i think the podium will come up a little bit mr welty if you believe god's eye away up there i'll try to speak into the microphone that's fine thank you good morning in may it please the court my name is todd welty i'm going to counsel table by charles quick one of my colleagues and we represent georg scheffler and is affiliated businesses in this appeal we are here today because on the eve of defeat the i r s with summons to in an effort to avoid an adverse final judgment on shufflers privilege and work product claims the voluntary sation doctrine prevents this tactic to be clear this case is not moot because the i r s has not carried it stringent in for medical burden to show that it is absolutely clear that it will not seek the summons documents again the government are going to does them again and then you're going to challenge that district court your honor the government says it's met its burden for the first time on three because it's decided not to issue any further summonses and yet it also tells more or seek production pursu the summons that's been issued or am i misunderstanding you're correct on that your honor in fact the i r s actually goes further and says by withdrawing the summons the i r s relinquished the opportunity to seek production of any of the summons documents including those that henri mann the district court might have ordered disclosed but we now know that that is not correct the i r s has in document eighty five filed on april in this case said that it is reserving its right to litigate these issues again in discovery if the underlying dispute is not settle administrative leave your language is even stronger of page one of your brief you say that the government staged and run the i r s withdrew the summons to attempt to move the case so it can pursue the same documents again in a different form with the good faith basis for making that claim that that's the purpose behind the s we asked clearly do you would intend to read litigate petitioner's privilege claims in a different form in a telephone conversation the i r s was an able to confirm that that was not its plan and in fact this is not the first time through procedural maneuvers that the i r s has sought to avoid a judicial determination of mr shufflers privilege and work product claims in the record in the case below case number one colon three thirteen zero four eight six forward h b document one dash sixteen filed on july twelfth twenty thirteen if paragraphs ten eleven twelve thirteen fifteen sixteen eighteen twenty one twenty three twenty four twenty five and twenty six lays out the precursor to the summons at issue in this case when this iris examination began in two thousand and twelve the i r s on september fifth of that year requested production of tax advice on september eighteenth there was an in person meeting with the i where all privileges and protections including attorney client privilege twenty six seventy five twenty six u s c seventy five twenty five tax practitioner privilege work product and its common interest claims to prevent waiver were discussed with the i r s later several months later we learned that the i r s was attempting to obtain these documents over which we claimed common interest through a treaty process with germany and they later told us that only if they were unsuccessful in obtaining these privileges and confidential documents through the treaty process would they bring  that summons occurred in april of two thousand and fifteen following our intervention through hiring counsel in germany to intervene in the treaty process to prevent the end run around our right to have a judicial determination of our privilege and work product claims and specifically the common interest that the second circuit found in the prior decision in this case and so when the summons was issued it was a special purpose summons its eight ash thirteen of the joint appended it specifically calls for all documents created by ernst and young including but not limited to legal opinions and analyses provided to third parties other than the scheffler group that was designed to test the common interest which is court found and it was only on remanufacture after the court found  in favor of our common interest in work product claims and by the way along that lines rejecting the more narrow views in the fist circuit on both common interest and work product that the irish chose to dismiss the case rather than proceed to a final judgment and they cannot and will not in do not on brief say that they will not seek to read litigate these issues in a different forum at a later date and in fact specifically are of the right to do so in later discovery disputes well let's say there's a change in the law from on high why should why shouldn't th at the iris be able to relate a gate these m and it's that they abandon it here in this in this circuit either they get to split the circuits on this common interest issue or we already have one the ruling comes down from the us supreme court on whether it is or is not why should the i r s if they're within adequate time to be able to come back we honor that just goes to prove that the dispute you run the risk if you get a decision from us one way or the other and then the supreme court ultimately takes that issue up and and rules are right to be clear your honor we are asking for every man to the district court for further proceedings consistent with this circuit's first decision scheffler which we believe would lead to a final judgment which is undisputedly issue preclusion of in all  so it would have a total close of a faster court of of us we don't like to acknowledge that always correct for whatever it's worth the supreme court has declined to on previous occasions resolve good morning and may it please the court my name is rebecca to neo and i represent the government in this case the district court properly concluded that this case is moot it's moot because the i r s withdrew the summons that was the only subject of mr shufflers petition to quash in fact the iris examination in aid of which the summons was issued is over it's actually being closed out it's been proceeding throughout this litigation acknowledged in his motion to stay this appeal and that examination is over and the iris will not be issuing any further summons as are document requests in aid of that examination and we know what it is over because your honor as this litigation proceeded from the issuance of the summons from two thousand and thirteen through district court litigation through the last time we were before this court and up till now in parallel the iris proceeding has been going on and mr scheffler does not contest contest that it's over in fact in his own motion to stay this appeal that he filed he said we would like to stay this appeal because the iris examination is drawing to a close and you know we'd like to go to the office of appeals we might get a good result the been proceeding in parallel your honor we said in our brief that the examination was effectively over and we were not going to be seeking the summon documents anymore since we filed the brief the examination has now literally been closed in the system the examination the i r s office of appeals and we'd like to stay this appeal while we go there mr scheffler has never contested that the iris examination at that point was drawing to a close and now is over the  reservation of rights to litigate these issues in future if letters are being sent out that say that this examination is over is your honor i think that a reservation of rights is an overly strong way to put it but after the mr scheffler actually sent us a set what he called a settlement proposal and he said you know please you know we we will dismiss our appeal if you promise that not only are you going to never summons these documents again you're not going to ever see them again by any other means and that promise was simple there's no reason for the iris to make that promise point and it's far too broad now mr scheffler this goes to mr shufflers latest theory and that latest theory is contained in his reply brief and he's had to come up with this theory because he does not contest that the examination is over so mr shufflers latest theory that goes to the reservation of rights your honor the so called reservation rights is that the i r s is now preserving its rights to go seek these documents and discovery and it is true that in a conversation i said you know we can't sign your your proposed appeal ation of settlement because years from now who knows what might happen we might have to you know make some discover across and so we are not going to promise never ever to do that but the idea that that honor i think the examination is over that question which was oh i don't i don't think they are i don't actually you know i mean if you given all the representations here and in the brief and the transcript is going now to go to the i r s office of appeals that process is likely to take at least a couple of years and that's why he wanted a lengthy state disappear now he may be really happy with the result in appeals he may be somewhat unhappy if he's unhappy with the results we don't know what's going to happen we have no way of knowing but if he's unhappy with the result he can choose to initiate litigation the i r s actually cannot choose to let initiate litigation but if he's unhappy with the result an iris officer feels he could do so and he would always have the ability to end this by withdrawing a summons in other words is there any situation where the volunteers or sation doctoring could replied you know iris just say well we're going to withdraw our son and so it's moot i think that one could imagine some sort of truly dilatory scenario in which that might happen but that certainly is not the case here i mean i think you have to take you know the application the doctrine case by case and all of the cases compelled to disincentive eyes or punish that conduct by applying the doctrine and not finally moved us but that is not the case here on or there was no strategic plot to evade review we litigated this case for almost three years up till this court you know we had a lot of without the sum of documents and by the time this court issued its mandate in january i believe two thousand and sixteen i think the i r s had had to do enough work to already have achieved that understanding without the someone documents and there was simply no reason to continue to prolong this litigation to obtain perhaps more documents and going back to the to the preservation of rights your honor mr scheffler if he doesn't like what happens in the office of appeals he could initiate to defend against the issues mr shufflers theory that we have some sort of a reservation of rights to pursue these documents and litigation which may or may never happen and which may or may not implicate any of the some in documents is far too right the proper place for mr scheffler to interpose any of his discovery objections at that point in litigation would be before the litigating court that court would know the scope of the litigation that court would have an understanding of where the parties were at that point we should not send all hundreds and potentially even thousands of summon documents back to judge borenstein for purely advisory opinion on privileged documents that actually we couldn't even receive even gorenstein which could likely happen will that some of those documents were not privileged and we should get them we have no active summons we wouldn't even be able to receive the documents and we have no interest in issuing a summons at this point your honor because the examination your honor why aren't you happy with the government's representations here or why hasn't your client had it very carefully circumscribed and there is an explicit reservation of rights to relay to gate these issues and in fact as an bowen in this circuit it's that reason the government's believe that that's a reasonable course of conduct that in itself proves that there is a likelihood of them again some unseen or not something that require production of these documents additionally the i r s ms ten you know talk about this doctrine is a way to punish the government it's not a way to punish the government the government has a burden to prove that it's not going to repeat this conduct then all of her at least illegal in the government issuing summonses in connection with an investigation you have specific issues as to the government's desire for particular documents that you know as long as the government is looking for them could be litigated but this is not the typical voluntary  is it yes in fact it is your honor for example we side are certain under underwriters for lloyd's of london versus argonaut five hundred f thirty five seventy five the conduct at issue there before the seventh question that unions could collect agency fees for non union members but not those that infringed on first amendment rights or in my handy management versus county of nassau there is no question that the county had the right to design but not in a discriminatory manner here there is no question that the i r s has the right to summons and require production of documents but according to the supreme court up john clarke in reisman not those documents that are covered by privilege and work product protections but the problem i have with it and i'll go along with you on everything you've said the problem i have is they don't want any documents now you're done your honor they're explicitly reserving the right to relay to gate these issues and that goes to the heart the heart of the voluntary sation doctored that reservation a variety specifically reserve the right to relive again which obviously you are the assertion of the privilege with respect to those documents no why should we waste the judiciary's time arguing over something that is purely advisory and sending it back to the good magistrate judge  him downstairs somewhere i believe you know to to make the same decisions on a purely advisory basis when there is nothing that isn't available to you at such time as the i r s actually says well you know now we've changed our mind you want to litigate we're litigating we're demanding these things and then you get it in front of the proper forum to make a determination and go on to whichever appellate avenue you wa honor we do not believe that this is purely an advisory position opinion at all in fact the voluntary sation doctrine itself relates to future conduct that's why you find it in injunction in declaratory relief type cases declaratory or advisory type question as it relates to wasting resources your honor in the record below that i decided to document one dash sixteen file of july twelfth risk today to say it would be wasteful to engage in the rest of this when we're at the you know ten yard line and almost going to get a complete touchdown for our client that you