Waiver of Attorney-Client Privilege and Work-Product Protection Issues Return to Ninth Circuit in Sanmina

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February 10, 2020

We previously reported on the Ninth Circuit’s earlier consideration of attorney-client privilege and waiver issues in the Sanmina case here. That first appeal ended with a whimper of an unpublished opinion when the court of appeals decided that it could better assess the issues after the trial court had reviewed the relevant documents in camera. As explained in more detail in our previous reports, the taxpayer sought to protect the contents of two memoranda prepared by in-house counsel concerning the tax consequences of certain transactions. Those memoranda were furnished to DLA Piper for its use in preparing a stock valuation report. That 102-page report, which was turned over to the IRS in discovery, mentioned in a footnote that the authors had reviewed and relied upon these memoranda, but said nothing about their contents. In its remand order, the Ninth Circuit directed the trial court to determine whether (1) the memoranda were privileged and (2) whether the privilege was waived.

The case is now before the Ninth Circuit for a second time. After in camera review, the district court concluded that the memoranda were privileged, but it also held that both the attorney-client privilege and work-product protection were waived. The court stated that the attorney-client privilege was waived “when Sanmina voluntarily disclosed the memoranda to DLA Piper, not for the purpose of receiving legal advice, but for the purpose of determining the value” of the stock. That disclosure standing alone would not waive work-product protection because only a disclosure to an “adversary” waives that protection. But the district court concluded that work-product protection was also waived because it was contemplated that the DLA Piper report would be disclosed to the IRS, and the report “explicitly stated that DLA Piper based its conclusions on ‘the related documents provided by management’ and then referenced the memoranda by name.” The trial court found this analysis “dispositive,” but then stressed that, because the report explicitly stated that it relied on the memoranda, those memoranda also became discoverable because “it would be fundamentally unfair for Sanmina to disclose the valuation report while withholding its foundation” (citing Federal Rule of Evidence 502(a)). “Otherwise, the IRS or any other reader would be forced to simply accept the opinion without access to the foundational material.”

The taxpayer has appealed again from the ruling on remand. With respect to the attorney-client privilege, the taxpayer argues that it sought “tax advice” from DLA Piper, which it claims is a form of “legal advice” even if furnished by an accountant. It also argues that, even if the DLA Piper report were treated like expert testimony, the discovery rules would require disclosure only of “facts and data” considered by the expert, not the opinions of lawyers. The taxpayer’s appeal stresses that the content of the memoranda was not disclosed to the IRS and hence there was no waiver of work-product protection. And it rejects the court’s citation of Rule 502(a), maintaining that the rule addresses only the scope of a waiver, but cannot provide a basis for finding a waiver in the first place.

The government defends the trial court’s opinion, arguing that the taxpayer waived the privilege on two separate occasions. First, it states that the attorney-client privilege “was waived with respect to both memoranda when Sanmina voluntarily gave the IRS the valuation report that explicitly relied on them.” Second, it states that the taxpayer also waived the privilege as to both memoranda “when it gave them to DLA Piper for use in preparing the valuation report.” That latter disclosure, when combined with the subsequent disclosure of the valuation report to the IRS, “also resulted in the waiver of any work-product privilege” that attached to the memoranda. The government rejects the taxpayer’s focus on the fact that the “contents” of the memoranda were never disclosed to the IRS, contending that the taxpayer’s position misstates the law. (The government, however, abandons its previous position that the memoranda were not privileged in the first place, deferring to the adverse district court ruling on that point.)

This case should provide the court of appeals an opportunity to provide additional clarity regarding its precedents in this area. The government’s brief relies heavily on Weil v. Inv./Indicators, Research & Mgmt., Inc., 647 F.2d 18 (9th Cir. 1981), a case in which the court held that an investment fund’s disclosure that it had received certain advice from its Blue Sky counsel waived its ability to claim attorney-client privilege to withhold other portions of that advice. The taxpayer, for its part, relies heavily on a more recent decision, United States v. Richey, 623 F.3d 559 (9th Cir. 2011), which did not find a complete waiver where an appraiser had referred in his report to the contents of a file that contained privileged material. The taxpayer argues that Richey is the more analogous precedent, and in fact is “simply irreconcilable with the Government’s position here.” The government, by contrast, emphasizes that the Richey court remanded for further proceedings and followed Weil, and the government treats the case as having little bearing on the outcome here.

Oral argument in the case is scheduled for tomorrow, February 11, before a three-judge panel consisting of: Circuit Judge Johnnie Rawlinson (appointed in 2000 by Clinton), Circuit Judge Consuelo Callahan (appointed in 2003 by Bush), and Senior District Judge Susan Bolton (appointed in 2000 by Clinton). It is perhaps revealing that the court has allocated only 10 minutes per side for the argument, while the other three cases on the docket are scheduled for 15 minutes per side. That allocation may indicate that the taxpayer faces long odds in getting the district court decision reversed.

Sanmina II – District Court Decision on Remand

Sanmina II – Taxpayer Opening Brief

Sanmina II – Government Response Brief

Sanmina II – Taxpayer Reply Brief

Ninth Circuit Preparing for Oral Argument in Mazzei

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February 6, 2020

We have previously reported at length on the taxpayers’ pending appeal in Mazzei involving the Tax Court’s rejection on substance-over-form grounds of what the IRS has described as an “abusive Roth IRA transaction,” notwithstanding the Sixth Circuit’s pro-taxpayer ruling in Summa Holdings regarding essentially the same kind of transaction.

Oral argument in the case is scheduled for February 14, and the Ninth Circuit has now announced the three-judge panel that will hear the case:  Senior Circuit Judge Jay Bybee (appointed by Bush in 2003), Circuit Judge Daniel Collins (appointed by Trump in 2019), and Senior District Judge Barry Ted Moskowitz (appointed by Clinton in 1995).