In Uncategorized on 04/22/2020 at 16:18

Judge Gale has designated a discovery geeks’ delight in Adrian D. Smith & Nancy W. Smith, et al., Docket No. 13382-17, filed 4/22/20. This latest episode is a follow-up to my blogpost “Evasive or Not Fairly Directed,” 3/12/20, wherein Judge Gale told IRS to lay out what they were contending and what were the bases therefor.

IRS provided supplementary responses by way of reply.

Ad & Nancy claim that fourteen (count ‘em, fourteen) of the supplementary responses to their interrogs, seeking the legal and factual bases upon which IRS rests the SNOD at issue “remain insufficient” and consist of “untimely objections, * * * incomplete responses, and * * * theories bankrupt of both legal and factual support.” Additionally, petitioners assert that the Supplemental Answers “are neither under oath nor made in good faith.” Order, at p. 2.

I think that Ad’s & Nancy’s counsel meant “bereft” rather than “bankrupt.” Watch that spellcheck, guys.

Howbeit, Judge Gale lets in seven of the fourteen as being close enough. But they’re not signed nor are they sworn to. Rule 71(c) says they have to be, and USCFC caselaw says IRS counsel is the one to sign and swear. So do it.

The aim of these interrogs is to get the material facts that underpin a party’s contentions. And answers like “all the papers you sent me” aren’t answers.

“…respondent repeatedly asserts that in support of his stated position or contention he relies on ‘petitioners’ bates-numbered [sic] document productions’. However, respondent does not identify the Bates numbers of the particular documents on which he purports to rely for his stated position or contention. Such a position is contrary to well established discovery principles. ‘An attorney who is faced with ‘contention’ type discovery must identify the witnesses and documents he/she has marshaled in a way to support his/her client’s position and to help illuminate the issues to be resolved as the responses and answers are due.’” Order, at p. 5 (Citation omitted).

For you civilians, Bates-stamping relates to a mechanical device for numbering paper pages. Now there are computer programs to do that. But the name sticks.

Of course you can’t demand all this stuff before the other side has had a fair whack at discovery. But this case is almost three (count ‘em, three) years old, and the time for formal discovery is past. “We therefore agree with petitioners that respondent has had ‘ample time’ to formulate and state his positions and contentions, particularly in view of the Court’s granting the vast majority of his extensive and highly detailed discovery requests.” Order, at p. 5, footnote 9.

And claiming you’ll prove your case out of the mouths of your adversaries and their employees (a well-worn tactic for opening statements to a jury, if, and only if, you can deliver) doesn’t cut it. Name your witnesses, says Judge Gale. Now.

Read Judge Gale’s opinion. He’s written your discovery brief for you, if contention interrogatories are the flavor du jour.

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