Opinion
17483-21
04-24-2024
ARDAN HOLDINGS, LLC ARDAN INVESTORS, LLC, TAX MATTERS PARTNER Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Mark V. Holmes, Judge
This case arises from a contested donation of a conservation easement and was tried at a special session of the Court starting on February 26, 2024, in Columbia, South Carolina. Trial is set to resume and end in Atlanta the week of April 29, 2024.
On April 19, 2024, respondent moved to enforce a subpoena against one of respondent's witnesses. On April 23, 2024, petitioner moved to quash or modify a subpoena against one of its consulting experts.
The problem is that the witness is the same person, Mr. David Dye. To sort this out, we had a phone call this week with counsel for respondent, petitioner, and Mr. Dye. The documents that respondent seeks are described in an attachment to his subpoena duces tecum and are all generally discoverable. As petitioner points out, however, many of the responsive documents were given to Mr. Dye by petitioner's counsel in his capacity as a consulting expert. Rule 70(c)(4)(C) bans the discovery of facts known or opinions held by consulting experts.
After discussion of exactly what respondent is seeking that is discoverable within this constraint, it is
ORDERED that respondent's April 19, 2024 motion is granted to the extent it seeks:
• any document Mr. Dye currently possesses or controls that is described in any paragraph of the attachment to respondent's subpoena duces tecum that Mr. Dye possessed or controlled before July 13, 2022 (when
he was retained as a consulting expert);
• any transaction documents within Mr. Dye's possession or control relating to transactions to secure his interest in Savannah Valley, LLC;
• any operating agreement or amendment to an operating agreement between Mr. Dye and Strategic Seek One, LLC, and any operating agreement or amendment to an operating agreement between Granite Quarry and Strategic Seek One, LLC; and
• any invoices from Mr. Dye to petitioner's counsel for compensation in his capacity as an expert witness that have not already been provided to respondent.
It is also ORDERED that respondent's April 19, 2024 motion is otherwise denied. It is also
ORDERED that petitioner's April 23, 2024 motion is granted in part by limiting the production required to those items described in the first decretal paragraph above, but otherwise denied.