I’m sure my readers (those I have left) have had it with the “win your case at discovery” CLEfloggers. Those who’ve actually taken the courses and put into practice the principles thus hard-paid-for have led to gamesmanship at super-Olympic heights.

A perfect example of everything that’s wrong with the time-wasting, gameplaying, roundy-rounding that has effectively demolished the noble aim of Rule 70(a)(1), that the parties first “attempt to attain the objectives of discovery through informal consultation or communication before utilizing the discovery procedures provided in these Rules,” may be found in the nineteen (count ’em, nineteen) pages that STJ Jennifer E. (“Publius”) Siegel wastes in Ardan Holdings, LLC, Ardan Investors, LLC, Tax Matters Partner, Docket No. 17483-21, filed 2/21/24.

STJ Publius was handed this morass by none other than Judge Mark V. (“Vittorio Emanuel”) Holmes, to do an in camera on what IRS was holding back.

A few of her comments.

“Respondent made only a few types of privilege claims on the log provided. One claim was that some of the redacted information would have disclosed ‘other taxpayer information.’ This was not always accurate. To the extent a redaction was protecting another taxpayer’s information or identity, we will allow those redactions to stand. To the extent it was an inaccurate claim, we will direct disclosure.” Order, at p. 2.

“The attorney-client privilege ‘applies to communications made in confidence by a client to an attorney for the purpose of obtaining legal advice, and also to confidential communications made by the attorney to the client if such communications contain legal advice or reveal confidential information on which the client seeks advice.’

“For many of the documents, other than boilerplate signature blocks automatically applied to all of the sender’s email communications, there was nothing obvious to indicate that redacted material might be protected. Respondent made no effort to justify the redactions, and thus the Court is ordering much of the material disclosed.” Order, at p. 3. (Citations omitted.)

But, to be fair, we all bestrew our e-mail stationery with clawbacks and other FRE §502(b) and (c) jive. Like the cigarette pack warnings, they’re so common they’ve become meaningless.

And of course the flavor du jour, deliberative privilege, gets a good run. The communications have to be pre-decisional, that is, before the government has decided on its position. Moreover, the communications must be critical and analytical, make recommendations or express legal or policy opinions.

“In other words, not all government communications are protected. Many of the emails provided for the Court’s in camera review contained factual information, chitchat, vacation coverage planning, and comments like ‘see attached’ and ‘FYI.’ These are not deliberative communications. Blanket assertions of deliberative process privilege are not favored, and the privilege should be narrowly construed.” Order, at p. 4. (Copious citation of precedent omitted).

And stuff claimed privileged in one place was disclosed in another, invoking waiver. If one legume escapes otherwise than inadvertently (here no such claim), ya can’t unspill the beans.

I met STJ Publius before she was exalted to the Tax Court Bench. A more pleasant-spoken person would be hard to find. But one can imagine the steam from her ears in the following.

“Additionally, in more than one instance, respondent claimed a privilege (e.g., confidentiality of information belonging to a different taxpayer) that did not apply (it was not, in fact, information for a different taxpayer). Even if the document might have been considered privileged under a different theory, it is not the Court’s job to police a party’s documents for them. We considered only the privilege claims as made. If the claim does not obviously apply, the Court will direct respondent to disclose the document or portion thereof.” Order, at p. 4.

Finally, Judge Holmes ordered all documents produced for the in camera, but IRS produced only some pages, which STJ Publius chronicles at Order, at p. 5.

So that’s it? Not on your Nellie it isn’t! STJ Publius produces a fourteen (count ’em, fourteen) page spreadsheet itemizing in exhaustive (and exhausting) detail what is to be done.

Now lest my readers think I’m unloading solely on IRS, unloved, unstaffed, and unfunded as it is, allow me to state that the Ardens, another Dixieland Boondockery, whose discovery demands are not noted in this Order, may well be playing games.

The only issue in all these dodges, as Judge Holmes pointed out so long ago, is what was this scrubland worth when the easement was granted? Get the experts on the stand, and let’s get cracking.