Opinion
1829-17
10-21-2021
Michael A. Fiumara, Petitioner v. Commissioner of Internal Revenue, Respondent
ORDER
PETER J. PANUTHOS SPECIAL TRIAL JUDGE
On September 20, 2021, a conference call was held among the Court and the parties to discuss the proposed trial schedule in this matter. On September 21, 2021, the Court issued an Order requiring the parties to file joint or separate status report(s) on or before October 4, 2021, to include a proposed trial date and proposed pretrial schedule. On October 4, 2021, the parties' filed a joint status report. In the status report, the parties propose to calendar this case for a special trial session beginning the week of April 25, 2022, in San Francisco, California and they set forth a proposed pretrial schedule.
The Court will plan on calendaring this case for a 1-week special session commencing April 25, 2022. A complete pretrial schedule that incorporates certain of the parties' suggestions is set forth herein and shall govern the pretrial preparation for this case. A separate Order will be issued in the near future setting this matter for trial at a special session in San Francisco, California.
Upon due consideration and for cause, it is
ORDERED that the following procedures and schedule shall govern the pretrial preparation of this case:
1. Discovery.
(a) The parties shall attempt to attain the objectives of discovery through informal consultation or communication before utilizing the discovery procedures (formal discovery) provided in this Court's Rules of Practice and Procedure. This Court expects the parties to minimize discovery disputes whenever possible. No 1 motion to compel discovery pursuant to Tax Court Rule 104 shall be filed unless and until the parties have met in an effort to resolve the dispute and, if the dispute remains unresolved following such meeting, have had a conference call with the Court to discuss the dispute.
(b) Each party shall exchange with the other party a written statement that identifies by name any potential witness to be called as part of the party's case-in-chief, and sets contact information for such witness, to be due on or before February 1, 2022.
(c) All interrogatories (Rule 71), requests for production of documents (Rule 72), and requests for admissions (Rule 90) shall be served on or before a date that will enable any required response to be due on or before February 4, 2022.
(d) All other motions regarding fact discovery, including (i) motions to compel responses to interrogatories and requests for production and (ii) motions to review the sufficiency of the answers or objections to a request for admissions to be due on or before March 11, 2022.
(e) On or before March 11, 2022, the parties shall serve notices of deposition of party and non-party fact witnesses, if any. All depositions of fact witnesses shall be completed no later than April 4, 2022, unless a motion to compel answers to specific questions has been filed by that date.
2. Summary Judgment. Any and all motions for summary judgment, partial summary judgment, or any other dispositive motions shall be filed and served on the opposing party on or before February 25, 2022.
3. Stipulations. The parties shall comply with Rule 91 except as modified by this Order and shall stipulate, to the fullest extent to which complete or qualified agreement can or fairly should be reached, all matters not privileged which are relevant to the pending case, regardless of whether such matters involve fact or opinion or the application of law to fact. Although the Court expects the stipulations to be comprehensive, the parties may conduct the stipulation process in a manner reasonably calculated to result in one or more stipulations of fact that together shall constitute a comprehensive stipulations of facts for purposes of this case. One or more executed stipulation of facts, together with exhibits, shall be submitted directly to the undersigned on or before April 11, 2022. This paragraph does not preclude the subsequent filing of supplemental stipulations of facts. Any motion to compel stipulations pursuant to Rule 91(f) shall be filed on or before March 11, 2022. 2
4. Expert Witnesses. The parties shall abide by the procedures and deadlines regarding expert witnesses set forth herein. The parties are reminded that any expert witness testimony is admissible only to the extent that it assists the Court in resolving one or more matters at issue in this case. The Court will consider excluding an expert witness' testimony, including but not limited to the expert's report, if the testimony is not helpful, or is so argumentative and adversarial that the expert witness appears to be an advocate for the party offering the witness. An expert witness's testimony may be excluded for failure to comply with the provisions of Rule 143(g) (as modified by this Order) and for failure to comply with this Order.
The following procedures and deadlines apply to expert witnesses:
(a) On or before February 1, 2022, each party shall exchange with the other party a written statement that identifies by name any potential expert witness to be called as part of the party's case-in-chief, and sets forth the expert witness' qualifications and a brief summary of the expected testimony.
(b) On or before March 25, 2022, the parties shall exchange and submit directly to the undersigned all expert witness reports, prepared in accordance with Rule 143(g), which the parties intend to introduce as part of their cases-in-chief. A party is prohibited from calling any expert witness as part of its case-in-chief if that party has not exchanged and submitted an expert witness report in accordance with this subparagraph.
(c) On or before April 4, 2022, the parties shall provide a written statement that identifies by name any potential expert witness to be called as a rebuttal expert witness and sets forth the rebuttal expert witness' qualifications and a brief summary of the expected testimony. A party's rebuttal expert witness need not be the same expert witness called to testify in that party's case-in-chief.
(d) On or before April 11, 2022, the parties shall exchange and submit directly to the undersigned all rebuttal expert witness reports. No party shall submit or exchange a rebuttal expert witness report for presentation at trial, unless that party previously exchanged an initial expert report in accordance with subparagraph (b) above. The parties shall also (1) exchange all documents and materials (other than marked up drafts of expert reports, comments on such drafts or other matters or communications protected from discovery by Fed.R.Civ.P. 26(b)) relied on by each expert to prepare his/her rebuttal report that have not already been exchanged, or that are not otherwise available commercially to the other party or are in the public domain, and (2) identify in writing and exchange all3
documents provided by a party or counsel to each rebuttal expert witness (other than marked up drafts of expert reports, comments on such drafts or other matters or communications protected from discovery by Fed.R.Civ.P. 26(b)) that have not previously been exchanged.
5. Pretrial Memoranda. On or before April 11, 2022, each party shall submit to the undersigned and serve on the other party a pretrial memorandum setting forth the issues to be tried, a summary of the pertinent facts and the applicable law, and the evidentiary issues, if any, expected to arise at trial, as well as any other significant problem on which a ruling may be required. The pretrial memoranda shall also identify all witnesses expected to testify at trial, including expert witnesses, and shall set forth a summary of each witnesses anticipated testimony. Witnesses who are not identified will not be permitted to testify at the trial without leave of Court for good cause shown.
6. Document Identification and Exchange. On or before April 11, 2022, all documents and materials to be offered as evidence at trial (except written materials to be used solely for impeachment) that are not stipulated shall be identified in writing and exchanged by the parties. Any written materials not so identified and exchanged will not be admitted into evidence unless otherwise agreed to by the parties or allowed by the Court for good cause shown.
7. Exchange of Demonstrative Materials. On or before April 11, 2022, the parties shall exchange with each other and shall provide to the undersigned any charts, diagrams or other demonstrative materials prepared for purposes of the trial that they intend to use in connection with their respective cases-in-chief. Nothing in this paragraph, however, shall preclude either party from presenting such additional or revised charts, diagrams or other demonstrative material as the circumstances at trial may warrant as long as the party offering the material has provided a copy of the material to the other party and to the Court at least 24 hours before the use of such material at trial.
8. Exchange of Business Record Declarations. On or before April 11, 2022, the parties shall exchange with each other and shall provide to the undersigned a written statement that identifies by name any declarants with regard to business record declarations. On or before April 11, 2022, the parties shall exchange with each other and shall provide to the undersigned any business record declarations. 4
9. Motions in Limine. On or before April 11, 2022, the parties shall file any pretrial motions regarding evidentiary issues or witness issues, including motions in limine. On or before April 18, 2022, the parties shall file responses to any pretrial motions regarding evidentiary issues or witness issues, including motions in limine. 5