In Uncategorized on 05/08/2014 at 15:34

 Mostly Aren’t

We poor bloggers catch a lot of flak. See my blogpost “Modified Loving”, 2/4/13, wherein Judge Boasberg of USDCDC threw a flag on IRS reliance on a blogpost.

Well, Judge Buch,  nowise reluctant to flog the blogger,  lowers the boom on IRS, when the Service again tries the Internet expert to trump the expert on the scene.

You can read it for yourself in John M. Alterman Trust U/A/D May 9, 2000, Ronald Gordon and Donald Gavid, Trustees, Transferee, et al., filed 5/8/14, Docket No.6936-10. There are four orders involved here in four cases, but the story is the same.

Richard C. Alderman is involved in all four, and is the target of an IRS trial subpoena to testify (even though he did testify once already) and to produce documents.

But Richard C. has problems. “Richard C. Alterman has Parkinson’s disease and he underwent two brain surgeries earlier this year. Prior to his first surgery, the parties agreed to take, and took, Mr. Alterman’s deposition under Rule 81 in order to perpetuate his testimony. By letter…, Mr. Alterman’s neurologist informed the Court that Mr. Alterman has impaired cognitive function and memory loss after his surgeries, is fatigued, and has episodes of confusion exacerbated by stress.” Order, at p. 1.

Sounds like Richard C. might not be the best witness this time around, maybe so?

Nothing daunted, IRS claims  “(1) live testimony creates a superior record and (2) respondent expects to have questions for Richard C. Alterman that he was not able to pose at the deposition. Respondent explained that those questions might arise as a result of the testimony of trial witnesses or documents that are produced at trial.” Order, at p. 2.

Judge Buch blows away the second argument. What might happen at the trial or on further depositions is too speculative. If IRS knows what they need, they should speak up. If not, Judge Buch isn’t letting them haul Richard C. into a deposition on a “might be, could be”.

But as to the first, IRS claims Richard C.’s impairment isn’t all that serious. “…despite Mr. Alterman’s doctor’s very recent statement that Mr. Alterman has impaired cognitive function and memory loss, respondent [IRS] asserts that Mr. Alterman’s side effects from brain surgery are not permanent and provides a WebMd article stating that patients undergoing Mr. Alterman’s procedure can expect a full recovery and are usually able to return to work within 4-6 weeks.” Order, at p. 2.

If it’s on the Internet, it must be true, right? Well, my blogposts are, anyway.

But Judge Buch boots, and doesn’t reboot, IRS’ Internet discovery.

“Respondent’s [IRS’] inclusion of a WebMd article is not well taken. Certainly Mr. Alterman’s neurologist is in a better position to evaluate his cognitive impairment than a WebMD article. See Campbell ex rel. Campbell v. Secretary of Health and Human Services, 69 Fed. Cl. 775, 781 (2006) (finding that a special master’s inclusion of medical articles from websites including WebMd arbitrary and capricious because the articles were not reliable and websites, specifically including as WebMd, caution that reliance on the information contained in the articles should be used ‘solely at your risk’). Beyond the inherent unreliability of internet research, the WebMd article speaks in terms of generalities, whereas Mr. Alterman’s doctor speaks to his specific condition.” Order, at p. 2.

Well, IRS used the WebMD article at its own risk. And IRS loses.

IRS also loses the document portion, as they ask fewer than 45 days before trial date, and Rule 70(a)(2) says “no”. Trial subpoenas are not substitutes for ordinary discovery. For more about that one, see my blogpost “Ask Politely”, 8/22/12, where Judge Gustafson teaches IRS a lesson they apparently forgot this time around.

So Richard C. is left in peace, although IRS can use his previous deposition if they so wish.

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