In Uncategorized on 07/02/2019 at 15:26

End the Stealth Subpoena

And spare Judge Holmes the need to remind litigants to play nice. Here’ s EZ Lube, LLC, EZL-1 Investments, Inc., A Partner Other Than the Tax Matters Partner, Docket No. 18021-13.

Judge Mark V Holmes sent the parties off to work out whatever salvation they could back in April. For that, see my blogpost “No EZ Telephone ‘Determinations,’” 4/21/19.

Now IRS, the incomers, and the outgoers, all think they can do a Rule 122 on-the-papers, if only they can get some third-party testimony. But they’ll need a judicial subpoena to do it.

Judge Holmes, in his usual expansive style, lets them go to it.

“Our Rules generally make subpoenas returnable only at trial sessions, which can be inconvenient when the division handling the case isn’t scheduled for a trial session in the city involved. The parties have suggested that this case be set for a hearing at the October 7, 2019 trial session to enable a subpoena to be served and returned by that date. The trial judge involved is amenable to this solution.” Order, at p. 1.

Apparently ex-Ch J Michael B (“Iron Mike”) Thornton will be on the bench at that session.

But Judge Holmes wants to make sure there’s no stealthy dealings.

He orders “…that the both parties comply with Federal Rule of Civil Procedure 45(a)(4).” Order, at p. 2.

See my blogpost “The Stealth Subpoena,” 7/16/15. It’s really time that Rule 147 was brought into line with FRCP 45(a)(4)


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