Attorney-at-Law

DEFT AND SLIMY

In Uncategorized on 04/01/2016 at 21:46

I used this phrase about IRS’ counsel before now, in my blogpost “Another Taishoff ‘Oh Please’,” 9/24/14. But instead of the truly clever and novel gambit explicated in my aforementioned blogpost, IRS’ counsel is playing a familiar variation in KSB LP, f.k.a The Harbinder S. Brar FLP VIII, LP., BPMI, Tax Matters Partner, Docket No. 24480-14, filed 4/1/16. And it’s not an April Fools’ joke.

Y’all will remember the 25 interrogatories rule, embedded in Rule 71(a).

Well, IRS’ counsel tries to submarine Br’er Brar by subparting their Branerton wishlist.

And who better to depthcharge IRS’s submarining than The Great Dissenter, a/k/a The Judge Who Writes Like a Human Being, s/a/k/a The Implacable, Irrefragable, Illustrious, Industrious, Indefatigable, Incomparable, Incontrovertible, Ineluctable and Ineffable (but never Incomprehensible and always Intelligible), and Old China Hand, Judge Mark V. Holmes? And  Judge Holmes even designates this order, making life easy for your reporter.

Br’er Brar claims IRS is trying for formal discovery before informal, but that’s a nonstarter. IRS sent Br’er Brar “…a letter that looks pretty close to formal discovery to the untrained eye, but that serves as a guide to what the IRS is looking for and makes IRS counsel available for a discovery conference.” Order, at p. 1.

So obeisance has been paid to Branerton.

But IRS isn’t finished. “There are only 18 numbered interrogatories in respondent’s set, but the system is wise to the ploy of multiplying the subparts of an interrogatory to evade the limit.” Order, at pp. 1-2.

Judge Holmes cites the FRCP Rule 33 Advisory Committee report. “Parties cannot evade this presumptive limitation through the device of joining as ‘subparts’ questions that seek information about discrete separate subjects. However, a question asking about communications of a particular type should be treated as a single interrogatory even though it requests that the time, place, persons present, and contents be stated separately for each such communication.” Order, at p. 2.

Rule 71(d) saves the interrogs aimed at expert witnesses. And the FRCP Advisers seem to allow IRS to get another multiplex interrog through the door.

But Judge Holmes slams the door on one manifold interrog, and even invokes The Donald in the process.

“The real problem is number 17, a common form of interrogatory, which asks for ‘the true facts,’ identification of potential witnesses, and any relevant documents for each of the 21 requests for admission that respondent also served shortly before the discovery deadline. For the reasons that are comprehensively explained in Safeco of America v. Rawstron, 181 F.R.D. 441, 443-44 (C.D. Calif. 1998), see also Makaeff v. Trump University, LLC, 2014 WL 3490356 at *4 – *6 (S.D. Calif. 2014), this is an interrogatory that causes respondent’s total to exceed 25 by a considerable margin.” Order, at p. 2.

So the protective order Br’er Brar seeks is denied, except for the invidious Number 17, which is out.

Takeaway–Practitioner, watch out for those multifarious multiplex interrogatories. And tell IRS Judge Holmes sent you.

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