In Uncategorized on 07/18/2016 at 15:53

Those of my readers who follow the political news will remember The Guardian (UK) newspaper, publisher of the Snowden story and target of the wrath of arch-Leaker Julian Assange. As this is a non-political blog, I’ll eschew any comments arising from or related to the foregoing.

But the Guardian wants in on the Amazon.Com, Inc. & Subsidiaries fistfight, and Judge Lauber holds off on letting them in until IRS and Jeff Bezos’ squadristi duke it out on what exhibits and trial testimony to seal from public view.

Read all about it in Amazon.Com, Inc. & Subsidiaries, 2016 T. C. Memo. 131, filed 7/18/16.

The Guardian wants to see everything, and IRS is just as glad to let them see it. Amazon and the Subs are yelling it’s trade secrets and will irremediably damage Amazon and its numerous shareholders.

Well, a lot of the stuff is public already. Half of what Amazon wants Judge Lauber to give them isn’t marked with the Scarlet “C” for “Confidential”, so they can mosey on down to 400 Second Street, NW, and ask the kindly clerks to let them check it out.

In fact, Judge Lauber claims a lot is out there already.

“The parties filed comprehensive pre-trial memoranda.  With minor redactions, those memoranda have been placed on the docket for public inspection. Trial testimony that did not elicit Confidential Information was heard in open court; transcripts of that testimony have been placed on the docket for public inspection.  Trial testimony that elicited Confidential Information was heard in closed court; the parties are working toward finalizing redacted versions of those transcripts to be submitted to the Court for approval.  If and when they are approved, these redacted transcripts will be placed on the docket for public inspection.

“Trial exhibits that Amazon did not designate as containing Confidential Information are currently available for public inspection upon request.  These exhibits include redacted versions of all expert witness reports (56 in toto).  Trial exhibits that Amazon designated as containing Confidential Information were given exhibit numbers with the prefix ‘C.’  Respondent [IRS] retains the right under the protective order to challenge petitioner’s classification of exhibits as containing Confidential Information.” Order, at p. 6.

Judge Lauber gets to the point: “The issue at hand is whether Guardian should be permitted to intervene in this case.  With limited exceptions inapplicable here, our Rules make no provision for third-party intervention.  In the absence of an express Rule, the Court ‘may prescribe the procedure, giving particular weight to the Federal Rules of Civil Procedure to the extent that they are suitably adaptable to govern the matter at hand.”  Rule 1(b); see Guralnik v. Commissioner, 146 T.C. __, __ (slip op. at 28-31) (June 2, 2016);, Inc. & Subs. v. Commissioner, T.C. Memo. 2014-245; Estate of Proctor v. Commissioner, T.C. Memo. 1994-208, 67 T.C.M. (CCH) 2943.” I blogged the earlier Amazon and Guralnik opinions; Tax Court can roll its own, but Judge Lauber isn’t quite ready yet.

The Guardian is of course wrapping itself in the First Amendment. But journalists have no greater rights than anybody else.

“The public interest that Guardian seeks to advance has been, and continues to be, powerfully represented by respondent.  Respondent has objected to the issuance of a protective order at every stage of this litigation.  When the Court indicated its intention to issue a protective order of some kind, respondent worked assiduously to narrow the scope of protection and to ensure himself the ability to challenge petitioner’s designation of information as ‘confidential.’” Order, at p. 12.

Still and all, the Guardian’s intervention is more than a wee bit off the beaten track.

“Guardian has not cited, and our own research has not discovered, any instance in which this Court, or any other court, has been asked to decide whether a media organization should be allowed to intervene in a pending Federal tax controversy. Guardian’s motion presents novel questions, both as to the proper standards for intervention in the absence of any Rule governing the subject, and as to whether the IRS, as an agency of the United States, adequately represents Guardian’s interest in public disclosure.  Cf. Prete v. Bradbury, 438 F.3d 949, 956-957 (9th Cir. 2006) (“[There is] an assumption of adequacy when the government is acting on behalf of a constituency that it represents.  In the absence of a very compelling showing to the contrary, it will be presumed that a state adequately represents its citizens when the [intervention] applicant shares the same interest.” (quoting Arakaki v. Cayetano, 324 F.3d 1078, 1086 (9th Cir. 2003))).” Order, at p. 13.

Guardian might have something to say about that assumption, but I leave it to their counsel to say whatever.

Howbeit, Judge Lauber doesn’t want to go there. “We are hesitant to address these questions until it is necessary to do so.” Order, at p. 13.

IRS and Amazon and the subs are busy redacting, and Judge Lauber will have the final word on what is walled in and what is walled out.

Until they finish, Guardian can scope out the bushelbasketsful of non ”C” memos, experts’ reports, trial testimony, orders and even this my humble blog.

If at the end of the foregoing, Guardian still wants more, then let them come back.

  1. […] Taishoff has a post referring to Guardians coverage of the Snowden affair- Snow(den) Job? Lorraine Bailey also has a nice summary in Courthouse News […]


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