Evergreen Trading, LLC v. United States

80 Fed.Cl. 122 (2007)

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Nature of the Case

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Facts

In a Notice of Final Partnership Administrative Adjustment (FPAA) D determined that Ps' tax returns improperly reported the tax treatment of a series of transactions, and, consequently, that various penalties applied to the resulting underpayments of tax. Ps filed a complaint in this court challenging these determinations. In particular, they averred that D erred in asserting various of the accuracy-related penalties authorized by section 6662 of the Internal Revenue Code of 1986 (the Code) (26 U.S.C.). During discovery, D served Ps with two sets of document requests. In response to the first, plaintiffs produced about 225 documents totaling about 1100 pages, each numbered in the lower corner with the prefix 'NS.' On December 15, 2006, defendant served a second set of requests, which included Request No. 31: 'Please provide all documents bearing the 'NS' prefix which have yet to be provided to the United States in the course of this litigation, including but not limited to pages NS [listing numbers].' Ps produced a handful of documents and a list of objections, including, an objection that some of the sought-after documents were protected by the work product privilege. Ps did not provide a privilege log with this production. D filed a motion to compel. Ps produced some documents but asserted privilege over the remainder of the NS documents, and provided a privilege log for those documents. The court ordered Ps to file a more detailed privilege log that specifically described the nature of the claimed privileges and provided other categories of identifying information about the documents. The court ordered Ps to submit for en camera review a copy of each of the documents listed in its revised privilege log.