In Uncategorized on 10/03/2022 at 16:27

The CLE merchants seem to have abated their discovery lectures. I tuned in a Zoom session thereon last week given by an Upstate jurist that was a model of clarity, wherein not a word was breathed anent discommoding one’s adversary with deft disclosure demands or game-changing ripostes to one’s adversary’s wide-cast nets.

But today STJ Adam B. (“Sport”) Landy provides a new entry in my “Discovery channel” miniseries. While STJ Sport Landy may have an advanced degree in sports and entertainment management (hence the sobriquet), he has no patience for those who play games, even at discovery.

Hiram T. Cannon and Doris A. Cannon, Docket No. 15257-20, filed 10/3/22, failed to try informal discovery before moving to compel. This draws the first rebuke from STJ Landy.

“This Court’s jurisprudence requires both parties to cooperate and participatein informal discovery prior to seeking formal discovery. See Branerton Corp. v.  Commissioner, 61 T.C. 691, 692 (1974). The informal discovery process is essential for the voluntary exchange of facts and documents as an aid to a more expeditious trial of cases as well as for settlement purposes. Id. Under Rule 70(a)(1), Tax Court Rules of Practice and Procedure, formal discovery may not be used until a party has attempted ‘to attain the objectives of discovery through informal consultation or communication.’ There is no evidence in the record to reflect that the parties have engaged in informal consultation or communication.” Order, at p. 1.

I note that State court judges have picked up on the play-nice concept of Branerton, intervening in discovery disputes only after the parties have failed to reach good-faith resolutions, and can document their efforts. State courtiers, watch for examples thereof in CLE lectures and in the courtroom.

But STJ Landy is only warming up. IRS claims Hiram and Doris are frivoling.

“Furthermore, the petition and the requests for formal discovery appear to be expressions of protest and contain nothing but frivolous or groundless recitations.  Petitioners’ attention is invited to Internal Revenue Code (I.R.C.) section 6673(a). If it appears to the Court that petitioners’ position in a proceeding before the Court is frivolous or groundless or the proceedings are instituted or maintained ‘primarily for delay’, then the Court can impose a penalty (not to exceed $25,000) on petitioners. Petitioners are advised that it appears to the Court that the position you have taken in this case is frivolous or groundless. No penalty will be imposed at this time. However, future submissions advancing a frivolous or groundless position will result in the imposition of a penalty in an amount up to $25,000.” Order, at p. 1.

Now I haven’t seen Hiram’s and Doris’ moving papers, so I can’t say. But that’s one quick Section 6673 yellow card. STJ Sport Landy is clearly no judge to be played.


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