Attorney-at-Law

THE OCTAVIA RULES

In Uncategorized on 04/01/2020 at 11:28

The latest skirmish in Adrian D. Smith & Nancy W. Smith, et al., Docket No. 13382-17, filed 4/1/20, is no April Fools’ Day prank. Judge Gale seems to go down Memory Lane, though he doesn’t say so.

Remember Winter Storm Octavia, back in 2015? And the closure of Tax Court back then? No? Well, see my blogpost “’Blow, Blow, Thou Winter Wind’ – Part Deux,” 8/24/15.

The Smiths & Gills had an expert’s report due on Monday. But Tax Court had been on lockdown for two weeks at that point; no snailmail, no PDS. So they e-filed the report, stating they were complying with Rule 143(g)(2).

Of course they weren’t, because Rule 143(g)(2) says the report is served on the adversary, submitted to the Judge, marked for identification and will be received into evidence as direct testimony of the expert (unless the Judge bounces the expert as unqualified). It isn’t filed.

Judge Gale: “While petitioners’ electronic filing of the ‘Expert Report of B’ as an attachment to petitioners’ Report filed March 30, 2020, violates Rule 143, we nevertheless conclude that compliance with the mailing requirement is infeasible with mail delivery suspended. Accordingly, the Court will direct the Clerk of the Court to recharacterize petitioners’ Report filed March 30, 2020, as the Report of B, Petitioners’ Proffered Expert, file it as of the foregoing date, and serve a copy thereof on respondent.” Order, at p. 2. (Name omitted).

And Judge Gale reminds everyone that the Report isn’t evidence until Judge Gale Daubertizes it.

Use of e-filed status reports as a means of wildcarding in evidence or argument is a definite no-no, or was pre-virus (if anyone remembers back to a time before virus). See my blogppost “Chai, Chai, V’Kayom,” 4/18/17.

But for the duration of the pandemic, it would seem that Octavia Rules trump the rest.

 

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