Opinion
13967-22
07-26-2023
MARC FORSCHINO, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
David Gustafson, Judge
Now before the Court is the Commissioner's motion to compel production of documents (Doc. 33-34), which the parties have briefed (see Docs. 45, 57, 64). We will grant the motion in part, as discussed herein. Also pending is a motion (Doc. 28) filed by the Commissioner to enforce subpoenas, as to which counsel has advised the Court that "all of the subpoenaed witnesses have responded.... Therefore, all 20 have been released from their subpoenas". We will therefore deny that motion as moot. (Also pending, but not addressed in this order, are petitioner's motion to depose (see Docs. 16, 20, 25, 27, 41, 51) and the Commissioner's motion to compel responses to interrogatories (see Docs. 35, 38, 40, 51).)
The Commissioner filed a motion to compel several categories of documents, but in his most recent supplemental filing (Doc. 64), he stated that "all remaining issues" other than those we discuss here "have been resolved", so as to those other issues the motion will be denied in part as moot. The remaining issues are as follows:
Emails
The Commissioner's document request No. 6 requested, inter alia, emails "related to any income/expenses of or related to Petitioner's bail bonds activities, for the period from December 1, 2014 through the date that Petitioner's 2016 Form 1040 was filed." The parties have agreed that petitioner shall locate responsive emails by means of electronic search terms, but there has been incomplete agreement about those terms. The Commissioner sought to oblige petitioner to propose search terms that would locate responsive messages (in addition to terms that the Commissioner had named); but petitioner resisted (reasonably, in our view), asserting that the Commissioner should propose the terms that should be searched. The current state of the issue, as described by the Commissioner, is as follows:
[I]n order to resolve this impasse, respondent proposed that two more search terms be added to the list already being used by petitioner. Those terms are "IRS" and "bond", along with the respective possessive form of both terms and the plural form of the word "bond", i.e., "bonds". Respondent also stated that if petitioner represents that all reasonable efforts have been made to produce all responsive emails after these terms are added and a set of responsive documents is produced, respondent will cede petitioner's compliance as to the email communications.... [P]etitioner's counsel declined to agree to add these search terms, expressing concern about whether additional requests beyond these added search terms would be made by respondent.
We will order that petitioner produce documents using the additional "IRS" and "bond" terms, and that absent extraordinary and unforeseeable grounds, the Commissioner may not propound additional search terms.
Captira information
The Commissioner's document request No. 7 requested information entered in and accessible through Bail Bonds Software called "Captira". Petitioner preferred that the Commissioner obtain the data directly from the Captira software vendor, which maintained it. The Commissioner was willing to do so, provided that petitioner confirmed the authenticity of the information obtasined from Captira. The Commissioner received information from Captira in two forms (Excel spreadsheet and PDF), but an apparent discrepancy in the data presented on those two forms prompted petitioner to decline, without more information, to stipulate authenticity. The Commissioner believes he has provided assurances that should enable the authentication. We will order petitioner to provide the requested Captira information unless a stipulation of authenticity can be reached.
It is
ORDERED that the Commissioner's motion (Doc. 28) to enforce subpoenas is denied as moot. It is further
ORDERED that the Commissioner motion (Doc. 33) to compel production of documents is denied in part as moot and is granted in part as follows: No later than August 25, 2023
Petitioner shall produce to the Commissioner the emails retrieved by use of respondent's terms and the additional terms "IRS" and "bond" (and the possessive and plural forms of those terms); and
Petitioner shall provide the requested Captira information, unless before that date the parties have stipulated the authenticity of the data provided to the Commissioner by Captira.
It is further
ORDERED that the motion to compel (Doc. 33) is denied without prejudice to the extent it requests preclusive sanctions for documents not produced. We would entertain such a motion at or before trial if petitioner fails to comply with our order, which we would not expect.