Attorney-at-Law

PARAPHRASING MARK TWAIN

In Uncategorized on 12/12/2012 at 17:22

The Judge Who Writes Like a Human Being, a/k/a The Great Dissenter, Judge Mark V. Holmes, has a Designated Order, Docket No. 11884-11, Estate of Bernard Dorman, Deceased, Dennis Dorman, Executor, filed 12/12/12. Incidentally, this is the last time an identical numerical designation of month, day and year will occur for the next 89 years.

Back to Judge Holmes, who in effect paraphrases Mark Twain’s famous statement “Tell me where a man gets his cornpone, and I’ll tell you where he gets his opinions.” Judge Holmes would have it “Tell me where I get my interpretations of the Federal Rules of Evidence, and I’ll tell you where I get my opinions.”

Judge Holmes does the telling: “We are bound by the rules of evidence applicable in a trial without a jury in the United States District Court for the District of Columbia. Rule 143(a); sec. 7453. In light of that mandate, we have applied the law of the D.C. Circuit when it comes to issues concerning application of privilege.” Order, p. 1.

The particular points involve Bernie’s Estate’s appraiser/valuer, the terms of his retention and that of his firm, what the appraiser/valuer was told, and on what assumptions he relied. This IRS wants, but Denny claims work product and material prepared for litigation, so privileged.

Judge Holmes needs a look-see, but gives the IRS some of what they ask for, the rest to follow if the DC Circuit permits. Documents can be multi-purpose. “…the D.C. Circuit opted to follow the Second Circuit…. The test we have to use in judging the extent of work-product protection for a dual-purpose document is whether a document was created ‘because of anticipated litigation, and would not have been prepared in substantially similar form but for the prospect of that litigation.’ The D.C. Circuit held quite plainly that ‘a document can contain protected work-product material even though it serves multiple purposes, so long as the protected material was prepared because of the prospect of litigation.’” Order, p. 2. (Citations omitted).

Judge Holmes gently reproves counsel for both sides (and I’m surprised at IRS’ counsel, though; they should know this). “…since they both seemed unaware of the Code’s somewhat obscure requirement that this Court follow D.C. Circuit evidence law, Petitioner may supplement his response with evidence and argument relating to Respondent’s motion to compel production of document requests 1 and 2; and Respondent may supplement his response with evidence and argument relating to Petitioner’s motion for a protective order relating to document requests 1 and 2.” Order, p. 5.

Mark Twain is vindicated.

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