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

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 That first appeal ended with a whimper of an unpublished opinion when the court of appeals decided that it could better assess the issues after the trial court had reviewed the relevant documents in camera.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 Remands For In Camera Review in Sanmina

The Ninth Circuit has remanded the Sanmina case back to the U.S. District Court for the Northern District of California to conduct an in camera review of two in-house tax attorney memoranda to determine if the contents of those memos were disclosed in a DLA Piper valuation report provided to the IRS to support Sanmina’s $503 million worthless stock deduction. The IRS had previously asked the district court to conduct an in camera review, and the district court had declined to do so.

As noted in our previous coverage, the DLA Piper valuation report cited the in-house memos in a footnote  The district court concluded that there was no waiver, holding that “DLA Piper’s mere mention of the existence of the memoranda did not summarize or disclose the contents of the memoranda.” On appeal, the IRS argued that the valuation report went beyond simply mentioning the in-house memos and, in fact, expressly relied on the memos. According to the IRS, the reliance resulted in a waiver even if the substance of the advice was not disclosed. Alternatively, the IRS argued that at least some of the substance appeared to have been disclosed.

In contrast, Sanmina argued that there is no waiver absent a disclosure of the substance of the advice, which had not occurred. At oral argument, the presiding judge pressed Sanmina’s attorney to identify particular cases supporting that legal position. The panel also struggled with how to resolve the waiver issue without knowing the contents of the in-house memos.

In its brief unpublished memorandum opinion, the court of appeals (Ninth Circuit Judges O’Scannlain and Rawlinson and district court Judge Watters from Montana sitting by designation) stated: “Our resolution of this case would be greatly facilitated by a more informed analysis from the district court. More specifically, we prefer the district court review the documents in camera and reconsider its ruling on the asserted privileges following its review of the pertinent documents.” The court of appeals cited United States v. Richey, 632 F.3d 559 (9th Cir. 2011), an IRS summons enforcement case, which both sides highlighted in briefs and at oral argument, in which a similar remand for in camera review occurred. The remand is framed as a directive that the district court “determine whether the documents requested by the government are privileged to any degree,” but the focus of oral argument was the waiver issue, and the IRS has conceded that one of the two memos is privileged. The in camera review therefore likely will focus on the extent to which the substance of the memos was ultimately disclosed or expressly relied on in the DLA Piper valuation report.

As an unpublished opinion, the decision is not binding circuit precedent.  Even so, one practical takeaway from the decision is that both sides should consider encouraging the trial court to conduct an in camera review where an appeal of the privilege issue is likely and the resolution of the appeal turns on the content of the documents. The parties did not agree to do that here and now, 2-1/2 years after the district court issued its decision in favor of Sanmina, the parties are back to square one.

Sanmina Ninth Circuit opinion

Sanmina – Reply Brief for Appellant

 

IRS Takes an Aggressive Position on Scope of Privilege and Waiver in Sanmina

Opening briefs have been filed in the Ninth Circuit in United States v. Sanmina, where the IRS is appealing a decision by the U.S. District Court for the Northern District of California holding that the attorney-client privilege and work product doctrine protect two memoranda prepared by Sanmina’s in-house tax attorneys. In its opening brief, the IRS is advancing a narrow view of attorney-client privilege and an expansive view of waiver.

Sanmina claimed a $503 million worthless stock deduction on its return. To support its return position, Sanmina provided the IRS a valuation report prepared by outside counsel DLA Piper. The valuation report included a footnote stating that the authors reviewed the two in-house tax attorney memos. The district court held that both memos were protected by the attorney-client privilege and work product doctrine and that no waiver occurred when Sanmina gave the memos to DLA Piper or when DLA Piper referenced them in the valuation report.

On appeal, the IRS contests the threshold applicability of the attorney-client privilege and work product doctrine as to only one of the memos and argues waiver as to both. The IRS argues that the memo was not privileged because it was “to file” and there is no evidence that (1) the memo was reviewed by anyone else in the company, (2) the company sought legal advice from the in-house attorney; or (3) it contained confidential client communications. According to the IRS: “The attorney-client privilege does not extend to an unsolicited memorandum prepared by Sanmina’s in-house tax counsel for their own records.” The IRS also argues that the work product doctrine does not apply because there was insufficient evidence that the memo was prepared because of anticipated litigation. On the issue of waiver, the IRS claims there was a subject matter waiver when Sanmina disclosed the valuation report to the IRS. The IRS also takes the position that Sanmina waived the privilege earlier when it disclosed the memos to outside counsel. “Because DLA Piper was not acting as a lawyer in preparing the valuation report, Sanmina’s disclosures to DLA Piper were not protected by the attorney-client privilege.” As to work product, the IRS argues Sanmina waived that protection when it produced the memos to outside counsel, knowing they would provide the valuation report to the IRS.

In its answering brief, Sanmina asserts that the IRS waived its arguments about the privileged status of the memo by not raising them at the district court. Below, the IRS argued the memo constituted business not legal advice, but abandoned that argument on appeal. Sanmina also challenges the IRS’s factual characterization of the memo, as well as the IRS’s contention that the tax attorney was not anticipating litigation. On the waiver point, Sanmina argues that the valuation report did not disclose the contents of the privileged memos, nor was disclosure of the memos to outside counsel inconsistent with maintaining their confidentiality as to the IRS.

The IRS’s reply brief is due March 9.

Sanmina – District Court Decision

Sanmina – Appellant Brief in CA9

Sanmina – Appellee Brief in CA9