author: DEBEVOISE, District Judge.

text:
    Susan COHN and Walter Cohn, her husband, Plaintiffs, v. G.D. SEARLE & CO., Defendant.
    Civ. A. No. 74-450.
    United States District Court, D. New Jersey.
    Dec. 7, 1984.

      Walter R. Cohn, Thomas E. Cohn, South Orange, N.J., for plaintiffs.
    Shanley & Fisher by Raymond M. Tierney, Jr., Susan M. Sharko, Morristown, N.J., for defendant; Sidley & Austin, Chicago, Ill., of counsel.
    Robinson, Wayne, Levin, Riccio & LaSala by Joseph F. Lagrotteria, Newark, N.J., and Shea & Gardner by I. Michael Greenberger, Washington, D.C., for Brinco Mining Limited as amicus curiae.
   DEBEVOISE, District Judge.

Procedural History

Plaintiffs, Susan and Walter Cohn, who are husband and wife, instituted this action in the New Jersey Superior Court against defendant G.D. Searle & Co. The complaint alleges that Susan Cohn suffered a stroke and that the stroke was caused by her use of an oral contraceptive manufactured by Searle.

Susan Cohn’s stroke occurred in 1963. In late 1969 or 1970 plaintiffs became aware that there may have been a causal link between use of the contraceptive and the stroke. Suit was instituted in 1974, more than ten years after the stroke and approximately four years after plaintiffs became aware of the possibility of a causal relationship between the stroke and Searle’s contraceptive.

After removing the case to this court Searle moved for summary judgment based upon New Jersey’s 2-year statute of limitations. N.J.S.A. 2A:14-2. Plaintiffs resisted the motion, relying on N.J.S.A. 2A:14-22 which tolls the statute of limitations for a cause of action against a foreign corporation that “is not represented” in New Jersey “by any person or officer upon whom summons or other original process may be served.” Judge Meanor, to whom the case was then assigned, granted Searle’s motion, ruling that the tolling provision was invalid under the Equal Protection Clause and that, therefore, the 2-year statute of limitations barred plaintiffs’ action. Cohn v. G.D. Searle & Co., 447 F.Supp. 903 (D.N.J.1978).

Plaintiffs appealed. The Court of Appeals reversed, holding that there was a rational basis for the tolling provisions and that consequently the New Jersey statute does not violate the Equal Protection Clause. Hopkins v. Kelsey-Hayes, Inc., 628 F.2d 801 (3d Cir.1980).

The United States Supreme Court granted certiorari. It too concluded that the New Jersey statute does not violate the Equal Protection Clause. G.D. Searle & Co. v. Cohn, 455 U.S. 404, 102 S.Ct. 1137, 71 L.Ed.2d 250 (1982). In a footnote it addressed Searle’s due process contentions. As to the argument that the tolling statute violates due process by unfairly and irrationally denying certain foreign corporations the benefit of the statute of limita-: tions without furthering any legitimate societal interest, the Court stated that “this due process argument is nothing more than a restatement of [Searle’s] equal protection claim.” 455 U.S. at 412, n. 7, 102 S.Ct. at 1143, n. 7. Because it was not raised in the Court of Appeals the Court declined to address Searle’s other due process argument, namely, that it was deprived of due process because it could obtain the benefit of New Jersey’s statute of limitations only by appointing an agent to accept service, and that such appointment would subject it to suit in New Jersey when there otherwise would not be the minimum contacts required for suit. International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945).

The Supreme Court discussed but did not decide the question whether the tolling provision violates the Commerce Clause. It did not resolve this issue for two reasons. First, neither the district court nor the Court of Appeals addressed the question directly, although in a footnote the district court suggested that the tolling provision would violate the Commerce Clause. 447 F.Supp. at 911, n. 17. Second, it was unclear under New Jersey law whether the tolling statute required a corporation to register to do business in New Jersey pursuant to N.J.S.A. 14A:13-2 in order to obtain the benefit of the statute of limitations or whether the mere appointment of an agent would suffice.

In view of the unsettled state of New Jersey’s law, the Court remanded the case to the Court of Appeals so that it might “determine whether [Searle’s] Commerce Clause argument, if it was properly raised below, has merit.” 455 U.S. at 414, 102 S.Ct. at 1144. The Court of Appeals remanded the case to this court for a decision on the validity of the tolling statute under the Commerce Clause. Hopkins v. Kelsey-Hayes, Inc., 677 F.2d 301 (3d Cir.1982).

In 1982, after remand, Searle moved for summary judgment on the ground that the tolling statute is unconstitutional under the Commerce Clause and also on the due process ground which it raised but which was not decided by the Supreme Court. The Attorney General of New Jersey moved to intervene and cross-moved for summary judgment. Judge Meanor granted the intervention motion. Plaintiffs joined in the Attorney General’s cross-motion. Judge Meanor stayed proceedings until final disposition of a New Jersey case which required that the State Supreme Court decide what action a foreign corporation must take in order to escape the tolling effect of N.J.S.A. 2A: 14-22.

The New Jersey Supreme Court has now eliminated any ambiguity which may have existed in the tolling statute. In Coons v. American Honda Motor Co., 94 N.J. 307, 463 A.2d 921 (1983) it held (i) that foreign corporations may designate an agent for service of process only by obtaining a certificate of authority to do business; (ii) the tolling statute is a forced licensure provision and as such is in violation of the Commerce Clause; and (iii) the decision would be given retrospective effect, making it applicable to all matters that had not reached final judgment at the time of that decision.

Thereafter the plaintiff in Coons, supported by numerous amici curiae (including the plaintiffs in the instant case), filed a petition for rehearing on all issues. The Court granted the petition, limited to the retroactivity issue. After rehearing and further consideration it changed its position on retroactivity and a majority of the Court ruled: “We now hold as a matter of state law that Coons I is to be applied prospectively only, from the date of that decision, August 3, 1983.” As further explicated by the Court, “... the statute of limitations as to foreign, unrepresented corporations commences to run as of [August 3, 1983].” Coons v. American Honda Motor Co., Inc., 96 N.J. 419, 422, 435, 476 A.2d 763 (1984).

Although the New Jersey Supreme Court decided only the state law retroactivity question, it discussed both state and federal cases and proceeded as if state law and federal law on the subject were “inspired by the same considerations.” 96 N.J. at 426, 476 A.2d 763.

There is now pending in the United States Supreme Court a petition for a writ of certiorari to review the decision in Coons II. That Court will, of course, finally decide the issues now before us, but in view of the importance of this ease to both parties and in view of the long delay to which the case has already been subjected, I believe I should rule on the same issues raised by the pending motions in light of Coons I and II.

Conclusions of Law

There can be no question that the New Jersey Supreme Court has decided definitively the meaning of N.J.S.A. 2A:14-22, which tolls the running of the statute of limitations against foreign corporations which are not “represented” in New Jersey. It held in Coons I “that a foreign corporation must obtain a certificate to do business in this state, under N.J.S.A. 2A:13-4, in order to achieve ‘representation’ in the context of N.J.S.A. 2A: 14-22.” 94 N.J. at 309, 463 A.2d 921.

Two questions of pertinence to the present ease remained after the New Jersey Supreme Court decided the statutory question: (i) Does N.J.S.A. 2A:14-22, as so interpreted, unconstitutionally burden interstate commerce? and (ii) If it is concluded that N.J.S.A. 2A:14-22 does unconstitutionally burden interstate commerce, should such a conclusion be applied retroactively or prospectively? In Coons I the New Jersey Supreme Court held that as a matter of federal law the statute does unconstitutionally burden interstate commerce by requiring a foreign corporation engaged exclusively in interstate commerce to obtain a certificate to do business in order to gain the advantage of the statute of limitations. In Coons II the New Jersey Supreme Court held that as a matter of state law, its holding of unconstitutionality should be applied prospectively.

A. Applicable Law: Both parties agree that federal law governs the question of the constitutionality of N.J.S.A. 2A:14-22. Since this is a federal question the issue must ultimately be decided by the United States Supreme Court. Although the decision of the New Jersey Supreme Court applying federal law to the question is both persuasive and instructive it is not binding, and under the mandate of the United States Supreme Court and the Court of Appeals I am required to make an independent determination of the constitutionality of the tolling statute under the Commerce Clause.

Plaintiffs urge strenuously that I am bound by the decision in Coons II that, assuming the unconstitutionality of the tolling statute, the constitutional determination is to be applied prospectively and not retroactively. However the cases cited by plaintiffs involve interpretation of state statutes and the effect to be given to changes in state law, not, as in the present case, the question of the retroactivity of federal constitutional decisions.

It would be difficult to reconcile rationally a holding that federal law will be applied to determine the constitutionality of a statute but that the states remain free to determine under state law when and how the ruling of unconstitutionality will be applied. Such a rule would provide a tool for nullification of constitutional decisions and does not constitute current law. For example, the United States Supreme Court reviews state court decisions on the retroactivity of new federal constitutional protections for criminal defendants, thus holding by clear implication that federal law controls. Brown v. Louisiana, 447 U.S. 323, 100 S.Ct. 2214, 65 L.Ed.2d 159 (1980). Federal law governs the retroactivity question in this case.

The New Jersey Supreme Court did not even purport to apply federal law when deciding the retroactivity question. Therefore, while Coons II may be instructive by way of analogy, it does not address the federal question implicated in the present motions.

B. Burden on Interstate Commerce: I conclude that the New Jersey Supreme Court correctly decided that interstate commerce is unconstitutionally burdened by the requirement that in order to avoid the effect of N.J.S.A. 2A:14-22 a foreign corporation must qualify to do business in New Jersey. The United States Supreme Court has held repeatedly that a state cannot discriminate against a foreign corporation engaged in interstate commerce merely because it has failed to qualify to do business in that state. E.g., Allenberg Cotton Co. v. Pittman, 419 U.S. 20, 95 S.Ct. 260, 42 L.Ed.2d 195 (1974). This is just what New Jersey’s tolling statute does. Coons I discusses in some detail application of the pertinent constitutional principles to N.J.S.A. 2A:14-22, 94 N.J. at 316-318, 463 A.2d 921, arriving at a conclusion with which I agree.

C. Retroactivity of Ruling of Unconstitutionality: As stated above, the question whether a ruling that New Jersey’s tolling statute is unconstitutional should be applied retroactively is a federal, not a state law question. The New Jersey Supreme Court did not address the federal question. In my opinion, applying federal law, the determination that the statute is unconstitutional must be given retroactive effect and should be applied, at the very least, to the instant case. The New Jersey Supreme Court concluded, as have I, that N.J.S.A. 2A:14-22 imposes an impermissible burden on interstate commerce. That being the case, the burden should be lifted. A rule giving prospective effect to the decision of unconstitutionality permits this burden on commerce to perpetuate itself into the future. Thus if Coons II is accepted, foreign corporations engaged solely in interstate commerce will not be able to raise a limitations defense in future actions filed in New Jersey for two or six years from August 3, 1983 (depending on whether the action sounds in tort or asserts a property claim). This defeats the constitutional ruling striking down an impermissible burden on commerce. Cf., New York v. Cathedral Academy, 434 U.S. 125, 98 S.Ct. 340, 54 L.Ed.2d 346 (1977); Lemon v. Kurtzman, 411 U.S. 192, 93 S.Ct. 1463, 36 L.Ed.2d 151 (1973); United States v. U.S. Coin & Currency, 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1971).

Plaintiffs urge that application of the balancing test articulated in Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971) would require prospective application of the constitutional ruling. I do not agree. I am not at all sure that a balancing test is called for in a situation such as this where there is an immediate burden on commerce of an extensive and pervasive nature. However, even if the balancing test is applicable, it would not call for prospective application of the ruling of unconstitutionality in this case.

In Chevron the Court noted that it had recognized the doctrine of non-retroactivity outside the criminal area in both constitutional and non-constitutional cases. It stated:

In our cases dealing with the nonretroactivity question, we have generally considered three separate factors. First, the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, see, e.g., Hanover Shoe v. United Shoe Machinery Corp., supra [392 U.S. 481], at 496 [88 S.Ct. 2224, 2233, 20 L.Ed.2d 1231 (1968)], or by deciding an issue of first impression whose resolution was not clearly foreshadowed, see, e.g., Allen v. State Board of Elections, supra [393 U.S. 544], at 572 [89 S.Ct. 817, 835, 22 L.Ed.2d 1 (1969)]. Second, it has been stressed that “we must ... weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.” Linkletter v. Walker, supra [381 U.S. 618], at 629 [85 S.Ct. 1731, 1738, 14 L.Ed.2d 601 (1965)]. Finally, we have weighed the inequity imposed by retroactive application, for “[w]here a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the ‘injustice or hardship’ by a holding of nonretroactivity.” Cipriano v. City of Houma, supra [395 U.S. 701], at 706 [89 S.Ct. 1897, 1900, 23 L.Ed.2d 647 (1969) ].

None of these factors are present in the instant case.

In United States v. Johnson, 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982) (a criminal case) the Court explained that the initial Chevron test (applicable to civil cases) required a determination that the decision be a “clear break” with past law. Such a determination may be made only if a decision “[1] explicitly overrules a past precedent of [the court]; or [2] disapproves a practice [the court] arguably has sanctioned in prior cases; or [3] overturns a longstanding and widespread practice to which [the court] has not spoken, but which a near-unanimous body of lower court authority has expressed approval.” 457 U.S. at 551, 102 S.Ct. at 2588.

The decision in Coons I does not meet Chevron’s first criterion either as stated in Chevron or as explicated in Johnson. It was well established as a matter of federal law that a state may not discriminate against a foreign corporation engaged in interstate commerce merely because it has failed to qualify to do business in that state. There has always been the likelihood that N.J.S.A. 2A:14-22 had just that effect. At the most there was confusion on the subject, see the New Jersey Supreme Court’s discussion of this confusion in Coons II, 96 N.J. at 432-433, 476 A.2d 763. While, according to the New Jersey Supreme Court, Coons I was new law, it “did not literally alter precedent because there was none on the holding of the case.” 96 N.J. at 433, 476 A.2d 763. Thus Coons I insofar as it interpreted N.J.S.A. 2A:14-22 was not a clear break with past law. It decided questions as to which there had been confusion and controversy.

The second Chevron criterion requires that the court look at the history and purpose of the rule and determine whether retrospective operation will further or retard its operation. The purpose of the constitutional rule which governs this case is to free interstate commerce from the burdens which might be imposed by the individual states through which that commerce flows. Retroactive application of Coons I furthers that objective; prospective application defeats it.

As to the third criterion, general equitable considerations must be weighed. In the present case plaintiff Susan Cohn suffered a stroke in 1963. Walter R. Cohn, her husband, is both a co-plaintiff and the attorney for himself and his wife. By 1970, as found by Judge Meanor, he knew that his wife had had a cerebral vascular accident which may have been caused by Searle’s contraceptive. That knowledge would, under usual circumstances, have started the statute of limitations running. By April 1970 he had compiled a medical-legal file. He asserts that he ascertained that Searle did not have an agent in New Jersey for purposes of service of process and that he relied on that fact and the tolling statute when he decided to defer filing suit until 1974. His reasons for waiting, he claims, were his desire to obtain more concrete medical information as to the causal connection and his wife’s emotional and psychological condition at the time.

This is a tragic situation, but one which plaintiffs could readily have avoided by commencing an action within two years of 1970 when they discovered the causal relationship. In 1970 the scope and effect of the tolling statute was not at all clear. At that time there was case law which suggested that circumstances other than qualifying to do business in New Jersey would avoid the effect of the tolling statute. For example, one court suggested that the tolling statute would not govern an action in which the foreign corporation was subject to service of process under R.S. 39:7-2, which provided for service on foreign corporations and others by serving the Director of Motor Vehicles in suits arising out of automobile accidents occurring in New Jersey. Further, it was urged that the tolling statute should not apply to any foreign corporation that was amenable to the personal jurisdiction of the New Jersey courts through application of the long-arm rule or otherwise.

Although Whalen v. Young, 28 N.J.Super. 543, 101 A.2d 64 (Law Div.1953) held that R.S. 39:7-2 permitting service on the Director of Motor Vehicles did not serve to avoid the effect of the tolling statute, exactly the opposite result was reached in 1962, when a trial court held that in such a situation a foreign corporation was represented in New Jersey and an action against it was not affected by the tolling statute. Ferraro v. Ferro Trucking Co., 72 N.J.Super. 519, 179 A.2d 74 (Law Div. 1962). The language of the court in Ferraro emphasizing that the foreign corporation was amenable to service of process at all times and that statutes of limitation serve important policy goals should have alerted the careful attorney that there were risks entailed in relying on N.J.S.A. 2A:14-22 in any situation where a foreign corporation was subject to service under New Jersey’s court rules or statutes.

In the present case Searle was amenable to service of process at all times under N.J.Ct.Rule 4:4-4(c)(1) either by service upon one of Searle’s detail persons visiting New Jersey doctors and hospitals or by mailing process to its principal place of business under the long-arm provision of the Rule. See Avdel Corp. v. Mecure, 58 N.J. 264, 277 A.2d 207 (1971). Prior to 1980 respectable legal authorities urged that the statute tolling the limitations periods within which actions could be brought against foreign corporations unrepresented in New Jersey did not apply to foreign corporations which were amenable to long-arm service. That position was rejected in Velmohos v. Maren Engineering Corp., 83 N.J. 282, 416 A.2d 372 (1980), a case decided long after plaintiffs in the present case instituted their action. However, in 1970, when plaintiffs became aware of a possible cause of action against Searle, there was no assurance that views like those expressed by the dissenting Justices in Velmohos would not be adopted in New Jersey:

I would construe N.J.S.A. 2A:14-22 to toll the statute of limitations as to a foreign corporation against which there is a cause of action in this State only in a situation where such corporation is not amenable to personal jurisdiction.
Defendant corporations were subject to long-arm jurisdiction in this State at all relevant times as found by the trial court. See R. 4:4-4(c)(l). Indeed, service was made upon them pursuant to the rule. To hold that despite this, a plaintiff can sit back for any number of years and file suit at his pleasure against such foreign corporations, is to do violence to the concept of limitations of actions. The construction placed upon N.J. S.A. 2A:14-22 by the majority opinion, while following the literal language of the statute, frustrates the very purpose of the tolling provision and places this Court with a minority of jurisdictions. See Annotation, “Tolling of statute of limitations during absence from state as affected by fact that party claiming benefit or limitations remained subject to service during absence of nonresidence,” 55 A.L.R.3d 1158 (1974). As noted in the annotation, a majority of courts have refused to give application to tolling provisions when the party claiming the benefit of limitations has remained amenable to personal jurisdiction.
A recent comment in 10 Seton Hall L.Rev. 585 (1980) entitled “The Tolling Provision of the Statute of Limitations — a Haven for the Dilatory Plaintiff,” makes a critical analysis of N.J. S.A. 2A:14-22 and the position now taken in the majority opinion and rejects it on constructional as well as constitutional grounds. The comment concludes by stating that “[a] statute that serves to placate the dilatory plaintiff while denying an important right to a nonresident defendant is an anomaly in a jurisdiction noted for progressive developments in the law corresponding to the changes in the circumstances to which the law applies.” Id. at 613. Despite the rigidity of some tolling and limitations statutory provisions, this Court has always construed them to effectuate the true statutory purpose. See, e.g., Galligan v. Westfield Centre Service, Inc., 82 N.J. 188 [412 A.2d 122] (1980); White v. Violent Crimes Compensation Board, 76 N.J. 368 [388 A.2d 206] (1978). It has not done so today.
Although I find it unnecessary to reach the issue, the statutory construction of N.J.S.A. 2A: 14-22 adopted by the majority also raises substantial questions of due process and equal protection of the laws. I would reverse the Appellate Division and reinstate the judgment of the trial court dismissing the complaint.

83 N.J. at 197-199, 416 A.2d 372. New Jersey attorneys should, therefore, have been aware of the constitutional and interpretive risks of reliance on the tolling provisions of N.J.S.A. 2A:14-22.

The dissenting opinion of three Justices in Coons II would have held that under state law “[irrespective of the general retroactivity of the Coons I decision, there should be no question that those responsible for effecting the change in law should benefit by their efforts”; else there would be no incentive for private attorneys to challenge existing possibly unconstitutional laws. 96 N.J. at 436, 476 A.2d 763. Searle was among those who were considered to have effected a change in the law. One of these dissenting Justices, Justice Garibaldi, went further and urged that even under state law Coons I should be given complete retroactive effect. She applied the first Chevron test (without reference to the gloss which Johnson may have put upon it) and concluded that Coons I established a new rule of law. However, she concluded, for certain of the reasons I have set forth above, that the second and third Chevron tests were not met.

Thus, although it is truly to be regretted that plaintiffs in this case will not have their day in court, the marginal equities in this case do not compel the conclusion that implementation of important constitutional principles should be deferred.

Searle’s motion for summary judgment will be granted. The cross-motions for summary judgment of New Jersey’s Attorney General and of plaintiffs will be denied. Searle’s attorneys are requested to present an appropriate form of order.

      . I appreciate that another judge in this district concluded that Coons II governs the retroactivity question. Hopkins v. Kelsey-Hayes, Civil Action No. 78-1646. For the reasons set forth above I do not agree.

      . Having decided that N.J.S.A. 2A: 14-22 is unconstitutional on Commerce Clause grounds, it is unnecessary to address the Due Process grounds which Searle advances here and which were not dealt with in footnote 7 of the Supreme Court’s opinion. G.D. Searle & Co. v. Cohn, 455 U.S. 404, 412, 102 S.Ct. 1137, 1143, 71 L.Ed.2d 250 (1982). Further, I am not at all sure that the Court of Appeals mandate authorizes me to go beyond the Commerce Clause issue.

      . These facts are set forth in an affidavit of Walter R. Cohn sworn to on November 16, 1983 and apparently submitted to the New Jersey Supreme Court. A copy of the affidavit was attached to plaintiffs’ brief in opposition to Searle’s motion for summary judgment.

      . On September 18, 1984 New Jersey’s Attorney General wrote to the court advising that ‘‘[i]n light of the decisions in Coons I and II, it no longer appears necessary for the Attorney General to participate in the present proceeding.” Regardless of the Attorney General’s non-participation, his and plaintiffs’ cross-motions for summary judgment are still pending and should be disposed of.


source: Caselaw Access Project

author: WARREN, District Judge.

license: Public Domain

text:
    UNITED STATES of America and Thomas R. Collins, Special Agent, Internal Revenue Service, Petitioners, v. Elton K. FEFFER, as Vice President of Continental Plastics, Inc., and Continental Plastics, Inc., Respondents.
    No. 83-MISC-77.
    United States District Court, E.D. Wisconsin.
    Dec. 7, 1984.

      Ann M. Kisting, Asst. U.S. Atty., Milwaukee, Wis., for petitioners.
    Richard A. Petrie, Meldman, Case & Weine, Ltd., Milwaukee, Wis., for respondents.
   DECISION AND ORDER

WARREN, District Judge.

Presently before the Court is the petition of the United States of America and Thomas R. Collins, Special Agent of the Internal Revenue Service, to enforce an IRS summons for the testimony of and production of certain records by respondents Elton K. Feffer and Continental Plastics Corporation. The Court, having carefully considered this matter, concludes, for the reasons set forth herein, that the respondents have failed to carry their burden of proof under United States v. Kis, 658 F.2d 526 (1981), and that the summons must therefore be enforced.

BACKGROUND

This action was commenced on July 25, 1983, when the United States and Thomas R. Collins, Special Agent of the Internal Revenue Service (“IRS”), filed a petition, pursuant to 26 U.S.C. §§ 7402(b) & 7604(a), for enforcement of a summons served on the respondents on November 17, 1982. By that summons, the IRS seeks certain records of respondent Continental Plastic Corporation for calendar years 1977,1978, 1979, 1980 and 1981, including, among other things, disbursement and cash receipt journals, sales loss statements, bank records, and corporate minute books. See IRS Summons [Attachment] (November 17, 1982) (Exhibit 1 of Enforcement Petition).

The Government petitioners state that the testimony and materials they seek are believed to contain information needed by the IRS “to investigate the Federal tax liability of Elton K. Feffer for the years 1978, 1979, 1980 and 1981 ... [and to] correctly establish financial starting and ending periods in an indirect method of computation for the years under investigation.” Declaration of Raymond H. Robertson at 3 (December 13, 1982) (Exhibit 2 of Enforcement Petition).

In its petition, the Government also states that on the return date of the summons, respondent Feffer failed to appear, neither testifying nor producing the requested documents; indeed, “[his] refusal to comply with the summons continues to date.” Government’s Petition To Enforce Internal Revenue Summons at 3 (July 25, 1983). The Government further states that the materials and testimony it seeks are not in its possession or control, that no recommendation for the criminal prosecution of the respondents has been made to the Department of Justice, and that the IRS has followed all procedural requirements of the law in pursuing its request for the subject testimony and materials.

On July 26, 1983, the Court ordered the respondents to submit, within 30 days of service, a written response to the Government’s petition, “supported by appropriate affidavits) alleging specific facts in rebuttal to the petitioners’ pleadings or in support of an appropriate affirmative defense.” Court’s Order To Show Cause at 1 (July 26, 1983) (emphasis in original). Pursuant to the procedures set forth in United States v. Kis, 658 F.2d 526 (7th Cir.1981) (see infra at 7-11), the Court also notified the respondents of their right to pursue discovery in this matter and of their entitlement to an evidentiary hearing if the Court concluded that any allegations of appropriate facts in their response were sufficiently specific to warrant such a hearing. The Court also notified the respondents that if they submitted a response that failed to allege appropriate specific facts in rebuttal to the Government’s pleadings or in support of some affirmative defense, an order enforcing the summons would issue.

By their Answer of September 12, 1983, the respondents deny that the subject investigation was undertaken for the purpose of ascertaining the correct tax liability of Elton K. Feffer for the year 1977 and offer some sixteen affirmative defenses — among them, that the subject IRS summons was “issued for the improper purpose of furthering the Government’s wrongful conduct ... [in violation of the] respondents’ constitutional rights under the Fourth Amendment”; that enforcement of the summons would constitute an abuse of the Court’s process; and that the petitioners already have in their possession much of the information sought pursuant to the summons. Respondents’ Answer to Petition at 6-7 (September 12, 1983).

Most significantly, however,, it is in the respondents’ Answer and supporting affidavit of counsel that the issue central to this dispute was first articulated — namely, whether an employee’s provision to IRS agents of certain of the respondent-employer’s corporate records and documents was undertaken and continued “at the direction and with the knowledge, participation and approval of the agents ... [and thus] constituted an unlawful search and seizure by the Government in ... disregard of Respondents’ rights____”

Respondents’ Answer to Petition at 5-6 (September 12, 1983). It is the respondents’ position, set forth in their Answer and maintained throughout the subsequent hearing on the Government’s request for enforcement, that one Diane M. Langron, while an employee of respondent Continental Plastic Corporation,

secretly and illegally took various records and documents, or copies thereof, from the offices of the corporate Respondent under the guidance and direction, and with the knowledge, participation and approval of the agents of the Internal Revenue Service____ An allegedly complete list of the records secretly and illegally taken is included in the Declaration of [IRS] Special Agent Raymond Robertson. His Declaration under oath, however, avoids any implication or admission that the Special Agents were participating behind the scenes in directing or suggesting the illicit search and seizure of Respondents’ records. Special Agent Robertson erroneously states in his Declaration (par. 6) that after contacting the Special Agents in December, 1981, Ms. Langron “brought with her” the records in question____
The illicit taking and copying of Respondents’ records by Ms. Langron with the knowledge, participation and approval .of the Special Agents constituted an unlawful search and seizure by the Government in clear violation of Respondents’ rights under the Fourth Amendment to the Constitution.

Affidavit of Robert E. Meldman at 3-4 (September 12,1984). It is on this principal basis that the respondents oppose enforcement of the subject IRS summons.

The Court, having reviewed carefully both the Government’s Enforcement Petition and the Answer and supporting affidavit filed by the respondents, concluded that while the Government had established a prima facie case for issuance of the summons, the respondents had alleged facts sufficient to support an inference of wrongful conduct by the Government. Accordingly, pursuant to the procedures set forth by the Court of Appeals for the Seventh Circuit in United States v. Kis, 658 F.2d 526 (1981) (see infra at 977-979), the Court conducted a two-day adversarial hearing on November 1 & 2, 1983.

During the course of those proceedings, the substance of which is discussed below, the Court heard testimony from three witnesses for the Government — namely, former IRS Special Agent Raymond H. Robertson, petitioner Thomas R. Collins, and Diane M. Langron — and from one witness for the respondents, Deborah L. Adney. In addition, the Court listened to a tape recording of testimony given before a hearing examiner of the Job Service Division— Unemployment Compensation of the Wisconsin Department of Industry, Labor and Human Relations, on the benefits claim of Diane M. Langron involving the account of her former employer, respondent Continental Plastic Corporation. At the conclusion of all testimony, the Court entertained argument by counsel for both sets of parties and thereafter took the matter under advisement, promising a written decision on the Government’s request for enforcement of the subject summons.

Before addressing the merits of the parties’ positions in this particular ease, the Court will set forth, if only to establish the procedural and substantive basis for its decision, the well-established standards to be followed by the litigants and the courts in summons enforcement actions such as this.

The Kis Paradigm And The Present Petition To Enforce The IRS Summons I.

In United States v. Kis, 658 F.2d 526 (7th Cir.1981), the Court of Appeals for the Seventh Circuit set forth the procedural and substantive requirements for proceedings pursuant to 26 U.S.C. § 7604. First, the Government must submit, along with its petition, evidence of a prima facie case that the conditions exist for the issuance of a summons. Ordinarily established by affidavits of the agents involved in the investigation, the prima facie case is made out by a showing that:

(1) the investigation will be conducted pursuant to a legitimate purpose;
(2) the inquiry may be relevant to the purpose;
(3) the information sought is not already within the Commissioner’s possession; and
(4) the administrative steps required by the Code have been followed — in particular, that the “secretary or his delegate,” after investigation, has determined the further examination to be necessary and has notified the taxpayer in writing to that effect.

United States v. Kis, 658 F.2d 526, 536 (7th Cir.1981) (quoting United States v. Powell, 379 U.S. 48, 57-58, 85 S.Ct. 248, 254-55, 13 L.Ed.2d 112 (1964)). If the Government meets this burden, the district court should, within fifteen (15) days, issue to the respondent an order to show cause why the summons should not be enforced.

Thereafter, the taxpayer has thirty (30) days to file his or her response. At that time, the burden of production and proof shifts to the taxpayer, and the burden is a heavy one. United States v. LaSalle National Bank, 437 U.S. 298, 316, 98 S.Ct. 2357, 2367, 57 L.Ed.2d 221 (1978). The taxpayer must do more than produce evidence that simply calls into question the Government’s prima facie case; instead, he or she must demonstrate a lack of good faith — that is, that the Government has abandoned in the institutional sense its pursuit of possible civil penalties. United States v. Moll, 602 F.2d 134, 138 (7th Cir. 1979).

Observing that it is the court’s process that is invoked to enforce the summons, the United States Supreme Court has stated unequivocally that

... a court may not permit its process to be abused. Such an abuse would take place if the summons had been issued for an improper purpose, such as to harass the taxpayer or to put pressure on him to settle a collateral dispute, or for any other purpose reflecting on the good faith of the particular investigation.

United States v. Powell, 379 U.S. 48, 58, 85 S.Ct. 248, 255, 13 L.Ed.2d 112 (1964). Nonetheless, the burden of proving some improper use of the summons rests squarely on the taxpayer; the Supreme Court’s opinion in United States v. LaSalle National Bank, 437 U.S. 298, 98 S.Ct. 2357, 57 L.Ed.2d 221 (1978), may not have “closed the door in the taxpayer’s face, but neither did it leave much more than a very slight opening.” United States v. Kis, 658 F.2d 526, 539 (7th Cir.1981) (quoting approvingly the language in United States v. Garden State National Bank, 607 F.2d 61, 70 (3d Cir.1979)).

As a practical matter, the taxpayer is required to answer the Government’s case through responsive pleadings, supported by affidavits, that allege specific facts in rebuttal. Those facts must permit at least an inference that some wrongful governmental conduct exists; mere allegations of bad faith will not suffice, nor will legal conclusions. If, at this stage, the taxpayer cannot refute the Government’s four-part, prima facie case or cannot support factually a proper affirmative defense, the district court is obliged to dispose of the matter on the papers before it and without an evidentiary hearing. United States v. Kis, 658 F.2d 526, 538 (7th Cir.1981) (citing approvingly the standards set forth in United States v. Garden State National Bank, 607 F.2d 61, 71 (3d Cir.1979)).

(1) the identities of the investigating agents;

The Court of Appeals for the Seventh Circuit has summarized the taxpayer’s burden this way;

Although ... we do not want to put the taxpayer in the anomalous position of having to allege specific facts when he has no means to gather that information through discovery, the basic discovery that the Third Circuit allowed in Garden State solves that dilemma. All the taxpayer needs to do is develop facts from which a court might infer a possibility of some wrongful conduct by the Government. He need not be able to prove that the wrongful conduct in fact exists. This inference could be drawn from any of the factors cited in Garden State or by any other evidence that the taxpayer might have, such as an offer to settle a collateral dispute. If the taxpayer cannot develop even the evidence necessary to meet this standard, then an evidentiary hearing would be a waste of judicial time and resources.

United States v. Kis, 658 F.2d 526, 540 (7th Cir.1981) (emphasis in original).

If, on the other hand, the taxpayer presents enough specific facts to meet the established burden, he or she is entitled to an adversarial hearing. The hearing is to be held within sixty (60) days after the response is filed and should be conducted within the general guidelines established by the Court of Appeals in United States v. Kis, 658 F.2d 526, 540 (7th Cir.1981):

At the hearing, the Government can make its prima facie case through the introduction into evidence of the affidavits submitted with the petition for enforcement that began the proceedings. The Government could also present other evidence, testimonial or otherwise, to counter the specific allegations made by the taxpayer that were sufficient to warrant the holding of the hearing. The taxpayer would then be able to present his case, which would include the specific allegations made in his responsive pleading. The taxpayer would also be able to examine under oath the agents responsible for the investigation and any other witnesses he may call. While we do not wish to circumscribe the discretion of the district court in conducting the hearing, the court should not permit the hearing to become a pure fishing expedition by the taxpayer. The testimony he seeks should be related to some possible abuse of process as could be inferred from previously presented evidence. The court may within its discretion limit testimony if the questioning moves too far afield.

As before, the taxpayer bears an extraordinarily heavy burden at the hearing; he can succeed only by proving by a preponderance of the evidence some improper use of the summons by the IRS. Moreover, if at the time of the hearing, the IRS has made no recommendation for criminal prosecution to the Department of Justice and there is no reason to suspect that such a recommendation is being unduly delayed, the party opposing the summons must establish that the inquiry has no civil purpose whatsoever. United States v. Moll, 602 F.2d 134, 139 (7th Cir.1979). If the taxpayer cannot prove at the hearing that the IRS has abandoned any institutional pursuit of a civil tax determination, the district court is obliged to order enforcement of the summons at that time.

II.

Measuring the pleadings in the present case under the standards articulated above, the Court concludes that the respondents have not met their burden of proving that enforcement of the summons is sought in pursuit of some improper purpose by the Government or in furtherance of wrongful governmental conduct. Because it reaches this conclusion, the Court will order that the IRS summons be enforced.

At the outset, the Court reaffirms its view, implicit in its Order to Show Cause of July 26, 1983, that the Government has established a prima facie case for enforcement. First, it is plain that the United States and, in particular, IRS Special Agent Collins and former Agent Robertson, seek the testimony and designated documents of the respondents for the legitimate purpose of investigating their tax liability for the calendar years 1977 through 1981, or, as former Agent Robertson testified, “[t]o clear up the matter as to whether or not there had been a violation of the tax laws.” Transcript of Proceedings at 9 (November 1, 1983). Second, the inquiry the Government intends to pursue — principally by way of examination of the various journals, invoices, summaries, customer lists, balance sheets, and records of the corporate respondent and testimony of the individual respondent — is clearly relevant to determining the federal tax liabilities of these parties for the years in question.

Third, petitioner Collins states in his declaration of June 2, 1983, that with the exception of those records identified by former Agent Robertson in his own declaration of December 13, 1984, the testimony and materials sought by the summons are not in the possession of the Internal Revenue Service. Moreover, as to those documents provided to the IRS agents by Diane M. Langron, it was Agent Robertson’s testimony that the summoned materials and testimony were needed “to substantiate the authenticity of records we had in our possession previously.” Transcript of Proceedings at 9 (November 1, 1983); see also Declaration of Raymond H. Robertson at 2-3 (December 13, 1982). Finally, Agent Robertson confirms in his declaration that the IRS has taken all appropriate administrative steps for issuance of the summons, including a determination that further examination is necessary and that the respondent-taxpayers have been notified to that effect.

As indicated above, the respondents’ efforts to rebut this prima facie case turn on the notion that the summons was issued in furtherance of wrongful governmental conduct and that enforcement would thus constitute an abuse of the Court’s process. In particular, the respondents attempt to meet their burden by showing that Diane M. Langron, in copying and producing for the IRS Special Agents numerous business records of the corporate respondent, was acting, for practical purposes, as an agent of the Government, providing these documents to the IRS agents in violation of the respondents’ rights under the Fourth Amendment to security against unreasonable searches and seizures. Accordingly, the present petition constitutes an unjustified effort on the Government’s initiative to validate or secure judicial approval of the illegal seizure of the corporate business records, or so the respondents argue.

With this particular contention in mind, the Court has reviewed and carefully considered the testimony adduced during the two-day hearing in this matter, along with the several exhibits introduced by the parties during the course of those proceedings. As a threshold matter, the Court must reject the respondents’ characterization of the nature of the relationship between Diane M. Langron and the IRS agents with whom she met during late 1981 and early 1982. Specifically, the Court finds that Ms. Langron’s production of the respondents’ corporate documents was not initiated or continued at the encouragement of the Government but was merely undertaken in an effort to protect herself from any civil or criminal liability that she may have incurred as a result of her involvement in the preparation of those documents she knew to be false.

The Court finds substantial support for this conclusion in the testimonial evidence adduced by the Government. For example, Ms. Langron testified early in the proceedings that it was her discomfort with respect to the corporate respondent’s export and accounting practices, among other things, that compelled her to contact the IRS; indeed, she initiated the relationship when she “was to the point of, [she] felt I had nowhere else to go and [she] needed some questions answered.” Transcript of Proceedings at 21 (November 1, 1983). She later testified that her initial inquiry focused on the extent, if any, to which she would be “liable in the event that there was another audit and these things were exposed at this time; and in lieu of the fact that [her] name was on the documents, [she] wanted to know if [she] could be liable to any extent.” Transcript of Proceedings at 26 (November 1, 1983).

This testimony, when coupled with that of IRS Special Agents Robertson and Collins and even that of the respondents’ own witness, Deborah L. Adney, indicates that Ms. Langron’s principal, if not sole, motivation in providing the Government with the subject business records was to protect herself against possible liability. As Special Agent Collins testified:

She was scared that "she would be blamed for signing the documents that she knew were false, and she just became scared about that. She became scared because in October of 1981 she made a phone call to Internal Revenue Service asking in general terms, without giving names, whether she could be in trouble for signing documents that were, in fact, false; and whomever she talked to told her, yes, you could.
And after that time in October she was scared that she was going to be blamed for what was going on.

Transcript of Proceedings at 94 (November 2, 1983).

It is equally clear to the Court that, once having undertaken to provide the IRS with the respondents’ corporate documents, Ms. Langron was in no sense deputized by the IRS agents with whom she met to produce additional material from the respondents’ files. Repeatedly throughout' her testimony, Ms. Langron emphasized the wholly voluntary nature of her undertaking; the following exchange between the Assistant United States Attorney prosecuting this case and Ms. Langron is illustrative:

Q And you met with [IRS Special Agents] Collins and Miller on that first occasion; did the two men discuss with you whether or not they wanted you to get additional documents for them for additional photocopies of documents?
A No. As a matter of fact, one of the very first things that Mr. Collins had indicated when I turned over some evidence was that they cannot request of me to get anything, that that was not legal, and that anything that I turned over to them was totally voluntary.
Q And did you tell them that you intended to get additional documents?
A I told them at that point that I had access to much more, yes.
Q But did they tell you that they wanted you to get more documents?

A Never in any confrontation we had. Transcript of Proceedings at 33 (November 1, 1983). The considerable testimony of Special Agent Collins supports Ms. Langron’s account that she was never requested to produce corporate documents and records of the respondents. See Transcript of Proceedings at 65, 66, 68, 71, & 75 (November 2, 1983).

Although it appears that the IRS agents meeting with Ms. Langron did request that she prepare for their use an employee list and job description for those individuals working for the corporate respondent during Ms. Langron’s tenure there, it is clear that this document was eventually prepared by Ms. Langron on her own initiative and was not a part of the respondents’ corporate records. Likewise, the Court does not interpret as a request for documents the agents’ expressions of so-called “disbelief” as to the nature and scope of the invoices provided them by Ms. Langron at their meeting of December 17, 1981. See Transcript of Proceedings at 44 & 67 (November 1 & 2,1983). The upshot of all this is that while Ms. Langron plainly developed a business-type relationship with IRS Agents Robertson and Collins during the several months of her meetings with them, the role of the agents was consistently passive and never assumed that of an employer-supervisor directing an employee-agent to perform certain tasks.

Admittedly, the respondents have introduced some evidence to suggest that Ms. Langron was, in fact, “working” on behalf of the Government in the last days of her employment at the corporate respondent’s place of business. Most damaging, perhaps, to the Government’s case is a portion of Ms. Langron’s testimony before the Job Service Division-Unemployment Compensation of the Wisconsin Department of Industry, Labor and Human Relations, on May 10, 1982. In support of her claim for unemployment benefits and in specific response to a question relating to the circumstances under which her employment with the corporate respondent terminated, Ms. Langron testified as follows:

Well, I was — for the Treasury Department, I was accumulating copies of all these things. The gentlemen from the Treasury Department were coming to my house on a regular basis, and we exchanged information. And they indicated that they could use such and such record. They never instructed me that I had to get them because that is not legal. They just indicated that they could use such and such records, at which point then I would get these records for them.

Transcript of Proceedings before the Job Service Division-Unemployment Compensation, Wisconsin Department of Industry, Labor and Human Relations, In the Matter of the Benefit Claim of Diane M. Langron Involving the Account of Continental Plastic Corporation, Hearing No. 82-01199 AJ at 17-18 (May 10, 1982). Earlier, in a letter written to the Job Service Division-Unemployment Compensation and introduced by the respondent as Exhibit 1-E, Ms. Langron explained:

I had been working with the Treasury Dept, out of Racine in supplying them with much detailed information, records regarding charges of embezellment [sic], tax fraud, tax evasion and customs fraud; against my supervisor, Elton K. Feffer, and his partner, Richard R. Alter. This “undercover” work led to much distress and many pressures.

The respondents direct the Court’s attention to this evidence in support of their contention that Ms. Langron’s taking and copying of the corporate respondent’s records was conducted with the knowledge, participation, and approval of the Government, whose agents were actually directing the search and seizure of the subject corporate materials.

While this testimony and documentary evidence does, on its face, discredit somewhat Ms. Langron’s contention that her involvement with the IRS was wholly voluntary and that her provision of documents was never in response to a specific request for production, the Court does not find that, viewed in the context in which it was offered, this evidence is sufficiently persuasive to warrant denial of the Government’s petition. When queried by the Assistant United States Attorney about her testimony before the Job Service Division-Unemployment Compensation, Ms. Langron explained her use of the expression “working with the Treasury Department” as follows:

Well, to me working, I used as an effort that I put forth, not necessarily compensated by any financial reward or physical reward; I used it in the sense that right now my basic job is that I am a homemaker and I believe that was working, although I am not compensated for that, it was just an effort that I put forth.

Transcript of Proceedings at 41 (November 1, 1983). On cross-examination, Ms. Langron similarly explained her invocation of the term “undercover” in her letter of April 16, 1982, as follows:

Well, unfortunately I am not a person that can express myself in words. I do it much better verbally and unfortunately, this paper had to be filed on paper for request for a hearing.
And for a lack of availability to really express myself, I used the word “undercover.” ...
It meant that I was giving some information of supplying some information without the knowledge that [respondent Elton K. Feffer] was not aware that I was doing this. This is why I, as I say I put the word in quotation marks for lack of a better word to use.

Transcript of Proceedings at 51 (November 1, 1983).

Although such after-the-fact explanations of previously unfavorable testimony might well be expected, the Court views Ms. Langron’s explanations as credible and accepts her admissions to less-than-precise uses of langauge in describing the nature of her relationship with Special Agents Robertson and Collins. Particularly when interpreted in the context of those carefully-described goings-on in late 1981 and early 1982, the Court would be hard-pressed to accept at face value the summary description of her involvement with the Government as provided by Ms. Langron to the Wisconsin Department of Industry, Labor and Human Relations.

Having thus concluded that Ms. Langron’s taking and copying of various records of the corporate respondent was not governmental conduct for purposes of the Fourth Amendment protection, the Court will address only summarily the issue of the respondents’ reasonable expectation of privacy in the subject materials. Significantly, the evidence as to this issue stands overwhelmingly in the Government’s favor.

It is apparent from Ms. Langron’s substantially unchallenged testimony that she had considerable access to the files, cabinets, and desks in which the various records she copied were maintained. Among other things, Ms. Langron stated that she had “open access” to respondent Feffer’s office; that she routinely placed checks and invoices in this respondent’s desk; that she frequently reorganized and cleaned the drawers in that desk; and that she had virtually unlimited access to the various files of the corporate respondent. (See Transcript of Proceedings at 14-16, 18-21 (November 1, 1983). As Ms. Langron testified in reference to another, albeit not entirely unrelated, matter, “I was the girl with the most seniority there, so everyone recognized me and depended on me for various things; that’s why even though at that point I wasn’t making the actual deposits, everyone had still come in, would bring checks to me, et cetera, and I was Continental Plastics in their eyes.” Transcript of Proceedings at 29 (November 1, 1983). Indeed, the testimony of the respondents’ own witness, Deborah L. Adney, wholly supports Ms. Langron’s description of her considerable access to and familiarity with virtually all of the records and journals of the corporate respondent and a considerable number of the personal documents of the individual respondent. See Transcript of Proceedings at 116-119 (November 2, 1984).

Under these circumstances, the Court finds that the respondents had no reasonable expectation of privacy as to Ms. Langron and her work with many of those documents sought pursuant to the IRS summons which the Government seeks to enforce. Accordingly, for this and the other reasons articulated above, the Court must reject the respondents’ principal contention that the summons was issued for the improper purpose of furthering some wrongful conduct, in disregard of their right to be secure against unreasonable searches and seizures, as established under the Fourth Amendment to the United States Constitution.

CONCLUSION

For the reasons set forth herein, the Court hereby GRANTS the petition of the United States of America and Thomas R. Collins for enforcement of the subject IRS summons and ORDERS the respondents to appear before the Internal Revenue Service at a time and place to be determined by the United States Internal Revenue Service and then and there give testimony and produce those materials as required by the summons.

      . The matter, as initiated, sought enforcement of the summons as to "Continental Plastics, Inc.,” in addition to Elton K. Feffer; indeed, the caption of the case is still fashioned consistent with this original designation of the corporate respondent.
      Based on the respondents' denials and affirmative defenses in their Answer to the Enforcement Petition and the testimony adduced during the hearing on this matter, the Court concludes that the correct name of the corporate respondent is Continental Plastic Corporation and shall refer to this party accordingly throughout its memorandum decision.

      . Because two pages of the Government's Enforcement Petition were inadvertently omitted from the pleadings as initially served on the respondents, the Court granted these parties a brief extension of time in which to file a written response. Their Answer, as described below, was thus interposed on September 12, 1983, in a timely fashion. See Court’s Order of August 29, 1983.

      . The "basic discovery" that the district courts of this circuit permit, like those in the Third, is designed to assist the taxpayer in meeting his burden. Among the things the taxpayer is allowed to discover are
      (2) the date the investigation began;
      (3) the dates the agent or agents filed reports recommending prosecution;
      (4) the date the district chief of the Intelligence Division or Criminal Investigation Division reviewed the recommendation;
      (5) the date the Office of Regional Counsel referred the matter for prosecution;
      (6) the dates of all summons issued under 26 U.S.C. § 7602; and
      (7) the nature of any contacts, relating to and during the investigation, between the investigating agents and officials of the Department of Justice.
      At the same time, no discovery through depositions or interrogatories is necessary, "for any testimony that could be conducted then could be conducted just as easily in open court during the hearing [if one is granted].” United States v. Kis, 658 F.2d 526, 542 (7th Cir.1981). Similarly, limited discovery of documents believed to be in the possession of the IRS may be permitted but only upon "a positive showing that the particular documents are necessary to [the taxpayer’s] defense and that they provide information that could not otherwise be obtained at the hearing.” United States v. Kis, 658 F.2d 526, 542 n. 52 (7th Cir.1981).
      Based on any relevant evidence he or she discovers, the taxpayer might then be able to posit some inference of possible wrongful conduct by the Government, premised on “any of the factors cited in Garden State," as follows:

        (1) whether the IRS issued the summons after the investigating agents recommended prosecution;
      (2) whether inordinate and unexplained delays in the investigation transpired; or
      (3) whether the investigating agents were in contact with the Department of Justice.

        United States v. Kis, 658 F.2d 526, 539 (7th Cir.1981) (quoting approvingly the touchstones set forth in United States v. Garden State National Bank, 607 F.2d 61, 71 (3d Cir.1979)).

      . The Court of Appeals has recognized, however, that there may be cases in which resolution of the issues remains unclear even after the hearing. In those instances, the taxpayer may be permitted some additional discovery beyond that laid out in United States v. Garden State National Bank, 607 F.2d 61, 71 (3d Cir.1979). This discovery, however, can be limited by the district court in the exercise of its discretion and must be completed within sixty (60) days after the initial evidentiary hearing. A final hearing at which the taxpayer still bears the burden of proving an improper purpose or abandonment of civil purpose by the Government, must then be held within thirty (30) days after the conclusion of discovery. United States v. Kis, 658 F.2d 526, 542 (7th Cir.1981).

      . In support of his clients’ position, respondents’ counsel also argued in closing argument, as in his affidavit appended to the Answer to Petition, that the holdings in Knoll Associates, Inc. v. Federal Trade Commission, 397 F.2d 530 (7th Cir.1968); United States v. Stein, 322 F.Supp. 346 (N.D.Ill.1971); and Gould v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647 (1921), among other cases, compel denial of the Government's petition for enforcement in this action.
      The Court has carefully reviewed the authority cited and articulately argued by counsel in support of his clients' position. Although it will resist the temptation to identify with particularity those aspects of the cases that make them factually distinguishable from this matter, the Court will state plainly that nothing in those decisions convinces it that any ruling other than the one reached herein would be warranted by the circumstances of the present case.


author: WARRINER, District Judge.

text:
    Larry E. WHITE v. E.L. BOOKER, Warden, et al.
    Civ. A. No. 84-0390-R.
    United States District Court, E.D. Virginia, Richmond Division.
    Dec. 7, 1984.
    Larry E. White, pro se.

      Peter H. Rudy, Asst. Atty. Gen., Richr mond, Va., for defendant.
   OPINION

WARRINER, District Judge.

On 2 July 1984, plaintiff, proceeding pro se and in forma pauperis, filed this complaint pursuant to 42 U.S.C. § 1983. On 24 July, defendants submitted a motion for an enlargement of time. This motion was granted by order of 14 August; defendants were directed to respond within ten days of the date of entry thereof. On 23 August defendants requested an additional seven days to respond to plaintiff’s complaint. This motion was granted by order of 28 August. On 5 September defendants submitted a motion for summary judgment.

On 30 August plaintiff submitted a separate complaint under 42 U.S.C. § 1983 which he requested to be consolidated with this action. By order of 12 September, the Court entered an order granting the consolidation of plaintiff’s complaint; defendants were directed to respond to the amended complaint within twenty days. On 21 September plaintiff was advised of an opportunity to respond to defendants’ original motion for summary judgment. On 9 October plaintiff submitted his rebuttal materials.

On 3 October defendants submitted a supplementary motion for summary judgment based on the amended complaint and on 11 October plaintiff was advised of an opportunity to rebut this motion. On 19 November plaintiff submitted rebuttal materials concerning the supplementary motion for summary judgment. These motions are now ripe for consideration. The Court has jurisdiction pursuant to 28 U.S.C. § 1343.

In his original complaint, plaintiff alleges that he was not afforded a fair disciplinary hearing and that his due process rights were violated. Plaintiff was placed in prehearing detention and he was not provided a hearing for over fourteen days. Plaintiff has requested relief in the form of a declaratory judgment removing the disciplinary charge from his institutional record, and injunctive relief in the form of a court-ordered transfer from the Mecklenburg Correctional Center.

In his amended complaint, although the pleadings are vague, plaintiff appears to allege that he has been the subject of “massive and unnecessary harassment from the prison administration.” Specifically, plaintiff alleges that he has received many “unnecessary charges” and was unjustly convicted by the Adjustment Committee. Plaintiff alleges that this harassment is based on defendants’ objections to his “militant Muslim religious beliefs.” In addition, plaintiff complains that he was “constantly shook-down, stopped and harassed.”

The undisputed facts as developed in the motions show that on 7 February 1984 a routine search of plaintiff’s cell was conducted. During that shakedown a homemade knife was found in plaintiff’s cell. Plaintiff was promptly charged with the institutional offense of possession of a weapon or sharpened instrument. See Defendants’ Exhibit I.

Possession of a weapon is a violation of Va.Code § 53.1-203 and is a Class VI felony in the Commonwealth. The Department of Corrections referred plaintiff’s criminal activities to the local Commonwealth’s Attorney. Plaintiff was tried in Richmond City Circuit Court, Division I, on 19 July 1984. He was found guilty of possession of a weapon. Plaintiff received a one-year prison sentence.

Defendants admit that after the 7 February discovery of the knife, plaintiff was placed in pre-hearing detention. Such a decision was based not only on the finding of the knife but also on plaintiff’s extensive record of assaultive, disruptive behavior during incarceration. See Defendants’ Exhibit II, Affidavit of Assistant Warden Hollar at 1, paragraph 3. Pre-hearing detention is one type of special purpose housing used at the Virginia State Penitentiary; it is employed to secure the confinement of inmates who have been charged with serious institutional rule violations until such time as the Adjustment Committee can adjudicate the pending charges.

Pursuant to Division Guideline (DGL) # 861, an inmate can be held in pre-hearing detention for two working days before review by an ICC. formal hearing to determine whether the accused inmate continues to be a threat to persons or property. Defendants freely admit that in plaintiff’s case, due to defendants’ inadvertence, plaintiff was held in pre-hearing detention for over fourteen days before he appeared at an Adjustment Committee hearing on 22 February. Defendants Exhibit II at 2, paragraph 5.

A. Claims Concerning Unfair Disciplinary Hearing

Plaintiff alleges that his disciplinary hearing was unfair because (1) Warden Booker neglected to investigate or properly address the issues plaintiff raised in his appeal and (2) the weapon in question was not fingerprinted. In response, defendants aver that all prescribed procedures were followed in plaintiff’s case.

The tape of the disciplinary committee hearing was reviewed by Jennifer J. Jones, Grievance Coordinator at the Virginia State Penitentiary. This review is designed to insure that the guidelines of DGL #861 were properly observed. Defendants state, and plaintiff does not dispute, that a report of this inquiry was forwarded to Warden Booker, who subsequently upheld the disciplinary committee action and informed the plaintiff of the reasons for his decision in doing so. See Deféndant’s Exhibit III at 2, paragraph 5.

Defendants submit that under the circumstances plaintiff’s claims are frivolous under 28 U.S.C. § 1915(d) because there was a substantial basis on which to find plaintiff guilty of the institutional charge. Plaintiff, under institutional practices, is responsible for all materials found in his cell; it is undisputed that'the knife was found in plaintiff’s cell. This evidence, buttressed by the criminal conviction, would make it untenable for this Court to hold that there was not “any basis in fact” to support the action taken by the disciplinary committee. Jackson v. McLemore, 523 F.2d 838, 839 (4th Cir.1975). In the absence of arbitrariness, federal courts will not review the actions of prison disciplinary committees. Bell v. Wolfish, 441 U.S. 520, 547, 99 S.Ct. 1861, 1878, 60 L.Ed.2d 447 (1979). Accordingly, summary judgment shall be GRANTED to defendants on these claims.

B. Claims Concerning Pre-hearing Detention

Defendants acknowledge that, due to their inadvertence, there was a violation of DGL # 861 concerning the requirement of a review of the decision to place plaintiff in pre-hearing detention within 48 hours of such a decision. To the extent that plaintiff seeks to state a claim based specifically on State law, such claims are not cognizable under 42 U.S.C. § 1983. Pennhurst State School and Hospital v. Halderman, - U.S. -,-, 104 S.Ct. 900, 926, 79 L.Ed.2d 67 (1984).

On the same factual basis, plaintiff claims a denial of due process under the fourteenth amendment. This Court is guided by the United States Supreme Court’s recent decision in Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983). While acknowledging that prison administrative regulations may give rise to a protected liberty interest under the Fourteenth Amendment, the Court in Hewitt stated that if such a liberty interest is found to exist, “we must then decide whether the process afforded [the inmate] satisfied the minimum requirements of the Due Process Clause.” Id.

Assuming, arguendo, that DGL # 861 creates a protected liberty interest in plaintiff to be free from being placed in administrative segregation, this Court must look to the federal Due Process Clause to determine if the State has provided plaintiff with the minimum prescribed procedures necessary to protect from State infringement upon such an interest.

In Hewitt the Supreme Court noted that the federal Due Process Clause requires only “an informal and non-adversarial review of the information supporting [the inmate’s] administrative confinement, including whatever statement the inmate wishes to submit within a reasonable time after confining him to administrative segregation.” 103 S.Ct. at 872, 74 L.Ed.2d at 689 (emphasis added).

It is clear from the evidence before this Court that the Adjustment Committee hearing held on 22 February provided at least the minimum prescribed procedural requirements mandated by the Due Process Clause. Therefore, the sole question before this Court is whether such a review took place within a reasonable time after confining plaintiff to administrative segregation.

In reviewing the reasonableness of the defendants’ actions, this Court is guided by the Hewitt court’s distinction of the case of Gerstein v. Pugh, 420 U.S. 103, 125, 95 S.Ct. 854, 868, 43 L.Ed.2d 54 (1975). In Gerstein, the Supreme Court held that pretrial detainment of citizens suspected of criminal acts requires that a fair and reliable determination of probable cause must be made by a judicial officer either before or promptly after arrest. In distinguishing Gerstein, the Hewitt court noted that:

“... the private interest at stake here is far less weighty than that in issue in Gerstein which involved removing a suspect from unrestricted liberty in open society and placing him in an institution. In contrast, as noted above, Helms was merely transferred from an extremely restricted environment to an even more confined situation____respondent has a far less compelling claim to procedural safeguards than did the pre-trial detainees in Gerstein.”

A review of the totality of the circumstances surrounding defendants’ actions in neglecting to provide plaintiff with a hearing for over 14 days shows that while this action violated DGL # 861, plaintiff was held in administrative segregation as opposed to isolation. The relative degrees of severity was even less weighty than in Helms. The Court notes that inmates in administrative segregation retain many of the same privileges afforded to those inmates in the general population:

“inmates in pre-hearing detention are permitted to retain additional property such as a radio, books, magazines, newspapers, periodicals, personal photos and a typewriter. Isolation inmates do not receive commissary privileges whereas prehearing detention inmates are permitted to place commissary orders at least once a week.”

See Defendants’ Exhibit II at 2, paragraph 4.

The defendants’ actions in crediting all pre-hearing detention time towards plaintiff’s eventual fifteen day isolation sentence which was imposed by the discipline committee reveals that the harm to plaintiff, if any, is de minimus. Accordingly, it is the opinion of the Court that the defendants’ actions in failing to provide a hearing for up to fourteen days did not deprive plaintiff of any due process right to receive a hearing within a “reasonable time.”

Even if a constitutional deprivation did occur, the plaintiff has an adequate State remedy as conferred by the State Tort Claims Act. As noted in the Supreme Court’s analysis in Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), and Hudson v. Palmer, — U.S. —, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984), due process has not been violated if the plaintiff possesses an adequate post-deprivation remedy under State law. Because plaintiff has a claim for a negligent deprivation óf his liberty interest, this case falls squarely within the Fourth Circuit’s holding in Daniels v. Williams, 748 F.2d 229 (1984). To the extent that any liberty deprivation is present, plaintiff’s remedy and right of recourse lies in the State court system.

C. Claims Regarding Harassment Based on Plaintiffs Religious Beliefs

In his amended complaint, plaintiff states that he has been subjected to constant harassment by prison officials in retaliation for plaintiffs exercise of his “militant” religious beliefs. In response to this complaint, defendants submit the affidavit of Assistant Warden Fleming. Mr. Fleming states that, during plaintiff’s incarceration at the Virginia State Penitentiary, plaintiff was convicted of fourteen (14) major institutional charges and that he (Fleming) has personally reviewed all fourteen Adjustment Committee Reports and is convinced that all prescribed procedures were followed in these various actions. See Defendants’ Exhibit I at 1.

Specifically addressing the issue of religious harassment, Mr. Fleming states that on one occasion complaints were received from inmates who said that they were being intimidated by some members of the Nation of Islam religious group. As a result, security staff were advised of this information and advised to closely monitor the situation for any potential security problems. Mr. Fleming states that such actions constitute standard operating procedure whenever the administration is presented with any information which could threaten the security of the prison. Defendants’ Exhibit I at 2, paragraph 8.

Pursuant to Fed.R.Civ.P. 56(e), plaintiff bears the burden of raising a genuine issue of fact in response to defendants’ motion for summary judgment. Though invited to do so, Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir.1975), plaintiff has failed to submit any sworn rebuttal materials addressing this issue. Accordingly, this Court will accept the defendants’ statements as true. Summary judgment shall be ENTERED for defendants on this claim and plaintiff’s complaint shall be DISMISSED.

An appropriate judgment shall issue.

Should plaintiff desire to appeal, written notice of appeal must be filed with the Clerk of the Court within 30 days of the entry hereof.


author: KRAM, District Judge.

text:
    EIGENHEIM BANK, Plaintiff, v. Colin HALPERN and NPS Corp., Defendants.
    No. 83 Civ. 7933 (SWK).
    United States District Court, S.D. New York.
    Dec. 7, 1984.

      Hall, McNicol, Hamilton & Clark by Ronald S. Herzog, New York City, for plaintiff.
    Slade & Pellman by Anthony P. Coles, New York City, for defendants.
   MEMORANDUM OPINION AND ORDER

KRAM, District Judge.

The above-captioned action is before this Court upon defendants’ motion, pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, for an order compelling plaintiff to return a document allegedly subject to the attorney-client privilege and upon plaintiff’s cross-motion, pursuant to Rule 37, for an order compelling defendant Halpern to answer certain questions regarding the document. For the reasons stated below, defendants’ motion is denied and plaintiff’s motion is granted.

BACKGROUND

Plaintiff is the alleged holder in due course of a promissory note. Defendant Halpern was the maker of the note, payment of which defendant NPS Corp. guaranteed. Plaintiff initiated this lawsuit after defendants apparently asserted that the note was not their obligation.

In February, 1984, in the course of discovery in this action, defendants produced 712 pages of documents in response to plaintiff’s First Set of Interrogatories. (Affidavit of Ronald S. Herzog dated September 24, 1984, if 5 (“Herzog Aff.”)). Thereafter, plaintiff ascertained that two substantially identical lawsuits had previously been brought against these defendants. (Herzog Aff., If 6) Based upon this similarity, plaintiff requested the documents produced by defendants in those cases, as well as copies of any depositions of the defendants. (Herzog Aff., ¶ 7) Defendants produced the transcripts of Halpern’s depositions in those cases. (Id.)

On August 15, 1984, after reviewing the depositions from those cases, plaintiff requested the production of thirty specific additional documents. (Herzog Aff., 118) Of these thirty documents, twenty-two had been identified during the deposition of Halpern in one of the earlier cases. (Id.) One of those twenty-two is the document in question here.

The document is a draft of a proposed letter, not on letterhead, prepared by Halpern with his corporate counsel. (Affidavit of Anthony P. Coles dated September 19, 1984, If 2 (“Coles Aff.”)). The document contains hand-written notations of Halpern and counsel, and is a preliminary draft for a letter that was never finalized or sent. (Id.)

Apparently, this document was disclosed in connection with a deposition that was taken of defendant Halpern in one of the previous cases (Volksbank Hamm v. Halpern and NPS Corp., 82 Civ. 1273 (S.D.N.Y.)). When the document was introduced at the deposition, defendant Halpern claimed that it had been produced inadvertently and asserted his privilege and declined to answer questions concerning the document. (Coles Aff., 113) The plaintiff in that case made no further use of the document, nor was the issue pursued at the deposition. Subsequently, the Volksbank documents were placed in defendants’ attorneys’ files, segregated from any other documents, subject to an agreement of confidentiality with plaintiff in that case. (Id.)

In response to plaintiff’s request for the thirty additional documents, on September 4,1984, defendant produced the twenty-two documents that had been identified at the Volksbank deposition. (Herzog Aff., II9) These twenty-two documents consist of approximately twenty-five pages and include the document which defendants now claim is privileged. (Id.) Defendants did not indicate in any way at the time of their September 4 response that they believed any of the twenty-two documents was privileged. Nonetheless, on September 17, 1984, when plaintiff sought to use the document at a deposition of defendant Halpern, Halpern stated that he considered this document to be privileged, and refused to answer any questions concerning the document. (Herzog Aff., If 11)

Defendants now claim that this allegedly privileged document was again produced inadvertently. (Coles Aff., H 5) Thus, defendants urge this Court to rule that the document is privileged and that the attorney-client privilege with respect to this document was not waived in this case. Defendants further request that plaintiff be compelled to return or destroy that document. Plaintiff urges this Court to rule that the document is not privileged or that any privilege was waived, and to compel Halpern to answer certain questions concerning the document.

DISCUSSION

The parameters of the claimed privilege in this diversity action are defined by state law. Fed.R.Evid. 501. The attorney-client privilege in New York is governed by section 4503 of the New York Civil Practice Law and Rules (“CPLR”); however, it is deeply rooted in common law. See People v. O’Connor, 85 A.D.2d 92, 447 N.Y.S.2d 553, 556 (4th Dep’t 1982).

The existence of such a privilege is based upon a policy of encouraging openness and full disclosure between a client and his or her attorney. See Upjohn Co. v. United States, 449 U.S. 383, 389 (1981); Priest v. Hennessy, 51 N.Y.2d 62, 67-68, 431 N.Y.S.2d 511, 513-514, 409 N.E.2d 983 (1980). Nonetheless, the application of the privilege serves to exclude reliable evidence and, often, to block the truth-determining processes of the courts. Priest, 51 N.Y.2d at 68, 431 N.Y.S.2d at 514, 409 N.E.2d at 985-86; In re Jacqueline F., 47 N.Y.2d 215, 219, 417 N.Y.S.2d 884, 886-87, 391 N.E.2d 967 (1979). Since the attorney-client privilege stands in derogation of the overriding interest in full disclosure of all competent evidence and intrudes upon the ascertainment of truth, it should be “strictly confined within the narrowest possible limits consistent with the logic of its principle.” In re Horowitz, 482 F.2d 72, 81 (2d Cir.1973) (quoting, 8 Wigmore, Evidence § 2291, at 554 (McNaughton rev.1961)). See also Priest, 51 N.Y.2d at 68, 431 N.Y.S.2d at 514, 409 N.E.2d at 985-86; In re Bekins Storage Co., 118 Misc.2d 173, 460 N.Y.S.2d 684, 690 (Sup.Ct.N.Y.Co.1983).

The specific formulation of the privilege, as set out in section 4503 of the CPLR, provides, in relevant part, as follows:

Unless the client waives the privilege, ... any person who obtains without the knowledge of the client evidence of a confidential communication made between the attorney ... and the client in the course of professional employment, shall not ... be allowed to disclose such communication.

N.Y.Civ.Prac.Law § 4503 (McKinney 1963) (Supplementary Pamphlet 1964 to 1983).

As that section indicates, a privilege, once established, exists “[ujnless the client waives” it. Assuming arguendo that this document is privileged, plaintiff argues that defendants waived the privilege by producing it without any reservation of privilege. Thus, the Court will examine whether defendants waived any privilege which might obtain for this document first.

Voluntary production of a purportedly privileged document to a third party (i.e., neither the attorney nor the client) removes all confidentiality from the document and clearly effects a waiver of any privilege otherwise applicable. Defendants argue that the document was produced inadvertently. Defendants urge this Court to follow the rule that mere inadvertent production of a privileged document does not effect a waiver of the attorney-client privilege. E.g., Data Systems of New Jersey, Inc. v. Philips Business Systems, Inc., No. 78 Civ. 6015, slip op. (S.D.N.Y. January 8, 1981); Connecticut Mutual Life Ins. Co. v. Shields, 18 F.R.D. 448 (S.D.N.Y. 1955). Thus, the issue presented here, as in all cases in which a party claims that a document was produced inadvertently, is whether the production of the document was under such circumstances as to constitute “mere inadvertence.”

This is not a case in which the document was produced as part of a voluminous production, nor is this a case in which defendants opened their files to plaintiff without opportunity to first determine which documents were subject to the attorney-client privilege. Rather, this document was identified as privileged by defendants in a previous litigation and it is unclear to me why, at that time, care was not taken to protect the document’s confidentiality. “One measure of [a document’s] continuing confidentiality is the degree of care exhibited in [its] keeping, and the risk of insufficient precautions must rest with the party claiming the privilege.” United States v. Kelsey-Hayes Wheel Co., 15 F.R.D. 461, 465 (E.D.Mich.1954).

This document was kept segregated with other confidential documents by defendants’ attorneys. Yet, it was produced. This document was specifically requested as one of only thirty documents. Yet, defendants produced it without asserting its purported privilege. This document had once before been produced (inadvertently) and the privilege only asserted at the last minute. Yet it once again was produced here. Defendants claim simply that the document’s production was inadvertent. Defendants apparently blame the fact that discovery in this case was handled expeditiously. That is no excuse. I simply cannot agree with defendants that their conduct constituted mere inadvertence. The procedure followed by defendants with regard to maintaining the confidentiality of this document was “ ‘so lax, careless, inadequate or indifferent to consequences’ as to constitute a waiver.” Data Systems of New Jersey, Inc. v. Philips Business Systems, Inc., No. 78 Civ. 6015, slip op. (S.D.N.Y. Jan. 8, 1981) (quoting National Helium Corp. v. United States, No. 158-75, slip op. at 3-4 (U.S.Ct. Claims Feb. 2, 1979)). The Court may have been willing to find mere inadvertence in defendants’ first production of the document. A second bite of the apple, however, defendants cannot have. Given the need to limit the scope of the privilege, this Court will not countenance defendants’ attempt to affirmatively use their carelessness to recover a privilege once lost. Cf. Liberty Mut. Ins. Co. v. Engels, 41 Misc.2d 49, 244 N.Y.S.2d 983, 986 (Sup.Ct. Kings Co. 1963) (privilege is a shield, not a sword), aff'd, 21 A.D.2d 808, 250 N.Y.S.2d 851 (2d Dep’t 1964).

Accordingly, this case is within the rule in New York that once a document is produced without reserving any purportedly applicable privileges, those privileges are waived. See People v. Calandra, 120 Misc.2d 1059, 467 N.Y.S.2d 141, 142-43 (Sup.Ct.N.Y.Co.1983); Teachers Ins. and Annuity Ass’n of America v. Shamrock Broadcasting Co., 521 F.Supp. 638 (S.D.N.Y.1981).

Defendants’ motion to compel return of the document must therefore be DENIED. Likewise since defendants’ have no objection based on privilege to answering questions regarding the document, plaintiff’s motion to compel answers is hereby GRANTED.

SO ORDERED.

      . Defendants do not cite a single case applying this rule expressly under New York law, but then again, defendants do not even indicate any recognition that New York law governs this dispute. Since New York courts rely, to some extent, on federal law and other states' formulations of the privilege, see People v. Calandra, 120 Misc.2d 1059, 467 N.Y.S.2d 141, 142 (Sup.Ct.N.Y.Co.1983) (adopting federal courts reasoning that submission of documents to government agency without reservation of privilege waives that privilege), this Court will accept defendants' citations of authority as persuasive and hold that New York courts would, if presented with the question, hold that "mere inadvertent” production does not effect a waiver.

      . Defendants’ attempt to bring this case within the holding of Data Systems of New Jersey, Inc. v. Philips Business Systems, Inc., No. 78 Civ. 6015, slip op. (S.D.N.Y. January 8, 1981) (one document among nine transfiles containing thousands of documents; held privilege not waived), by arguing that this is only one document among approximately 900 produced (Coles Aff., ¶ 1), is disingenuous at best. As discussed in the text, defendants produced this document pursuant to a specific request, encompassing only twenty-nine other documents (of which apparently eight were withheld), made long after the bulk of document discovery had been completed.

      . Since I hold that any privilege was waived, I need not reach the question whether the document was privileged in the first instance.