Protective Orders Vacated in Conservation Easement Cases

GREEN VALLEY INVESTORS, LLC, BOBBY A. BRANCH, TAX MATTERS PARTNER, ET. AL.,
Petitioners
v.
COMMISSIONER OF INTERNAL REVENUE,
Respondent

United States Tax Court

ORDER

On December 1, 2021, petitioners, in each these consolidated cases, filed motions for protective orders from this Court. In the motions, petitioners request that this Court enter an order prohibiting respondent's counsel from further contacting individual partners of the donor partnerships, prohibiting respondent's counsel from reviewing any information they received from individual partners, and requires respondent's counsel to provide an accounting of any information they have received from individual partners.

On December 22, 2021, respondent filed an objection to petitioners' motions for protective orders. By order served on January 11, 2022, we granted petitioners' motions for protective orders, directing that respondent's counsel provide copies of any information received from any individual partners of the donor partnerships, to counsel for petitioners on or before January 28, 2022.

On February 10, 2022, respondent filed a motion for reconsideration of the Court's protective order served on January 11, 2022.

In consideration of the foregoing, and for good cause shown, it is

ORDERED that respondent's motion for reconsideration, dated February 10 2022, is granted. It is further

ORDERED that the Court's order served on January 11, 2022, is vacated. It is further

ORDERED that respondent: (1) will initiate no further communications with the individual partners/investors of the donor partnerships until petitioner's motions for protective orders are resolved, and (2) temporarily sequester any information received from an individual partners/investors or their attorneys pending resolution of petitioners' motions for protective orders. It is further,

ORDERED that on before March 14, 2022, petitioners and respondent are to jointly (or separately if preferred) advise the Court on the following issues: (1) how many of the individual partners/investors are represented by their own counsel (wholly separate from the TMP's counsel); (2) to the extent respondent seeks to contact individual partners/investors who are not separately represented by an attorney, how respondent would handle any inadvertent disclosures of privileged information; (3) if respondent receives documents from individual partners/investors or their counsel, when and how would respondent be obligated to share those documents with petitioners' counsel; and (4) what showing petitioners can make that the individual partners/investors, who are admittedly “constituents of the organization,” and either “supervise[ ], direct[ ] or regularly consult[ ] with the TMP and/or organization's lawyer concerning the matter, ha[ve] authority to obligate the organization with respect to the matter, or whose act or omission in connection with the matter may be imputed to the organization” as contemplated by comment [7] to ABA Model Rule 4.2.

(Signed) Christian N. Weiler
Judge