LINCOLN PARTNERS FUND, LLC,

Tax Matters Partner,

Plaintiff,

V.

UNITED STATES OF AMERICA,

1y andThrough-ils- agent, the

INTERNAL REVENUE SERVICE,

Defendant.

Civil Action

No. 2: 1O-cv-153-CEH--SPC

and consolidated cases

(Middle District of Florida)

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KEVIN MCNULTY, U.S.D.J.:

The United States Government brought this action to compel Rabner,

Alicorn, Baumbert & Ben-Asher, P.C. (“Rabner Allcorn”) to produce documents

responsive to a subpoena issued in connection with five consolidated actionspending in the United States District Court for the Middle District of Florida.

Rabner Allcorn produced a large number of documents in response to the

subpoena, but objected to the production of sixty-three (63) documents,

asserting attorney-client privilege, work product privilege, and/or the tax

advice privilege pursuant to 26 U.S.C. § 7525 of the Internal Revenue Code.
discovery under the work-product doctrine. Opinion and Order, ECF no. 31, at

9 (“the Court determines that even if the Communications were not protected

by the attorney-client privilege, they would remain shielded from discovery by

the work product doctrine.”)

This matter comes before the Court on the Government’s appeal of

Magistrate Judge Shipp’s July 13, 2012 Opinion and Order denying theGovernment’s motion to compel. Importantly, the Government has appealed

only Judge Shipp’s finding that there was no waiver of the attorney-client

privilege. The Government has not appealed Judge Shipp’s ruling with respect

to the work product doctrine.

For the reasons set forth below, the Government’s appeal is DENIED and

Magistrate Judge Shipp’s order is affirmed.

I. BACKGROUND

Because the Court writes only for the parties, this Memorandum Opinion

is limited to matters essential to the resolution of the motion. The Plaintiffs in

the consolidated Florida actions are LLC’s that the IRS determined were formed

‘Judge Shipp is now a United States District Judge in the District of New Jersey.

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by Mr. Sarma. Plaintiffs are challenging the adjustments in the United States

District Court for the Middle District of Florida. Rabner Ailcorn advised Mr.Sarma in connection with the investments at issue in the underlying

consolidated litigation.

In early January 2011, the IRS served Rabner Ailcorn with a subpoena

seeking production of documents generated or received by the firm relating to

the disputed investments. When Rabner Ailcorn objected to the production of

sixty-three (63) documents the Government commenced this action to obtain

the disputed documents. After conducting an in camera review, Judge Shipp

issued a 10-page written opinion finding the communications protected under

both the attorney-client privilege and the work product doctrine. The

Government now asks this Court to reverse that decision and order Rabner

Alicorn to produce the withheld documents.

II. LEGAL STANDARD

The District Court will reverse a Magistrate Judge’s decision on a non

dispositive motion only if it is “clearly erroneous or contrary to law.” Fed. R.

Civ. P. 72(a); L. Civ. R. 72. 1(c)(1)(A). This Court has frequently spoken of thediscretion granted to the Magistrate Judge in non-dispositive matters. Where

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at *1 (D.N.J. March 1.5, 2012). “This deferential standard is especially

appropriate where the Magistrate Judge has managed this case from the outset

and developed a thorough knowledge of the proceedings.” Lithuanian Commerce

Corp., Ltd. v. Sara Lee Hosiery, 177 F.R.D. 205, 214 (D.N.J. 1997)(internal

quotations omitted); see Deluccia, 2012 WL 909548, at * 1 (same). Abuse of

discretion review, of course, may get us to much the same place: as a practicalmatter it incorporates plenary review of legal questions. See Koon v. United

States, 518 U.S. 81, 100 (1996).

III. DISCUSSION

Rabner Alicorn asserted the work product doctrine as the basis of

withholding all 63 of the documents as issue here, and Magistrate Judge Shipp

upheld all 63 assertions of work product, after his in camera review. Judge

Shipp reviewed the documents in question and concluded that the “motivating

purpose behind the creation of the Communications was to aid in futurelitigation.” Opinion and Order, ECF no. 31, at 9.

Aside from vague references to “the privileges,” (See e.g., Government Br.

at 4, 11), the IRS’ appeal fails to mention the work product doctrine. Plainly,

the IRS does not attempt to show that Judge Shipp’s detailed legal analysis of

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ruling, let alone show that it was clearly erroneous or contrary to law.

IV. CONCLUSION

For the reasons stated above, the Government’s appeal of Magistrate

Judge Shipp’s July 13, 2012 Opinion and Order denying its motion to compel

is DENIED. An appropriate order follows.

) A,

/ I C

KEVIN MCNULTY /

United States District Judge’

Date: April 18, 2013

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