rule 41(b) dismissal for failure to comply with court order should be accompanied by consideration of less drastic alternatives
How later courts described this case
- rule 41(b) dismissal for failure to comply with court order should be accompanied by consideration of less drastic alternatives
Written by the judges who cited it.
The opinion
*1343 RONEY, Circuit Judge
(concurring):
I concur in affirming the enforcement of the Internal Revenue summons with the understanding that, under the circumstances of this case, even the taxpayer could have been compelled to produce the workpapers owned and prepared by his accountant. If the Fifth Amendment would shield the taxpayer, were the papers in his possession, then I would hold that a combination of the attorney-client privilege and the Fifth Amendment would shield the same papers from compelled production when in the attorney’s possession. Thus, I would not put the attorney in the shoes of the accountant, under Couch, but would put him in the shoes of his client, and uphold the historic and important attorney-client relationship by permitting the attorney to assert the taxpayer’s constitutional privilege against compulsory self-incrimination. In this ease, of course, where the taxpayer was not protected, there is no privilege to assert. It is my understanding that the panel opinion 'is not contrary to this view.