Free Motion to Compel - District Court of Federal Claims - federal

Case 1:05-cv-00231-EJD

Document 91

Filed 06/06/2007

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IN THE UNITED STATES DISTRICT COURT OF FEDERAL CLAIMS JZ Buckingham Investments, LLC, as Tax Matters Partner of JBJZ Partners, A South Carolina general partnership, Plaintiff, v. United States of America, Defendant. § § § § § § § § § § §

Case No. 05-231 T Chief Judge Edward Damich

PLAINTIFF'S CROSS-MOTION TO COMPEL J&G TO COMPLY WITH SUBPOENA FOR RULE 30(b)(6) DEPOSITION AND PRODUCTION OF DOCUMENTS Plaintiff, JZ Buckingham Investments, LLC, as Tax Matters Partner of JBJZ Partners, a South Carolina general partnership, by its undersigned attorneys, and pursuant to the Rules of the United States Court of Federal Claims 26(b)(1) and 45(c)(2)(B), move to compel Jenkens & Gilchrist ("J&G") to comply with Plaintiff's subpoena for a Rule 30(b)(6) deposition and production of documents. Plaintiff believes the issues implicated by this Motion are central to the substantive issues before the Court. Thus, Plaintiff requests oral argument if the Court is inclined to deny discovery on the subjects of this Motion. In support of its motion, Plaintiff states the following: 1. Plaintiff served a Rule 30(b)(6) subpoena on J&G on April 25, 2007, seeking information regarding how the IRS calculated the $76 million civil penalty it assessed in connection with J&G's role in COBRA and other transactions. 2. The subpoena consists of five requests that are narrowly confined to that issue, which is directly relevant to whether the IRS treats the foreign currency digital options in

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Case 1:05-cv-00231-EJD

Document 91

Filed 06/06/2007

Page 2 of 4

dispute in this litigation as a single net option or as separate options in different contexts, depending on which position produces the maximum revenue for the Treasury. 3. Plaintiffs have also served Rule 30(b)(6) notices on the IRS seeking similar information, and the IRS has uniformly refused to produce that information. See the Appendix at 35, attached to the Memorandum in Support of this Motion, filed simultaneously herewith. 4. On May 16, 2007, J&G responded to Plaintiff's subpoena by filing a Motion to Quash and Motion For Protective Order, asserting that the information sought was irrelevant, that J&G was precluded by a confidentiality agreement with the IRS from complying with the subpoena and that complying with the subpoena would be unduly burdensome. 5. To the contrary, as is fully set out in Plaintiff's Memorandum, the subpoena seeks information that is directly relevant to the ultimate issues in this litigation and is necessary to prepare Plaintiff's case. The information is not protected by any rule of privilege or confidentiality. The scope of the information sought is narrow and not readily available elsewhere. Moreover, despite its protestations to the contrary, J&G clearly has the resources to comply with the subpoena. 6. Thus, the factors relevant to determining a motion to compel weigh heavily in Plaintiff's favor. For all the foregoing reasons, as well as those set forth in Plaintiff's Memorandum in Support of this Motion, Plaintiff respectfully requests that the Court grant its Motion to Compel.

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Case 1:05-cv-00231-EJD

Document 91

Filed 06/06/2007

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Respectfully submitted,

By:

/s/ Joel N. Crouch Joel N. Crouch State Bar No. 05144220 M. Todd Welty State Bar No. 00788642

MEADOWS, OWENS, COLLIER, REED, COUSINS & BLAU, L.L.P. 901 Main Street, Suite 3700 Dallas, TX 75202 (214) 744-3700 Telephone (214) 747-3732 Facsimile [email protected] [email protected] ATTORNEYS FOR PLAINTIFF

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Case 1:05-cv-00231-EJD

Document 91

Filed 06/06/2007

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CERTIFICATE OF SERVICE I hereby certify that on June 6, 2007, I served the above and foregoing on the belowlisted counsel: David M. Steiner, Esq. (via ECF Notification) United States Department of Justice Tax Division P.O. Box 55 Ben Franklin Station Washington, D.C. 20044 Joseph Pitzinger, Esq. (via ECF Notification) Jonathan Blacker, Esq. United States Department of Justice Tax Division 717 North Harwood Suite 400 Dallas, Texas 75201 Attorneys for the United States F. Anthony Paganelli, Esq. (via FedEx) Sommer Barnard, P.C. One Indiana Square Suite 3500 Indianapolis, Indiana 46204 Attorney for Carmel Partners

Robert J. Wagman, Jr. (Via Certified Mail) Baker Botts, L.L.P. The Warner 1299 Pennsylvania Avenue Washington, D.C. 20004-2400 Attorney for Jenkens & Gilchrist

/s/ Joel N. Crouch JOEL N. CROUCH

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