In Uncategorized on 07/23/2019 at 15:24

Y’all remember Joseph J. Zajac, III, Docket No. 1886-15, filed 7/23/19, no? JJZIII was here just last month, in my blogpost “Mulligan – A Causerie,” 6/18/19.

Maybe JJZIII read Judge Gale’s previous order as requiring only that he testify, because all the stipulated facts and documents are in evidence from the last trial, and all the rulings made by Judge Chiechi are still in effect. So maybe no new discovery is needed or permitted.

Nevertheless, JJZIII sends in “…a ‘Notice of Unavailability’, which provides in full: ‘Petitioner, pro se, will be unavailable from July 22, 2019, to August 19, 2019. No one is authorized to accept or respond to documents on the Petitioner’s behalf. Deadlines outlined in Court Order dated June 19, 2019, [sic] are not impacted.’” Order, at pp. 1-2.

Yes, the case is on for trial 11/19/19. But what new discovery there is to take place is a mystery, if everything that went in evidence on the last trial is automatically in evidence for this trial.

Still, Judge Gale is not amused.

“Consequently, petitioner is under a continuing obligation to comply with the requirements set forth in the Court’s Order dated June 18, 2019, and the Standing Pretrial Order. Those requirements include, among other things, an obligation to engage in informal communication and cooperation with respondent in preparing this case for trial. See Rule 70;2 Branerton Corp. v. Commissioner, 61 T.C. 691 (1974). Moreover, should respondent’s attempts at informal discovery in this case fail, he may seek formal discovery under our Rules, for example, by serving written interrogatories, see Rule 71, requests for production of documents, electronically stored information, or things, see Rule 72, or requests for admission, see Rule 90. Under such circumstances, petitioner would be required to file a timely and appropriate response under our Rules.

“In substance, petitioner’s Notice of Unavailability appears to be a tacit request that the Court allow him to disregard his trial obligations for a 28-day period. Such an action is not contemplated by our Rules. Accordingly, we will direct the Clerk of the Court to strike petitioner’s Notice of Unavailability from the record in this case, and we advise petitioner that any failure to respond to respondent’s proper and reasonable requests during the pretrial period is at petitioner’s own risk.” Order, at p. 2.

Still, I do not recommend telling the Judge you’re not around, when you’re on for trial.

  1. Would the proper thing be to notify the opposite party that you are desirous of being unavailable for the 28-day period, and then to appeal to the judge if they object for no good reason and you do have a good reason (e.g., you’re a reservist on a secret mission in Syria for those 28 days)?


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