be meaningfully segregated for disclosure. It should be pointed out that the great bulk of the information in these documents has been previously determined to have been properly withheld pursuant to Exemption 7(c).
B. Document 19
This Document as well as Documents 004-625, 21 and 18, were also submitted for an in camera inspection. They all relate to the propriety of two ex parte contacts of Robert L. Liken, Esquire, Assistant Regional Counsel, Internal Revenue Service, with Judge James Noel, United States District Judge for the Southern District of Texas. A brief description of the factual background is appropriate.
The SEC had brought suit against W. L. Moody & Company in Judge Noel's court. The Trustee in receivership of the defendant company was one E. O. Buck. Charles Sapp, Esquire, was attorney for the receiver Buck. On October 31, 1972, the IRS served an administrative summons on Buck to produce books and records of the defendant company.
(1) Document 004-625 dated November 1, 1972-Memorandum for the File. Having subsequently learned of Judge Noel's enjoining any proceedings against the defendant company, except in the receivership action, Liken on November 1, 1972 called on Judge Noel to explain that the IRS had not been aware of the Judge's prior order and to apologize for the service of the administrative summons. Liken also told the judge that he would call Sapp, attorney for the receiver, to see whether the IRS could gain access to the books of the defendant company. Liken so advised Sapp.
(2) Document 21 dated November 7, 1972-Memorandum for the File. This is a report of Liken's phone conversation of November 3, 1972 with Sapp, in which Sapp stated that he had discussed the IRS request for records with his client Buck, and Judge Noel. As a result of this discussion, Sapp's position is reported as being that "They are of the opinion that we should apply to Judge Noel for access to Moody's records."
(3) Document 19 dated November 15, 1972-Memorandum for the File. Liken reports that on that day he had a second meeting with Judge Noel. This meeting concerned the enforcement of the October 31, 1972 administrative summons and the setting of a date for a hearing at Galveston the following Monday.
(4) Document 18 dated November 15, 1972-Memorandum for the File. The memorandum describes several conversations between Liken and various IRS personnel in preparation for the Monday hearing at Galveston to enforce the administrative summons. It also states that Liken had called Sapp, telling of the conversation with Judge Noel and the possibility of a hearing the following Monday at Galveston, provided approval was obtained from a higher authority.
From this brief description, several facts stand out: (a) Sapp, attorney for the receiver, was completely advised of Liken's contacts with Judge Noel and he himself contacted Judge Noel about the summons; (b) on November 1 and November 15, 1981, when the two contacts with Judge Noel were made by Liken, the IRS was not a party to any court proceeding concerning the defendant company; and (c) the purpose of the two ex parte contacts was to apologize for filing and serving the administrative summons without prior leave of court and for scheduling a convenient date on the enforcement of the summons.
From the foregoing, it is clear that Liken's conduct did not offend Disciplinary Rule 7-110, since it did not relate to a pending proceeding nor to the merits of a pending proceeding. His conduct was proper and did not violate or undermine defendant's claim that Document 19 as well as Documents 004-625, 21 and 18 are protected by the work product privilege.
Accordingly, after conducting the in camera inspections set forth above, we grant defendant's motion for summary judgment on remand.
An order consistent with the foregoing has been entered this day.