United States District Court, S.D. Texas, Houston Division
ORDER AND OPINION
MELINDA HARMON UNITED STATES DISTRICT JUDGE.
before the Court in the above-referenced cause is
Counter-Plaintiff United Healthcare Services, Inc.'s
(“United”) Motion to Compel Dr. Donald Kramer,
M.D. and the Don of Pain, PA to Produce Tax Returns Or, in
the Alternative, for Contempt, Doc. 606, and United's
expedited request for its Motion, Doc. 607. Dr. Kramer and
the Don of Pain have Responded, Doc. 637, and United has
Replied, Doc. 638. After careful consideration of the
filings, record, and law, the Court grants in part and denies
April 19, 2018, the Court ordered Dr. Kramer and the Don of
Pain to produce the subpoenaed tax returns “seven (7)
days from entry of this Order.” Doc. 601 at 1. The
underlying subpoena (“2014 Subpoena”) demanded
production of Dr. Kramer's federal income tax returns
“for the years 2003 to the present, including any
accompanying schedules, forms and records” and the Don
of Pain's federal income tax returns “for the years
2011 to the present, including any accompanying schedules,
forms and records” on November 5, 2014. Doc. 594-1 at
3, 6. The Order further stated, “[i]f production is not
complete within seven (7) days, a rule to show case shall
issue.” Dr. Kramer did not oppose entry of the order.
Doc. 598 at 1.
alleges that it has not received all the tax return
information required by the April 19 Order. According to
United's Motion, Dr. Kramer has produced “(1)
personal tax returns from 2003 through 2013; and (2) tax
returns for The Don of Pain, P.A. from 2011 through 2013,
” but not “(1) his personal tax returns from 2014
through 2017; (2) tax returns for The Don of Pain for 2014
through 2017; and the (3) accompanying schedules, forms, or
records.” Doc. 606 at 2-3. United also alleges that it
has not received “any K-1, 1099, or W-2 forms referred
to and relied upon in his returns” or “the
Worksheets referred to and relied upon in certain schedules
of his returns.” Id. at 3. Finally, United
alleges that it conferred with Dr. Kramer's counsel, and
that Dr. Kramer's counsel does not believe the April 19
Order requires production “anything more than tax
returns to 2013.” Id. at 3. Thus, United
requests that an order requiring production of the remaining
“tax returns and accompanying schedules, forms and
records at issue, ” or to hold Dr. Kramer in contempt.
their Response, Dr. Kramer and the Don of Pain assert that
they have produced schedules and forms, but they need not
produce any post-2013 tax returns nor any K-1, 1099, or W-2
forms: the post-2013 tax returns were not part of an earlier
subpoena and the forms were not requested by the original
subpoena or ordered by Magistrate Judge Stacy. Docs. 474, Ex.
6; 484; 637. They also allege that even the later 2014
Subpoena “only sought the production of returns that
had been filed as of that date.” Doc. 637 at 2. Dr.
Kramer and the Don of Pain list the schedules and forms
produced to United. Id. at 5-6. Despite their
assertion that W-2s were not subpoenaed, Dr. Kramer and the
Don of Pain allege that they have now produced Dr.
Kramer's W-2s to United, but none for the Don of Pain
because it did not receive any W-2s. Id. at 7-8. As
to the 1099s and K-1s, Dr. Kramer and the Don of Pain allege
that these documents were not “properly included in the
new subpoena, ” the information requested is
“included on the Statements attached to the returns,
” and the forms “have now been produced to United
anyway to the extent they exist.” Id. at 8-9.
United's Reply, United asserts that the subpoena is not
limited to 2013, but to the year 2017; Dr. Kramer has
produced “only one K-1 from 2008, ” Doc. 638 at
2; and that the information included in the K-1 and 1099
forms contain necessary information, id. at 3.
Neither United nor Dr. Kramer and the Don of Pain provide
authority for their respective positions.
district court has “broad discretion in all discovery
matters.” Kelly v. Syria Shell Petroleum Dev.
B.V., 213 F.3d 841, 855 (5th Cir. 2000). The Fifth
Circuit will only disturb the district court's discretion
if it is based on both an “erroneous view of the
law” and “if it affected the substantial rights
of the appellant.” Green v. Life Ins. Co. of N.
Am., 754 F.3d 324, 329 (5th Cir. 2014). “The
appellant must prove both abuse of discretion and
careful consideration of the filings, record, the previous
relevance considerations of the tax returns as discussed in
the Magistrate's Order, Doc. 484, and pending trial date,
the Court holds that United's subpoena for “any
accompanying schedules, forms and records” includes the
W-2, K-1 and 1099 forms supporting the tax returns and
Worksheets referred to in the schedules. Dr. Kramer and the
Don of Pain allege that these documents have been produced,
Doc. 637 at 8- 9, but the Court provides them with an
opportunity to supplement their production. Also, because the
subpoena requested tax returns to “the present”
and its date of production was 2014, the Court also holds
that the 2014 tax returns should also be produced.
Accordingly, it is hereby
that the Motion to Compel Dr. Donald Kramer, M.D. and the Don
of Pain, PA to Produce Tax Returns, Doc. 606, shall be
granted and denied as follows:
1. Dr. Donald Kramer, M.D. and the Don of Pain, PA's
shall produce their respective 2014 federal tax returns and
accompanying schedules, forms and records.
2. Dr. Donald Kramer, M.D. shall produce all W-2, K-1 and
1099 forms used in preparation for his 2003 through 2014 tax
returns and worksheets referred to in his schedules.
3. The Don of Pain, PA's shall produce all W-2, K-1 and
1099 forms used in preparation for its 2011 through 2014 tax
returns and ...