A phrase grown popular in political circles gives me a headline for yet another discovery dispute. Judge James S. (“Big Jim”) Halpern takes on that role in Beveled Edge Insurance Company, Inc., et al., Docket No. 19821-16, filed 4/4/25, when dealing with “Petitioners’ Motion for Fair Trial Via Due Process Equal Application of Tax Court Rules (Motion).” Order, at p. 1.

Petitioners were represented by an attorney who went private from OCC, where he had contact with  this case, and was thus conflicted out.  IRS sought to toss his firm as well, but Judge Big Jim wasn’t buying. He granted a protective order, letting IRS refuse to respond to 204 (count ’em, 204) informal discovery requests said attorney made before his prior involvement was noted.

The Beveleds said they were going to the bullpen, but new counsel would need to explore some of the 204 to prep. Judge Big Jim said all he ordered was that the parties follow Rule 70(a), ask whatever they wanted, and object if they had valid grounds.

In from the bullpen comes a well-known firm, and unleashes said Motion, arguing: ” [A]s the most fundamental U.S. CONST. amend. V due process, both parties are entitled to a fair trial and a fair trial requires equal treatment of both parties on a level playing field. And that includes equal access by both parties to the discovery protections and other due process prescribed by the TAX COURT RULES.” Order, at p. 3.

I can’t say this drafting covers the firm in glory, but Judge Big Jim lets that pass. IRS offers only the administrative record, but that isn’t good enough.

“We believe that respondent’s concerns of taint from Mr, K’s unfortunate involvement in these cases can be addressed by respondent’s making known to the Court his taint-based objections to any enforcement action brought by petitioners with respect to discovery.” Order, at p. 4. (Name omitted).

So go do discovery, subject to IRS’ objections based on taint.

Takeaway 1- Conflicts checks are not just matters of form. Lateral hires carry extra risks.

Takeaway 2- “Win your case at discovery” CLEs need pull-dates, like groceries.