Opinion
12456-20L
02-15-2023
RICHARD HERBERT FRIEDBERG, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Christian N. Weiler Judge
On February 7, 2023, petitioner moved pursuant to Rule 74(c)(3) that the Court enter an order compelling Regina D. Walker, Sean P. Franklin, Carol Holland, J. Picardo, John Harrison, William T. Maule, and "Internal Revenue Service Employees not known at this time" to appear and testify at a deposition for discovery purposes with respect to specific matters relating to the deficiency and efficacy of respondent's procedures regarding his conclusion that petitioner owes additional tax and associated penalties for calendar year 2010.
Nonconsensual depositions pursuant to Rule 74(c)(3) are an extraordinary method of discovery that can only be taken pursuant to an order from our Court. These depositions are available only where a party or nonparty witness can give testimony that is discoverable within the meaning of Rule 70(b) and where such testimony practicably cannot be obtained through informal consultation or communication under Rule 70(a)(1), interrogatories under Rule 71, requests for production of documents under Rule 72, or consensual depositions under Rule 74(b). The decision to require an individual to submit to a nonconsensual discovery deposition is a matter that is solely within the discretion of the presiding judge. In addition to the essential criteria that the moving party must show under Rule 74(c), the Court weighs various factors to determine whether a particular case warrants an extraordinary discovery method. See K & M La Botica Pharmacy, Inc. v. Commissioner, T.C. Memo. 2001-33, 2001 WL 117701.
Petitioner has not shown to our satisfaction why he needs to conduct this type of discovery (i.e., the taking of nonconsensual depositions) and why the information sought cannot be obtained through other available methods of discovery which are less burdensome, less expensive, and more convenient. On that point, petitioner has not informed the Court of any informal or formal attempts made to obtain the information sought from the individuals listed in his motion.
Upon due consideration of the foregoing, it is 1
ORDERED that petitioner's Motion to Take Deposition Pursuant to Rule 74(c) (3), filed on February 7, 2023, is denied without prejudice. 2