Opinion
8359-23
08-23-2024
CONRAD INDUSTRIES, INC. AND SUBSIDIARIES, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Cary Douglas Pugh Judge
Currently pending before the Court are respondent's Motion to Compel Production of Documents, filed May 29, 2024, Motion to Compel Production of Documents, filed July 8, 2024, Motion for Leave to Serve Additional Interrogatories, filed July 9, 2024, and Motion to Compel Responses to Interrogatories, filed August 12, 2024. Additionally, we ordered the parties to file a joint status report proposing pretrial discovery deadlines with June 2, 2025, as the provisional trial date. On July 1, 2024, the parties filed separate status reports proposing only minor differences in certain deadlines.
Background
On March 8, 2024, respondent served petitioner with an initial informal discovery request pursuant to Branerton Corp. v. Commissioner, 61 T.C. 691 (1974). Petitioner responded to the Branerton request on April 5, 2024, and produced a volume of documents on April 12, 2024. On April 24, 2024, respondent served petitioner with a second informal discovery request, as well as the First Request for Production of Documents. On May 29, 2024, respondent filed his first Motion to Compel Production of Documents. On May 31, 2024, he served petitioner with a Second Request for Production of Documents.
On July 1, 2024, petitioner filed a response to respondent's first Motion to Compel Production of Documents, requesting additional time to satisfy the requests, and noting that it expected to "be able to produce the documents . . . by July 19, 2024." On July 8, 2024, respondent filed his second Motion to Compel Production of Documents. He served formal interrogatories on petitioner the same day. On July 9, 2024, respondent filed his Motion for Leave to Serve Additional Interrogatories.
On July 10, 2024, we held a conference call with the parties (July 10 conference call) and stated that we would wait to rule on respondent's Motions pending status reports from the parties to be filed after July 22, 2024. On July 11, 2024, we ordered petitioner to respond to the second Motion to Compel and the Motion for Leave to Serve Additional Interrogatories.
On August 9, 2024, petitioner filed its response to the second Motion to Compel, fashioned as the First Amended Response to Motion to Compel Production of Documents. It again asked that we deny respondent's Motion to Compel as moot, summarizing its responses to discovery requests to date and indicating that in its view, only one request was outstanding, and the documents responsive to it would be produced by August 16, 2024. On the same day, petitioner filed a response to respondent's Motion for Leave to Serve Additional Interrogatories, contending that respondent had not established adequate reasons for increasing the number of interrogatories. Petitioner further noted that it partially responded to the pending formal interrogatories on August 7, 2024, and had requested until August 15, 2024, to provide complete responses.
On August 12, 2024, respondent filed his Motion to Compel Responses to Interrogatories.
Respondent has not filed an update regarding petitioner's compliance with the document requests underlying his first Motion to Compel, as was discussed during our July 10 conference call, but in email correspondence attached to petitioner's response to his second Motion to Compel, he noted the Court's pending request for an update.
Discussion
Petitioner argues that it has produced a substantial volume of documents, including in the weeks since our July 10 conference call, but we still do not know which of respondent's document requests have been satisfied, and which remain outstanding. And we need to hear from respondent before we can rule on the Motions to Compel (whether they are moot or whether petitioner should be ordered to respond further).
Respondent's Motion for Leave to Serve Additional Interrogatories appears to be premature. He claims that additional interrogatories are justified by perceived inadequacies in petitioner's efforts during the informal discovery process. But to date, respondent has served only six interrogatories (the subject of his Motion to Compel Responses to Interrogatories). He has not yet exhausted the allotted number of interrogatories pursuant to Rule 71(a), much less explained with sufficient detail what additional interrogatories he would serve and why they are necessary. We therefore will deny respondent's Motion without prejudice.
Unless otherwise indicated, Rule references are to the Tax Court Rules of Practice and Procedure.
At this stage in pretrial preparations, the parties should focus on developing the facts rather than fighting over process. In that regard, we remind the parties of the advantage of the stipulation process over other formal discovery options. See Branerton, 61 T.C. at 692. To the extent that the parties seek to establish specific facts, they should concentrate on stipulations of facts or, if necessary, motions to compel stipulation under Rule 91(f). The parties need not wait until the Rule 91(f) deadline, although the stipulation sought to be compelled must be supported in any motion.
Finally, to facilitate trial preparation, we will set out pretrial deadlines working from the agreed upon tentative trial date of June 2, 2025. These deadlines do not include dates for exchange of exhibits that are not stipulated, motions in limine or pretrial memoranda. We will set deadlines for those when we finalize the trial date.
To reflect the foregoing, it is
ORDERED that respondent's Motion for Leave to Serve Additional Interrogatories, filed July 9, 2024, is denied without prejudice. It is further
ORDERED that, on or before August 30, 2024, petitioner shall respond to respondent's Motion to Compel Responses to Interrogatories. It is further
ORDERED that respondent shall, on or before September 6, 2024, file a report advising the Court on the status of the discovery issues currently before the Court, including what issues remain outstanding, if any. It is further
ORDERED that the parties are directed to adhere to the following pretrial schedule:
(a) October 21, 2024: Any opening expert witness report, prepared in accordance with Rule 143(g), shall be submitted to the Court and electronically served on the opposing party by October 21, 2024. The parties shall at the same time identify in writing and exchange all documents, except those stipulated or previously exchanged by the parties, relied upon by an expert in the preparation of his or her report. The parties are prohibited from calling any expert witness as part of their cases in chief for whom such a report has not been submitted by October 21, 2024.
(b) November 12, 2024: Any rebuttal expert witness report, prepared in accordance with Rule 143(g), shall be submitted to the Court and electronically served on the opposing party. The parties shall at the same
time identify in writing and exchange all documents, except those stipulated or previously exchanged by the parties, relied upon by an expert in the preparation of his or her report. The parties are prohibited from calling any expert witness on rebuttal for whom a rebuttal report has not been submitted by November 11, 2024.
(c) November 18, 2024: The parties shall serve all notices for depositions to be taken pursuant to Rules 74(b) and (c), file all motions to take the deposition of a party pursuant to Rule 74(c)(3)(A), file all motions to take the deposition of an expert witness pursuant to Rule 74(c)(4)(B), and file all stipulations for taking of a deposition with consent pursuant to Rule 74(b), by November 18, 2024.
(d) December 16, 2024: All motions to compel the taking of a deposition pursuant to Rules 74(b)(3) and (c)(2) shall be filed by the party seeking the deposition by December 16, 2024, and all motions to compel answers to questions posed at a deposition in progress must be filed within seven days after the refusal to answer occurred.
(e) January 10, 2025: The parties shall serve all requests for production of documents and interrogatories by January 10, 2025.
(f) January 27, 2025: The parties shall serve all requests for admissions by January 27, 2025.
(g) March 7, 2025: Any motion to compel stipulation pursuant to Rule 91(f) shall be filed by March 7, 2025.
(h) March 7, 2025: All motions to compel responses to discovery or to review the sufficiency of answers or objections to requests for admission, as well as any motions for sanctions regarding discovery, shall be filed and served on the opposing party by March 7, 2025.
(i) March 7, 2025: Any motion for a document subpoena hearing shall be filed by March 7, 2025.
(j) March 21, 2025: All motions for summary judgment, partial summary judgment, or any other dispositive motions shall be filed and served on the opposing party by March 21, 2025.