Attorney-at-Law

WORK PAPERS

In Uncategorized on 03/31/2017 at 09:29

No, not the things you got from the Dep’t of Health at age 16 to try to get a summer job. This is a dispute about producing the documents an expert witness reviewed in arriving at his appraisal, before exchange of experts’ reports.

If you’re a discovery wonk, which title I must assume fits at least some of my readers, that small but mighty band, this is your kind of case.

I didn’t blog MCM Investment Management, LLC, Mark & C’ann McMillin Family Trust Dated 04/09/1990, Tax Matters Partner, Docket No. 13550-15, filed 3/30/17, when it hit Tax Court’s website yesterday, because I was enjoying the hospitality, generosity and antipasto of a longtime friend and colleague; thanks again, Larry D, and best of luck in your new offices.

Back to work. IRS wants MCM to hand over the documents.

Judge Pugh defines the terms. “Respondent’s motion seeks ‘the workpapers/files of FMV Opinions, Inc. (FMVO) relating to the appraisal’ provided by FMVO to petitioner dated June 9, 2010 (FMVO Appraisal). The workpapers/file sought are defined as ‘the collection of documents, acquired, considered, or used by FMVO in preparing the [FMVO] Appraisal.’ Thus, the request necessarily is limited to those documents in existence on the date the FMVO Appraisal was provided to petitioner.” Order, at p. 1.

MCM claims IRS is jumping the gun. Per Rule 143(g)(2), as we all know, all that stuff gets handed over “…not later than 30 days before the call of the trial calendar on which the case shall appear….” As the calendar call in SF CA is set for 6/19/17, IRS will get the stuff on 4/20/17, the date set for experts’ reports exchange and submission to the Court.

OK? says MCM. No, because although the appraiser who prepared the FMVO Appraisal is retained as an expert witness, the documents are what they are, unprivileged.

We lawyers know that when a client hands us unprivileged documents, the handing over does not confer privilege on the documents. Possession is not nine points of anything.

And Judge Pugh reprises that refrain.

“The documents used or consulted to prepare the FMVO Appraisal are discoverable irrespective of whether they are provided to an expert witness. Petitioner does not argue otherwise. Providing them to an expert witness cannot convert them into expert witness workpapers shielded from discovery prior to the deadline for exchanging workpapers. Therefore, they are subject to discovery regardless of whether the expert witness is the same individual who prepared the original appraisal. Further, because petitioner intends to produce the documents on April 20, 2017, we do not view requiring their production on a short deadline to be unduly burdensome. We further believe that production on a short timeframe is necessary so that expert witnesses for both parties have the same information relating to the FMVO Appraisal.” Order, at p. 2.

No cases cited here, and I wish that Judge Pugh had done. It would make memo of law writing that much easier.

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