Opinion
16017-2115631-22
08-16-2023
AMGEN INC. & SUBSIDIARIES, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Travis A. Greaves Judge
On May 2, 2023, respondent filed a Motion to Amend Order (Motion to Amend) requesting that the Court revise the pretrial scheduling Order issued on February 10, 2023. On June 14, 2023, petitioner filed an Opposition to the Motion to Amend.
Background
On February 1, 2023, the parties filed a Joint Motion to Set Pretrial Scheduling Order requesting that the Court issue an order reflecting a schedule for pretrial activities in these cases. On February 10, 2023, the Court granted the parties' Motion to Set Pretrial Scheduling Order and adopted the parties' proposed pretrial schedule (Scheduling Order). The Scheduling Order provides in part that:
• May 2, 2023: Last date for serving notices of depositions to party and non-party fact witnesses with consent of the parties under Rule 74(b) and unagreed non-party fact witnesses without consent of the parties under Rule 74(c)(2);
• May 2, 2023: Last date to file a motion to take the deposition of party fact witnesses without consent of the parties under Rule 74(c)(3); and
• May 17, 2023: Last date for the non-moving party to file an objection to a motion or notice to take the deposition of a party or non-party fact witness without consent of the parties.
All Rule references are to the Tax Court Rules of Practice and Procedure.
On March 21, 2023, respondent filed a Motion to Compel Responses to Interrogatories (Motion to Compel). In the Motion to Compel respondent sought to compel petitioner to identify individuals that would likely have discoverable information. Respondent's Motion to Amend requests that we extend the dates set forth in Paragraphs 5 and 6 of the Scheduling Order.
In the Motion to Amend respondent requests that the deadlines be extended to a date that is two weeks after the later of two alternative outcomes: (1) the date the Court denies respondent's Motion to Compel or (2) petitioner is ordered to comply with any Court order concerning respondent's Motion to Compel. Respondent also requested a correlating extension of the date petitioner would be allowed to make any objections to the foregoing. On May 3, 2023, one day after respondent filed the Motion to Amend, this Court denied without prejudice respondent's Motion to Compel. Accordingly, we consider the first of respondent's two alternative requests mentioned above.
Petitioner argues that respondent's Motion to Amend is moot and that the dates of respondent's requested extensions have already expired. We disagree and find these arguments unavailing. While petitioner maintains that the Motion to Amend is explicitly linked to us granting the Motion to Compel, respondent requested extensions whether we granted or denied the Motion to Compel. Respondent's requested extension dates expired due to the Court allowing petitioner the opportunity to respond to respondent's Motion to Compel.
Accordingly, it is
ORDERED that respondent's Motion to Amend Order filed on May 2, 2023, is granted. It is further
ORDERED that the pretrial schedule set forth in the Court's Order served February 10, 2023, is modified as follows, but in all other respects remains in full force and effect:
Paragraph 5.
August 30, 2023: Last date for serving notices of depositions to additional party and non-party fact witnesses with consent of the parties under Rule 74(b) and unagreed non-party fact witnesses without consent of the parties under Rule 74(c)(2). Respondent is entitled to take up to eight fact witness depositions. Petitioner intends to seek depositions and will work with respondent to try to reach agreement. The parties may agree to additional depositions for respondent and depositions for petitioner but, if agreement cannot be reached, a party may seek depositions under Rule 74(c). The parties retain the right to object to the taking of a deposition of any specific fact witness.
Paragraph 6.
August 30, 2023: Last date to file a motion to take the deposition of party fact witnesses without consent of the parties under Rule 74(c)(3).
Paragraph 8.
September 14, 2023: Last date for the non-moving party to file an objection to a motion or notice to take the deposition of a party or non-party fact witness without consent of the parties.