Baranski v. United States of America

Filing 214

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the government has waived any privileges associated with the documents listed on its privilege log, Government Exhibit I. IT IS FURTHER ORDERED that as to Documents 2, 4, 32, 36-38, 42, 43-49, and 55- 58 listed on Government Exhibit I, petitioner shall (1) either return all copies of these documents to the U.S. Attorneys Office, or destroy them; (2) take reasonable steps to retrieve any copies of the documents that petitioner provided to anyone else; and (3) not use or disclose any information gained from these documents for any purpose. IT IS FURTHER ORDERED that within ten (10) days of the date of this Order, petitioner shall file a notice with the Court, signed under penalty of perjury , that details his compliance with the foregoing order. IT IS FURTHER ORDERED that the government shall submit a proposed protective order with respect to disclosure of the ATF Kansas City confidential informant file on James Carmi within ten (10) days of the date of this Order, and shall attempt to obtain petitioner's approval of the form of the proposed order prior to submitting it to the Court. IT IS FURTHER ORDERED that the government shall produce the confidential informant file on James Carmi to petitioner within five (5) days of the issuance of a protective order. Signed by District Judge Charles A. Shaw on 6/3/15. (KXS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

KEITH BYRON BARANSKI,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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No. 4:11-CV-123 CAS

MEMORANDUM AND ORDER
This coram nobis matter is before the Court on the government’s Response to the
Memorandum and Order of December 19, 2014 (the “Order”) (Doc. 194), which granted petitioner
Keith Byron Baranski’s motion to compel to the extent set forth in the Order.1 The matter is fully
briefed as petitioner filed a Sealed Response to the government’s Response, the government filed
a Reply, and petitioner was granted leave to file a Surresponse which he later supplemented.
I. Procedural Background
In August 2014, petitioner filed a motion to compel the production of certain documents he
asserted were responsive to a subpoena duces tecum issued in January 2013 to the Custodian of
Records of the Bureau of Alcohol, Tobacco and Firearms (“ATF”) St. Louis Field Office III (“ATFSTL”). Attached to the subpoena was a list of the categories of records and documents to be
produced, and a U.S. Department of Justice Certification of Identity form completed by non-party
James M. Carmi authorizing the release of documents to petitioner and his attorney. The subpoena
sought the following records and documents:

1

As it has done previously in this case, the United States responds to the Court’s Order on
behalf of the “government,” although the subpoena at issue was directed to the ATF. The Court will
refer interchangeably to the government and the ATF, as appropriate.

1) Interviews, proffers, and communications with, or concerning, James
Michael Carmi (DOB xx/xx/1961).
2) Notes, Reports Of Investigations, memoranda, letters, movement/transfer
documents (including requests made to the U.S. Marshal’s Service), photographs,
and any audio or video recordings, concerning James Michael Carmi (DOB
xx/xx/1961) from October 17, 2000 through December 31, 2009.
3) Interviews, proffers, and communications with, or concerning, Keith
Byron Baranski (DOB xx/xx/70).
4) Notes, Reports Of Investigations, memoranda, letters, photographs, and
any audio or video recordings, concerning Keith Byron Baranski (aka Keith Bryan
Baranski) (DOB xx/xx/70) from October 17, 2000 through December 31, 2009.
Pet.’s Ex. 1, Subpoena in a Civil Case (Doc. 155-3).
Petitioner’s motion to compel sought an order requiring the ATF-STL to produce for his
inspection “all material identified by the subpoena.” Mot. Compel at 1. The Order of December
19, 2014 granted petitioner’s motion to compel to the following extent:
[T]he ATF’s St. Louis Field Office III shall conduct a thorough review of all
documents and records within its control to determine if any documents or records
exist that are responsive to petitioner’s subpoena duces tecum and the list of sixtyfive items attached to petitioner’s Motion to Compel, in accordance with this
Memorandum and Order. Any such documents or records shall be produced within
thirty (30) days of this date of this Order. [Doc. 157]
IT IS FURTHER ORDERED that to the extent the ATF’s St. Louis Field
Office III claims that any otherwise responsive documents or records are subject to
privilege, including the documents and records ATF-STL has previously identified
as privileged, it shall file a privilege log in accordance with Rule 45(d)(2)(A) within
thirty days of the date of this Order, or the Court will deem any privilege waived.
Order at 16.
In the government’s response to Baranski’s motion to compel, it stated that in early October
2014 it learned documents concerning Carmi’s role as a confidential informant in 2004 were located
in ATF’s Kansas City Division. The Order also addressed these documents in connection with the
government’s claim of privilege:
2

To the extent the government’s claim of privilege concerns records or
documents held by the ATF Kansas City Division, it need not produce a privilege log
because as those records or documents would be outside the scope of petitioner’s
subpoena to ATF-STL, unless they are responsive to any of the other four subpoenas
petitioner has served on ATF. If the documents are responsive to any subpoena
served on ATF, the government must either produce the documents or provide a
privilege log.
Order at 12.
The Order also directed the government to “explain why it does not have the Vic’s Gun
Corporation firearms transfer paperwork that was previously seized.” Id. at 10. With respect to
petitioner’s request for certain emails, the Order directed the parties to “meet and confer concerning
the scope and accessibility of the emails, what methods will be efficient in identifying discoverable
emails, the format in which they are stored and would be produced, as well as the potential burdens
and cost of production. See, e.g., Rule 26(b)(2)(B).” Order at 10. Finally, the Order directed the
government to “address . . . why the previously subpoenaed [National Firearms Act] records
concerning Carmi and Baranski should not be produced pursuant to their privacy waivers.” Id. at
12.
The government filed a Response (Doc. 195) that addresses each aspect of the Order,
including the ATF’s response to each subpoena or discovery request petitioner directed to various
ATF offices. Attached to the government’s Response are a number of exhibits and declarations of
ATF personnel signed under penalty of perjury that address the ATF’s actions in responding to
petitioner’s discovery requests. Included among the exhibits is Government Exhibit I, a privilege
log of “records withheld from production pursuant to subpoena issued to [ATF] St. Louis Field
Office III.” (Doc. 195-9.) The government requests a hearing on discovery related to the following
issues: the ATF Kansas City Field Division (“ATF-Kansas City”) confidential informant file, emails

3

and electronically stored records, and “any other matter left unresolved after the Court’s review of
this response.” Gov’t Response at 3.
Petitioner filed a Sealed Response to the Government’s Response (Doc. 201) along with a
number of exhibits. In part, petitioner’s Sealed Response asserts that all of the records listed on the
government’s privilege log, Exhibit I, were produced to petitioner on May 29, 2013 in response to
the subpoena duces tecum. The government filed a Reply (Doc. 203) which states that upon
receiving petitioner’s Sealed Response, it realized for the first time that it had inadvertently
produced privileged documents. The government asserts that all of the documents identified on
Exhibit I should be returned to it pursuant to Federal Rule of Civil Procedure 26(b)(5)(B), and asks
that all notes concerning the privileged documents be destroyed. Several exhibits accompany the
Reply, including a second privilege log, Government Exhibit M, which lists ATF-Kansas City
documents concerning the James Carmi confidential informant file. Petitioner sought and was
granted leave to file a Surresponse (Doc. 204) that primarily addresses whether the government has
waived any privilege for the documents that were alleged to have been inadvertently produced.
II. Discussion
A. The Government Has Waived its Claims of Privilege
As stated above, the government asserts that fifty-eight documents listed on Exhibit I are
privileged and were inadvertently produced, and asks that petitioner be ordered to return the
documents and destroy any notes concerning them. Rule 26(b)(5)(B), Fed. R. Civ. P., establishes
a procedure for issues relating to inadvertently produced material:
If information produced in discovery is subject to a claim of privilege or of
protection as trial-preparation material, the party making the claim may notify any
party that received the information of the claim and the basis for it. After being
notified, a party must promptly return, sequester, or destroy the specified information
and any copies it has; must not use or disclose the information until the claim is
4

resolved; must take reasonable steps to retrieve the information if the party disclosed
it before being notified; and may promptly present the information to the court under
seal for a determination of the claim. The producing party must preserve the
information until the claim is resolved.
Fed. R. Civ. P. 26(b)(5)(B). The Rule “provides a procedure for presenting and addressing these
issues,” but does not address the issue of whether the privilege was waived by the production of the
material. Fed. R. Civ. P. 26 Advisory Committee Comments (2006 Amendment).
Federal common law governs privilege issues where, as here, jurisdiction is based on federal
questions. Federal Rule of Evidence 501; United States v. Ghane, 673 F.3d 771, 780 (8th Cir.
2012). Federal courts have used three distinct approaches to the issue of privilege waiver based on
the inadvertent disclosure of privileged information: (1) the lenient approach; (2) the strict approach;
and (3) the “middle” or Hydraflow approach.2 Gray v. Bicknell, 86 F.3d 1472, 1483 (8th Cir. 1996).
The Eighth Circuit adopted the Hydraflow approach in Gray, a diversity case in which the Missouri
state courts had not addressed the issue of privilege waiver. Id.
Although the Eighth Circuit has not had the opportunity to determine which test to apply in
federal question cases, this Court has previously applied the Hydraflow approach in a federal
question case and will do so in this case as well. See Jo Ann Howard & Assocs., P.C. v. Cassity,
2013 WL 3788804, at *3 (E.D. Mo. July 19, 2013); see also Engineered Prods. Co. v. Donaldson
Co., Inc., 313 F.Supp.2d 951, 1020 (N.D. Iowa 2004) (concluding the Eighth Circuit would likely
apply the Hydraflow approach to inadvertent disclosure of privileged information in federal question
cases); Starway v. Independent Sch. Dist. No. 625, 187 F.R.D. 595, 596 (D. Minn. 1999) (applying
Hydraflow approach to a federal question case).

2

Hydraflow, Inc. v. Enidine Inc., 145 F.R.D. 626, 637 (W.D.N.Y. 1993).
5

Under the Hydraflow approach, “the court undertakes a five-step analysis of the
unintentionally disclosed document to determine the proper range of privilege to extend.” Gray, 86
F.3d at 1483. The relevant factors are:
(1) The reasonableness of the precautions taken to prevent inadvertent disclosure in
view of the extent of the document production, (2) the number of inadvertent
disclosures, (3) the extent of the disclosures, (4) the promptness of measures taken
to rectify the disclosure, and (5) whether the overriding interest of justice would be
served by relieving the party of its error.
Gray, 86 F.3d at 1484 (cited case omitted).
In 2008, the Federal Rules of Evidence were amended to address the issue of waiver
regarding inadvertently produced material covered by the attorney-client privilege or work product
protection. The Rule states:
When the disclosure is made in a federal proceeding or to a federal office or agency
and waives the attorney-client privilege or work-product protection, the disclosure
does not operate as a waiver in a federal or state proceeding if:
(1) the disclosure is inadvertent;
(2) the holder of the privilege or protection took reasonable steps to prevent
disclosure; and
(3) the holder promptly took reasonable steps to rectify the error, including
(if applicable) following Federal Rule of Civil Procedure 26(b)(5)(B).
Fed. R. Evid. 502(b)
Rule 502(b) adopts the middle ground on whether inadvertent disclosure constitutes a waiver
of the attorney-client and work product privileges. Fed. R. Evid. 502 Advisory Committee
Explanatory Note (revised 11/28/2007). Although Rule 502(b) does not explicitly codify the
Hydraflow test, it is flexible enough to accommodate all of its factors. Under Rule 502(b), the
disclosing party has the burden to prove that inadvertent disclosure does not operate as a waiver of
the attorney-client or work product privilege. 6 Moore’s Federal Practice § 26.49[5][h][iii] (3d ed.
6

2014); see, e.g., Rhoades v. Young Women’s Christian Ass’n of Greater Pittsburgh, 2009 WL
3319820, at *2 (W.D. Pa. Oct. 14, 2009) (burden on disclosing party).
In this case, the Court finds that as a whole the Hydraflow factors weigh in favor of waiver.
Regarding the first factor, the reasonableness of precautions taken, the government states that after
the U.S. Attorney’s Office obtained the ATF-STL case file, the records therein were electronically
scanned and entered into an electronic document management system. Records in the scanned file
were then identified and “segregated into documents that were: (1) non responsive to the subpoena
issued to ATF St. Louis; (2) were assessed to be privileged.” Gov’t Reply at 5. The government
states that the U.S. Attorney’s Office produced a disc of Bates-labeled records to be disseminated
to petitioner, and
[t]he disc which was believed to have been produced to Petitioner contained ATF St.
Louis records, but did not contain those that were segregated and later identified in
the privilege log. However, based on representations in Petitioner’s pleading (sic)
it appears that Petitioner received a disc containing all records from the ATF St.
Louis case file, including records identified on the privilege log. The “control copy”
disc of records that the Office of the United States Attorney presently possesses
indicates that only the non-privileged records were produced.
Reply at 6.
Petitioner responds that the U.S. Attorney’s Office letter of May 29, 2013 belies the
government’s assertion of inadvertent production because the letter stated the disclosed records were
“scanned, numerically Bates labeled, and saved as a pdf image,” and specified that the records
included materials from:
ATF St. Louis (ATF St. Louis, MO - 00001 to 05784) ATF Columbus, Ohio (ATF
Columbus 0001-00100), and ATF Chicago (non privileged legal counsel records ATF Chicago 0001-01594).
Gov’t Ex. E at 1. Petitioner states that his counsel received the records on a disc exactly as they
were identified in the letter, and therefore argues this is evidence there was no misunderstanding or
7

ambiguity as to what the government produced in response to the subpoena, or as to what his
counsel received. Petitioner’s assertion is not, however, supported by an affidavit of counsel and
therefore is not evidence. Unsupported statements in a brief are not evidence and cannot be accepted
as such. See Latorre v. United States, 193 F.3d 1035, 1038 (8th Cir. 1999).
The Court finds the manner in which the documents were produced weighs against a finding
that the government took reasonable precautions against inadvertent disclosure. The documents for
which the government now claims privilege were Bates-labeled and intermingled with nonprivileged documents. As a result, there is no explanation for the government’s subsequent
production of documents sequentially Bates-labeled 00001 through 05784 – without exception or
omission – that is consistent with its claims of reasonable effort to avoid inadvertent disclosure. The
government must or should have realized that it was producing all of the ATF-STL documents,
including those it now asserts are privileged.
The government does not provide any information as to who conducted the document review,
in what manner documents were “segregated,” who prepared the disc that was provided to petitioner,
or whether anyone reviewed the disc prior to its production. Cf. United States Securities and Exch.
Comm’n v. Welliver, 2012 WL 8015672, at *6 (D. Minn. Oct. 26, 2012) (where disclosing party
failed to identify any steps taken to prevent an inadvertent error, court could not credit its
“‘safeguards,’ if any, as ‘reasonable.’”). This failure weighs against a finding that the government
took reasonable precautions to prevent inadvertent disclosure. Further, the government’s assertions
concerning the facts relevant to its claims of inadvertent production are not supported by affidavits
and therefore have no evidentiary value.
In addition, although the documents at issue were produced on May 29, 2013, the
government did not produce its privilege log until January 20, 2015, almost twenty months later, and
8

only after it was ordered to do so by the Court. The government’s failure to prepare a privilege log
as required by the Federal Rules of Civil Procedure, even though it claims to have identified
documents that were both privileged and non-privileged, weighs against a finding that the
government can establish it took reasonable precautions to prevent inadvertent disclosure. This is
particularly true where the letter accompanying the discovery materials stated that the government
was withholding additional materials as privileged or otherwise non-discoverable, and was in the
“process of completing a log of these materials so that you are aware what we have withheld and
why we withheld the materials.”3 Gov’t Ex. E at 1. See Seger v. Ernest-Spencer Metals, Inc., 2010
WL 378113, at **5-6 (D. Neb. Jan. 26, 2010) (party waived privilege where it produced documents
for which privilege was later claimed and did not produce a privilege log until ten months after
producing the documents).
The government’s apparent failure to label or otherwise provide an indication of the alleged
privileged status of the documents also weighs against a finding that it took reasonable precautions
to prevent inadvertent disclosure. See Jo Ann Howard & Assocs., 2013 WL 3788804, at *5 (failure
to label documents as privileged was a factor in finding that producing party failed to take
reasonable precautions to prevent inadvertent disclosure).
The second and third factors, the number and extent of the disclosures, also weigh in favor
of waiver. Government Exhibit I lists 58 separate documents that, according to the government,

3

The Court rejects the government’s assertion that its May 29, 2013 letter constituted a
privilege log as required by Rule 45 of the Federal Rules of Civil Procedure with respect to the ATFSTL documents. The letter did not “describe the nature of the withheld documents,
communications, or tangible things in a manner that, without revealing information itself privileged
or protected, will enable the parties to assess the claim.” Rule 45(e)(2)(A)(ii), Fed. R. Civ. P. The
government’s argument that the letter is equivalent to a privilege log is refuted by the letter itself,
which specifically acknowledges that the government had not provided the information necessary
to enable petitioner to evaluate its claim of privilege and states that a privilege log is forthcoming.
9

amount to 570 pages. See Reply at 4, n.1. The government’s letter of May 29, 2013 stated that in
response to petitioner’s subpoenas, 5,784 pages of documents were being produced from the ATFSTL file, and an additional 1,694 documents from other ATF branches. Courts have declined to find
a waiver where only a few privileged documents slip through otherwise stringent screening
procedures. See, e.g., Edelen v. Campbell Soup Co., 265 F.R.D. 676, 698 (N.D. Ga. 2010) (finding
attorney-client privilege was not waived by Rule 502(b) where “only four pages out of a more than
2,000 page production were privileged, the documents were checked by three different attorneys
prior to production, and counsel immediately sought the return of the documents once they
discovered their mistake”). Here, in contrast, 58 documents consisting of 570 pages, approximately
ten percent of the total pages produced from the ATF-STL file, should not have gone unnoticed if
the government had conducted even a cursory review of the disc on which they were produced.
Further, the government has not provided any evidence as to who or how many persons checked the
documents prior to production.
The fourth factor is the promptness of measures taken to remedy the problem. In evaluating
promptness, the inquiry is when the disclosing party discovered or with reasonable diligence should
have discovered the inadvertent disclosure. See Herndon v. U.S. Bankcorp Asset Mgmt., Inc., 2007
WL 781788, at *4 (E.D. Mo. Mar. 13, 2007). The government contends it did not learn of the
inadvertent disclosure until petitioner filed his Sealed Response on February 18, 2015, almost
twenty-one months after the documents were produced. Six days later, Assistant U.S. Attorney
Matthew Drake sent petitioner’s counsel an email stating it appeared petitioner might be in
possession of a disc containing privileged ATF-STL documents.
In his Surresponse, petitioner disputes the government’s assertion that it only learned of the
disclosure in February 2015. Petitioner states that the government’s opposition to his motion to
10

compel, filed in October 2014, pointed to its disclosure of the 5,784 pages of Bates-labeled records
described in the May 29, 2013 letter (see Doc. 182 at 4). Petitioner argues this indicates the
government knew what it had disclosed. Second, petitioner states that when he took the deposition
of ATF Special Agent Michael Johnson on September 16, 2014, one of the documents the
government now claims is privileged (Bates-labeled ATF-STL 05013-05016) was marked as
Deposition Exhibit 10 and discussed for several pages of the transcript, including comments and
objections concerning the document by Assistant U.S. Attorney Christina Moore.4
Putting aside the issue of whether the government should have been on notice of the
disclosure since the time it was made in May 2013, the Court finds that the government learned or
should have learned of the disclosure at Agent Johnson’s deposition on September 16, 2014, some
five months before it asserted the inadvertent disclosure of privileged documents. The deposition
was attended by Assistant U.S. Attorneys Moore and Drake as well as ATF Division Counsel Mark
Curzydlo. Two of the documents listed on Exhibit I were marked as deposition exhibits and Agent
Johnson was questioned about them for a period that spans seven transcript pages.5 Deposition
Exhibit 10 is marked “Limited Official Use,” and petitioner’s counsel specifically noted this while
questioning Agent Johnson. (See Doc. 213-1 at 6.) Agent Johnson testified the document was an
application for funding from the Organized Crime Drug Enforcement Task Forces. (Id. at 7.)

4

Petitioner did not provide a copy of Agent Johnson’s deposition transcript with his
Surresponse in the “interest of brevity and to keep the record simple,” but offered to provide a copy
if the Court deemed it necessary. Surresponse at 7 (Doc. 204). Although the government did not
seek leave of Court to file a surreply to address petitioner’s assertion about the deposition, the Court
ordered petitioner to provide the relevant deposition pages and he has done so. (See Doc. 213.)
5

The documents in question are listed on the government’s privilege log as Document 10
(ATF-STL 03245-03252) and Document 32 (ATF-STL 04683), and were marked as Deposition
Exhibits 10 and 11, respectively. A partial duplicate of Document 10 was also produced and is listed
as Document 54 (ATF-STL 05013-05016) on Exhibit I.
11

Counsel’s questions and Agent Johnson’s answers concerning Deposition Exhibit 11 indicate it was
a National Firearms Act (NFA) document concerning Vic’s Gun Corporation, including an inventory
of firearms that were or should have been in its possession. (Id. at 9-11.) This line of questioning
concerning Deposition Exhibits 10 and 11 should have put the government on notice of its alleged
inadvertent disclosure.
The delay of five months between Agent Johnson’s deposition and the government’s
assertion of privilege weighs in favor of a finding of waiver, as the government was put on notice
but did not timely take action to rectify its error. See, e.g., Seger, 2010 WL 378113, at *6 (party’s
delay of nearly six months after disclosures to make a claim of privilege weighed in favor of a
finding of waiver); Clarke v. J.P. Morgan Chase & Co., 2009 WL 970940, at **5-7 (S.D.N.Y. Apr.
20, 2009) (citing cases; finding waiver where defendant’s failure to raise privilege more than two
months after it learned or should have learned of the privileged document’s disclosure was an
“inexplicably long time.”); cf. Pick v. City of Remsen, 2014 WL 4585732, at *5 (N.D. Iowa Sept.
15, 2014) (fourth factor weighed in favor of non-waiver where disclosing counsel contacted
receiving counsel 34 minutes after learning of inadvertent disclosure); Herndon, 2007 WL 781788,
at *4 (attempt to rectify error within one week of learning of inadvertent disclosure weighed in favor
of finding non-waiver of privilege). As a result, the fourth factor weighs in favor of waiver.
Finally, as to the fifth factor, the government has not established that the overriding interests
of justice would be served by relieving it of the consequences of its error. Parties, including the
government, must recognize there are potentially harmful consequences if they do not take even
minimal precautions to prevent the disclosure of privileged documents. Issues of fairness weigh in
favor of waiver, because the government had ample opportunity to discover and assert the claimed
privileged status of the documents listed in Exhibit I, but did not do so until twenty-one months after
12

it produced the documents and five months after it knew or should have known of the allegedly
inadvertent disclosure. Petitioner has been in possession of these documents for two years and
should not be forced to possibly alter his plans for presentation of his case at the evidentiary hearing
to take into account the government’s belatedly raised claim of privilege.
For these reasons, the Court concludes the acts and omissions of the government have
waived any privilege that may have applied to the fifty-eight documents listed on Exhibit I.6
B. Certain Documents on Exhibit I are Barred from Disclosure by Statute
The conclusion that the government has waived all privileges with respect to the documents
listed on Exhibit I does not resolve the issue whether disclosure of some of the documents is barred
by federal statute. The government asserts that two statutes prohibit disclosure of some of the
documents. The Court will address the two statutes and the separate documents at issue under each
in turn.
1) Tax Return Information - 26 U.S.C. § 6103
The government asserts that a number of the documents it produced are not privileged but
rather are barred from disclosure as tax return information under 26 U.S.C. § 6103.7 Petitioner does

6

As a result, petitioner’s request for a hearing to determine the applicability of privilege to
the documents listed in Exhibit I is moot.
7

The documents the government contends are prohibited from disclosure by 26 U.S.C.
§ 6103 are listed and numbered on Exhibit I as follows:
2. ATF Form 5320.22, NFA Records Search; Bates No. 01858;
4. Form 1512, Application for tax exempt transfer (not related to Baranski
or Carmi); Bates Nos. 02682-02684;
32. Memorandum, Analysis of NFA history [of Vic’s Gun Corporation];
Bates No. 04683;
13

not respond directly to this assertion, but argues without citation to any supporting legal authority
that he is entitled to obtain records relating to Vic’s Gun Corporation (“VGC”) because James Carmi
is a de facto “Responsible Person” of VGC, a dissolved corporation, and petitioner has obtained a
tax release from Carmi.8 Petitioner also argues that the government could redact information
concerning the present ownership of the firearms and produce the remainder of the records.
Under the Internal Revenue Code, federal tax “‘[r]eturns and return information shall be
confidential’ and are not subject to disclosure under ordinary circumstances. 26 U.S.C. § 6103(a)
(1994).” Taylor v. United States, 106 F.3d 833, 835 (8th Cir. 1997). The Eighth Circuit has
described the statute’s definitions of “return” and “return information” as “rather broad.” Id. (citing
26 U.S.C. § 6103(b)). “In addition to the expansive definition of return found in § 6103(b)(1),
Ԥ 6103(b)(2) contains an elaborate description of the sorts of information related to returns that [the

36. ATF Dept. of Treasury Special Tax Stamp (not related to Baranski or
Carmi); Bates No. 04710;
37, 38. ATF Form 5 - Fax, ATF Dept. of Treasury Application for Transfer
(not related to Baranski or Carmi); Bates Nos. 04716, 04724;
42, 43, 46. ATF Form 3, ATF Dept. of Treasury Registration to special
taxpayer; Bates Nos. 04900, 04903, 04918;
44, 45, 47-49, 55-58. ATF Form 3, ATF Dept. of Treasury Registration to
special taxpayer (not related to Carmi or Baranski); Bates Nos. 04911,
04913, 04934, 04936, 04938, 05028-05029, 05035-05040, 05407-05408,
05778-05779.
8

The government states that “ATF considers a ‘responsible person’ for a corporation as
anyone directing management and policies of the business as it pertains to firearms such as corporate
officers, shareholders, board members or employees with legal authority.” Response at 24, n.9.
14

IRS] is compelled to keep confidential,’ Church of Scientology v. IRS, 484 U.S. 9, 15 (1987)—or
is permitted to disclose pursuant to an exception.” Taylor, 106 F.3d at 835.9
The confidentiality of tax return information is not absolute, however. “The bulk of § 6103
constitutes exceptions to the general rule of non-disclosure.” Id. at 836; see Church of Scientology,
484 U.S. at 15 (“Subsections (c) through (o) of § 6103 set forth various exceptions to the general
rule that returns and return information are confidential and not to be disclosed. These subsections
provide that in some circumstances, and with special safeguards, returns and return information can
be made available . . . .”). The statute also provides that return information can be disclosed to
private individuals under specific circumstances. Section 6103(e)(7) provides in pertinent part:
(e) Disclosure to persons having material interest—

9

A “return” is defined in § 6103(b)(1) as “any tax or information return, declaration of
estimated tax, or claim for refund” including supporting schedules, attachments, and lists. Section
6103(b)(2) supplies a more extensive definition of “return information,” which includes:
(A) a taxpayer’s identity, the nature, source, or amount of his income, payments,
receipts, deductions, exemptions, credits, assets, liabilities, net worth, tax liability,
tax withheld, deficiencies, overassessments, or tax payments, whether the taxpayer's
return was, is being, or will be examined or subject to other investigation or
processing, or any other data, received by, recorded by, prepared by, furnished to,
or collected by the Secretary with respect to a return or with respect to the
determination of the existence, or possible existence, of liability (or the amount
thereof) of any person under this title for any tax, penalty, interest, fine, forfeiture,
or other imposition, or offense, and
(B) any part of any written determination or any background file document relating
to such written determination (as such terms are defined in section 6110(b)) which
is not open to public inspection under section 6110, . . . .
but such term does not include data in a form which cannot be associated with, or
otherwise identify, directly or indirectly, a particular taxpayer.
26 U.S.C. § 6103(b)(2). “‘[R]eturn information’ has, in the words of some commentators, ‘evolved
to include virtually any information collected by the Internal Revenue Service regarding a person’s
tax liability.’” Landmark Legal Found. v. I.R.S., 267 F.3d 1132, 1135 (D.C. Cir. 2001) (quoted
source omitted).
15

....
(7) Return information.—Return information with respect to any taxpayer may be
open to inspection by or disclosure to any person authorized by this subsection to
inspect any return of such taxpayer if the Secretary determines that such disclosure
would not seriously impair Federal tax administration.”
The first inquiry is whether the documents the government asserts are barred from disclosure
by 26 U.S.C. § 6103 are “return information” within the meaning of the statute. Neither party has
addressed which of them bears the burden to establish the propriety of a decision to withhold
information under § 6103, or the appropriate standard of review the Court should apply in this
case.10 The Eighth Circuit does not appear to have had an opportunity to address these issues.
Under § 6103, deference is accorded to a decision not to disclose information by virtue of the
Administrative Procedure Act, and “court review is limited to determining if the agency decision
not to disclose was ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law.’ 5 U.S.C. § 706(2)(A).” Grasso v. I.R.S., 785 F.2d 70, 73 (3d Cir. 1986); accord Linsteadt v.
I.R.S., 729 F.2d 998, 999 (5th Cir. 1984) (“If § 6103 provides the sole measure of the duty, on
judicial review the claimant has the burden of proving an abuse of the agency’s discretion in
nondisclosure.”); White v. I.R.S., 707 F.2d 897, 900 (6th Cir. 1983); King v. I.R.S., 688 F.2d 488,
495 (7th Cir. 1982); Betke v. I.R.S., 1985 WL 8649, at *3 (D. Neb. July 17, 1985). In the absence
of any argument or contrary authority from the parties on this issue, the Court will apply this
standard of review.11
10

The parties’ failure to address the burden of proof and appropriate standard of review are
fundamental omissions that inappropriately burden the Court with much of the responsibility to
frame the issues and conduct the research necessary to resolve the matter before it.
11

In contrast, in actions brought under the Freedom of Information Act (“FOIA”), the
government agency has the burden to prove that the information it did not disclose falls within one
of the nine FOIA exemptions. See 5 U.S.C. § 552(a)(4)(b). Exemption 3 of FOIA incorporates
nondisclosure protections established in other federal statutes. 5 U.S.C. § 552(b)(3). Many cases
analyze nondisclosure under 26 U.S.C. § 6103 in the context of FOIA Exemption 3. See, e.g.,
16

The government states that NFA application forms constitute “returns” and contain “return
information” within the meaning of § 6103, citing Lomont v. O’Neill, 285 F.3d 9, 15 (D.C. Cir.
2002) (completed application to make a firearm, once filed with ATF, is a “return” that contains
“return information”). The government further states that § 6103(b)(2) covers information compiled
from third-party sources and internal agency records to determine possible liability under Title 26,
citing Lehrfeld v. Richardson, 132 F.3d 1463, 1465 (D.C. Cir. 1998) (IRS reasonably determined
that documents received or creating during an investigation of organization seeking tax-exempt
status are “return information” within the meaning of § 6103). The government asserts that NFA
records searches are “return information” because a “negative” response to a search request indicates
that the firearms in question are not registered in the National Firearms Registration and Transfer
Record, see 26 U.S.C. § 5841, and are therefore subject to tax liability and criminal penalty. Finally,
the government asserts that § 6103 applies to ATF’s reports of investigation containing information
compiled to determine whether a firearm is covered by the NFA or whether the firearm was
manufactured, possess or transferred in violation of the NFA.
Because petitioner has had possession of the documents listed on Exhibit I for two years, the
Court assumes he is familiar with their contents. Petitioner does not contend in his Sealed Response
that any of the documents are not returns or do not contain return information. In his Surresponse,
petitioner argues only that Document 2, an NFA Records Search for “among others Vic’s Gun
Corp.,” does not include any information protected by 26 U.S.C. § 6103 “other than some personal
identifier[s]”. Surresponse at 6.

DeSalvo v. I.R.S., 861 F.2d 1217, 1218 (10th Cir. 1988); Barney v. Internal Revenue Service, 618
F.2d 1268, 1272-73 (8th Cir. 1980). Because the instant matter is not a FOIA action, however, the
Court does not apply FOIA’s burden of proof.
17

As stated above, the statute’s definitions of “return” and “return information” are broad,
Taylor, 106 F.3d at 835, and have been construed expansively, Landmark Legal Foundation v.
I.R.S., 267 F.3d 1132, 1135 (D.C. Cir. 2001). See, e.g., Betke, 1985 WL 8649, at *3 (IRS Form
3210 document transmittal sheets, forms used to transmit the tax returns of the plaintiff and other
taxpayers from one I.R.S. office to another, were return information properly withheld under §
6103). The Court finds that the NFA records search form, application forms, registration forms and
special tax stamp identified above are returns and/or return information prohibited from disclosure
by 26 U.S.C. § 6103, see Lomont, 285 F.3d at 15; Lehrfeld, 132 F.3d at 1465. Document 32, the
memorandum titled “Analysis of NFA History,” contains return information because it includes
taxpayer identification information and reports data received or recorded with “respect to a return
or with respect to the determination of the existence, or possible existence, of liability (or the amount
thereof) of any person under this title for any tax, penalty, interest, fine, forfeiture, or other
imposition, or offense[.]” 26 U.S.C. § 6103(b)(2).
Petitioner’s assertion that Document 2 is not protected by § 6103 because it only includes
“personal identifiers” is without merit. The identity of third party taxpayers is exempt under § 6103.
See DeSalvo v. I.R.S., 861 F.2d 1217, 1218 (10th Cir. 1988) (a taxpayer’s identity is unambiguously
within the scope of return information). “This is so even if the third person identified in the
documents is a relative of the person making the . . . request. Disclosure of any third person’s
information concerning that person’s taxes requires a signed consent from the third person. See 26
U.S.C. § 6103(c).” Rollins v. United States Dep’t of Justice, 1992 WL 12014526, at * 5 (S.D. Tex.
June 30, 1992). Petitioner’s argument that the government could simply redact taxpayer identifying
information from the documents is also without merit. The Supreme Court has squarely rejected this
argument. “Congress did not intend the statute to allow the disclosure of otherwise confidential
18

return information merely by the redaction of identifying details,” Church of Scientology, 484 U.S.
at 16, and the “removal of identification from return information would not deprive it of protection
under § 6103(b).” Id. at 18. Because “such deletion would not make otherwise protected return
information discloseable, [ATF] has no duty . . . to undertake such redaction.” Id.
Finally, the Court rejects petitioner’s argument that he is entitled to disclosure of VGC’s
records on the basis that James Carmi provided him with a tax release. The government states that
in VGC’s filings with ATF to obtain and maintain its federal firearms license, it listed the
responsible persons and principals as Jeffrey Bach, David Carmi (James Carmi’s brother), and
Vickie Carmi (James Carmi’s former spouse), but James Carmi was not listed as being affiliated
with the business, likely because of his status as a convicted felon. Petitioner responds that VGC
is a dissolved Missouri corporation which was the “legal/licensed base of Carmi’s firearms
operations, VGC’s place of business and corporate office was Carmi’s residence; and ATF records
of Carmi’s investigation clearly show VGC as being the target of the investigation solely because
of Carmi.” Sealed Response at 8. Petitioner makes the conclusory, unsupported argument that
“under those facts Carmi was the defacto Responsible Person of VGC, and any claim of privilege
should be rejected.” Id.
Section 6103 provides that if a corporation has been dissolved, its return shall be disclosed
to “any person authorized by applicable State law to act for the corporation or any person who the
Secretary finds to have a material interest which will be affected by information contained therein.”
26 U.S.C. § 6103(e)(1)(D)(v). The Court in independent research has been unable to find any cases
interpreting this provision. The legislative history of the Tax Reform Act of 1976, Pub.L. 94-455,
90 Stat. 1520, of which amendments to § 6103 are a part, indicates that “[o]ne of the major purposes
in revising § 6103 was to tighten the restrictions on the use of return information by entities other
19

than” the IRS. Church of Scientology, 484 U.S. at 16. The legislative history with respect to
§ 6103(e)(1)(D)(v) does not provide support for petitioner’s assertion that James Carmi is within the
category of persons with a “material interest” in the returns or return information of VGC.12

12

The legislative history of § 6103(e)(1)(D)(v) states as follows:
j. Taxpayers With a Material Interest

Present law
Under the regulations, income tax returns presently are open to the filing
taxpayer, trust beneficiaries, partners, heirs of the decedent, etc. ‘Return
information’, as opposed to the tax returns themselves, is only available to the
taxpayer, etc., at the discretion of the IRS.
Also, the statute specifically authorizes the inspection of a corporation's
income tax returns by a holder of 1 percent or more of the corporation's stock. (Sec.
6103(c).)
Reasons for change
The committee decided that persons with a material interest should continue
to have the right to inspect returns and, where appropriate, return information to the
same extent as provided under current regulations.
Explanation of change
Under the committee amendment, disclosure could be made, upon written
request, to the filing taxpayer, either spouse who filed a joint return, the partners of
a partnership, the shareholders of subchapter S corporations, the administrator,
executor or trustee of an estate (and the heirs of the estate with a material interest that
may be affected by the information), the trustee of a trust (and beneficiaries with a
material interest), persons authorized to act on behalf of a dissolved corporation, a
receiver or trustee in bankruptcy, and the committee, trustee or guardian of an
incompetent taxpayer.
The provision in present law authorizing a one percent shareholder to inspect
a corporation's return would also be retained.
Return information (in contrast to ‘returns’) could be disclosed to persons
with a material interest only to the extent the IRS determines this would not
adversely affect the administration of the tax laws.
S. Rep. No. 94-938(I), at 339.
20

Petitioner does not assert that James Carmi would be authorized to act on behalf of the dissolved
corporation VGC under state law, and petitioner does not provide any legal authority to support his
argument that Carmi is a de facto “responsible person” for VGC based on Carmi’s unlawful
operation of the corporation as a convicted felon. The Court therefore concludes that neither
petitioner nor Carmi are persons with a “material interest” entitled to obtain VGC’s returns or return
information, including NFA records. Petitioner does not assert that he has obtained a signed tax
release form from any person who is authorized by Missouri law to act on behalf of the dissolved
corporation VGC, or has a material interest in VGC’s returns or return information under 26 U.S.C.
§ 6103.
Because the documents at issue are returns or return information, the next inquiry is whether
a decision to withhold them would be arbitrary, capricious or an abuse of discretion. The Court
concludes that Documents 2, 4, 32, 36-38, 42, 43-49, and 55-58 as listed on Exhibit I are prohibited
from disclosure as returns or return information under 26 U.S.C. § 6103. As a result, it would not
have been arbitrary, capricious, or an abuse of discretion for the ATF to withhold them from
production, as neither Carmi nor petitioner are authorized to obtain the records under § 6013, and
petitioner has not provided tax release forms from third-party taxpayers whose return information
the documents contain.
Because documents prohibited from disclosure under § 6103 were produced rather than
withheld, petitioner will be ordered to (1) return all copies of these documents to the government
or destroy them; and (2) take reasonable steps to retrieve any copies of the documents that petitioner
has provided to anyone else. See Fed. R. Civ. P. 26(b)(5)(B). Petitioner shall file a notice with the
Court describing his compliance with this order within ten days of its date. Petitioner may not use
or disclose any information gained from these documents.
21

2) Privacy Act, 5 U.S.C. § 552a
The government asserts that two documents listed on Exhibit I are protected from disclosure
by the Privacy Act of 1974, 5 U.S.C. § 552a. These are Documents 6 (ATF-STL 03186-03191) and
31 (ATF-STL 04255-04259). The privilege log describes the documents as background history
checks titled “Treasury Enforcement Security System Search - Person Subject Entry,” and states the
documents are not responsive to the subpoena as they do not relate to Carmi or Baranski, and are
protected from disclosure pursuant to the Privacy Act.
The Privacy Act requires written consent “before information in individual records may be
disclosed, unless the request falls within an explicit statutory exception[.]” Detroit Edison Co. v.
N.L.R.B., 440 U.S. 301, 319 n.16 (1979). The Privacy Act is “intended to provide to a particular
individual documents that would not be available to the public at large, namely, documents
containing ‘information about [that] individual.’ § 552a(a)(4).” United States Dep’t of Justice v.
Julian, 486 U.S. 1, 21-22 (1988) (Scalia, J., dissenting).
The Privacy Act places the burden to justify withholding of records on the agency, and
provides for de novo review of decisions to withhold. See 5 U.S.C. § 552a(g)(3)(A); Louis v.
United States Dep’t of Labor, 419 F.3d 970, 977 (9th Cir. 2005); Becker v. I.R.S., 34 F.3d 398, 408
n.26 (7th Cir. 1994); Doe v. United States, 821 F.2d 694, 697-98 (D.C. Cir. 1987) (en banc). Thus,
no deference is due an agency’s determination of which records to disclose and which are exempt.
Doe v. Chao, 540 U.S. 614, 618-19 (2004) (distinguishing de novo review from “any form of
deferential review”).13

13

The Court recognizes that the Privacy Act places the burden on the agency to justify the
withholding of documents in the context of a suit brought under 5 U.S.C. § 552a(g)(1)(B). Because
Rule 45 places the burden to establish privilege on the subpoenaed party asserting it, and in the
absence of any discussion from either party on the issue of the burden of proof, the Court concludes
22

ATF does not explain which provision of the Privacy Act controls its response to petitioner’s
subpoena, and it has not provided any supporting legal authority – or even made any argument – to
meet its burden to justify withholding Documents 6 and 31. The Court notes that the Declaration
of ATF Special Agent Michael McGrath states that an ATF criminal investigative case file related
to Carmi and Baranski was delivered to the U.S. Attorney’s Office in St. Louis, which then prepared
a privilege log of items that were in the investigative case file but were not produced.14 (Gov’t Ex.
H; Doc. 195-8 at 1, ¶ 4.)

Thus, the two documents at issue were contained within the

Carmi/Baranski investigative file. Based on Exhibit I’s description of the documents as not
responsive because they do not relate to Carmi or Baranski, it appears the documents were withheld
on the basis that they concern a third person.
In Voelker v. Internal Revenue Service, 646 F.2d 332 (8th Cir. 1981), the plaintiff sought
information in his record held by the Internal Revenue Service. The IRS withheld portions of
plaintiff’s record that included information pertaining to a third party. The Eighth Circuit reversed
the district court’s determination that the documents could be withheld because they pertained only
to a third party and not to the plaintiff. The Eighth Circuit held that the IRS did not have discretion
to withhold information contained in the requesting individual’s record on the basis that the
information did not pertain to that individual. The Eighth Circuit resolved the conflicting privacy
interests of two persons in a single document by finding that the requesting plaintiff was entitled to
the entire document, including the information pertaining to the other person, reasoning:
[The Privacy Act] clearly states that an individual is entitled to his record, as well as
to other information that pertains to him. There is no justification for requiring that
it is appropriate to place the burden on the ATF to justify its attempt to claw back Documents 6 and
31.
14

The documents were, of course, actually produced rather than withheld.
23

information in a requesting individual’s record meet some separate “pertaining to”
standard before disclosure is authorized. In any event, it defies logic to say that
information properly contained in a person’s record does not pertain to that person,
even if it may also pertain to another individual.
Voelker, id. at 334.
Although the Privacy Act often limits scrutiny of personal information held by the
government, “when the individual to whom the information pertains is also the individual requesting
the information, the [Privacy Act] presumes that disclosure to that individual will occur.” Wren v.
Harris, 675 F.2d 1144, 1146 (10th Cir. 1982) (per curiam) (citing 5 U.S.C. § 552a(d)(1)). “Stated
otherwise, the [Privacy Act] provides rights to the individual with respect to his own records greater
than the rights of the public generally.” Id. “If Congress had intended to shield from disclosure
information in one person’s record that pertains to another person, it could have and presumably
would have added an exemption to sections 3(j) [§ 552a(j)] and 3(k) [§ 552a(j)].” Voelker, 646 F.2d
at 335.
As stated above, the ATF fails to invoke any of the explicit exemptions from access that
Congress provided in the Privacy Act, and nothing in the McGrath Declaration establishes that a
Privacy Act exemption applies such that documents contained in the ATF-STL’s investigative file
on petitioner and Carmi can be withheld from disclosure. Based on the language of the Privacy Act
and the Eighth Circuit’s interpretation of it in Voelker, the Court concludes the ATF has not met its
burden to justify its effort to claw back Documents 6 and 31. Petitioner may retain and use those
documents.
C. The Appropriations Act Bars Production of Firearms Transfer Paperwork
The Order also directed the government to explain “why it does not have the Vic’s Gun
Corporation firearms transfer paperwork that was previously seized.” Order at 10. This refers to

24

paperwork the ATF seized from James Carmi’s residence during execution of a criminal search
warrant in approximately 2000.
As a threshold matter, the government responds that it does not know whether “transfer
paperwork” was seized or not, as this is only petitioner’s assertion. The government states that if
VGC “transfer paperwork” was seized in 2000, any official transfer records such as ATF Form 4473
Firearms Transaction Records or Acquisition and Disposition Books would have been sent to other
ATF branches and divisions such as the ATF Out-of-Business Records Center, a section of the
National Tracing Center located in West Virginia.
The government further responds that under the Consolidated and Further Continuing
Appropriations Act of 2012, Public Law 112-55, 125 Stat. 552 (Nov. 18, 2011) (the “Appropriations
Act”), some firearms transfer records are prohibited from disclosure regardless of whether a release
is provided, except to certain law enforcement, national security or intelligence recipients. The
government states that the Appropriations Act encompasses transfer records in addition to and
independent of records covered by Title 26 restrictions, and restricts the disclosure of any part of
the contents of the Firearms Tracing System or any information required to be kept by Federal
Firearms Licensees pursuant to 18 U.S.C. § 923(g), or reported pursuant to 18 U.S.C. §§ 923(g)(3)
and 923(g)(7). Finally, the government states that the U.S. Attorney’s Office directed the ATF to
search for such records and, if any were located, it would notify petitioner and request that he issue

25

a subpoena for the records as he had not previously done so.15 Petitioner does not offer any response
to the government’s arguments concerning the Appropriations Act.
The Appropriations Act bars disclosure of certain firearms transfer records, as it specifically
states that no funds appropriated thereunder “may be used to disclose part or all of the contents of
the Firearms Trace System database maintained by the National Trace Center of the [ATF] or any
information required to be kept by licensees pursuant to section 923(g) . . . and all such data shall
be immune from legal process . . . .” Pub. L. No. 112–55, 125 Stat. 552, 609-10 (2011). Here,
petitioner seeks “transfer paperwork,” presumably copies of VGC’s Acquisition and Disposition
books and/or federal firearms transfer forms. A federal firearms licensee is required to keep these
items pursuant to 18 U.S.C. § 923(g). See 18 U.S.C. § 923(g)(1)(A); Caruso v. United States Bureau
of Alcohol, Tobacco & Firearms, 495 F. App’x 776, 778 (9th Cir. 2012). The Appropriations Act
explicitly bars the ATF from disclosing any information required to be kept by licensees under this
section. See Caruso, 495 F. App’x at 778; Wilson v. United States, __ F.Supp.3d __, 2015 WL
1517521, at *6 (D.D.C. Mar. 31, 2015) (citing cases).
The firearms transfer paperwork petitioner seeks to discover falls under the statutory
language of the Appropriations Act. As a result, the ATF is not required to disclose any VGC
firearms transfer paperwork to petitioner and the Court does not require any further response or
action by the government or ATF on this issue.

15

The government’s Reply states that ATF informed the U.S. Attorney’s Office “there are
no records held in the ATF Out of Business Records center concerning Vic’s Gun Corp that are
responsive to the subpoenas issued to other ATF offices.” Reply at 3. There is no affidavit or
declaration submitted in support of this statement and therefore it is not evidence.
26

D. Title 26 U.S.C. § 6103 Bars Production of Documents in Response to Subpoena to
Custodian of Records, NFA Branch of ATF
In February 2013, petitioner issued a subpoena duces tecum to the Custodian of Records of
the NFA branch of the ATF (“ATF-NFA”), seeking forty-four items for which petitioner sought
“copies of the registrations” for specific firearms and ammunition. (See Gov’t Ex. D.) The
government’s Response states that ATF-NFA searched for the records and that the U.S. Attorney’s
Office letter to petitioner’s counsel of May 29, 2013 detailed the ATF-NFA’s response as follows:
Concerning the NFA subpoena, I discussed matters with ATF NFA personnel and
I am told the following. Based upon the list of items on your subpoena, “copies of
the registrations” for the following items were not found pursuant to a search of ATF
records: Item No.: 1, 3, 4, 11, 13, 15, 17-19, 21, 23, 29, 31, 37, 39-44.
A search for records the remaining items did reveal some information. However, I
am informed that records for the remaining items on your subpoena do not come
back to Mr. Baranski. The records are considered tax information and protected
from disclosure. Thus, since they are not associated with Mr. Baranski, ATF will
only release such information with a properly executed tax waiver from the
individual(s) to whom the records relate. I am enclosing a copy of such a release.
Gov’t Ex. E at 1-2. The government asserts that this information was sufficient to comply with the
privilege log requirement of Rule 45(e)(2)(A), as the letter “made a claim concerning why the
records were being withheld, discussed the nature of the withheld documents, and enabled Petitioner
to assess the claim.” Gov’t Response at 8. The government also states that petitioner has not
returned any executed tax waiver forms.
The government supplemented the information set forth in the May 29, 2013 letter with the
Declaration of Andrew Ashton, NFA Branch Specialist, filed as Government Exhibit F to its
Response. The Ashton Declaration states that 26 U.S.C. § 5841 provides the United States Attorney
General or her authorized delegate shall maintain a central registry of all firearms not in the
possession or under the control of the United States which come within the purview of 26 U.S.C.

27

Chapter 53. This registry is known as the National Firearms Registration and Transfer Record
(“NFRTR”). The Ashton Declaration states that to search for a specific item in the NFRTR, as
requested by petitioner, a serial number must be provided. It further states that Mr. Ashton
determined Items 2, 5-9, 10, 12, 14, 16, 20, 22, 24-28, 30, 32-36 and 38 listed on the subpoena
attachment were located in the NFRTR as registered to a party or entity other than petitioner; Items
1, 3, 4, 11, 13, 15, 17-19, 21, 23, 29 and 31 could not be located as registered in the NFRTR; and
no search could be performed for Items 37, and 39-44 because no serial number was provided for
those items. Gov’t Ex. F at 1-2.
The government’s Response also states that during meet and confer discussions, petitioner
asserted he was entitled to obtain any NFA records concerning Vic’s Gun Corporation upon James
Carmi signing an appropriate NFA release, but the government disagreed because VGC registration
records were in names of third parties other than James Carmi or petitioner. In addition, the
government states that the records are prohibited from disclosure by 26 U.S.C. § 6103. Petitioner’s
Sealed Response argues that the May 29, 2013 letter is insufficient to constitute a privilege log, but
does not challenge the substance of the government’s claims that the documents held by ATF-NFA
are prohibited from disclosure by § 6103.
The Court need not determine whether the letter of May 29, 2013 was sufficient to constitute
a privilege log in response to petitioner’s subpoena to ATF-NFA, and it is unclear why the
government makes this assertion. The letter does not claim that the subpoenaed ATF-NFA records
are privileged, but rather that they are prohibited from disclosure to a third party absent an

28

appropriate waiver from the registered party. The letter does not state that the prohibition derives
from 26 U.S.C. § 6103, but the government’s Response clarifies this.16
As stated above, firearms records required to be kept under 26 U.S.C. chapter 53 are
prohibited from disclosure by 26 U.S.C. § 6103, except to the person involved or under limited
circumstances that do not apply here. For the reasons discussed above at pages 19-21, the Court
rejects petitioner’s assertion that he is entitled to obtain records relating to VGC based on James
Carmi’s alleged status as a “de facto responsible person” for VGC or as a person with a material
interest in VGC’s returns and return information. As a result, ATF need not produce any records
pursuant to the subpoena issued to ATF-NFA.
E. ATF Emails are Not Reasonably Accessible and Need Not be Produced
Item 60 on the list attached to petitioner’s motion to compel seeks “Agent notes as well as
records between ATF agents (to include emails) concerning Carmi and/or Baranski” for the period
of October 2000 through December 31, 2009. The Order directed the parties to “meet and confer
concerning the scope and accessibility of the emails, what methods will be efficient in identifying
discoverable emails, the format in which they are stored and would be produced, as well as the
potential burdens and cost of production.” Order at 10-11.
The government states that a meet and confer discussion was held concerning emails on
January 14, 2015, at which it informed petitioner of the following information with respect to ATF
email discovery: (1) ATF changed its computer server database storage systems in October 2008
and no data remains on its servers prior to October 2008, so no emails can be produced for the
period between 2000 and 2008; (2) for the period between October 2008 and December 2009, ATF

16

As quoted above, the letter states only that the “records are considered tax information and
protected from disclosure.”
29

may have emails saved on backup data tapes; (3) to conduct an effective search of the backup tapes,
ATF must have specific users identified, a range of dates to search, and explicit search terms; (4)
using this information, it will likely take an ATF contractor approximately one forty-hour work
week to search and retrieve data from backup tapes covering one user’s account for a period of one
month; (5) this work would be done by an ATF contractor at the rate of approximately $125 per
hour; (6) the retrieved data must be imported into a third party database tool by another contractor
to run the search terms, at an estimated cost of $100 per gigabyte of raw data and $79 per hour for
the actual search, in addition to the $125 hourly rate for the other contractor; and (7) the estimated
cost to ATF for a contractor to search and retrieve a single user’s email data for a period of one
month is $5,000 of direct cost, plus $1,100 for the search process for each user for each month’s
worth of data (assuming 500 MB of data per user per month and eight hours to search/format). This
government supports this information with the Declaration of Walter E. Bigelow, Chief of the
Information Technology Systems Management Division with the Office of Science and Technology
of the ATF in Washington, D.C., filed as Exhibit N to the government’s Reply.17
The government states that the U.S. Attorney’s Office asked petitioner to identify (1) a list
of employees or agents whose email would be searched, and (2) specific search terms, but petitioner
declined to do so. The government also states that the remaining potentially searchable emails cover

17

The Bigelow Declaration also states that to conduct a search, ATF must determine on what
server and data store a user’s account was located during the given time frame, and search backup
tapes for that respective server/data store. Once a specified user’s information is found on a backup
tape, it must be copied onto a duplicate exchange server and exported. “The greater the number of
users identified to search . . . increases the time and labor needed for a viable and responsive search
inquiry.” Gov’t Ex. N at 2, ¶ 8.b. Further it is “equally possible, and equally not possible, that
another user in the target population can be restored at the same time, from data on the same tape.”
Id. at 3, ¶ 8.g.
30

a time period approximately six years after petitioner’s underlying criminal trial that forms the
principal basis for the allegations in his complaint, calling into question the relevance and usefulness
of the data. The government asks for a hearing to clarify the issue of email discovery and for
direction as to how to proceed.
Petitioner responds that the subpoena “provides adequate search terms and it is reasonably
limited in its scope to allow the government to formulate its own search terms, to comply with the
Court’s Order and the subpoena.” Pet.’s Sealed Response at 10-11. Petitioner also states that if he
were to provide search terms to the government he would “run[] the risk of the government
misconstruing his terms and accidently overlook more responsive records.” Id. at 11.
The government replies that both sides were ordered to “meet and confer concerning the
scope and accessibility of the emails” and states it has attempted to work with petitioner regarding
email discovery, but no agreement has been reached and petitioner’s assertion that the government
should choose search terms without his input is untenable, as the expense and time required to search
emails make it essential for the parties to agree on search terms, so the discovery would not have
to be repeated. As previously stated, the Bigelow Declaration was submitted with the government’s
Reply. Although petitioner filed a Surresponse, it does not respond to the Bigelow Declaration or
otherwise address the issue of email discovery.
Rule 45(e)(1)(D), Fed. R. Civ. P., provides that the “person responding” need not produce
electronically stored information (“ESI”) if it is “not reasonably accessible because of undue burden
or cost.” The burden to show that ESI is not reasonably accessible is on the person responding.
Even if such a showing is made, a court “may nonetheless order discovery from such sources if the
requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may
specify conditions for the discovery.” Id. Such conditions may include cost sharing. See Rule
31

26(b)(2) Advisory Committee Note (2006 Amendment). The Rule requires that a court limit
discovery to what is proportional to the needs of the case before it, and provides that on a party’s
motion or the court’s own initiative,
the court must limit the frequency or extent of discovery otherwise allowed by these
rules or by local rule if it determines that . . . the burden or expense of the proposed
discovery outweighs its likely benefit, considering the needs of the case, the amount
in controversy, the parties’ resources, the importance of the issues at stake in the
action, and the importance of the discovery in resolving the issues.
Rule 26(b)(2)(C); see Chavis Van & Storage of Myrtle Beach, Inc. v. United Van Lines, LLC, __
F.3d __, 2015 WL 1881199, at *14 (8th Cir. Apr. 27, 2015) (quoting Rule 26(b)(2)(C)).
The Order did not direct ATF to produce the requested emails, but instead directed the
parties to meet and confer concerning, among other things, the emails’ scope and accessibility and
the potential burdens and cost of production. The record now being more fully developed, the Court
finds that ATF has shown the emails are not reasonably accessible because of undue burden and
cost. The Bigelow Declaration describes the two-person process for attempting to retrieve email data
from backup tapes, and estimates it will take one forty-hour work week to search one month’s worth
of emails for one user, and would cost $6,100 to search the tapes and produce discovery of one
user’s emails for a period of one month. Because petitioner seeks emails covering a fourteen-month
period, the cost to review and produce emails for one user would be approximately $85,400 and
would require fourteen weeks of ATF contractor or employee work.
Having concluded that the ATF emails are not reasonably accessible, the Court will not order
them produced as petitioner has not made an attempt to show good cause for their production. See
Rule 45(e)(1)(D). In addition, the limitations of Rule 26(b)(2)(C) and the following factors inform
the Court’s decision. The proportionality requirement of Rule 26(b)(2)(C) depends in part on the
nature of the information sought. Here, petitioner seeks emails that are far removed from what is
32

available in the normal course of ATF’s activities, as the emails are six to eight years old and stored
on backup tapes designed for restoring computer systems in the event of disaster. Production of the
emails will involve substantial costs and time and the active intervention of computer specialists,
as detailed in the Bigelow Declaration. Further, the Bigelow Declaration states that the emails must
be searched through specific users. (See Gov’t Ex. N at 2, ¶¶ 8a., b.) Petitioner does not dispute
this, but has not identified any user(s) whose emails should be searched and therefore his discovery
request is not sufficiently specific.
In addition, the cost and burden associated with obtaining the emails cannot be justified in
the absence of some showing by petitioner of a likelihood that the emails may contain significant
information to resolve issues presented by his case. Petitioner has obtained thousands of pages of
documents from ATF through discovery, and there is no way to know whether information
potentially available from the emails would duplicate that which has already been produced. It
seems questionable whether emails from October 2008 through December 2009 would be of critical
importance or usefulness to petitioner’s case, given the nature of his claims and the fact that his
criminal trial ended in November 2002, the appeal was decided in October 2003, and his petition
for a writ of certiorari was denied in May 2004. Petitioner has not offered any arguments to
establish a likelihood that the ATF emails will have importance or usefulness to his case.
For these reasons, the Court will deny petitioner’s motion to compel the ATF to produce
emails pursuant to his subpoena for the period October 2000 through December 2009. As a result,
the government’s request for a hearing with respect to email discovery is moot.

33

F. ATF Kansas City Division Office Informant File on James Carmi Must be Produced
Pursuant to a Protective Order
In opposing petitioner’s motion to compel, the government stated it had not produced
documents found in ATF’s Kansas City Division Office concerning James Carmi’s role as a
confidential informant because (1) records held at ATF Kansas City were not part of petitioner’s
subpoena to ATF-STL, (2) ATF records of confidential informant matters are privileged and not
discoverable, and (3) the records relate to investigations completely unrelated to petitioner’s case
and concern Carmi’s role as an informant beginning in 2004, after Carmi was released from prison
for his conviction that was related to petitioner’s underlying case. With respect to these records, the
Court ordered as follows:
To the extent the government’s claim of privilege concerns records or documents
held by the ATF Kansas City Division, it need not produce a privilege log because
as [sic] those records or documents would be outside the scope of petitioner’s
subpoena to ATF-STL, unless they are responsive to any of the other four subpoenas
petitioner has served on ATF. If the documents are responsive to any subpoena
served on ATF, the government must either produce the documents or provide a
privilege log. The government is reminded that the Court has permitted discovery
in this matter concerning James Carmi’s role as a confidential informant.
Order at 12.
The government’s Response explains that the “ATF St. Louis Field Office no longer
maintained confidential informant files concerning James Carmi. Rather, any such file was
maintained in ATF Kansas City Division Office.” Response at 30 (emphasis added). The
government states that it requested ATF Kansas City to search for any records relating to Carmi as
a confidential informant, and that the U.S. Attorney’s Office now has custody of the entire ATF
Kansas City informant file on Carmi (the “CI file”).18 The government states that ATF Kansas City

18

The government submits the Declaration of Denise Lough, a Senior Operations Officer
with ATF Kansas City, see Gov’t Ex. J, to support ATF’s assertion that all documents in ATF
34

requests any disclosure of the CI file be protected either through a claim of privilege or use of a
protective order. The government states that its counsel contacted petitioner’s counsel and (1)
inquired whether petitioner “would accept a stipulation to some of the facts contained in the
informant file in lieu of litigation concerning the applicability of a privilege that may attach to the
records,” or in the alternative, (2) offered to disclose the records to petitioner in conjunction with
an agreed-upon protective order. Gov’t Response at 31. The government states that petitioner
responded,
In reference to Mr. Carmi’s Confidential Informant file, it is our position that
government reliance on ATF either through discovery or in response to the subpoena
denied that Mr. Carmi was employed as a C.I., and only after the deposition of Mr.
Raoul Williams during which it was clearly established that Mr. Carmi had been
employed as Confidential Informant and been paid for his services, existence of such
file was admitted; again it is our position that the Court in its Order clearly
articulated the options available to the government.
Gov’t Response at 31.19
The government states it interpreted this response as indicating petitioner’s unwillingness
to agree to either a stipulation or a protective order. Id. The government reiterates that petitioner
did not issue a subpoena to ATF Kansas City, but states it will assert a privilege claim, provide a
privilege log, and produce the records for an in camera inspection by the Court. The government
requests a hearing on the applicability of the privilege.
Petitioner’s Sealed Response does not explicitly address the CI file or the government’s
claim of privilege for that file. However, at the end of a paragraph discussing the separate issue of
email discovery, petitioner states:
Kansas City’s possession concerning James Carmi as a confidential informant have been produced
to the U.S. Attorney’s Office.
19

The government does not indicate the source of this quotation. Petitioner does not dispute
its accuracy, however.
35

Baranski has no objection to the government seeking protective orders that prevent
certain confidential files responsive to his subpoena from being made public,
however, he is opposed to unsubstantiated and blanket demands by the government
to protect certain responsive records the withholding of which serves no important
governmental interest and/or purpose.
Pet.’s Sealed Response at 11. The Court interprets this statement as meaning that petitioner consents
to receive the CI file subject to a protective order.
The government filed a privilege log listing the CI file documents as an exhibit to its Reply
memorandum. See Gov’t Ex. M. The privilege log lists twenty documents and asserts that each is
withheld pursuant to “28 C.F.R. 1626(b)(4) & (5); agency disclosure of confidential informant (CI)
and investigatory techniques/law enforcement procedures record.” The oldest document listed is
dated October 12, 2004, and the most recent is dated January 23, 2008. Petitioner’s Surresponse
does not mention Exhibit M or the government’s assertion of confidential informant and law
enforcement privileges.
The Court ordered the government to either (1) produce the CI file, or (2) produce a privilege
log. Order at 12. The government has done the latter. Petitioner has not filed a motion to compel
or for sanctions with respect to the documents listed in the privilege log, although the filing of such
motions would be procedurally appropriate. See Rule 45 Advisory Committee Note (1991
Amendment); 9 Moore’s Federal Practice, § 45.61[1]. It is possible petitioner believes that because
the government offered to produce the CI file subject to a protective order, and he has stated he does
not object to the government seeking a protective order, there is no present dispute concerning the
CI file.20

20

Petitioner must ensure that his position on disputed issues is clearly articulated to the Court.
36

The Court recognizes that petitioner did not direct a subpoena to ATF Kansas City, but finds
the government waived any objection when it offered to produce the CI file to petitioner subject to
a protective order. The Court will order the government to submit a proposed protective order with
respect to the CI file, in a form agreed upon by petitioner if possible. Following issuance of a
protective order, the Court will direct the government to produce the documents on Exhibit M. As
a result, the Court need not hold a hearing on the privilege issue or conduct an in camera
examination of the documents listed on Exhibit M.
G. Possible Existence of Other Responsive Materials
Petitioner continues to assert that additional ATF documents and recordings are referenced
in documents that have been produced, but the referenced documents and materials have not been
produced in response to his subpoenas. In response to the Order, the government submitted
declarations from ATF personnel which state under penalty of perjury that all documents responsive
to petitioner’s subpoenas have been provided to the U.S. Attorney’s Office in St. Louis.21 The
declarations state that to the best of the declarants’ knowledge, no additional records exist at the
respective ATF offices that are responsive to petitioner’s subpoena. The government also submitted
the Declaration of Andrew Ashton, NFA Branch Specialist with the ATF’s Firearms and Explosives
Services Division, concerning petitioner’s subpoena for items listed in the National Firearms
Registration and Transfer Record. This declaration details the subpoenaed items that were located
in the NFRTR, those that were not located, and those for which a search could not be conducted
because no serial number was provided. Gov’t Ex. F. Finally, the government submitted the

21

The declarations concern the following ATF offices: Charlotte, North Carolina (see Gov’t
Ex. B); Columbus, Ohio (Gov’t Ex. C); St. Louis Field Office Groups I, II and III (Gov’t Exs. H and
L); and Kansas City (Gov’t Ex. J).
37

Declaration of Special Agent Johnson, which states that he turned over the “entire case file”
concerning petitioner’s criminal case to the U.S. Attorney’s Office. See Gov’t Ex. K.
The government has submitted reasonably detailed declarations from ATF officials which
describe the searches that took place pursuant to petitioner’s subpoenas and document requests. The
declarations appear to have been made in good faith and state that all responsive documents have
been produced to petitioner, except for those identified on privilege logs or prohibited from
disclosure by statute. These declarations, together with the privilege logs, appear to satisfy ATF’s
obligations pursuant to petitioner’s subpoenas, and ATF and the government’s obligations imposed
by the Order.
The burden is therefore on petitioner to offer some evidence to show (1) a likelihood that the
documents or recordings in fact he cites currently exist, as opposed to having existed at one time,
(2) petitioner has issued subpoenas for these documents or recordings, and (3) the documents or
recordings are being withheld. As stated in the Order, the government represents that some
materials which might have been responsive to petitioner’s subpoenas were destroyed years ago.
Further, it appears petitioner obtained copies of some materials from third parties, such as Carmi’s
former defense counsel, that the government no longer possesses. See Order at 8, n.10.
Petitioner has received thousands of pages of ATF records in discovery as well as materials
from third parties, and has taken numerous depositions in this matter. Petitioner offers speculation
and argument about missing documents and records, but no evidence. Absent such a showing, the
Court finds that ATF has complied with petitioner’s subpoenas and requests directed to it, and that

38

the government has complied with the Order except to the extent it is being ordered to make
additional discovery by the instant Memorandum and Order.22
III. Conclusion
For the foregoing reasons, the Court finds the government has waived any privilege with
respect to the documents produced on May 29, 2013 and listed on Government Exhibit I.
Nonetheless, some of the documents produced on May 29, 2013 and listed on Exhibit I must be
returned by petitioner because they are prohibited from disclosure as tax returns or return
information pursuant to 26 U.S.C. § 6103. The Privacy Act, however, does not bar disclosure of any
documents listed on Exhibit I.
The government is not required to produce any firearms transfer paperwork concerning Vic’s
Gun Corporation or ATF National Firearms Act records, as such production is prohibited by statute.
The government need not produce ATF emails because they are not reasonably accessible and
petitioner has not shown good cause for their production. Finally, the government will be ordered
to prepare a proposed protective order concerning the confidential informant file on James Carmi,
submit the proposed order to petitioner’s counsel prior to filing it with the Court, and disclose the
confidential informant file following entry of a protective order.
Accordingly,
IT IS HEREBY ORDERED that the government has waived any privileges associated with
the documents listed on its privilege log, Government Exhibit I.

22

Petitioner is free to question the government’s witnesses at the evidentiary hearing
concerning the records or recordings he alleges were not produced, and argue to the Court
concerning the same.
39

IT IS FURTHER ORDERED that as to Documents 2, 4, 32, 36-38, 42, 43-49, and 55-58
listed on Government Exhibit I, petitioner shall (1) either return all copies of these documents to the
U.S. Attorney’s Office, or destroy them; (2) take reasonable steps to retrieve any copies of the
documents that petitioner provided to anyone else; and (3) not use or disclose any information
gained from these documents for any purpose.
IT IS FURTHER ORDERED that within ten (10) days of the date of this Order, petitioner
shall file a notice with the Court, signed under penalty of perjury, that details his compliance with
the foregoing order.
IT IS FURTHER ORDERED that the government shall submit a proposed protective order
with respect to disclosure of the ATF Kansas City confidential informant file on James Carmi within
ten (10) days of the date of this Order, and shall attempt to obtain petitioner’s approval of the form
of the proposed order prior to submitting it to the Court.23
IT IS FURTHER ORDERED that the government shall produce the confidential informant
file on James Carmi to petitioner within five (5) days of the issuance of a protective order.

CHARLES A. SHAW
UNITED STATES DISTRICT JUDGE

Dated this 3rd day of June, 2015.

23

In addition to being electronically filed, a courtesy copy of the proposed protective order
must be sent in a word processing format to the Court’s proposed orders e-mail inbox, at
See Administrative Procedures for Case
[e-mail].
Management/Electronic Case Filing, § II. J.
40