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UNITED STATES BANKRUPTCY COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

www.flsb.uscourts.gov

In re:

GIANO GELATO LLC, 

 Debtor.

_________________________/

Case No. 19-26273-LMI

Chapter 7

TRUSTEE’S MOTION TO OVERRULE OBJECTIONS TO SUBPOENA, 

FOR PRODUCTION OF DOCUMENTS, AND FOR PRIVILEGE LOG

Plaintiff, MARCIA T. DUNN, as Chapter 7 Trustee of the bankruptcy estate of GIANO 

GELATO LLC (the “Trustee”), by and through undersigned counsel, requests that this Court 

overrule the objections to the Subpoena proposed by CNC Accounting Corp. (“CNC”), for 

production of documents, and for privilege log and in support thereof, states as follows:

1. On December 5, 2019 (the “Petition Date”), GIANO GELATO LLC (the 

“Debtor”), commenced the instant case with the filing of a bare-bones voluntary petition under 

Chapter 7, Title 11 of the bankruptcy United States Bankruptcy Code (the “Petition”). 

2. Marcia T. Dunn was appointed as the Chapter 7 Trustee of the Debtor’s bankruptcy 

estate (the “Estate”).

3. On February 20, 2020, the Trustee filed and served a Notice of Rule 2004 

Examination Duces Tecum Subpoena of CNC Accounting Corp. (the “Subpoena”) [D.E. 27], 

thereby requesting information and documentation from CNC to be produced no later than March 

12, 2020. 

2. The Trustee seeks documents and information from CNC as part of her 

investigation of the Debtor, and in particular, the Debtor’s relationship with and interest in H&A 

GELATO, LLC.

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3. On February 28, 2020, the Trustee granted CNC an extension of time to respond to 

the Subpoena on or before April 3, 2020. 

4. On May 15, 2020, CNC untimely served its “Response and Objection to Subpoena 

and Incorporated Memorandum of Law” (the “Response”). Attached hereto as Exhibit 1 is a true 

and correct copy of the Response. No privilege log was produced in conjunction with the 

Response. 

5. Fed. R. Bankr. P. 2004 allows the Trustee to go on a fishing expedition so long as 

the information sought relates to “the acts, conduct, or property or to the liabilities and financial 

condition of the debtor, or to any matter which may affect the administration of the debtor's 

estate....” In re MMH Auto. Group, LLC, 346 B.R. 229, 233 (Bankr. S.D. Fla. 2006) (citing In re 

Wilcher, 56 B.R. 428 (Bankr.N.D.Ill.1985)). 

6. Regarding CNC’s objection as it relates to H&A GELATO, LLC, the Trustee 

requests that such objection be overruled. 

7. First, Federal Rule of Evidence 501 states that the federal common law of privilege 

applies when federal law determines the substantive rights of the parties. Fed.R.Evid. 501; In re 

N. Plaza, LLC, 395 B.R. 113, 121 (S.D. Cal. 2008) (citing United States v. Zolin, 491 U.S. 554, 

562, 109 S.Ct. 2619, 105 L.Ed.2d 469 (1989)). An examination under Bankruptcy Rule 2004 is 

nonadversarial in nature and aimed at discovering evidence upon which future causes of action 

may be based, thus if a subpoena is issued in connection with a Rule 2004 examination, bankruptcy 

law and federal common law apply. In re N. Plaza, LLC, 395 B.R. at 122 (citations omitted). 

8. Further, as stated in Matter of Int'l Horizons, Inc., the Eleventh Circuit held that the 

bankruptcy court is not required to apply a state-created accountant/client privilege because no 

such privilege exists as a matter of federal common law. Matter of Int'l Horizons, Inc., 689 F.2d 

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996, 1004 (11th Cir. 1982) (Couch v. United States, 409 U.S. 322, 93 S.Ct. 611, 619, 34 L.Ed.2d 

548 (1973)). Even as a matter of comity, the Eleventh Circuit has held that such consideration 

does not require a federal court to state law account-client privilege. Int'l Horizons, 689 F.2d at 

1005.

9. Second, to the extent the Court applies Fla. Stat. 90.5055, the Court should overrule 

the objection. Fla. Stat. 90.5055(4) states that there is no accountant-client privilege when the 

services of the accountant were sought or obtained to enable or aid anyone to commit or plan to 

commit what the client knew or should have known was a crime or fraud and relevant to a matter 

of common interest between two or more clients, if the communication was made by any of them 

to an accountant retained or consulted in common when offered in a civil action between the 

clients.

10. Here, the Trustee is investigating the nexus between the Debtor and H&A 

GELATO, LLC. Facts supporting this nexus from www.sunbiz.org include the fact that Hernan

Gianelli and Adrian Gianelli were the managers of the Debtor between (at least) April 28, 2016 

and January 26, 2018 all while both Hernan Gianelli and Adrian Gianelli were also the managers 

of H&A GELATO, LLC between (at least) October 11, 2017 and the present. In addition, both the 

Debtor and H&A GELATO, LLC have the same registered agent – CNC. 

11. In the event that principals of the Debtor (Hernan Gianelli and Adrian Gianelli), 

shut down the Debtor’s operations and transferred same to H&A GELATO, LLC, the documents 

relating to H&A GELATO, LLC would not be protected by the accountant-client privilege. 

Further, it appears that a common interest exists between the Debtor and H&A GELATO, LLC.

12. Additionally, 26 U.S.C. § 7216 does not preclude production of documents 

pursuant to the Subpoena. I.R.C § 7216(b)(1)(B) permits disclosure pursuant to a court order. 

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While interpreting 26 U.S.C. § 6103, the Int'l Horizons court noted that noted that this section as 

promulgated to prevent disclosure by the government and did not preclude production of 

documents needed to assess a debtor’s financial arrangement or plan. In re GHR Companies, Inc.,

41 B.R. 655, 662 (Bankr. D. Mass. 1984) (In re International Horizons, Inc., 16 B.R. 484, 485–87 

(Bankr.N.D.Ga.1981), aff'd, 689 F.2d 996 (11th Cir.1982)). 

13. Therefore, the Trustee seeks an order overruling the objections and ordering CNC 

to produce the documents withheld per Fla. Stat. 90.5055 and 26 U.S.C. § 7216. 

14. Further, in response to the Subpoena, CNC produced 725 pages of documents. 

However, some of the pages are redacted in full or in part. CNC did not provide a privilege log 

with the Response. 

15. To the extent that redactions related to Fla. Stat. 90.5055, such objections to the 

discovery should be overruled based on above. 

16. To the extent CNC is asserting another objection to the Subpoena, the Trustee 

requests that CNC provide a privilege log asserting the specific objections to the Subpoena. 

17. Pursuant to Local Rule 7026-1(F), undersigned counsel and counsel to CNC 

conferred regarding this Motion. The parties were unable to resolve this motion without the Court 

intervention. 

WHEREFORE, MARCIA T. DUNN, as Chapter 7 Trustee of the bankruptcy estate of 

GIANO GELATO LLC, requests that the Court enter an order (i) granting the motion; (ii) overrule 

CNC’s objections to the Subpoena; (iii) compel CNC to produce all documents withheld relating 

to or regarding H&A GELATO, LLC; (iv) order CNC to prepare a privilege log; and (v) grant 

such further and other relief as the Court deems just and proper. 

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Dated: June 11, 2020 Respectfully submitted,

DUNN LAW, P.A.

Counsel for Plaintiff, Marcia T. Dunn, 

as Chapter 7 Trustee

66 West Flagler Street, Suite 400

Miami, Florida 33130

Phone: (786) 433-3866

Fax: (786) 260-0269

barry.turner@dunnlawpa.com

By: /s/ Barry S. Turner 

Barry S. Turner, Esq.

Fla. Bar No. 85535

CERTIFICATE OF SERVICE

I CERTIFY that a true and correct copy of the foregoing was served by U.S. First Class 

Mail, Fax, or Email, as indicated below, on June 11, 2020, upon the following:

Matthew A. Tornincasa, Esq. 

2700 N. Military Trail, Suite 150

Boca Raton, FL 33431

matt@shendellpollock.com

carson@shendellpollock.com

Counsel to CNC

H&A GELATO, LLC

CNC CERTIFIED PUBLIC 

ACCOUNTANT, its Registered Agent

3401 SW 160 AVE., SUITE 330

MIRAMAR, FL 33027

H&A GELATO, LLC

HERNAN GIANELLI, Manager

3401 SW 160 AVE., SUITE 330

MIRAMAR, FL 33027

H&A GELATO, LLC

ADRIAN GIANELLI, Manager

3401 SW 160 AVE., SUITE 330

MIRAMAR, FL 33027

I CERTIFY that a true and correct copy of the foregoing was served via Notice of 

Electronic Filing (CM/ECF) on this 11th day of June, 2020, upon all registered users in this case. 

By: /s/ Barry S. Turner Esq.

Barry S. Turner, Esq.

FL Bar No. 85535 

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