We know depositions of nonparties, SOP in most if not all courts other than Tax Court, become extraordinary when one sets foot in Second Street, NW, in the Capital of the (former) Country for Old Men. But Ch J Kathleen (“TBS = The Big Shillelagh”) Kerrigan has still another reason for blowing off IRS’ request to depose a couple nonparties (hi, Judge Holmes), in Nat S. Harty and April D. Harty, Docket No. 23354-21, filed 7/23/24.

“Rule 81(e)(3) provides that ‘[n]o deposition may be taken before a person who is a relative or employee or counsel of any party, or is a relative or employee or associate of such counsel, or is financially interested in the action,’ except ‘with the consent of all the parties or their counsel.” Rule 81(e)(3) is similar to Federal Rules of Civil Procedure 28(c), 29(a), and 30(b)(5)(A). ‘[T]he policy informing’ Federal Rule of Civil Procedure 28(c) is ‘to assure impartiality in the creation of the record of the deposition.’ Sheppard v. Beerman, 822 F. Supp. 931, 941 (E.D.N.Y. 1993). It is appropriate to quash a subpoena that purports to subject a deponent to a deposition taken by an interested person absent the parties’ consent.” Order, at p. 1.

OK, so who’s the interested party?

“The subpoena issued by respondent identifies respondent’s counsel as the ‘officer or recording company’ by whom ‘[t]he deposition will be recorded.’ This runs afoul of Rule 81(e)(3). In addition, the parties’ Stipulation to Take Deposition of SC and SV does not evidence petitioners’ consent for the deposition to be taken before respondent’s counsel. To the contrary, petitioners agreed that a named court reporting company would transcribe the deposition, not respondent’s counsel.” Order, at p. 2. (Names omitted).

I don’t want to jump on IRS’ counsel, whom I’ll call Jordy and Kim, just gently suggest they read subpoenas before they serve them.

Howbeit, Ch J TBS wouldn’t let them correct this rookie error without more.

“Even if this technical defect could be cured, we would still quash the subpoena. Deposition of a nonparty witness is an extraordinary method, and may only be used when the information sought cannot be obtained in documents or through informal communication or consultations. See Rule 74(c)(1)(B). Respondent has not shown that the only way to obtain the information being sought is by issuing a subpoena. We will therefore quash the subpoena. We expect the parties and their counsel to cooperate in making nonparty witnesses available in this case. In addition, this Order does not prohibit respondent from serving a new subpoena… that cures the defects and shows that a subpoena is the only method for seeking the information.” Order, at p. 2.