The wreck of the S.S. Central America waited 130 years at the bottom of the ocean for someone to come along and claim its trove of gold. Thomas G. Thompson, funded by a multitude of investors, was the one to claim the prize in 1988. However, two investors sued Thompson for allegedly keeping the gold for himself. In 2012, a federal judge ordered Thompson to appear in court, but he had disappeared—investigators found an empty Florida mansion with disposable phones and a guide on evading law enforcement titled “How to Be Invisible.”
After a two–year manhunt, law enforcement found and arrested Thompson, but they could not find the treasure. At his deposition, Thompson claimed he could not remember where he had left the gold coins, but the judge ruled Thompson was faking the memory loss and jailed him for contempt of court.
One of the plaintiffs in this case, the Dispatch Printing Company has been pursuing discovery to fill in missing information and find some or all of the missing assets. Subpoenas were issued to several non-parties, some of which were met with an objection to quash and to enforce including a subpoena against CBIZ Accounting, Tax & Advisory of Florida, LLC. The following excerpt highlights how an accountant—client privilege defense can be used and why it failed in this case.
MAGISTRATE JUDGE KEMP On October 26, 2015, the Dispatch filed a notice in this Court that it intended to serve a subpoena on CBIZ Accounting, Tax & Advisory of Florida, LLC, formerly known as Goldstein, Lewin & Company, P.A. CBIZ is an accounting firm located in Florida. The subpoena, attached to Doc. 982 as Exhibit 1, commanded production of twenty-two categories of documents. Grouped broadly, they relate to documents and communications with The CA Archeological Protection Trust, The Cromwell Trust, Columbus Exploration, LLC, the Hiaasen Trust, Thomas G. Thompson, Alison Antekeier, Recovery Limited Partnership, certain other individuals whom may have been involved with the establishment of trusts for Mr. Thompson, and any information about “the five hundred (500) S.S. Central America restrike/commemorative gold coins.” The subpoena was successfully served on October 27, 2015. CBIZ has moved to quash it, and the Dispatch has countered that with a motion of its own.
Because the subpoena was served in Florida, the United States District Court for the Southern District of Florida initially had jurisdiction to resolve any issues concerning the propriety of the subpoena. That court transferred the motion to this Court, however, based upon the pendency of the case here and this Court’s greater familiarity with it.
The parties appear to agree on some basic facts. CBIZ (including its predecessor entity, Goldstein, Lewin & Company) is a Florida-based accounting firm. It was retained by attorneys representing Mr. Thompson to assist with certain legal matters requiring accounting expertise. Any documents in CBIZ’s possession that are responsive to the subpoena were prepared at the attorneys’ request.
In its filings on this issue, the Dispatch argues that none of the subpoenaed documents are privileged. It asserts that CBIZ (which the Court will use to refer both to CBIZ and its predecessor) was retained to do a valuation of Mr. Thompson’s assets (or at least his claimed assets) and also worked with Mr. Thompson’s lawyers to create a trust (the Cromwell II Trust) out of which more than a million dollars was ultimately transferred to another account. The Dispatch’s response raises these points: that CBIZ has made only conclusory statements, rather than an actual showing, that the attorney-client privilege applies to the subpoenaed documents; that CBIZ has also not demonstrated that the documents at issue were actually prepared for the purpose of assisting Mr. Thompson’s attorneys in providing him with legal advice (and, in fact, the valuations at issue were disclosed to third parties); and that there is no evidence that CBIZ was fulfilling the role of a “translator” of complex accounting information to Mr. Thompson’s attorneys, which, under the case law relied upon by CBIZ—specifically, United States v.
Kevel—is one of the essential elements of a claim of attorney–client privilege advanced by an accounting firm. The Dispatch has provided a lengthy affidavit in support of its motion which includes language from the letter through which Mr. Thompson’s attorneys engaged CBIZ and which describes the scope of the services to be rendered. CBIZ has elected not to file a reply memorandum in support of its motion to quash.
The attorney-client privilege generally protects only confidential communications given for the purpose of obtaining legal advice, and one of the parties to such a communication must be an attorney. CBIZ is correct that decisions like Kevel have extended the privilege to accountants and other consultants whose services are necessary in order for the attorney to provide sound advice to the client. As Kevel noted, “if the lawyer has directed the client, either in the specific case or generally, to tell his story in the first instance to an accountant engaged by the lawyer, who is then to interpret it so that the lawyer may better give legal advice, communications by the client reasonably related to that purpose ought fall within the privilege.”
However, the court stressed that “[w]hat is vital to the privilege is that the communication be made in confidence for the purpose of obtaining legal advice from the lawyer.” The question of why someone communicates with his or her accountant is a factual one. Was it to assist a lawyer in providing legal advice, or was it for other reasons? CBIZ’s filings with the Court shed no light on this question. As this Court has said, “[t]he party asserting the privilege has the burden of proving each element of the claim.” Further, Fed. R. Civ. P. 45(e)(2)(A)(ii), places the burden on a person who, in responding to a subpoena, claims privilege, to “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.” CBIZ has not done so. Under these circumstances, the Court cannot sustain its claim of privilege, and it will enforce the subpoena.
Issuance of subpoenas affirmed, in favor of Plaintiff

CRITICAL THINKING:
What kind of evidence would have allowed CBIZ to “describe the nature of the withheld documents” without revealing the contents of the documents?
ETHICAL DECISION MAKING;
Under what conditions do you think a court should overrule accountant–client privilege? Under what circumstances should confidentiality be protected?