The Branerton ideal, that “(T)he discovery procedures should be used only after the parties have made reasonable informal efforts to obtain needed information voluntarily,” has been so thoroughly ignored, and when not ignored abused, that it might as well be put to rest.

Judge Travis A. (“Tag”) Greaves finds himself refereeing yet another interrogatories-vs- documents jumpball in J.G. Boswell Company & Subsidiaries, Docket No. 2408-19, filed 4/11/25.

The Boswells want IRS’ legal research, which is a nonstarter, but they do get all the facts upon which IRS relies. Research notes are attorney work product. Judge Tag Greaves finds a lot of IRS’ responses are sufficient.

But IRS is offside in demanding documents, which the Boswells are hunting up and turning over as found. Judge Tag Greaves lets them hunt.

“Respondent’s motion is premature at this point. We expect the parties to work cooperatively in preparing this case for trial. Respondent’s requests call for the production of a voluminous set of documents. Petitioner has indicated its willingness to produce the requested documents and represents that it has produced the relevant documents that it has located. Rather than working collaboratively with petitioner\ to establish a schedule for a rolling production, respondent filed the motion to compel. Given petitioner’s representation and willingness to produce the documents, we will deny respondent’s motion and order the parties to work cooperatively on setting a production schedule for these documents.” Oder, at p. 5.

Play nice, kids; but Judge Tag Greaves won’t countenance stalling.

“We note that petitioner may not delay production of these documents until the production date set forth in the pretrial scheduling order for the exchange of exhibits. That deadline relates to the exchange of documents for trial and not the exchange of discovery. Petitioner need not however produce documents related to expert reports until the deadlines set forth in the pretrial scheduling order.” Order, at pp. 5-6.

This blogpost is, as all my blogposts are, an abbreviation. Those interested should read the whole order.

As I read the order, I marveled at this sentence in the “Background.” “The parties have been engaging in informal discovery for several years.” Order, at p.1. As I read what the parties are seeking now, after “several years” of informal discovery, I was reminded of the famous question Sherlock Holmes asked the young Police Inspector Stanley Hopkins: “What did you do, Hopkins, after you had made certain that you had made certain of nothing?”

Hopkins didn’t answer “Why, make a motion in Tax Court, of course.”