Order — United States v. Derges (Dkt. 127, W.D. Mo.)

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An order by United States Magistrate Judge David P. Rush in United States v. Patricia Ashton Derges, No. 21-03016-01-CR-S-BCW, in the U.S. District Court for the Western District of Missouri, Southern Division, filed May 27, 2022 as Document 127. It rules on non-party Abacus CPAs, LLC's motion to quash a subpoena or, in the alternative, for an order permitting production of documents (Doc. 118). Under Rule 17 of the Federal Rules of Criminal Procedure, the court grants the motion in part and denies it in part and orders Abacus CPAs, LLC to comply with the subpoena.

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IN THE UNITED STATES DISTRICT COURT FOR THE
                         WESTERN DISTRICT OF MISSOURI
                              SOUTHERN DIVISION

UNITED STATES OF AMERICA,                           )
                                                    )
               Plaintiff,                           )
                                                    )
v.                                                  )       No. 21-03016-01-CR-S-BCW
                                                    )
PATRICIA ASHTON DERGES,                             )
                                                    )
               Defendant.                           )

                                            ORDER

       Before the Court is Non-Party Abacus CPAs, LLC’s Motion to Quash Subpoena or in the

Alternative for Court Order Permitting Production of Documents. (Doc. 118.) Upon review, the

Motion is GRANTED in part and DENIED in part.

       Under Rule 17 of the Federal Rules of Criminal Procedure, a “subpoena may order the

witness to produce any books, papers, documents, data, or other objects the subpoena designates .

. . On motion made promptly, the court may quash or modify the subpoena if compliance would

be unreasonable or oppressive.” “Rule 17(c) ‘was not intended to provide an additional means of

discovery,’ and such evidentiary materials may be subpoenaed only if there is ‘a good-faith effort

made to obtain evidence.’” United States v. Hardy, 224 F.3d 752, 755 (8th Cir. 2000) (citing

Bowman Dairy Co. v. United States, 341 U.S. 214, 219-20 (1951)). The Court may quash the

subpoena if it finds the burden of producing the “subpoenaed records greatly outweighs any

relevance they may have to the case.” Id. at 756.

       In its Motion, Abacus CPAs, LLC (“Abacus”) alleges that under Missouri and federal law

its relationship as Defendant’s accountant justifies quashing the subpoena. Specifically, Abacus

states that 26 U.S.C. § 7525 provides a limited accountancy privilege between accountants and

taxpayers in noncriminal matters and that 26 U.S.C. § 7216 sets forth potential criminal liability

if accountants knowingly or recklessly disclose information furnished for the preparation of tax

        Case 6:21-cr-03016-BCW Document 127 Filed 05/27/22 Page 1 of 2

returns, unless such disclosure is pursuant to a court order. In support, Abacus cites numerous

civil cases. The Government responds, highlighting that (1) this is a criminal matter and therefore,

§ 7525 is inapplicable; (2) any privilege under Missouri law is waived since the documents at issue

were provided to Abacus for the preparation of tax returns; and (3) since no privilege is affected

by the subpoena, no court order is required.

       Based on the reasoning set forth in the Government’s response, the Court finds that § 7525

does not apply because this is a criminal case, not a civil one, and the relevance of the subpoenaed

records as relates to the criminal prosecution at hand outweighs any burden to Abacus in producing

the records. See Couch v. United States, 409 U.S. 322, 335 (1973). Further, any privilege, to the

extent it applies, is waived under Missouri law. Nevertheless, out of abundance of caution, the

Court will order Abacus to comply with the subpoena.

       Accordingly, the Motion is GRANTED in part and DENIED in part, and Abacus CPAs,

LLC’s is ORDERED to comply with the subpoena.

       IT IS SO ORDERED.

                                               /s/ David P. Rush
                                               DAVID P. RUSH,
                                               UNITED STATES MAGISTRATE JUDGE
Date: May 27, 2022




         Case 6:21-cr-03016-BCW Document 127 Filed 05/27/22 Page 2 of 2

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