IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

KIRBY DEVELOPMENTS LLC, 

Plaintiff,

v. Civil Action 2:18-cv-500

Judge Sarah D. Morrison

Magistrate Judge Jolson

XPO GLOBAL FORWARDING,

INC., et al.,

Defendants.

OPINION AND ORDER

This matter is before the Court on Defendant Fox, Byrd & Company, P.C.’s Motion for an 

Order Regarding the Production of Its File for Jason Adkins, Rebekah Adkins and/or Their Related 

Corporate Entities (Doc. 126). For the reasons that follow, the Motion is GRANTED. Defendant 

Fox, Byrd & Company, P.C. (“Fox”) is ORDERED to produce the documents requested in 

Plaintiff’s Requests for Production of Documents Directed to Defendant Fox, Byrd & Company, 

P.C. (Doc. 126-1 at 3–9).

I. BACKGROUND

The Court has previously summarized this case’s background in its November 20, 2018 

Opinion and Order (Doc. 47). “This case arises out of an alleged fraudulent scheme involving the 

sale of off-the road mining tires (‘OTR Tires’).” (Id. at 2). Defendant Adkins is the principal of 

Defendant Midwest Coal, LLC (“Midwest”). (Doc. 91, ¶ 24). In November 2015, Plaintiff and 

Defendant Midwest entered into an agreement to buy and resell OTR Tires (the “OTR 

Agreement”). (Id., ¶¶ 34–37). 

Relevant here, Defendant Fox is an accounting firm that drafted a series of financial 
2

documents and tax returns on behalf of Defendant Midwest and Defendant Adkins and his wife. 

(Id., ¶¶ 21, 29, 164). Plaintiff allegedly relied on those financial records when entering into the 

OTR Agreement. (Id., ¶ 164). Defendant Fox purportedly knew or should have known that the 

financial records it prepared were false or otherwise inaccurate, and Plaintiff asserts its reliance on 

those records was predictable. (Id., ¶¶ 166–67). As a result, Plaintiff brings two claims against 

Defendant Fox:

(1) a negligence and/or negligent misrepresentation claim asserting that Fox Byrd 

was negligent in preparing the financial documents and tax returns upon which 

Kirby relied; and (2) a civil conspiracy claim against all defendants, including Fox 

Byrd, Midwest, and Jason Adkins, centering around a mutual understanding to 

create false documents that ultimately induced Kirby to wire $6,691,000.00 for the 

purchase of tires from an established dealer (Defendant Mid America Tires) that 

were supposedly being stored and protected at a global logistics company in Texas 

(Defendants XPO Global Forwarding, Inc. and XPO Logistics, Inc). 

(Doc. 129 at 2 (citing Doc. 91, ¶¶ 163–68, 170)).

After the filing of the Amended Complaint, Plaintiff served Defendant Fox with a set of 

Requests for Production of Documents that requested production of the financial records it 

prepared on behalf of Defendant Midwest and Defendant Adkins and his wife. (Doc. 126-1 at 3–

9). Defendant Fox sought Defendant Adkins’ consent to the production of those records, which 

Defendant Adkins denied. (Id. at 10–16). Consistent with its obligations under federal law, see

26 U.S.C. § 7216, Defendant Fox filed the instant Motion. Plaintiff filed a Brief Addressing Fox, 

Byrd & Company P.C.’s Document Production (Doc. 129) explaining why the Court should order 

the production of the requested documents. The Motion is ripe for resolution.

II. DISCUSSION

Federal law makes it illegal for:

[a]ny person who is engaged in the business of preparing, or providing services in 

connection with the preparation of, returns of the tax imposed by chapter 1, or any 

person who for compensation prepares any such return for any other person, and 
3

who knowingly or recklessly

(1) discloses any information furnished to him for, or in connection 

with, the preparation of any such return, or

(2) uses any such information for any purpose other than to prepare, 

or assist in preparing, any such return[.]

26 U.S.C. § 7216(a). But that general rule has exceptions, including when “such disclosure is 

made ... pursuant to an order of a court.” Id., § 7216(b)(1)(B).

As Plaintiff notes, (Doc. 129 at 3), at least one court in this district has applied the exception 

and ordered the disclosure of financial information similar to what Plaintiff seeks here. See McGirr 

v. Rehme, No. 16-464, 2018 WL 3708357, at *7 (S.D. Ohio Aug. 3, 2018) (compelling disclosure 

of relevant tax returns because although 26 U.S.C. § 7216 precludes disclosure, it also “provides 

exceptions to this preclusion; one of which is when disclosure of the documents is required by 

court order”). Courts across the country have done likewise. See, e.g., Ringdahl v. Afsharjavan, 

No. 8:18-CV-01006-PX, 2019 WL 2270693, at *4 (D. Md. May 24, 2019) (“Ringdahl alternatively 

argues that the Court should grant his motion because to do otherwise would require Eaglestone 

to violate laws that prohibit tax preparers from disclosing information received while preparing 

tax returns. However, these statutes permit disclosure of such information ‘pursuant to an order 

of a court.’ Accordingly, to the extent Eaglestone must produce documents consistent with this 

Court’s opinion and the subpoena, it has received the protection of doing so as ordered by the 

Court.”); Shanshan Shao v. Beta Pharma, Inc., No. 3:14-CV-01177(CSH), 2017 WL 1752932, at 

*4 (D. Conn. May 4, 2017) (ordering production of federal tax returns “because production of 

these tax returns and related documents clearly satisfies the requirements of the two-pronged 

‘Cooper rule’ first articulated by Judge Weinfeld”).

Plaintiff also notes that “it appears the Court has not specifically provided what factors it 
4

will consider in providing such an order.” (Doc. 129 at 3). As best the Court can tell, Plaintiff is 

correct. Court within this district have not provided guidance, but courts outside this district

routinely have applied the test first articulated in Cooper v. Hallgarten & Co., 34 F.R.D. 482, 483–

84 (S.D.N.Y. 1964), when deciding whether disclosure is appropriate under 26 U.S.C. 

§ 7216(b)(1)(B). See, e.g., Denoon v. Sokoloff, No. 17 CIV. 7178, 2018 WL 1627290, at *1 

(S.D.N.Y. Mar. 22, 2018); Shanshan Shao, 2017 WL 1752932, at *2; Potluri v. Yalamanchili, No. 

CIV.A. 06-CV-13517, 2007 WL 2571980, at *3 (E.D. Mich. Sept. 4, 2007). The Cooper rule

provides that “the production of tax returns should not be ordered unless”: (1) “it clearly appears 

they are relevant to the subject matter of the action or to the issues raised thereunder, and” (2)

“there is a compelling need therefor[e] because the information contained therein is not otherwise 

readily obtainable.” Cooper, 34 F.R.D. at 483–84. Plaintiff relies on that test in its briefing, and 

so does the Court.

First, the financial records Plaintiffs seek are undeniably relevant to the subject matter of 

this action. Plaintiff brings two claims against Defendant Fox related to their preparation of those 

records. (See Doc. 91, ¶¶ 163–74). Plaintiff alleges that Defendant Fox “was negligent in 

preparing and providing [Defendant Midwest’s] financial records upon which [Plaintiff] relied” 

and that Defendant Fox “knew or reasonably should have known that the financial records it 

prepared were false or otherwise inaccurate.” (Id., ¶¶ 165, 167). The records themselves are the 

best evidence of whether these allegations are true. And they are similarly relevant to Plaintiff’s 

claim that Defendant Fox conspired with its Co-Defendants “to create false documents and 

communications purportedly evidencing an OTR Tire transaction to induce Kirby to enter into the 

OTR Agreement and wire $6,691,000.00 to LAD.” (Id., ¶ 170; see also id., ¶¶ 169–74).

Second, the requested records are not otherwise readily obtainable from sources other than 
5

Defendant Fox. The most obvious source to request these records from is Defendant Adkins, but 

he has testified that he does not possess any documents responsive to the two subpoenas served on 

him. (See Doc. 129-1 at 2–3). The Court is unaware of any other sources from which Plaintiff 

could otherwise obtain this information. Thus, the two-prong Cooper test is satisfied here.

To the extent Defendant Fox requests guidance on whether those records should be 

designated as “CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER,” Defendant Fox is in 

the best position to make that determination in the first instance. This is true because the Court is 

not in possession of the relevant documents and cannot offer guidance in the abstract. The 

Stipulated Protective Order provides Defendant Fox with the necessary guidance, (see Doc. 61, 

¶ 3), and the Court is confident in Defendant Fox’s ability to make individualized confidentiality 

designations in good faith.

III. CONCLUSION

For the foregoing reason, the Motion is GRANTED. Defendant Fox is ORDERED to

produce the documents requested in Plaintiff’s Requests for Production of Documents Directed to 

Defendant Fox, Byrd & Company, P.C. (Doc. 126-1 at 3–9).

IT IS SO ORDERED.

Date: October 29, 2019 /s/ Kimberly A. Jolson

KIMBERLY A. JOLSON

UNITED STATES MAGISTRATE JUDGE