To any who object that I put out too many discovery blogposts, that’s what takes up the greatest number of Tax Court Order pages beyond routine pay-and-amend or tossed-for-lateness. The CLE merchants who peddled “win your case at discovery” the last thirty (count ’em, thirty) or so years have swept the board. Pretrial faceoffs are the game; if the game itself takes place at all, it’s an afterthought.

By way of illustration of the foregoing (as my expensive former colleagues say), here’s Judge Rose E. (“Cracklin'”) Jenkins unloading eight (count ’em, eight) pages anent document production in GO Management Inc., et al., Docket No. 14012-21, filed 3/17/26, another microcaptivity dodge. 

Most of the Order deals with case-specifics, but there is one general interest point. I’ll let Judge Jenkins judge–‘splain.

“…despite respondent’s request for documents to be produced in their native format, each document produced was produced as a PDF file. Although referenced, respondent’s electronically stored information provided previously in connection with informal discovery requests, and respondent provided them with a follow-up request to provide the documents in accordance with such specifications…. Respondent also states that petitioners at no point raised concerns about the omission of the specifications. The Motion Response states that petitioners provided documents in the format in which they were maintained and, in any event, that respondent’s failure to include the ESI specifications with the Request originally was determinative.

“Respondent did make an ESI specifications request in the Request, and petitioners did not, in the Request Response, raise any specific objections to that request, as instructed in Rule 72(b)(2). Even in the Motion Response, petitioners do not raise substantive objections to the ESI specifications but simply argue that they did produce them in the format in which they were stored, which, as noted in the Reply, is the requirement under Rule 72(b)(3)(B) only if a specific form has not been requested. Furthermore, as respondent also points out in the Reply, it is dubious that all of the items produced, e.g., emails and Microsoft Excel files, were stored in PDF format. Accordingly, the Court will order petitioners to produce ESI according to the ESI specifications referenced in the Request.” Order, at. p. 2.

Scrub the metadata is an obvious desideratum. PDF does that. Taishoff says Judge Jenkins is right to call it “dubious” that documents subject, or potentially subject, to a litigation hold would be stored in PDF only. Once preserved in PDF, an essential element of the original is gone. Spoliation of evidence, maybe so? I do hope none of the aforementioned merchants are making this suggestion.