It’s been near enough nine (count ’em, nine) years since I last discoursed on this major disconnect between USDC (and most State courts) and US Tax Court practice. I’ve come back for the benefit of those who have joined since we last called at this port.

Depositions of parties are routine in most courts; the forms for FRCP 27 motions or State court equivalent are at the top of every litigator’s toolchest.

Not so at The Glasshouse on Second Street, NW. Just ask IRS’ counsel in Michael Davis & Amy L. Davis, et al., Docket No. 14870-20, filed 7/7/23. Here, depositions are “an extraordinary method of discovery that can only be taken pursuant to an order from the 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 p. 3. (Citation omitted).

And the Factors Three are: 1) Whether the movant has established a specific and compelling basis for the deposition; (2) Whether the movant intends the deposition to serve as more than substitute for cross-examination at trial; and (3) Whether the movant has had prior opportunities to obtain the desired information or could obtain it through other means or from another source.

Judge Christian N. (“Speedy”) Weiler flunks IRS on all three.

First, IRS hasn’t shown they can’t get the information they seek from a less invasive approach. They wanted to sit Mike down for eight hours to bukh about “transactional details of this case, the knowledge and belief of Messrs. Davis and [Partner], and their reasonable cause and good faith, including any reliance on third parties.” Order, at p. 4. (Name omitted). Judge Speedy Weiler says they haven’t shown they can’t get this otherwise.

Second, IRS hasn’t shown that the deposition would do more than set up cross on the trial.

Finally, Mike and Partner have declined an informal meet-up, but claim they’ll answer written interrogs, and maybe will do a face-to-face if they can agree on scope and ground rules. Judge Speedy Weiler is willing to wait and see.

And IRS can always try again, later.

Did I mention this is another Dixieland Boondockery? No wonder IRS has gone full-court-press.