Flames Out

Back on October 21, when Judge Lauber imposed a gag-and-seal order on testimony in Amazon.com, Inc., & Subsidiaries, Docket No. 31197-12, I was moved to comment as follows: “I can just see Jeff Bezos standing, with flaming sword in hand, at the door of Centre Court, 400 Second Street, NW, driving away eavesdroppers and the idly curious from the sacred precincts.” See my blogpost “The Man Of Mystery – Revealed”, 10/21/14.

Well, today I am disappointed that The Great Jeff will be neither sitting nor standing at 400 Second Street, NW, nor anywhere else within the purlieus of Tax Court, much less with a flaming sword. Today, Judge Lauber favors us with 2014 T. C. Memo. 245, filed 12/10/14.

Therein, it is explained why corporate bigwigs need not testify if (a) to testify would impose an “undue burden” (which means the same thing as “burdensome and oppressive”, according to Advisory Committee Note to the 1991 Amendment to Rule 45, 134 F.R.D. at 668, but why you need different words to say the same thing eludes me) on the Boss Hoss, and (b) when various lord lieutenants, who hover round Hisself and are intimately familiar with the decision-making process, have already testified, or will testify, to the same stuff.

IRS gives The Great Jeff a trial subpoena ad testificandum (as opposed to a subpoena duces tecum, for which we had a ribald nickname in my days On The Hill Far Above). And of course The Great Jeff’s legal bomber wing moves to quash.

IRS seems at a loss to explain why they need The Great Jeff on the stand. “Respondent informed the Court that, if Mr. Bezos is called, his testimony ‘is likely to be less than a day.’ Counsel for respondent stated that, because Mr. Bezos had not been deposed, respondent might not call him as a witness even if the motion to quash is denied.” 2014 T. C. Memo. 245, at p. 6.

Besides, it’s the Christmas Rush, don’tcha know? The Great Jeff takes time from his busy day to sign an affidavit in support of the motion to quash in which he states that “…appearing at trial would require a significant commitment of time by Mr. Bezos and would cause a substantial disruption of his management responsibilities during Amazon’s peak holiday season.” 2104 T. C. Memo. 245, at pp. 4-5.

Too right! Jeff, get Herself’s presents here prontito! And don’t forget my children’s and grandchildren’s presents either.

Judge Lauber gets all judicial, however.

“The Court indicated that it would postpone ruling on the motion to quash until after petitioner had completed presentation of its case in chief, which would enable the Court better to assess respondent’s need for Mr. Bezos’ testimony. To date, the Court has heard 17 days of trial testimony, including the testimony of 21 Amazon fact witnesses. Of these 21 fact witnesses, six are or were members of Amazon’s senior leadership team, known at Amazon as the ‘S-Team.’ Members of the S-Team reported directly to Mr. Bezos, regularly attended meetings with him (including certain board of directors meetings), and were thoroughly familiar with his decisionmaking process and his customer-centric philosophy for running the company.” 2014 T. C. Memo. 245, at p. 5.

Moreover, “The Court has heard testimony from all relevant departments at Amazon, including technology, operations, finance, and tax. This testimony has spanned all periods of Amazon’s life as a public company, from 1997 to the present. The vast majority of the subjects listed by respondent have been covered by testimony of three or more Amazon fact witnesses, including senior level managers, middle managers, and junior staffers (who actually prepared the documents that are the subject of respondent’s interest).” 2014 T. C. Memo. 245, at p. 6.

Note that while the wigs may shuck and jive (and IRS’s wigs are good at it; see my blogpost “Walk Right In, Set Right Down”, 10/15/14), the PBI (that’s Poor Bloody Infantry, mate) will generally roll and tell all.

Worst of all, “Respondent [IRS] has not identified any relevant topic not covered by prior testimony or any subject about which Mr. Bezos is alleged to possess unique knowledge. Respondent did not seek to depose Mr. Bezos and indicated that Mr. Bezos might not be called even if the motion to quash were denied. Collectively, these facts demonstrate that respondent’s need for Mr. Bezos’ testimony is minimal and weigh heavily in favor of granting the motion to quash.” 2014 T. C. Memo. 245, at pp. 10-11. (Footnote omitted).

I wonder what would happen if a petitioner’s counsel did something like this. Sanctions, maybe?