In Uncategorized on 12/07/2016 at 11:36

A tip of the battered Stetson to a long-time reader of this my blog (a poor thing, but mine own) for pointing out Estate Of Michael J. Jackson, Deceased, John G. Branca, Co-Executor and John McClain, Co- Executor, Docket No. 17152-13, filed 12/5/16.

I’d told the long-time reader that there wasn’t anything new in this rehash of a “Win Your Case at Discovery” CLE, but upon re-reading and ruminating, this order seems worthy of a note, even though it echoes previous learning. So I retract my previous opinion, Mr B.

For background, see my blogposts “Letter to the Editor,” 11/19/13, and “The Real McCoy,” 4/27/16.

We all know the Rule 74(c)(1)(B) truism: “The taking of a deposition of a party, a nonparty witness, or an expert witness…is an extraordinary method of discovery….”

Well, IRS wants depositions (what we NYS practitioners call “EBTs”, examinations before trial) of both co-ex’rs, a paralegal who worked on the 706, and an accountant who was the late King’s business manager.

Seems like a lot, especially when the play-nice Branerton informals, interrogs and document productions are all available. And Tax Court doesn’t play referee in discovery jousts, except to tell the players to play nice.

But there is here a key fact, which appeared also in the second of my blogposts above cited. And I’ll let The Great Dissenter, a/k/a The Judge Who Writes Like a Human Being, s/a/k/a The Implacable, Illustrious, Indefatigable, Imperturbable, Ineffable, Ineluctable and Incontrovertible Foe of the Partitive Genitive, and Old China Hand, Judge Mark V. Holmes, tell us.

“The key fact here is that the stakes in this case exceed $1 billion. The Court acknowledges the parties’ disagreements about how cooperative each has been in informal discovery, but in a case of this size there is bound to be toing-and-froing between two highly qualified teams of lawyers. It is reasonable to lock down the testimony of a central witness on the key underlying facts, which should shorten the trial and better focus it on what are likely to be quite complicated valuation issues. Respondent’s motion is reasonable, and the marginal cost small in relation to the stakes.” Order, at p. 3 (misnumbered as p. 2 in original).

And to tie in the title of this little essay, I quote from the late Senator from IL, E. McKinley Dirksen: “A billion here, a billion there, and pretty soon you’re talking about real money.”

So the win-your-case-at-discovery gang get a bye.

Except. What would tax law be without “except”?

One co-ex’r is ill. “He is also described as very seriously ill and subject to very poor reactions to stress — descriptions buttressed by specifics from his doctors that the Court will seal out of respect for his privacy — that would seem inconsistent with the ability to manage a complex enterprise in an industry not widely known for the placidity with which its commercial activity is carried out.” Order, at p. 3 (misnumbered as p. 2 in original).

“Very poor reactions to stress” definitely take one out of the profession I love.

However, lest the co-ex’r grow too elated, Judge Holmes, like a much more exalted personage, has a thorn for his flesh.

“…should respondent [IRS] issue a trial subpoena for his testimony, and should petitioner or [co-ex’r] object to it, the Court would expect to hold a brief hearing to determine if [co-ex’r’s] health has interfered with his ability to tend to the estate’s day-to-day business.” Order, at p. 3 (misnumbered as aforesaid in original.)(Name omitted).


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