The latest episode in the ongoing saga of misuse of discovery, originally designed to prevent ambush, by using it as an offensive (in both senses of the word) weapon, brings IRS a mild but decisive rebuke from Judge Cary Douglas Pugh.

Conrad Industries, Inc. and Subsidiaries, Docket No. 8359-23, filed 8/23/24, faces an IRS barrage despite trying to play nice. In fewer than 90 (count ’em, 90) days, IRS hits Conrad & Subs with a Motion to Compel Production of Documents, another Motion to Compel Production of Documents, a Motion for Leave to Serve Additional Interrogatories, and a Motion to Compel Responses to Interrogatories. Oh, and there was an informal document request two (count ’em, two) days after the first motion to compel.

Conrad & Subs asked for more time to reply, and did show what they’d complied with. IRS hasn’t stated in what respects the replies they did get were deficient.

“Respondent’s Motion for Leave to Serve Additional Interrogatories appears to be premature. He claims that additional interrogatories are justified by perceived inadequacies in petitioner’s efforts during the informal discovery process. But to date, respondent has served only six interrogatories (the subject of his Motion to Compel Responses to Interrogatories). He has not yet exhausted the allotted number of interrogatories pursuant to Rule 71(a), much less explained with sufficient detail what additional interrogatories he would serve and why they are necessary. We therefore will deny respondent’s Motion without prejudice.” Order, at pp. 2-3. (Footnote omitted).

Judge Pugh is mild but decisive. “At this stage in pretrial preparations, the parties should focus on developing the facts rather than fighting over process.” Order, at p. 3.

And without quoting me directly, she turns to my well-worn phrase “Stipulate, Don’t Capitulate.”

“…we remind the parties of the advantage of the stipulation process over other formal discovery options. To the extent that the parties seek to establish specific facts, they should concentrate on stipulations of facts or, if necessary, motions to compel stipulation under Rule 91(f). The parties need not wait until the Rule 91(f) deadline, although the stipulation sought to be compelled must be supported in any motion.” Order, at p. 3.

Stip what you can, and go try what you can’t.