In Uncategorized on 11/29/2018 at 17:57

Getting ready for the great Handelian seasonal singalong, I came across a designated hitter from Judge Mary Ann (“No Cognomens”) Cohen. Judge Cohen tosses IRS’ expert appraiser’s report and grants petitioner’s in limine motion in Donald L. Bren, Docket No. 20942-16, filed 11/29/18.

IRS’ expert appraiser, whom I’ll call Mr. P., will be unavailable to testify on next month’s trial “…because of various family catastrophes recently occurring. The Court indicated an inclination to grant the Motion in Limine but had planned to have voir dire of Mr. P conducted at the commencement of the trial before ruling on the Motion in Limine. In view of Mr. P’s apparent unavailability, however, the Court decided to grant the Motion in Limine upon receipt of an additional filing by petitioner and agreement that Mr. Perdue’s deposition would be marked as an exhibit in this case (not to be received in evidence).” Order, at p. 1.

Turns out that Mr P. discarded paper and deleted electronics he looked at but disregarded in reaching his conclusions.

When IRS responds to Don’s motion to toss Mr P’s testimony, Judge Cohen is less than enthused.

“Respondent’s response posits extreme situations where a prospective expert might investigate or review material that is not reduced to paper or electronic methods of preservation. Respondent ignores the facts of this situation where the expert admittedly destroyed materials after deciding to reject their use in his analysis. Data considered and rejected may be as significant as data considered and adopted. Deliberate omission and rejection of data and the reasoning of the analysis are the essence of cross-examination of an expert witness, and impairing cross-examination by destroying rather than producing such materials is inherently prejudicial to the adverse party. In this case, the explanation of why the expert deviated from previously expressed opinions deserves careful examination. Under these particular circumstances, it is not necessary to address other cases and their similarities or distinctions.” Order, at pp. 1-2.

Tossing Mr P only torpedoes IRS’ increased deficiency, as to which IRS has burden of proof. Don still has burden of proof as to the basic deficiency.

And Don doesn’t have a walkover. “The time spent at trial will best be focused on the reliability of petitioner’s expert’s opinion.” Order, at p. 2.

The material your expert reviews may be “despised, rejected,” but don’t shred or delete unless you want to be the one “acquainted with grief.”

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