Opinion
Cause No. 1:00-CV-446, Cause No. 1:00-CV-447
April 17, 2001
REPORT AND RECOMMENDATION
I. Introduction
On November 30, 2000, the United States of America (hereafter sometimes referred to as "the Government") filed Petitions in these cases to enforce IRS summonses. The Respondents filed Answers on December 27, 2000, and on January 12, 2001 filed Second Responsive Pleadings, including affirmative defenses. On January 17, 2001, and in accordance with 28 U.S.C. § 636 (b)(1)(B) of the Federal Magistrate's Act and N.D. Ind. L.R. 72.1(a), the District Court entered an order referring the petitions to the undersigned Magistrate Judge for a Report and Recommendation. On January 18, 2001, the Court consolidated the cases solely for an evidentiary hearing on the petitions, and following the hearing, took the matter under advisement.
After taking the petitions under advisement, the Court requested additional briefing on the Fifth Amendment issue, which concluded on April 6, 2001.
For the following reasons, the undersigned Magistrate Judge recommends that the Court GRANT the Petitions to Enforce the Summonses.
II. FINDINGS OF FACT
To comply with Fed.R.Civ.P. 52(a) the Court makes the following findings of fact which will be set out in narrative fashion. Any finding of fact deemed to be a conclusion of law is hereby incorporated as such and any conclusion of law deemed to be a finding of fact is hereby incorporated as such.
Ellis J. Crum ("Ellis") and Norma N. Crum ("Norma") (hereafter collectively "the Crums") are husband and wife and reside in Kendallville, Indiana. (Tr. at 58, 99). In March 1994, the Crums established three separate trusts which they currently "co-manage," viz., the MURC Family Trust (hereafter "MURC Trust"), the NE Management trust (hereafter "NE Trust"), and the Sacred Music trust (hereafter "Music Trust"). (Tr. at 59, 100-01). The Crums maintain that they manage and operate the trusts "on behalf of the trustee." (Tr. at 102). The Crums describe their duties as managing the trusts "from day to day." (Tr. at 107).
The nominal trustee for each trust is Steve Altman, who apparently is the Crums' accountant. (Tr. at 45).
The MURC Trust is comprised of the Crums' personal residence. The trust maintains the Crums' residence, and pays the mortgage, taxes and insurance, all through a trust bank account. The trust receives no income and it is unclear how it continues to be funded.
The NE Trust holds and maintains rental properties and the Crums keep records of the receipts and payables through a trust bank account. (Tr. at 76, 110).
The Music Trust derives income by printing and selling hymnals and gospel music, mostly written by Ellis. Norma acts as the "secretary" for this trust. Ellis works for the trust, receiving some remuneration, but the trust does not provide him with any income records. (Tr. at 114). Nevertheless, the Crums apparently maintain some records of the trust's income.
The Crums have copies of all three trust instruments, listing the property placed in each trust. While the Crums also have the trusts' taxpayer identification numbers, they do not have any trust tax returns. When money is paid out of the trusts, it is usually via checks, and the Crums have the trust bank statements and check registers. (Tr. at 61). Additionally, the Crums maintain receipts for money paid into the trusts.
The trusts were each initially funded by the Crums' personal assets when they were created in March 1994. (Tr. at 59). However, on September 2, 1994, the Crums conveyed some real property by quit claim deeds to the MURC and NE Trusts.
The Crum family residence, the rental properties, and the music business are managed by the Crums just as they were before the Crums placed them into trust. (Tr. at 60). Moreover, no regular trust meetings are held, and any existing minutes from the meetings that are held are simply the Crums' personal notes. (Tr. at 78-79, 103, 108). Additionally, while the Crums contend that no other "formal" trust documents exist, they acknowledge there are some informal trust documents. (Tr. at 108-111, 62-65).
John Dietrich, (hereafter "Dietrich"), an Internal Revenue Service ("IRS") Revenue Officer is currently investigating possible administrative or judicial collection against the trusts to collect the Crums' personal income tax liabilities. (Dietrich decl. ¶¶ 1, 2; Tr. at 16, 21). Accordingly, pursuant to 26 U.S.C. § 7602, Dietrich served summonses upon the Crums, requiring that they give testimony and produce for examination certain books, records and other trust data. More particularly, the summonses requested twelve (12) categories of information, which we set out in bold, along with what we now understand to be the Crums' responses.
Dietrich has submitted two Declarations, one each for Ellis and Norma. The Declarations are essentially identical except that it is asserted that Ellis owes income taxes for tax years 1991, 1992 and 1993, while Norma only owes for 1993.
1. A complete copy of the trust instrument for each trust and all related trusts, including attachments, schedules, amendments, and codicils. (U.S. Treasury Regulation 1.6012-3(a) requires a trustee to furnish these documents to the Internal Revenue Service upon request.)
The Crums admit having copies of the trust agreements, however, they believe the agreements to be private, and have only shared them with the trustee, the beneficiaries, and their bank. (Tr. at 62, 67, 108).
2. All minutes for each trust from the inception to the present, including records regarding the appointment and/or resignations/ terminations of the trustees and managers; records of all assets transferred into each trust, and all records regarding the ownership of all shares of beneficial interest.
The Crums maintain that no official trust minutes exist, however, they concede that they may possess informal documents falling under this request. (Tr. at 63). Moreover, while Norma originally testified that no assets had been transferred since the trusts were formed, (Tr. 3, 67, 79, 108), the Crums admit they have copies of quit claim deeds transferring real estate into the MURC Trust and the NE Trust in September 1994. (Tr. at 80, 81).
3. Listing of all certificate holders and/or beneficiaries of each trust to include the name, address, and Social Security number or Employer Identification number, from the inception of each trust to the date of your appearance pursuant to the summons.
At the Court's direction, the Crums revealed at the hearing that the beneficiaries of each trust are their children: Cheryl Gammon, Ellis Jay Crum, Jannella Turansky, Brent Crum, and Beth Immel. (Tr. at 95-96).
4. Bank statements and/or a list of all accounts for all trust accounts, both U.S. and foreign, checking and savings, for the period of January 1, 1994 to February 28, 1999.
The Crums maintain separate bank accounts for the MURC Trust, the NE Trust, and the Music Trust and have bank statements for each. (Tr. at 75, 76, 84, 110).
5. All accounting books and records for the trust from January 1, 1994 through the date of your appearance pursuant to this summons. Records to include, but are not to be limited to check registers, disbursement journals, receipts journals, general ledger, and other work papers used in the preparation of the tax return(s) and financial statements.
The Crums have accounting books, records, and check registers for each trust, but maintain that these were created in their own hands. (Tr. at 64-65, 84-85, 110-111). The Crums also have receipts for money paid in or out of the trusts. (Tr. at 87, 88-90, 111-12).
6. Copies of all Forms 1041, U.S. Fiduciary Income Tax Returns, for each trust for the years 1994 through 1997.
The Crums do not have 1041 forms, and maintain that they have some sort of documentation from the IRS stating that the trusts are not subject to taxation. (Tr. at 112-13).
7. Copies of all Forms 1099 issued by each trust for the tax years 1994 through and including 1998.
The Crums do not have any such 1099 forms. (Tr. at 65, 112-13).
8. Copies of all Forms 1099 received by each trust for tax years 1994 through and including 1998.
The Crums do not have any such 1099 forms (Tr. at 65, 112-13).
9. All loan documents for each trust, including but not limited to, loan agreements, promissory notes, Deeds of Trust, Security Agreement, payment records and financial statements submitted to any lender, for loans entered into or that were in effect during the period of January 1, 1994 to the date of your appearance pursuant to this summons.
While Norma originally asserted that no loan agreements exist, (Tr. at 65), Ellis later testified that at least the MURC Trust has loan documentation for the mortgage on their residence. (Tr. at 115).
10. Documentation of all assets held by each trust, including assets transferred by the grantors and assets acquired by the trust from its inception to the date of your appearance pursuant to the summons. Such documentation should include but is not limited to deeds, royalty agreements, sales contracts, purchase agreements, and all documents showing the source of funds used to purchase of (sic) the assets.
The Crums have possession of documents showing the assets held by each of the trusts. (Tr. at 91, 109, 116). The Crums may also have documentation concerning royalty agreements for the Music Trust. (Tr. at 91, 117).
11. Documentation showing all sales and/or transfers of property from each trust from January 1, 1994 to the date of your appearance pursuant to this summons. Documents should include, but are not limited to deeds, assignments, sales contracts, purchase agreements, and documents showing the disposition of funds received in the transfer of the assets.
The Crums have hand-written documentation showing the sale of hymns from the Music Trust. (Tr. at 92-93, 118-19). Additionally, they have documentation for goods purchased by the trusts. (Tr. at 94).
12. Documentation of the Taxpayer Identification Number for each trust.
The Crum assert that only they, and possibly the bank, have the taxpayer identification numbers for the trust. (Tr. at 66, 120).
In seeking to enforce the summons, the IRS maintains that it has taken all required administrative steps, and that the requested information is necessary to determine if administrative or judicial collection action should be pursued against the trusts to collect the Crums' Federal tax liability. (Dietrich decl. ¶¶ 6-8).
The Crums contend that no prima facie case for enforcement has been established, that they do not possess some of the document sought, and that the Fourth Amendment and Fifth Amendments otherwise apply, such that they do not have to produce the documents they do possess.
III. CONCLUSIONS OF LAW
Footnote 1, supra. is incorporated here by this reference
The authority of the IRS to issue a summons to collect or examine the potential tax liability of an individual is set forth in 26 U.S.C. § 7602 (a):
For the purpose of . . . determining the liability of any person for any internal revenue tax . . . or collecting on any such liability, the Secretary is authorized
(1) To examine any books, papers, records, or other date which may be relevant or material to such inquiry;
(2) To summon the person liable for tax or required to perform the act, or any officer or employee of such person, or any person having possession, custody, or care of books of account containing entries relating to the business of the person liable for tax or required to perform the act, or any other person the Secretary may deem proper, to appear before the Secretary at a time and place named in the summons and to produce such books, papers, records, or other data, and to give such testimony, under oath, as may be relevant or material to such inquiry; and
(3) To take such testimony of the person concerned, under oath, as may be relevant or material to such inquiry.26 U.S.C. § 7602 (a). If an individual fails to comply with an IRS summons, the Government may seek judicial enforcement in a United States district court. Adams v. I.R.S., 1999 WL 1001584. *3 (N.D. Ind. Sept. 29, 1999) (citing 26 U.S.C. § 7604).
To obtain enforcement of an administrative summons, the Government has the burden to come forward with a prima fade case showing that (1) the investigation is being conducted for a legitimate purpose; (2) the information sought is relevant to the investigation; (3) the information is not already in the government's possession; and (4) the administrative steps required by the Internal Revenue Code have been followed. U.S. v. Insurance Consultants of Knox, Inc., 187 F.3d 755, 759 (7th Cir. 1999) (citing United States v. Powell, 379 U.S. 48, 57-58, 85 S.Ct. 248, 13 L.Ed.2d 112 (1964)). These requirements impose only a "minimal burden" that can be satisfied by a showing in an affidavit, such as Dietrich's Declaration. Insurance Consultants of Knox, Inc., 187 F.3d at 759 (citing Miller v. United States, 150 F.3d 770, 772 (7th Cir. 1998)).
During the evidentiary hearing, the Government presented evidence in support of its prima facie case that they seek the documents listed in the summonses in order to locate sources of income to collect on the Crums' established tax liabilities. (Tr. at 19; Dietrich decs. ¶ 2). This is certainly a legitimate purpose for an IRS investigation. See 26 U.S.C. § 7602 (a). The Crums also do not contest Dietrich's assertion that the documents are not already in the Government's possession or that all administrative steps required by the Internal Revenue Code have been followed. (See Pl. Exh. 1 ¶¶ 6-7; Pl. Exh. 2 ¶¶ 6-7).
With the Government having established a prima facie case, the Crums face the "heavy burden" of either disproving one of the above factors, or showing that the IRS issued the summons in bad faith. Insurance Consultants of Knox, Inc., 187 F.3d at 759 (quoting Miller, 150 F.3d at 772 (internal citations omitted)); see also United States v. LaSalle National Bank, 437 U.S. 298, 316, 98 S.Ct. 2357, 57 L.Ed.2d 221 (1978). The taxpayer can rebut the government's prima facie case only with "specific facts." Insurance Consultants of Knox, Inc., 187 F.3d at 759 (citing Crystal v. United States, 172 F.3d 1141, 1144 (9th Cir. 1999)). However, a respondent may still challenge the summons on any other appropriate ground. United States v. Rylander, 460 U.S. 752, 757, 103 S.Ct. 1548, 1552 (1983) (citing Reisman v. Caplin, 375 U.S. 440, 449, 84 S.Ct. 508, 513 (1964)).
Here, the Crums seek to rebut the Government's prima facie case by asserting that the information sought by the IRS is not relevant. Indeed, the Crums posit the notion that since the Government does not even know if the requested information exists, it cannot be relevant. However, the Government does not need to show that the evidence actually exists, or that it would be admissible at trial, but only need show that the summoned information, if it exists, "might throw some light upon" the tax liabilities under investigation. U.S. v. Renwald, 1998 WL 835002, *4 (N.D.Ind. Oct. 15, 1998) (quoting U.S. v. Arthur Young Co., 465 U.S. 805, 814, 104 S.Ct. 1495, 1501 (1984) ("The language "may be' reflects Congress' express intention to allow the IRS to obtain items of even potential relevance to an ongoing investigation.")); Powell, 379 U.S. at 57. Here, the Government seeks certain information from the trusts to determine if it can satisfy the Crums' outstanding tax liabilities from trust assets or income. of course, such an inquiry may ultimately reveal that the trusts are shams, leading to additional avenues for collection. Nonetheless, information regarding trust assets, minutes, beneficiaries, bank statements, accounting records, tax records, transfers of property, and loan agreements are all clearly relevant to the present inquiry. Thus, since the information sought is certainly likely to "throw some light upon" the Government's legitimate efforts, the Crums' irrelevancy argument fails. Renwald, 1998 WL 835002, *4
Aside from attempting to rebut the prima facie case, the Crums have also asserted three affirmative defenses, viz., they lack possession of some of the documents sought, disclosure of the documents will violate the Fourth Amendment, and compelled disclosure will lead to possible self incrimination under the Fifth Amendment. We will address each assertion in turn.
First, the Crums say they do not have some of the documents, and therefore cannot comply with the summonses. of course, lack of possession or control is a valid defense for not producing documents requested in a summons. See Rylander, 460 U.S. at 756 ("a proceeding to enforce an IRS summons is an adversary proceeding in which the Respondent may contest the summons `on any appropriate ground' and . . . lack of possession or control of records is surely such a ground."). However, at the evidentiary hearing the Crums admitted having possession of trust documents at least responsive in part to each summons paragraph except paragraphs 6, 7 and 8. Indeed, the Government has offered no evidence to suggest that the Crums have documents meeting the description set out in paragraphs 6, 7 and 8. Therefore, the Court should sustain the Crums' objection, limited however, to paragraphs 6, 7, and 8.
The Crums next assert a Fourth Amendment defense by relying on GM Leasing Corp v. United States, 429 U.S. 338, 97 S.Ct. 619 (1977), a case holding that the Fourth Amendment applies to warrantless intrusions that violate the privacy interest of a taxpayer during an IRS levy and seizure. However, in that case, Government agents actually entered the taxpayer's private office without consent to effectively conduct a search, clearly violating the Fourth Amendment. GM Leasing Corp., 429 U.S. at 629-30 (citing Camara v. Municipal Court, 387 U.S. 523, 528-29, 87 S.Ct. 1727 (1967) ("One governing principal . . . [is that] a search of private property without proper consent is unreasonable' unless it has been authorized by a valid search warrant."). of course, in the instant case, the Government is not attempting to enter the Crums' residence, but is simply trying to enforce a summons by requiring the Crums to produce certain documents. Thus, GM Leasing, and the Fourth Amendment, are simply inapplicable.
Moreover, the Crums' Fourth Amendment argument has been explicitly rejected by this Court in the past. See Adams, 1999 WL 1001584, at *6. In Adams, the respondent claimed that enforcement of an IRS summons would violate his Fourth Amendment right against unreasonable search and seizure. Id. However, in rejecting such a claim, the court recognized that it is "undisputed that a special agent is authorized pursuant to 26 U.S.C. § 7602 to issue an Internal Revenue Summons in aid of a tax investigation with civil and possible criminal consequences." Id. (quoting Couch v. United States, 409 U.S. 322, 326, 93 S.Ct. 611, 614-15 (1973)). Thus, the Court held that to challenge an I.R.S. summons, the respondent was limited to either negating an element of the IRS' prima facie case, or showing that enforcement would constitute an abuse of process. Adams, 1999 WL 1001584, at *6. In short, there was no authority for the proposition that the Court must undertake a separate Fourth Amendment analysis. Adams, 1999 WL 1001584, at *6 (citing Powell, 379 U.S. at 57); see also, Niemeyer v. United States, 1996 WL 756527, at *7 (C.D. Ill. Oct. 31, 1996) (petitioners cannot claim a violation of their Fourth Amendment rights due to the enforcement of a summons). Since we conclude that Adams was correctly decided, the Crums' Fourth Amendment argument should be rejected.
The Crums' final argument is that the Fifth Amendment protects them from producing self-incriminating documents. The principle at work here has been neatly summarized as follows:
The Crums concede that the trust instruments requested in paragraph I of the summons are not protected by the Fifth Amendment. (See Def. Resp. Br. at 4, n. 1).
The Fifth Amendment provides that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself" U.S. CONST. amend. V. The Fifth Amendment's protection "applies only when the accused is compelled to make a testimonial communication that is incriminating," Baltimore City Dept. Of Social Services v. Bouknight, 493 U.S. 549, 554, 110 S.Ct. 900, 904, 107 L.Ed.2d 992 (1990) (quoting Fisher v. United States, 425 U.S. 391, 408, 96 S.Ct. 1569, 1579, 48 L.Ed.2d 39 (1976)), and guards against "the extortion of information from the accused that offends our sense of justice." See Couch v. United States, 409 U.S. 322, 328, 93 S.Ct. 611, 616, 34 L.Ed.2d 548 (1973). The Supreme Court of the United States has held that various types of evidence may be testimonial in nature, including the act of producing materials in response to a summons and subpoena. See Fisher v. United States, 425 U.S. 391, 410-11, 96 S.Ct. 1569, 1580-81, 48 L.Ed.2d 39 (1976).U.S. v. Maxey Co., P.C., 956 F. Supp. 823, 827 (N.D. Ind. 1997).
However, before we ever reach the merits of the Crums' claim, we must first address whether the Fifth Amendment is even applicable. This inquiry requires that we determine whether the summonses were served on the Crums in their representative capacities as "co-managers" (in which case the Fifth Amendment does not apply), or in their individual capacities. See, e.g., Braswell v. United States, 487 U.S. 99, 117 (1988) ("certain consequences flow from the fact that the custodian's act of production is one in his representative rather than personal capacity").
Although the summonses were served on the Crums, neither of whom is a trustee, they expressly seek trust documents "for the MURC Family Trust, N E Management, a Trust, and the Sacred Music, a Trust." (See Exh. A to the Summons). Moreover, the summonses ask for documents that the Crums possess as co-managers of the trust, documents one would normally expect the trustee to hold. See Ind. Code. § 30-4-3-6(b)(7); Ind. Code § 30-4-5-12. In sum, the Crums were served so the IRS could obtain trust records apparently available nowhere else, and not the Crums' personal records. See, e.g., Bellis v. United States, 417 U.S. 85, 93, 97-99 (1974) (records which were partnership property and only held by the petitioner subject to the rights granted to the other partners under state law were held in a representative capacity); see also, United States v. White, 322 U.S. 694, 701 (1944).
Since the summonses seek trust documents held by the Crums only in a representative capacity, this has a profound affect on whether the Fifth Amendment applies. Simply stated, "an individual cannot rely on a personal privilege against self-incrimination to avoid producing the records of a collective entity which are in his possession in a representative capacity, even if those records might incriminate him personally." Maxey Co., P.C., 956 F. Supp. at 827 (citing Wilson v. United States, 221 U.S. 361, 377, 31 S.Ct. 538, 543, 55 L.Ed. 771 (1911)); Insurance Consultants of Knox, Inc., 187 F.3d at 759 (7th Cir. 1999) (custodian of corporate records could not assert Fifth Amendment). Consequently, the Crums cannot assert a personal privilege under the Fifth Amendment.
Nor is there much doubt that these trusts are collective entities. Although the Seventh Circuit has apparently never addressed the issue, several other circuits have held that trusts are collective entities and that individuals cannot assert the Fifth Amendment to avoid producing what are essentially trust documents. See, e.g., In re Grand Jury Subpoena, 973 F.2d 45, 47-49 (1st Cir. 1992) (trusts are collective entities, and the Fifth Amendment cannot be claimed to avoid producing trust documents); Watson v. Commissioner, 690 F.2d 429, 431 (5th Cir. 1982) (trust is artificial entity and may not claim privilege); United States v. Harrison, 653 F.2d 359, 361-62 (8th Cir. 1981) ( Fifth Amendment privilege does not protect trust records); In re Grand Jury Proceedings, 633 F.2d 754, 757 (9th Cir. 1980) (trust documents are not personal records of grantor); United States v. Kennedy, 122 F. Supp.2d 1195, 1199 (N.D. Okla. 2000) (trustee may not invoke the Fifth Amendment privilege to avoid producing trust documents); United States v. Wooten, No. 2:00-CV-37, 2000 WL 1039468, at *3 (N.D. Ohio June 8, 2000) (noting that since the summons were served on the respondent in her representative capacity as trustee that she could not assert the Fifth Amendment to avoid producing documents); see also, 81 Am. Jur.2d Witnesses § 100 (1992) (the Fifth Amendment privilege cannot be invoked on behalf of a trust because a trust is a separate legal and collective entity).
Indeed, the Supreme Court has described a collective entity as
an independent entity apart from its individual members. The group must be relatively well organized and structured and not merely a loose, informal association of individuals. It must maintain a distinct set of organizational records, and recognize rights in its members of control and access to them.Bellis, 417 U.S. at 93. A valid trust under Indiana law meets this description because it is necessarily structured (Ind. Code § 30-4-1-1), is evidenced by organizational records (Ind. Code § 30-4-2-1), and recognizes the rights of beneficiaries to access trust records. (Ind. Code § 30-4-5-12). Therefore, these trusts are collective entities under Indiana law.
Moreover, it is clear that the Crums intended to give the trusts separate legal identities. Indeed, they purposefully placed their assets in three separate trusts, created the necessary trust documents, named a trustee and beneficiaries, maintained separate bank accounts, and generally held the trusts out as separate from themselves. Bellis, 417 U.S. at 95.
While the Crums rely on Bellis to support their assertion that the trusts are not collective entities, (see Crum. Resp. Br. at 5-6), in that case, the Supreme Court actually determined that the Fifth Amendment did not apply because the three person partnership at issue was a distinct entity from the individual partners. This conclusion flowed from the fact that the partnership had been in existence for nearly 15 years, had been formed to continue the firm's legal practice, and had an organizational structure consistent with state law. Bellis, 417 U.S. at 95-96. Moreover, similar to the Crums, the firm maintained a bank account in the partnership name, and held itself out to third parties as an independent entity. Id. Therefore, Bellis actually supports the Government's position.
Having determined that the trusts are collective entities and that the documents sought are only being held by the Crums in their representative capacities, the Crums' Fifth Amendment argument necessarily fails.
The Crums also rely on United States v. Doe, 465 U.S. 605 (1984) and contend that they should not have to produce trust documents because they were "intimately involved in the records' creation and maintenance" and the records are indistinct "from their own personal records." ( See Crum resp. at 6). However, in Doe, the Supreme Court never addressed a point that was apparently conceded, that the Fifth Amendment applied because the taxpayer was operating a sole proprietorship and was thus acting in a personal, not a representative, capacity. Id. at 608. Accordingly, since the question in Doe was limited to the scope of the privilege, and not whether it applied at all, it offers nothing to the foregoing analysis.
Notwithstanding this conclusion, the Fifth Amendment issue may again surface if the Government attempts to use the Crums' document production against them in future criminal proceedings. Braswell, 487 U.S. at 118; Maxey Co., 956 F. Supp. at 829. However, because no criminal proceedings have been implemented against the Crums, any ruling at this time as to the possible admissibility of the documents would be premature. See Maxey Co., 956 F. Supp. at 829-830 (citing the Eighth and District of Columbia Circuits and holding that any order restricting the use of evidence received from the custodian's production of documents would be premature). Therefore, because in ruling on the petitions before us we do not need to reach the merits of the Crums Fifth Amendment argument, viz., whether the act of producing the documents is testimonial and whether the documents contain "compelled testimonial evidence," we will likewise not address whether the Crums waived the Fifth Amendment by testifying at the evidentiary hearing.
CONCLUSION
Based on the foregoing, it is the recommendation of the undersigned Magistrate Judge that the summonses issued on June 9, 1999 be enforced as to all paragraphs except 6, 7 and 8 and that the Petitions be GRANTED accordingly.
NOTICE IS HEREBY GIVEN that within ten (10) days after being served with a copy of this recommended disposition a party may serve and file specific, written objections to the proposed findings and/or recommendations. Fed.R.Civ.P. 72(b). FAILURE TO FILE OBJECTIONS WITHIN THE SPECIFIED TIME WAIVES THE RIGHT TO APPEAL THE DISTRICT COURTS ORDER. See Thomas v. Am, 474 U.S. 140, 106 S.Ct. 466 (1985); Lerro v. Quaker Oats Co., 84 F.3d 239 (7th Cir. 1996); Lockert v. Faulkner, 843 F.2d 1015 (7th Cir. 1988); Video Views, Inc. v. Studio 21 Ltd, 797 F.2d 538 (7th Cir. 1986).