the same common law protections of confidentiality which apply to a communication between a taxpayer and an attorney" to a communication with respect to "tax advice" between a taxpayer and a "federally authorized tax practitioner," "to the extent the communication would be considered privileged communication if it were between a taxpayer and an attorney." 26 U.S.C. § 7525 (a)(1). The statute defines "tax advice" as "advice given by an individual with respect to a matter which is within the scope of the individual's authority to practice described in subparagraph (A)." 26 U.S.C. § 7525 (a)(3)(B). Significantly, the § 7525 privilege does not apply to "any written communication between a federally authorized tax practitioner and a director, shareholder, officer, or employee, agent, or representative of a corporation in connection with the promotion of the direct or indirect participation of such corporation in any tax shelter (as defined in section 6662(d)(2)(C)(iii))." 26 U.S.C. § 7525 (b). Finally, § 7525 is applicable only to communication made on or after July 22, 1998, the statute's enactment date. See Notes following 26 U.S.C. § 7525.
Like the attorney-client privilege, the § 7525 privilege protects against the disclosure of the content of confidential communications between a tax advisor and client. Generally, under both the attorney-client privilege and the § 7525 privilege, a client's identity is not protected for disclosure. See In re Grand Jury proceeding (Cherney), 898 F.2d 565, 567 (7th Cir. 1990). An exception to this general rule exists, however, where the disclosure of the client's identity would lead ultimately to disclosure of the client's motive for seeking the advice of an attorney or federally authorized tax practitioner, because motivation is itself a confidential communication.Id.; Tillotson v. Boughner, 350 F.2d 663, 666 (7th Cir. 1965).
In the case at hand, proposed intervenor-appellants argue that disclosure of their identities will, by necessity, disclose their motives for retaining the services of BDO Seidman, LLP ("BDO"), i.e., the proposed intervenor-appellants' desire to engage in financial transactions which the government might later decide to be abusive tax shelters. To avoid the premature disclosure of any proposed intervenor-appellant's identity, proposed intervenor-appellants' counsel have assigned an identifying number to each. Accordingly, the Does have been identified as Doe 1 through Doe 56. Likewise, the Roes have been identified as Roe 1 through Roe 42.
The government, in presenting its position seeking disclosure of the proposed intervenor-appellants' identities, argues: (1) the identity-privilege does not apply in these cases, (2) BDO was not giving "tax advice," (3) BDO, the tax advisor, had a conflict of interest, and therefore the privilege does not apply, (4) the communications were made for use in preparing the taxpayers' tax returns, (5) in some instances, the information has been disclosed to third parties and the privilege thus waived, and (6) the crime-fraud exception applies.
Before addressing the individual documents submitted post-remand for in camera review, this court believes comments regarding the government's arguments are appropriate. First, this court finds that the identity-privilege does exist under § 7525, just as it does in the attorney-client context. If such a privilege did not apply to § 7525 in the abstract, the Seventh Circuit would not have remanded this case to the district court to make further findings. Second, this court must determine, document-by-document, whether the relationship between BDO and the intervenor-appellants was for the purpose of providing "tax advice" such that the privilege enacted by the statute applies. The Seventh Circuit has made clear that "[n]othing in [§ 7525] suggests that [federally authorized tax practitioners] are entitled to privilege when they are doing other than lawyers' work. . . ." United States v. Frederick, 182 F.3d 496 (7th Cir. 1999). Further, "material transmitted to an attorney or the attorney's agent for the purpose of using that information on a tax return is not privileged." In re Grand Jury Proceedings, 220 F.3d 568, 571 (7th Cir. 2000); see also United States v. KPMG LLP, 2002 WL 31894130, at *4 (D.D.C. 2002) ("[7525] does not protect communications between a tax practitioner and a client simply for the preparation of a tax return."). Therefore, the "tax advice" privilege of § 7525 does not include communication regarding tax return preparation; it simply encompasses communication such as tax planning advice. Third, the cases the government cites for the proposition that a taxpayer cannot reasonably rely on the professional advice of someone he or she knows to have a conflict of interest do not negate the § 7525 privilege; rather, these cases involve situations in which taxpayers claimed an advice-of-counsel defense, not an assertion of privilege. Fourth, this court must determine, on a document-by-document basis, whether the communication was for the purpose of preparing the client's tax returns. If so, the client's identity is not privileged. Fifth, this court must determine, again on a document-by-document basis, whether intervenor-appellants have waived the § 7525 privilege. Sixth, this court cannot, and need not, at this time, determine, based on the record before it, whether the crime-fraud exception applies.
As the Seventh Circuit's December 18, 2002, Order makes clear, this court must consider the "totality of the circumstances" surrounding each document in making the determination whether the § 7525 privilege applies. In re Grand Jury Proceeding, 220 F.3d at 572. In so doing, this court will make the findings as requested by the Seventh Circuit in its December 18, 2002, Order by answering the following enumerated questions as to each document received in camera:
(1) the purpose and history of BDO's representation of the appellants with respect to the tax shelter transaction at issue [i.e., Was the purpose of BDO's representation to provide tax advice?];
(2) whether, in light of the purpose and history of BDO's representation as well as the description of the transactions in the IRS summonses, revealing the appellants' identities to the IRS necessarily would reveal the appellants' motive for seeking tax advice or the substance of that advice [i.e., Would revealing the appellants' identities reveal their motives for seeking tax advice?];
(3) whether the IRS could determine that the appellants had participated in the transactions without obtaining their names from BDO [i.e., Have appellants waived the privilege?]; and
(4) whether any of the documents at issue were generated for the purpose of preparing tax returns [Was the document at issue communicated or generated for the purpose of preparing appellants' tax returns?].
Based on the discussion above, with respect to each in camera document, for the proposed intervenor-appellants' identities to be protected from disclosure by the § 7525 privilege, the answer to question (1) must be yes, to question (2) yes, to question (3) no, and to question (4) no. Any other factual determination would result in the conclusion that the § 7525 privilege does not apply. In other words, if the purpose of BDO's representation was not to provide tax advice, or if revealing the intervenor-appellants' identities would not reveal their motives to seek tax advice, or if intervenor-appellants have waived the privilege, or the documents were communicated or generated for the purpose of preparing intervenor-appellants' tax returns, the § 7525 privilege would not preclude disclosure of the intervenor-appellants' identities. In making its findings set forth below, this court, after reviewing a particular in camera document in the context of the totality of the circumstances, has placed an em dash, "—.," after the number of those questions which this court cannot answer, for example, when the document does not evince a relationship between BDO and the proposed intervenor because one or both of the parties did not sign the document.
Without revealing further contents of the in camera documents, this court notes that many of the documents entitled "Confidentiality Agreement" state on the second page, paragraph number I that "BDO shall provide, and Recipient shall receive, Confidential information . . . for the purpose of providing the Recipient the required information to prepare . . . income tax returns." As discussed above, information communicated for the purpose of preparing tax returns is not privileged.
This court also notes that many of the documents entitled "Consulting Agreement" in either paragraph number 5, 6, or 7 state that "BDO's Services hereunder do not include . . . any legal and/or tax opinions regarding any strategies that may be implemented, and has advised [intervenor-appellants] to retain a law firm for legal and/or tax opinions on any strategies or transactions they enter into." This provision, among others, under the heading "No Warranty." is inconsistent with certain other provisions of the "Consulting Agreement," especially some provisions set forth in the paragraph labeled "Services."
This court finds that the "No Warranty" language makes the relationship defined by the "Consulting Agreement" to be different than the common law taxpayer-attorney relationship. This court also has borne in mind, as it must, that the privilege enacted in § 7525, like the attorney-client privilege, must be construed narrowly. See United States v. Evans, 113 F.3d 1457, 1461 (7th Cir. 1997).
In making the findings set forth below document-by-document, as contemplated by the Seventh Circuit's December 18, 2002, Order, this court has cited, where appropriate, to those provisions of the particularin camera document under review. Other provisions may also bear on the issue. Indeed, this court has considered the totality of the circumstances in reaching each finding, and, as stated earlier, if this court could not definitely make a finding based on this court's in camera review of a particular document, an em dash was placed as the answer to that enumerated question.
Additionally, some of the documents submitted for in camera review state in bold and all capital letters at the bottom of each page thereof: "SUBJECT TO TAX PRACTITIONER PRIVILEGE UNDER SECTION 7525 OF THE INTERNAL REVENUE CODE." This court finds no legal significance in this language. It is the relationship between the parties under § 7525 that creates the privilege. Comments about the privilege and authorization from the client to BDO to assert the privilege as stated in the paragraph entitled "Confidentiality Privilege," which is typically paragraph number 14 in the "Consulting Agreements" dated in the year 2001, are factors this court has considered.
FURTHER FINDINGS AS TO EACH IN CAMERA DOCUMENT
No in camera documents were submitted for Does 18, 19, 20, 21, 33, 47, 52, 53, 54, and 55. No in camera documents were submitted for Roes 6, 8, 11, 16, 17, 18, 19, 20, 21, 24, 26, 27, 30, 31, 32, 35, 36, 40, 41, and 42.
BDO Seidman admitted that it prepared the federal income tax returns for each of the Does and Roes except Roes 12, 20, 21, and 26. As to Roes 12, 20 and 21, BDO stated that it was in the process of determining whether it prepared their federal income tax returns. As to Roe 26, no statement was made regarding federal income tax return preparation.
Intervenor-Appellant Document Bates Number Doe 1 Doe 2 Doe 3 Doe 4 Doe 5 Doe 6 Doe 7 Doe 8 Doe 9 Doe 10 Doe 11 Doe 12 Doe 13 Doe 14 Doe 15 Doe 16 Doe 17 Doe 22 Doe 23 Doe 24 Doe 25 Doe 26 Doe 27 Doe 28 Doe 29 Doe 30 Doe 31 Doe 32 Doe 34 Doe 35 Doe 36 Doe 37 Doe 38 Doe 39 Doe 40 Doe 41 Doe 42 Doe 43 Doe 44 Doe 45 Doe 46 Doe 48 Doe 49 Doe 50 Doe 51 Doe 56 Roe 1 Roe 2 Roe 3 Roe 4 Roe 5 Roe 7 Roe 9 Roe 10 Roe 12 Roe 13 Roe 14 Roe 15 Roe 22 Roe 23 Roe 25 Roe 28 Roe 29 Roe 33 Roe 34 Roe 37 Roe 38 Roe 39
This court, in considering the totality of the circumstances and services provided, finds that one of the purposes of BDO's representation was to provide tax advice.
This court, in considering the totality of the circumstances and services provided, finds that one of the purposes of BDO's representation was to provide tax advice.
This court, in considering the totality of the circumstances and services provided, finds that one of the purposes of BDO's representation was to provide tax advice.
Confidentiality Agreement 3 BDO 00023555-00023557 Findings: (1) — (2) — (3) — (4) — (unsigned document) Confidentiality Agreement 3 BDO 00023565-00023567 Findings: (1) No (2) — (3) — (4) Yes (second page, ¶ 1) Consulting Agreement 3 BDO 00023572-00023576 Findings: (1) — (2) — (3) — (4) — (unsigned draft) Consulting Agreement 3 BDO 00023591-00023595 Findings: (1) No (2) — (3) — (4) No (page 2, ¶ 6) Confidentiality Agreement 3 BDO 00023599-00023601 Findings: (1) No (2) — (3) — (4) Yes (second page, ¶ 1) Consulting Agreement 5 BDO 00010575-00010579 Findings: (1) No (2) — (3) — (4) No (page 2, ¶ 6) Engagement Letter 7 BDO 00016374.1255-00016374.1261 Findings: (1) — (2) — (3) — (4) — (unsigned document) Engagement Letter 7 BDO 00016374.1264-00016374.1269 Findings: (1) No (2) — (3) — (4) Yes (first page, ¶ 1) Consulting Agreement 7 BDO 00016374.1685-00016374.1689 Findings: (1) No (2) — (3) — (4) No (page 2, ¶ 6) Engagement Letter 7 BDO 00016374.1690-00016374.1692 (1) No (2) — (3) — (4) — (first page) Consulting Agreement 7 BDO 00016374.1694-00016374.1689 Findings: (1) — (2) — (3) (4) — (unsigned document) Engagement Letter 5 BDO 00002532.26-00002532.30 Findings: (1) No (2) — (3) — (4) Yes (first page, ¶ 1) Consulting Agreement 6 BDO 00012419.11-00012419.15 Findings: (1) Yes (2) Yes (3) — (4) No (first page, para; 2) Consulting Agreement 6 BDO 0012419.16-00012419.18 Findings: (1) No (2) — (3) — (4) Yes (first page) Consulting Agreement 6 BDO 00012419.23 Findings: (1) — (2) — (3) — (4) — (unsigned draft) Consulting Agreement 7 BDO 00002175-00002181 Findings: (1) — (2) — (3) — (4) — (unsigned document) Consulting Agreement 3 BDO 00005694.-00005700 Findings: (1) No (2) — (3) — (4) No (page 2, ¶ 6) Consulting Agreement 4 BDO 00013438-00013444 Findings: (1) No (2) — (3) (4) No (page 2, ¶ 6) Consulting Agreement 4 BDO 00005399-000000005402 Findings: (1) No (2) — (3) — (4) No (page 2, ¶ 5) Consulting Agreement 7 BDO 00002182-00002187 Findings: (1) — (2) — (3) — (4) — (unsigned document) Consulting Agreement 7 BDO 00002182-00002187 Findings: (1) — (2) — (3) — (4) — (unsigned document) Consulting Agreement 7 BDO 00002182-00002187 Findings: (1) — (2) — (3) — (4) — (unsigned document) Consulting Agreement BDO 00031449-00031452 Findings: (1) — (2) — (3) — (4) — (incomplete document) Consulting Agreement 6 BDO 00012419.223-00012419.227 Findings: (1) No (2) — (3) — (4) Yes (page 2, ¶ 6; page 1, ¶ 2) Consulting Agreement 6 BDO 00012419.343-00012419.347 Findings: (1) No (2) — (3) — (4) Yes (page 2, ¶ 6; page 1, ¶ 2) Consulting Agreement 6 BDO 00012419.354-00012419.358 Findings: (1) — (2) — (3) — (4) — (unsigned draft) Consulting Agreement 6 BDO 00012419.359-00012419.363 Findings: (1) — (2) — (3) — (4) — (unsigned document) Consulting Agreement 6 BDO 00012419.366-00012419.370 Findings: (1) No (2) — (3) — (4) Yes (page 2, ¶ 6; page 1, ¶ 2) Consulting Agreement 6 BDO 00012419.376 Findings: (1) — (2) — (3) — (4) — (incomplete document) Consulting Agreement 6 BDO 00012419.382-00012419.386 Findings: (1) No (2) — (3) — (4) Yes (page 2, ¶ 6; page 1, ¶ 2) Confidentiality Agreement 7 BDO 00008231-00008234 Findings: (1) — (2) — (3) — (4) — (unsigned draft) Confidentiality Agreement 7 BDO 00008231-00008234 Findings: (1) — (2) — (3) — (4) — (unsigned draft) Consulting Agreement 7 BDO 00016374.705-00016374.709 Findings: (1) No (2) — (3) — (4) No (page 2, ¶ 6) Consulting Agreement 2 BDO 00006620-00006625 Findings: (1) No (2) — (3) — (4) No (page 3, ¶ 6) Consulting Agreement 3 BDO 00019032-00019037 Findings: (1) No (2) — (3) — (4) No (page 3, ¶ 6) Consulting Agreement 3 BDO 00019135-00019138 Findings: (1) Yes (2) Yes (3) — (4) No (first page, ¶ 1) Consulting Agreement 2 BDO 00007592-00007597 Findings: (1) No (2) — (3) — (4) No (page 2, ¶ 6) Consulting Agreement 2 BDO 00007599-00007604 Findings: (1) — (2) — (3) — (4) — (unsigned document) Consulting Agreement 3 BDO 00019254-00019258 Findings: (1) No (2) — (3) — (4) No (page 2, ¶ 6) Consulting Agreement 7 BDO 00016374.270-00016374.274 Findings: (1) No (2) — (3) — (4) No (page 2, ¶ 6) Consulting Agreement 7 BDO 00016374.4-00016374.10 Findings: (1) No (2) — (3) — (4) Yes (page 1) Consulting Agreement 3 BDO 00024043-00024047 Findings: (1) No (2) — (3) — (4) No (page 2, ¶ 6) (§ 7525(b)) Consulting Agreement 3 BDO 00024048-00024052 Findings: (1) No (2) — (3) — (4) No (page 2, ¶ 6) (§ 7525(b)) Consulting Agreement 3 BDO 00024059-00024063 Findings: (1) No (2) — (3) — (4) No (page 2, ¶ 6) (7525(b)) Consulting Agreement 3 BDO 00024066-000024070 Findings: (1) — (2) — (3) — (4) — (unsigned document) Consulting Agreement 2 BDO 00017870-00017875 Findings: (1) No (2) — (3) — (4) No (page 2, ¶ 6) Consulting Agreement 2 BDO 00017886-00017891 Findings: (1) — (2) — (3) — (4) — (unsigned document) Consulting Agreement 3 BDO 00021201-00021206 Findings: (1) No (2) — (3) — (4) No (page 2, ¶ 6) Consulting Agreement 6 BDO 00003760.51-00003760.56 Findings: (1) No (2) — (3) — (4) No (page 2, ¶ 6) Consulting Agreement 7 BDO 00002201-00002206 Findings: (1) — (2) — (3) — (4) — (unsigned document) Consulting Agreement 4 BDO 00021400-00021404 Findings: (1) No (2) — (3) — (4) Yes (page 2, ¶ 5; page 1, ¶ 2) Engagement Letter 7 BDO 00008311-00008320 Findings: (1) No (2) — (3) — (4) Yes (page 1) Consulting Agreement 7 BDO 00008321-00008325 Findings: (1) No (2) — (3) — (4) Yes (page 1) Consulting Agreement BDO 00020000-00020005 Findings: (1) — (2) — (3) — (4) — (unsigned document) Consulting Agreement 3 BDO 00019423-00019428 Findings: (1) No (2) — (3) — (4) No (page 3, ¶ 6) Consulting Agreement 2 BDO 00006581-00006586 Findings: (1) No (2) — (3) — (4) No (page 3, ¶ 6) Consulting Agreement 2 BDO 00017864-00017869 Findings: (1) No (2) — (3) — (4) No (page 2, ¶ 6) Consulting Agreement 2 BDO 00017892-00017897 (1) — (2) — (3) — (4) — (unsigned document) Consulting Agreement 3 BDO 00019536-00019541 Findings: (1) No (2) — (3) — (4) No (page 2, ¶ 6) Consulting Agreement 7 BDO 00002207-00002212 Findings: (1) — (2) — (3) — (4) — (unsigned document) Consulting Agreement BDO 00028361-00028365 Findings: (1) No (2) — (3) — (4) No (page 2, ¶ 6) Consulting Agreement BDO 00031434-00031438 Findings: (1) No (2) — (3) — (4) No (page 2, ¶ 6) Consulting Agreement BDO 00028361-00028365 Findings: (1) No (2) — (3) — (4) No (page 2, ¶ 6) Consulting Agreement BDO 00031434-00031438 Findings: (1) No (2) — (3) — (4) No (page 2, ¶ 6) Consulting Agreement BDO 00028361-00028365 Findings: (1) No (2) — (3) — (4) No (page 2, ¶ 6) Consulting Agreement BDO 00031434-00031438 Findings: (1) No (2) — (3) — (4) No (page 2, ¶ 6) Consulting Agreement BDO 00028361-00028365 Findings: (1) No (2) — (3) — (4) No (page 2, ¶ 6) Consulting Agreement BDO 00031434-00031438 Findings: (1) No (2) — (3) — (4) No (page 2, ¶ 6) Consulting Agreement 2 BDO 00017898-00017903 Findings: (1) — (2) — (3) — (4) — (unsigned document) Consulting Agreement 2 BDO 00017876-00017881 Findings: (1) No (2) — (3) — (4) No (page 2, ¶ 6) Consulting Agreement 3 BDO 00021648-00021653 Findings: (1) No (2) — (3) — (4) No (page 2, ¶ 6) Consulting Agreement 6 BDO 00003760.403-00003760.408 Findings: (1) No (2) — (3) — (4) No (page 2, ¶ 6) Consulting Agreement 6 BDO 00003760.409-00003760.414 Findings: (1) No (2) — (3) — (4) No (page 2, ¶ 6) Consulting Agreement BDO 00031439-00031443 Findings: (1) — (2) — (3) — (4) — (unsigned document) Consulting Agreement 3 BDO 00021732-00021736 Findings: (1) No (2) — (3) — (4) No (page 2, ¶ 5) Consulting Agreement 8 BDO 00002288.19-00002288.23 Findings: (1) — (2) — (3) — (4) — (unsigned document) Consulting Agreement 8 BDO 00002288.37-00002288.41 Findings: (1) — (2) — (3) — (4) — (unsigned document) Consulting Agreement 8 BDO 00002288.9-00002288.13 Findings: (1) — (2) — (3) — (4) — (unsigned document) Consulting Agreement 6 BDO 00012419.1057-00012419.1061 Findings: (1) No (2) — (3) — (4) Yes (page 2, ¶ 6) Consulting Agreement 6 BDO 00012419.879-00012419.883 Findings: (1) No (2) — (3) — (4) Yes (page 2, ¶ 6) Consulting Agreement 6 BDO 00012419.937-00012419.941 Findings: (1) — (2) — (3) — (4) — (unsigned document) Consulting Agreement 6 BDO 00012419.942-00012419.946 Findings: (1) — (2) — (3) — (4) — (unsigned draft) Consulting Agreement 3 BDO 00021799-00021803 Findings: (1) — (2) — (3) — (4) — (unsigned document) Consulting Agreement 7 BDO 00010105.1241-00010105.1245 Findings: (1) — (2) — (3) — (4) — (unsigned document) Engagement Letter 7 BDO 00006608.490-00006608.496 Findings: (1)No (2) — (3) — (4) Yes (first page) Consulting Agreement 3 BDO 00021583-00021587 Findings: (1) No (2) — (3) — (4) Yes (page 2, ¶ 6) Engagement Letter 7 BDO 00010105.1053-00010105.1059 Findings: (1) No (2) — (3) — (4) Yes (first page) Engagement Letter 7 BDO 00010105.1060-00010105.1066 Findings: (1) No (2) — (3) — (4) Yes (first page) Engagement Letter 7 BDO 00010105.988-00010105.993 Findings: (1) No (2) — (3) — (4) Yes (first page) Consulting Agreement 8 BDO 00002288.228-00002288.232 Findings: (1) No (2) — (3) — (4) Yes (page 2, ¶ 6) Consulting Agreement 8 BDO 00002288.260-00002288.264 Findings: (1) No (2) — (3) — (4) Yes (page 2, ¶ 6) Consulting Agreement BDO 00031444-00031448 Findings: (1) No (2) — (3) — (4) No (page 2, ¶ 6) Consulting Agreement 6 BDO 00012419.594-00012419.598 Findings: (1) No (2) — (3) — (4) No (page 2, ¶ 6) Consulting Agreement 6 BDO 00012419.599-00012419.603 Findings: (1) — (2) — (3) — (4) — (unsigned document) Engagement Letter 6 BDO 00012419.633-00012419.639 Findings: (1) No (2) — (3) — (4) Yes (first page) Consulting Agreement 8 BDO 00002288.14-00002288.18 Findings: (1) — (2) — (3) — (4) — (unsigned document) Consulting Agreement 8 BDO 00002288.24-00002288.29 Findings: (1) — (2) — (3) — (4) — (unsigned document) Consulting Agreement 8 BDO 00002288.31-00002288.35 Findings: (1) — (2) — (3) — (4) — (unsigned document) Consulting Agreement 3 BDO 00017722-00017726 Findings: (1) No (2) — (3) — (4) No (pages 2 and 3, ¶ 6) Consulting Agreement 3 BDO 00017703-00017707 Findings: (1) No (2) — (3) — (4) No (page 2, ¶ 6) Consulting Agreement 3 BDO 00017716-00017720 Findings: (1) No (2) — (3) — (4) No (page 2, ¶ 6) Consulting Agreement 4 BDO 00026586-00026590 Findings: (1) No (2) — (3) — (4) No (page 2, ¶ 6) Engagement Letter 5 BDO 00002532.1982-00002532.1989 Findings: (1) No (2) — (3) — (4) Yes (first page) Engagement Letter 5 BDO 00002532.648-00002532.653 Findings: (1) No (2) — (3) — (4) Yes (first page) Consulting Agreement 8 BDO 00002288.266-00002288.270 Findings: (1) — (2) — (3) — (4) — (unsigned document) Consulting Agreement 10 BDO 00001160.375-00001160.379 Findings: (1) No (2) — (3) — (4) No (page 2, ¶ 6) Consulting Agreement BDO 00018480-00018486 Findings: (1) No (2) — (3) — (4) No (page 3, ¶ 5) Consulting Agreement BDO 00018487-00018496 Findings: (1) No (2) — (3) — (4) No (page 2, ¶ 6) Consulting Agreement BDO 00018497-00018506 Findings: (1) No (2) — (3) — (4) No (page 3, ¶ 6) Consulting Agreement 4 BDO 00023494-00023503 Findings: (1) No (2) — (3) — (4) No (page 3, ¶ 6) Consulting Agreement 4 BDO 00023926-00023935 Findings: (1) No (2) — (3) — (4) No (page 3, ¶ 6) Consulting Agreement BDO 00018507-00018516 Findings: (1) No (2) — (3) — (4) No (page 3, ¶ 6) Consulting Agreement BDO 00018517-00018526 Findings: (1) No (2) — (3) — (4) No (page 3, ¶ 6) Consulting Agreement 4 BDO 00024788-00024797 Findings: (1) No (2) — (3) — (4) No (page 3, ¶ 6) Consulting Agreements 4 BDO 00002293 Findings: (1) — (2) — (3) — (4) — (incomplete document) Consulting Agreements 4 BDO 00002295-00002301 Findings: (1) — (2) — (3) — (4) — (unsigned document) Engagement Letter BDO 00035725-00035733 Findings: (1) No (2) — (3) — (4) No (first page) Consulting Agreement 2 BDO 00018108-00018113 Findings: (1) No (2) — (3) — (4) No (page 2, ¶ 6) Consulting Agreement 3 BDO 00020608-00020614 Findings: (1) No (2) — (3) — (4) Yes (page 2, ¶ 6; seventh page) Consulting Agreement 2 BDO 00017976-00017981 Findings: (1) No (2) — (3) — (4) No (page 2, ¶ 6) Consulting Agreement 2 BDO 00017906-00017911 Findings: (1) No (2) — (3) — (4) No (page 3, ¶ 6) Consulting Agreement 3 BDO 00022136-00022141 Findings: (1) No (2) — (3) — (4) No (page 3, ¶ 6) Consulting Agreement 6 BDO 00012419.34-00012419.38 Findings: (1) Yes (2) Yes (3) — (4) No (first page, § 2) Engagement Letter 6 BDO 00012419.40-00012419.42 Findings: (1) No (2) — (3) — (4) Yes (first page) Confidentiality Agreement 7 BDO 00008231-00008234 Findings: (1) — (2) — (3) — (4) — (unsigned draft) Consulting Agreement 2 BDO 00004563-00004567 Findings: (1) No (2) — (3) — (4) No (page 2, ¶ 6) Consulting Agreement 2 BDO 00004614-00004619 Findings: (1) No (2) — (3) — (4) No (page 2, ¶ 6) Consulting Agreement 3 BDO 00017918-00017923 Findings: (1) No (2) — (3) — (4) No (page 2, ¶ 6) Consulting Agreement 3 BDO 00006108-00006112 Findings: (1) No (2) — (3) — (4) No (page 2, ¶ 6) (§ 7525(b)) Consulting Agreement 3 BDO 00006114-00006118 Findings: (1) No (2) — (3) — (4) No (page 2, ¶ 6) (§ 7525(b)) Consulting Agreement 5 BDO 00000627-00000645 Findings: (1) — (2) — (3) — (4) — (unsigned document) Consulting Agreement 4 BDO 00026029-00026036 Findings: (1) No (2) — (3) — (4) No (page 2, ¶ 6) (§ 7525(b)) Consulting Agreement 7 BDO 00005765-00005769 Findings: (1) No (2) — (3) — (4) No (page 2, ¶ 7) (§ 7525(b)) Consulting Agreement 7 BDO 00005770-00005777 Findings: (1) No (2) — (3) — (4) No (page 2, ¶ 6) (§ 7525(b)) Consulting Agreement 2 BDO 00001099-00001108 Findings: (1) No (2) — (3) — (4) No (page 3, ¶ 6) Consulting Agreement 2 BDO 00001164-00001170 Findings: (1) No (2) — (3) — (4) No (page 2, ¶ 5) Consulting Agreement 2 BDO 00001171-00001180 Findings: (1) No (2) — (3) — (4) No (page 3, ¶ 6) Consulting Agreement 3 BDO 00000001-00000009 Findings: (1) — (2) — (3) — (4) — (unsigned document) Consulting Agreement 3 BDO 00000012-00000020 Findings: (1) — (2) — (3) — (4) — (unsigned document) Consulting Agreement 3 BDO 00000819-00000828 Findings: (1) No (2) — (3) — (4) No (page 3, ¶ 6) Consulting Agreement 3 BDO 00000829-00000835 Findings: (1) No (2) — (3) — (4) No (page 3, ¶ 6) (§ 7525(b)) Consulting Agreement 3 BDO 00022057-00022063 Findings: (1) No (2) — (3) — (4) No (page 3, ¶ 6) (§ 7525(b)) Consulting Agreement 4 BDO 00020036-00020045 Findings: (1) No (2) — (3) — (4) No (page 3, ¶ 6) (§ 7525(b)) Consulting Agreement 2 BDO 00000551-00000560 Findings: (1) No (2) — (3) — (4) No (page 3, ¶ 6) Consulting Agreement 2 BDO 00001191-00001200 Findings: (1) No (2) — (3) — (4) No (page 3, ¶ 6) Consulting Agreement 3 BDO 00000011-00000029 Findings: (1) — (2) — (3) — (4) — (unsigned document) Consulting Agreement 3 BDO 00000799-00000808 Findings: (1) No (2) — (3) — (4) No (page 3, ¶ 6) Consulting Agreement 3 BDO 00005348-00005357 Findings: (1) No (2) — (3) — (4) No (page 3, ¶ 6) Consulting Agreement 4 BDO 00020046-00020055 Findings: (1) No (2) — (3) — (4) No (page 3, ¶ 6) Consulting Agreement 2 BDO 00001181-00001190 Findings: (1) No (2) — (3) — (4) No (page 3, ¶ 6) Consulting Agreement 2 BDO 00001920-00001929 Findings: (1) No (2) — (3) — (4) No (page 3, ¶ 6) Consulting Agreement 3 BDO 00000010 Findings: (1) — (2) — (3) — (4) — (unsigned document) Consulting Agreement 3 BDO 00000782-00000790 Findings: (1) — (2) — (3) — (4) — (unsigned document) Consulting Agreement 3 BDO 00000809-00000818 Findings: (1) No (2) — (3) — (4) No (page 3, ¶ 6) Consulting Agreement 4 BDO 00020056-00020065 Findings: (1) No (2) — (3) — (4) No (page 3, ¶ 6) Consulting Agreement 6 BDO 00009342-00009351 Findings: (1) No (2) — (3) — (4) No (page 3, ¶ 6) Consulting Agreement 2 BDO 00017145-00017150 Findings: (1) No (2) — (3) — (4) No (page 2, ¶ 6) Consulting Agreement 4 BDO 00000482-00000486 Findings: (1) No (2) — (3) — (4) No (page 2, ¶ 6) Consulting Agreement 4 BDO 00000496-00000500 Findings: (1) — (2) — (3) — (4) — (unsigned document) Consulting Agreement 4 BDO 00000510-00000513 Findings: (1) — (2) — (3) — (4) — (unsigned document) Consulting Agreement 4 BDO 00000516-00000519 Findings: (1) — (2) — (3) — (4) — (unsigned document) Consulting Agreement 4 BDO 00002776-00002782 Findings: (1) — (2) — (3) — (4) — (unsigned document) Retainer Agreement 2 BDO 00006293-00006304 Findings: (1) No (2) — (3) — (4) No (page 2, ¶ 5) (§ 7525(b)) Confidentiality Agreement 2 BDO 00006305-00006307 Findings: (1) Yes (2) Yes (3) — (4) No (first page) Consulting Agreement 2 BDO 00006341-00006346 Findings: (1) No (2) — (3) — (4) No (page 3, ¶ 6) Retainer Agreement 2 BDO 00006347-00006353 Findings: (1) — (2) — (3) — (4) — (unsigned document) Consulting Agreement 2 BDO 00006355-.00006361 Findings: (1) No (2) — (3) — (4) No (page 3, ¶ 6) Retainer Agreement 3 BDO 00022079-00022084 Findings: (1) No (2) — (3) — (4) No (page 2, ¶ 5) Consulting Agreement 4 BDO 00015236-00015242 Findings: (1) No (2) — (3) — (4) No (page 3, ¶ 6) Confidentiality Agreement 2 BDO 00006286-00006288 Findings: (1) — (2) — (3) — (4) — (unsigned document) Consulting Agreement 2 BDO 00006309-00006315 Findings: (1) — (2) — (3) — (4) — (unsigned document) Retainer Agreement 2 BDO 00006316-00006321 Findings: (1) — (2) — (3) — (4) — (unsigned document) Retainer Agreement 3 BDO 00022085-00022090 Findings: (1) No (2) — (3) — (4) No (page 2, ¶ 5) Consulting Agreement 4 BDO 00015773-00015786 Findings: (1) No (2) — (3) — (4) No (page 3, ¶ 6) Engagement Letter 4 BDO 00005152-00005155 Findings: (1) Yes (2) Yes (3) — (4) No (first page) (§ 7525(b)) Engagement Letter 4 BDO 00005159-00005162 Findings: (1) Yes (2) Yes (3) — (4) No (first page) (§ 7525(b)) Engagement Letter 4 BDO 00005182-00005185 Findings: (1) — (2) — (3) — (4) No (unsigned document) Engagement Letter 8 BDO 00003296-00003299 Findings: (1) Yes (2) Yes (3) — (4) No (first page) (§ 7525(b)) Consulting Agreement 3 BDO 00022260-00022264 Findings: (1) No (2) — (3) — (4) No (page 2, ¶ 6) Agreement to Terminate 3 BDO 00022279-00022282 Findings: (1) Yes (2) Yes (3) — (4) No (first page) Consulting Agreement 10 BDO 00001002-00001006 Findings: (1) No (2) — (3) — (4) No (page 2, ¶ 6) Consulting Agreement 3 BDO 00005905-00005911 Findings: (1) No (2) — (3) — (4) No (page 2, ¶ 6) Retainer Agreement 3 BDO 00005912-00005917 Findings: (1) Yes (2) Yes (3) — (4) No (page 1) Retainer Agreement 4 BDO 00012353-00012358 Findings: (1) Yes (2) Yes (3) — (4) No (page 1) Consulting Agreement 4 BDO 00012414-00012420 Findings: (1) No (2) — (3) — (4) No (page 2, ¶ 6) Consulting Agreement 4 BDO 00013119-00013125 Findings: (1) No (2) — (3) — (4) No (page 2, ¶ 6) Consulting Agreement BDO 00019492 Findings: (1) No (2) — (3) — (4) No (page 3, ¶ 6) Consulting Agreement BDO 00019535 Findings: (1) No (2) — (3) — (4) No (page 3, ¶ 6) Consulting Agreement 7 BDO 00015835-00015840 Findings: (1) No (2) — (3) — (4) No (page 3, ¶ 6) Consulting Agreement BDO 00034519-00034528 Findings: (1) — (2) — (3) — (4) — (unsigned document) Retainer Agreement BDO 00034529-00034534 Findings: (1) — (2) — (3) — (4) — (unsigned document) Engagement Letter BDO 00034535-00034540 Findings: (1) — (2) — (3) — (4) — (unsigned document) Confidentiality Agreement 5 BDO 00006520-00006523 Findings: (1) — (2) — (3) — (4) — (unsigned document) Consulting Agreement 5 BDO 00006524-00006530 Findings: (1) — (2) — (3) — (4) — (unsigned document) Consulting Agreement 5 BDO 00006531-00006537 Findings: (1) — (2) — (3) — (4) — (unsigned document) Consulting Agreement 5 BDO 00006538-00006544 Findings: (1) — (2) — (3) — (4) — (unsigned document) Engagement Letter 5 BDO 00006703-00006709 Findings: (1) — (2) — (3) — (4) — (unsigned document) Consulting Agreement 6 BDO 00010923-00010927 Findings: (1) No (2) — (3) — (4) No (page 2, ¶ 6) Consulting Agreement 6 BDO 00010929-00010933 Findings: (1) — (2) — (3) — (4) — (unsigned document) Consulting Agreement 6 BDO 00010936-00010940 Findings: (1) — (2) — (3) — (4) — (unsigned document) Engagement Letter 6 BDO 00010976-00010982 Findings: (1) No (2) — (3) — (4) Yes (first page, § 1 and 2) Consulting Agreement 2 BDO 00004568-00004573 Findings: (1) No (2) — (3) — (4) No (page 2, ¶ 6) Consulting Agreement 2 BDO 00005118-00005123 Findings: (1) — (2) — (3) — (4) No (page 2, ¶ 6) Consulting Agreement 4 BDO 00026090-00026096 Findings: (1) No (2) — (3) — (4) No (page 2, ¶ 6) Consulting Agreement 4 BDO 00025306-00025312 Findings: (1) No (2) — (3) — (4) No (page 2, ¶ 6) Consulting Agreement 6 BDO 00009596-00009602 Findings: (1) No (2) — (3) — (4) No (page 2, ¶ 6) Consulting Agreement 4 BDO 00013891-00013897 Findings: (1) No (2) — (3) — (4) No (page 2, ¶ 6) CONCLUSION
The findings made herein have been made document-by-document based upon the totality of the circumstances as to each of the documents identified above which were submitted for in camera review with regard to the issues raised by the appeals of the proposed intervenors in the cases numbered 02-3914 and 02-3915 in the United States Court of Appeals for the Seventh Circuit. The documents reviewed in camera by this court are ordered transmitted to the United States Court of Appeals for the Seventh Circuit under seal for review if desired by that Court on appeal.