Opinion
25669-16 25670-16 25671-16 25672-16 22292-17 22293-17 22294-17 22295-17 19183-18 19184-18 19185-18 19186-18 19535-19 19536-19 21965-19 21966-19 13152-20 13153-20 13154-20 13155-20 31590-21 31591-21 31593-21 25718-22 25720-22.
05-31-2024
SKYLAB SERIES OF FORTRESS INSURANCE, LLC, ET AL., Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Ronald L. Buch Judge
These cases are calendared for trial beginning on February 10, 2025, at a special session of the Court in Phoenix, Arizona. On April 3, 2024, the Commissioner filed a Motion to Compel Production of Documents. The Court ordered that petitioners file a response to the Commissioner's motion. On April 19, 2024, petitioners filed a response principally indicating that they have complied with Commissioner's request for production of documents while preserving objections as to burden. As to four requests, petitioners offered only objections, numbers 23, 24, 26, and 27. Requests 23 and 24 request documents that petitioners intend to use at trial, and petitioners object that this request circumvents the Court's scheduling order. Requests 26 and 27 relate to any joint defense or similar arrangements to which petitioners raise both relevancy and privilege objections. We sustain petitioners' objections to requests 26 and 27, in that on their face, neither of those requests appears to be reasonably calculated to lead to the discovery of admissible evidence. See Rule 70((b)(2).
In contrast, we will order petitioners to supplement their responses to requests 23 and 24. The scheduling order in this case contains several deadlines for exchanging information. For purposes of the pending motion, we will focus on the deadline to exchange documents and materials to be offered as evidence at trial. That deadline is January 10, 2025. But nothing in the Court's scheduling order prohibits a party from requesting specific information before that date. We interpret the Commissioner's requests 23 and 24 as requesting documents that petitioners, at this time, anticipate using at trial. This request is akin to Federal Rule of Civil Procedure Rule 26(c), which requires parties to make initial disclosures of documents they may use to support their claims.
In addition to ordering petitioners to supplement their responses to requests 23 and 24, we offer this note of caution to both parties. If a party seeks to use at trial evidence that was responsive to a discovery request but was not produced, the Court may exclude the evidence for having not been timely produced. With that note, it is
ORDERED that the Commissioner's Motion to Compel Production of Documents filed April 3, 2024, is granted in that, by June 28, 2024, petitioners shall supplement their responses to requests 23 and 24 to include any documents they presently intend to use at trial but have not otherwise exchanged.