Judge Rose E. (“Cracklin'”) Jenkins is circumspect, denying trusty attorneys for GO Risk Management, Inc., et al., Docket No. 14012-21, filed 5/12/26, a deposition of IRS’ expert witnesses, on the grounds that they failed to give advance notice to IRS’ counsel and the experts that they would seek deposition, and that trusty attorneys did not “elaborate on the other means considered or attempted” to show why the information sought could not be otherwise obtained.

They seek to depose Ms. M. (name omitted), to elicit “the bases of her opinions, specifically mentioning lack of specificity in her expert report concerning which documents she reviewed and how she selected samples of documents to review. Their motion also indicates that they seek to clarify the assumptions underlying Ms. M’s current opinions and the circumstances under which they might change. And petitioners raise questions about her actuarial judgment that they seek to answer. They state that the information sought is not readily available through the report alone, without addressing any other possible means of obtaining the information.” Order, at p. 1.

As for Mr. C (name omitted), they wish to clarify “the facts and data underlying his opinion, understanding his analysis, and exploring his knowledge, skill, experience, training, and education. They elaborate that his CV is unclear about the nature of his roles and responsibilities and how they qualify him as an expert or provide sufficient detail about his captive insurance to identify potential conflicts. Petitioners further argue that Mr. C’s report contains no information about the documents reviewed and question whether Mr. C drew conclusions from the absence of documents. And they argue that the report doesn’t identify sources, standards, and authorities for what Mr. C characterizes as standard practices. Petitioners also seek to determine whether alternative assumptions or comparisons would affect Mr. C’s conclusions. And they seek to clarify any quantitative analysis undertaken by Mr. C and the analytical framework used in reaching the conclusions. Petitioners represent that the information sought is not available by any other means, although they do not elaborate on the other means considered or attempted.” Order, at p. 2.

Taishoff says the point is that what trusty attorneys seek is a substitute for voir dire at qualification and cross-examination when the expert’s written report goes in as the expert’s direct testimony.  

Yet again I quote the immortal words of Colonel John Henry (“Wiggy”) Wigmore: “Cross-examination is beyond any doubt the greatest legal engine ever invented for the discovery of truth.”

And I recall from the days of my youth, when our New York Civil Practice Law and Rules were The New Big Thing, the adenoidal snarl from the cigar-laden lips of Old Greyback From Wayback: “Depositions? Any lawyer who needs a deposition needs a nursemaid. You sweat your witnesses hard before trial, boy, and sweat their witnesses hard at trial. Depositions? Bah! What’s the law comin’ to?”