Judge Patrick J. (“Scholar Pat”) Urda isn’t sure, so he won’t grant a Rule 103 protective order, stopping IRS from making informal discovery moves (demands? requests?) of various members (partners other than TMP) of Pauls Farm Properties, LLC, Eco Terra 2016 Fund, LLC, Tax Matters Partner, et al., Docket No. 7519-20, filed 3/25/24.

“We start with some skepticism whether the Commissioner’s informal discovery requests are subject to Rule 103(a) at all. See Fu Inv. Co. v. Commissioner, 104 T.C. 408, 410 (1995) (‘Arguably, [informal discovery requests] do not fall within our discovery procedures and, thus, are not subject to restriction under Rule 103.’). Even putting that concern to the side, petitioners have not shown any harm from the Commissioner’s informal discovery—either to petitioners or the members. Nor have they established that the discovery represents undue burden or expense. And we are not convinced that the information sought from the members is either irrelevant or duplicative, as might raise concerns about annoyance or proportionality.” Order, at pp. 1-2.

OK, so informal discovery may be unrecognized discovery. Except.

Rule 70(a)(1): “However, the Court expects the parties to attempt to attain the objectives of discovery through informal consultation or communication before utilizing the discovery procedures provided in these Rules.” It would be easy enough to amend the Rule to rule out protective orders in informal discovery altogether.

Except.

In Fu Inv., abovecited, then-CSTJ Peter (“HB”) Panuthos went on to say: “Nonetheless, it is well settled that courts have inherent powers not derived from any statute to, inter alia, control the conduct of attorneys practicing before them and to regulate their own processes to prevent injustice.” 108 T. C., at pp. 410-411. (Citations omitted).

So may be some “informal” isn’t quite as informal as other informals.