Attorney-at-Law

DISCOVERY TOHUBOHU

In Uncategorized on 04/09/2021 at 13:12

For those coming late to the party, and therefore puzzled by the title first set forth at the head hereof (as my expensive colleagues would say), dig my blogpost “More TEFRA Tohubohu,” 9/12/17. Judge Mark V Holmes will explain.

Today Judge Patrick J (“Scholar Pat”) Urda eschews Genesis 1:2 in the original, but brings order to the random walk that is pretrial document discovery in Janet R. Braen, et al., Docket No. 24929-17, filed 4/9/21.

As is not uncommon, the joust is about what the Braens did or didn’t produce.

Seems this is a conservation easement case, and the original cost of the land is at issue. IRS asked for some documents on the very last permissible day before the pretrial discovery cutoff hit. This was preceded by two (count ’em, two) years’ worth of demands and productions.

The Braens claim that they don’t have, or can’t find, some stuff, and Judge Scholar Pat is down with that.

For the rest, Judge Scholar Pat tosses the problem back to the parties.

“We note that trial is less than a month away and that the Commissioner did not file the motion to compel discovery until the last day of the discovery period. In this circumstance, we will give the Braens a slight reprieve. If documents responsive to request number 2 have already been produced in response to other formal or informal discovery requests, they do not need to produce the documents again (unless they so choose) and may instead identify those documents and the date of previous production in a written response to the Commissioner. Should the Braens fail to comply with this order, the Commissioner may file an appropriate motion.” Order, at p. 2. And Scholar Pat gives the Braens just over a week to do it.

IRS’ counsel is unhappy with the organization of the documents they did get. The Braens claim that’s how they keep records in the ordinary course of their business.

“The Commissioner also takes issue with the organization of the Braens’ document production, faulting them for failing to correlate the response with a request. Our rules do not impose such an obligation. Rule 72(b)(3) provides that ‘[a] party shall produce documents as they are kept in the usual course of business or shall organize and label them to correspond to the categories in the request.’ Here, the Braens have produced the documents as they are kept in the usual course of business, which is a permissible method of production.” Order, at p. 4.

Maybe there should be an embargo on those “win your case at discovery” CLEs. Too much tohubohu, too little progress in resolving the case.

Edit to add, 4/26/21: No, not a conservation easement. Listening in on the trial today (wretched voice quality), looks like a bargain sale to a municipality. But a valuation case, nevertheless.

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