Attorney-at-Law

PERPETUAL DISCOVERY

In Uncategorized on 03/21/2013 at 22:25

This is one for the lawyers, lest they feel neglected. The stymied wannabe whistleblower, Joseph A. Insinga, Docket No. 4609-12W, 3/21/13, for whose sad story see my blogpost “Did Nothing”, 3/13/13, is back before Judge David Gustafson again.

This time, Joe wants to take a deposition, ostensibly to “perpetuate” testimony that might otherwise be lost, per Rule 81. “However, such a deposition ‘shall be taken only where there is a substantial risk that the person ***will not be available at the trial of the case’. Rule 81(a).” Order, p. 1.

So who is the unavailable witness? It’s Whistleblower Program Office Manager Robert B. Gardner. Why is WPOM Bob G substantially at risk of being unavailable at the trial?

Judge Gustafson: “The application alleges that Mr. Gardner ‘is slated to retire from the Internal Revenue Service at the end of June, 2013, or upon some date in July, 2013’, but in so stating petitioner has made no showing of any substantial risk that Mr. Gardner will not be available for a June 2013 hearing. We will nevertheless order respondent to file a response stating whether Mr. Gardner will be available.” Order, p. 1.

Judge Gustafson notes that Joe wants Bob G to produce documents, but those are IRS’ documents, not Bob G’s personal papers. For those, Joe needs to use a Rule 72 demand for documents, after the Rule 70 show-and-tell. Judge Gustafson suggests IRS treat Joe’s present application as a document request, and informally comply.

But Judge Gustafson has a warning for Joe: “…although petitioner’s application is under Rule 81 to perpetuate testimony, the application states that ‘Petitioner will seek to elicit all of Agent Gardner’s properly discoverable knowledge’-making it appear possible that the intended purpose of the deposition is actually discovery. If upon reflection petitioner concludes that what he seeks is discovery and not perpetuation, then he should withdraw his Rule 81 application. The Court would not allow Rule 81 to be employed in such a manner as to frustrate the clear purposes of Rule 70 (requiring informal consultation before formal discovery) and Rule 74(c)(1)(B) (allowing discovery depositions without consent only in ‘extraordinary’ circumstances).” Order, p. 2.

But Judge Gustafson never stops being helpful: “On the other hand, we do not want the June 2013 hearing to be unnecessarily lengthy and inefficient. The Court will therefore invite the parties to suggest, during the upcoming telephone conference, means for assuring fair and efficient informal consultation (under Rule 70), stipulation (under Rule 91), and examination of witnesses at trial.” Order, p. 2.

You can see how Tax Court discovery differs widely from most State Court and even other Federal Court procedure, and how many attorneys came adrift when practicing in the somewhat rarefied atmosphere of 400 Second St, NW.

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