United States of America v. Sanmina Corporation and Subsidiaries

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Petitioner-Appellant,
v.
SANMINA CORPORATION AND
SUBSIDIARIES,
Respondent-Appellee.
No. 15-16416
D.C. No. 5:15-cv-00092-PSG
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Paul S. Grewal, Magistrate Judge, Presiding
Argued and Submitted August 16, 2017
San Francisco, California
Before: O’SCANNLAIN and RAWLINSON, Circuit Judges, and WATTERS,**
District Judge.
The United States (the Government) appeals the district court’s denial of its
petition to enforce a summons against taxpayer Sanmina Corporation (Sanmina).
FILED
DEC 20 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Susan P. Watters, United States District Judge for the
District of Montana, sitting by designation.

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In connection with an investigation into Sanmina’s 2009 federal income tax
liabilities, Sanmina submitted a valuation report prepared by the law firm DLA
Piper to support a claimed deduction. The report referenced memoranda from 2006
and 2009 as support for its conclusion that an asset lacked economic significance
and should be disregarded. The Internal Revenue Service (IRS) sought the
referenced memoranda via summons. Sanmina refused to provide the memoranda,
invoking the attorney-client, work-product, and tax-practitioner privileges.
The Government filed a petition in the federal district court to enforce the
summons. Sanmina responded that the attorney-client and work-product privileges
shielded the two memoranda from disclosure. The district court declined to review
the memoranda in camera and ruled in favor of Sanmina, holding that the attorney-
client privilege protected both the 2006 and the 2009 memoranda. The court held
that Sanmina did not waive the attorney-client privilege when it provided the
memoranda to DLA Piper. The district court also ruled that Sanmina’s disclosure
of DLA Piper’s Valuation Report to the IRS did not result in waiver, because
“DLA Piper’s mere mention of the existence of the memoranda did not summarize
or disclose the content of the memoranda.”
Our resolution of this case would be greatly facilitated by a more informed
analysis from the district court. More specifically, we prefer the district court
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review the documents in camera and reconsider its ruling on the asserted privileges
following its review of the pertinent documents. See United States v. Richey, 632
F.3d 559, 568 (9th Cir. 2011) (remanding to the district court to conduct an in
camera examination of the materials summoned by the IRS in order to determine
which data and materials, if any, were protected from disclosure). Accordingly, we
vacate and remand this case for the district court to review the 2006 and 2009
memos in camera to determine whether the documents requested by the
government are privileged to any degree. This panel retains jurisdiction over this
appeal.
VACATED AND REMANDED.
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