Attorney-at-Law

ASK POLITELY

In Uncategorized on 08/22/2012 at 17:50

            And Save the Trial Subpoenas for Non-Parties

Judge Gustafson lectures both IRS and taxpayers in William Cavallaro, et al., Docket No. 3300-11, 8/22/12, a Designated Order, so not precedent but a good quick refresher on Tax Court discovery.

First, ask politely. Informal discovery is the rule, the magic words being “informal communication or consultation”, or, in other words, play nice and have show-and-tell, before you start with motions to compel.

Second, follow Tax Court’s scheduling order. The scheduling order is not what the Pirates of the Caribbean call “guidelines or aspirational goals”. Failure to do so might provoke judicial ire, even with so genteel a Judge as Judge Gustafson.

Third, don’t try to use trial subpoenas duces tecum to circumvent Rules 70 and 72. Judge Gustafson: “The parties now attempt to use a trial subpoena duces tecum served on a party (or his agent) to accomplish discovery that should ordinarily be conducted under Rules 70 and 72 (which, among other things, provide for a 30-day response time and provide cut-offs sufficiently in advance of the trial to enable deliberate action by the parties and deliberate decision-making by the Court). Ordinarily, discovery from a party should be conducted under the discovery rules, and trial subpoenas duces tecum should be used to obtain information from non-parties. Ordinarily, the use of a trial subpoenas duces tecum to obtain information from a party would involve an evasion of the discovery procedures that the Rules intend for parties. If there is an exceptional circumstance in which a subpoena duces tecum served on a party is proper, that circumstance is evidently not present here. ” Order, p. 2 (emphasis by the Court).

So the parties’ motions to compel production of documents, of the existence of which the parties were well aware weeks before, on the “brink of trial”, are both denied. But the parties should bring the documents with them to the trial, so Judge Gustafson can rule on them if he has to.

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