Attorney-at-Law

SWEAR! – PART DEUX

In Uncategorized on 12/13/2019 at 17:42

Judge David Gustafson again takes on the role of the ghost in Hamlet, Act I Scene V, as he addresses Johannes Lamprecht & Linda Lamprecht, Docket No. 14410-15, filed 12/13/19. See my blogpost “Swear!” 7/18/13.

I’ve blogged Johannes & Linda five (count ‘em, five) times before now, and this is a continuation of the discovery throw-down from the last such blogpost “Judge On a Tear,” 6/7/19.

Only this time there’s something to put out here.

The latest responses to Judge David Gustafson’s order to show cause were required to be supported by affidavits.

“…where the petitioners’ response to our order makes factual assertions not within petitioners’ counsel’s personal knowledge, that response should show the basis for those assertions, presumably by means of an affidavit or declaration from the petitioners. As to some of their assertions the Lamprechts did not do so, arguing that, unlike Rule 71 requiring sworn responses to interrogatories, Rule 72 does not require sworn statements in response to document requests.” Order, at pp. 1-2.

Except.

“The Lamprechts’ argument is correct as far as it goes; but at issue here is not responses to document requests but instead responses to the Commissioner’s motion and to our Order to Show Cause. Under Rule 50(b)(1), responses to motions in the Tax Court are made pursuant to the Court’s direction (not pursuant to a standing rule). And in this case an order of the Court directed the petitioners to file a response that includes substantiation of their assertions.

“To so order is clearly within our discretion. Under the Federal Rules of Civil Procedure–not applicable here–a requesting party dissatisfied with or skeptical about the responding party’s production of documents could take the responding party’s deposition and cross-examine him about his discovery responses. However, except in extraordinary circumstances, the rules of the Tax Court do not permit the taking of a party’s deposition without his consent–a limitation that requires this Court and its litigants to employ other means to assure compliance with the discovery rules. For example, the Court could have ordered an evidentiary hearing for the purpose of doing so, but this would have involved expense and inconvenience to the parties. Consequently, we ordered instead an alternative mechanism that involves only modest expense and trouble to the responding party (and that allows no cross-examination by the requesting party)-an affidavit (or an unsworn declaration under penalty of perjury pursuant to 28 U.S.C. section 1746).” Order, at p. 2.

So do the Horatio number, guys.

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