In Uncategorized on 05/31/2022 at 09:44

No, I’m not taking advertising; WordPress is doing that. So this does not concern the Ancient Mariner and his bitter lemon. Today Judge Elizabeth A. (“Tex”) Copeland is again exploring that “extraordinary method of discovery,” the taking of depositions of expert witnesses. The case is Anadarko Petroleum Corporation, et al., Docket No. 23018-18, filed 5/31/22.

Why depositions of experts should be extraordinary in The Glasshouse on Second Street, NW, still mystifies me even after all these years. The method is not extraordinary anywhere else. Every summer student law clerk learns that as soon as your pre-answer motions get tossed, you bang out your answer, first demand for bill of particulars, first notices to produce and to admit, interrogatories, and deposition notices. In every court, that is, except United States Tax Court.

Before my Empire State colleagues call me out, I am aware of Our Fair State’s special rules for special proceedings, and for expert witnesses, but I need not burden my international readers with that.

Judge Tex Copeland: “Our Court allows depositions of experts, but still treats them as ‘an extraordinary method of discovery.’ Rule 74(c)(1)(B). What this Division of the Court looks for in considering motions to depose is the general state of discovery, the stakes involved, and whether the depositions would materially aid the trial and possible settlement of the consolidated cases.

“The key fact here is that the stakes in this case involve a proposed deficiency that exceeds $850 million. The Court acknowledges the parties’ disagreements about how cooperative each has been in informal discovery, but in a case of this size there is bound to be toing-and-froing between two highly qualified teams of lawyers.” Order, at p. 5.

I’ll leave aside the particulars of this discovery jousting between “two highly-qualified teams of lawyers,” other than to note that one expert wild-carded in material from years outside the years at issue.

Unhappily, the clock has run out on formal commentary on Ch J Maurice B (“Mighty Mo”) Foley’s proposed Rule changes. “The door is shut; we may not look behind,” as a far better writer than I put it.

But why should allowing a routine discovery process vary among divisions in Tax Court?

If it be objected that the poor pro se, zeal for whom caused the Harvard Low Income Tax Clinic to heave a monumental monkey wrench into the entire IRS collection process, cannot afford either to depose or be deposed, then have a dollar cutoff. If you have to add a zero, as ex-Ch J L Paige (“Iron Fist”) Marvel suggested so long ago, then permit depositions only with leave of court. See my blogpost “Add A Zero,” 6/26/15.

Taishoff says why not use the Section 7623(b)(5) numbers? $200K gross income of petitioner for any year at issue, and the amount at issue for all years in the aggregate more than $2 million, adjusted for inflation. More than those, depositions on demand if Branerton play-nice doesn’t work.

Below that, leave of court only. Whatever numbers you like, Rule 74 needs an overhaul.


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