In Uncategorized on 01/23/2015 at 17:16

No, not a 1950s-style film noir, rather Judge Kerrigan protecting everyone’s privileged, attorney work product and trade secrets in a pair of designated hitters, Eaton Corporation, Docket No. 5576-12, filed 1/23/15 and Medtronic, Inc. & Consolidated Subsidiaries, Docket No. 6944-11, filed 1/23/15.

Breaker breaker, good buddy, remember Eaton Corporation and its battle with IRS over its offshore circuit breaker manufacturing? No? Then check out my blogposts “Advance and Retreat”, 6/26/13, and “Walk Right In, Set Right Down”, 10/15/14.

Looks like we’re not going to be listenin’ to Lacey after all. Lacey was one of the key players in shooting down Eaton’s advance pricing agreements. Apparently John Hinding was another key player, and Eaton’s counsel wants another crack at Johnny as well as another crack at Lacey, with them answering the questions IRS’s counsel told them not to answer. IRS claims their testimony would reveal privileged matter and attorney work product.

Judge Kerrigan: “Petitioner has already had the opportunity to depose Ms. Lacey and Mr. Hinding. During these depositions deponents were instructed not to answer questions on the grounds responses would have resulted in providing privileged information. See Rule 70(b)(1) (the information or response sought through discovery may concern any matter not privileged and which is relevant to the subject matter involved in the case).” Order, at p. 1.

Anyway, Eaton’s counsel got a memo from IRS addressing the whys and wherefores, redacted to protect work product. Depositions are extraordinary in Tax Court, only allowed when nothing else works. And privileged matter and attorney work product are off the table in all events.

Now Eaton can try to prove that IRS was arbitrary and capricious, without any idea of who said or did what.

Medtronic is another long-running show, but Judge Kerrigan is more sympathetic to the Meddies. She unloads a six-page saddle blanket that covers just about everything.

To get there, “The Motion for Protective Order is accompanied by an affidavit by Gary L. Ellis, Executive Vice President and Chief Financial Officer of petitioner. This affidavit contends that petitioner has made a significant effort to ensure that all of petitioner’s officers, employees, contractors, and agents guard confidentiality of proprietary information. The affidavit further contends that petitioner will sustain irreparable economic harm from proprietary information being divulged. Petitioner contends the release of proprietary information would allow competitors to determine petitioner’s current business strategies, strengths, and weaknesses in the market.” Order, at p. 1.

After the ritual nod to “the goal of this Court to provide as robust a public record as possible” (Order, at p. 2), Judge Kerrigan nevertheless affirms the “commonsense proposition” that spilling the Meddies’ beans would hurt them.

But since Gary L limits the requested sealing of the record specifically to certain items, Judge Kerrigan erects the fortifications with some precision, while trying to “enable the largest possible percentage of the trial record to be made available for ultimate public inspection, consistently with the protection of petitioner’s proprietary information.” Order, at p. 2.

See for yourself.


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