I’ve probably discomposed as many electrons on the differences between discovery in United States Tax Court and discovery in the Article III courts with which most of my readers are familiar than on any other topic. And nowhere is the difference so great as in nonconsensual depositions. Rule 74(c) sets a very high bar for one seeking same.

Today, in Lakepont Land II, LLC, Lakepoint Land Group, LLC,  Tax Matters Partner, Docket No. 13925-17, filed 11/23/22, Judge Christian N. (“Speedy”) Weiler provides another vestpocket guide to the perplexed. Lakepoint wants to depose a couple IRS employees (hi, Judge Holmes) about whether they were offside on the Section 6751(b) Boss Hoss signoff. IRS wants summary J, Lakepoint wants obviously to stir up some questions of fact.

“Nonconsensual depositions are an extraordinary method of discovery that can only be taken pursuant to an order from our Court. These depositions are available only where a party or nonparty witness can give testimony that is discoverable within the meaning of Rule 70(b) and where such testimony practicably cannot be obtained through informal consultation or communication under Rule 70(a)(1), interrogatories under Rule 71, requests for production of documents under Rule 72, or consensual depositions under Rule 74(b). The decision to require an individual to submit to a nonconsensual discovery deposition is a matter that is solely within the discretion of the presiding judge. In addition to the essential criteria that the moving party must show under Rule 74(c), the Court weighs various factors to determine whether a particular case warrants an extraordinary discovery method. Order at pp. 2-3. (Citation omitted).

The factors are whether the movant has established a specific and compelling basis for the deposition; whether the movant intends the deposition to serve as more than a substitute for cross-examination at trial; and whether the movant has had prior opportunities to obtain the desired information or could obtain it through other means or from another source.

Judge Speedy Weiler seems to think that Lakepoint hasn’t tried every other door; Taishoff thinks that maybe IRS has been stonewalling a wee bit.

Judge Speedy Weiler says this is an attempt to substitute the depositions for cross-examination on the trial. Taishoff says if IRS gets summary J on the chops, what’s to try?

Depositions, consensual or not, are SOP in most courts. Yes, I know Our Fair State’s Civil Practice Law & Rules Section 408; a former associate in a firm in which I was a partner got gigged for hitting this speedbump in a special proceeding. But that’s strictly a one-off.

I know the rationale for Rule 74(c): depositions are expensive, the overwhelming number of Tax Court petitioners are self-represented, and most of their cases are indocumentados. And the defier-protesters would use depositions only to harass IRS personnel.

But the one-size-fits-all approach doesn’t fit all. Big ticket cases with heavy-duty counsel for both sides should follow FRCP 30.