Opinion
36721-21
05-14-2024
MICROSEMI CORPORATION & SUBSIDIARIES, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Emin Toro Judge
Now before the Court are three Motions to Compel the Production of Documents respondent filed on May 4, 2023 (Doc. 36), May 25, 2023 (Doc. 60), and November 16, 2023 (Doc. 214), respectively.
Background
From the time respondent filed the Motions, the parties, with assistance from the Court, have worked extensively to resolve the underlying discovery requests informally without a Court order.
Most recently, on March 21, 2023, the Court held an informal conference call with the parties to discuss, among other things, any outstanding requests for the production of documents from the Motions. As discussed during the call, petitioner was given two weeks to respond to respondent's outstanding discovery requests, and respondent was directed to inform the Court of any outstanding discovery requests once those two weeks elapsed so the Court could rule on the Motions.
On April 16, 2024, following the Court's direction, respondent filed a Status Report (Doc. 282), in which respondent reported on "the remaining outstanding items of discovery." Among other things, respondent identified 44 of his requests for the production of documents covered in the Motions that were incomplete. Respondent requested that we grant the Motions and provide petitioner with "a date certain, no later than 30 days from the date of the order, for the completion of its search for responsive documents," and order that petitioner "no later than 60 days thereafter, produce all responsive documents and a privilege log for any withheld materials."
Respondent's Status Report grouped the outstanding items of discovery under three headings: (1) "Petitioner's Search is 'Still in Progress'"; (2) "Petitioner's Search is Complete but Review Continues"; and (3)" Other Miscellaneous Issues."
On April 19, 2024, petitioner filed a Motion for Leave to File a Response to Respondent's Status Report (Doc. 283), which the Court granted by Order served on April 22, 2024. On April 30, 2024, petitioner filed a Response to Respondent's Status Report (Response) (Doc. 285) in which it provided an update on its searches for documents responsive to respondent's outstanding requests for the production of documents. Petitioner organized its report under the same headings as respondent, as set out below.
"Search Is Still in Progress" Category
Petitioner's Response observes that petitioner had previously reported to respondent that, as of April 4, 2024, "its searches for 217 of [r]espondent's 234 document requests (93%) are complete, and that its searches for the remaining 17 requests are 'Still in Progress."'
With respect to the remaining 17 requests previously classified as "Still in Progress," the Response reports as follows:
The search is complete with respect 11 of the 17 requests (i.e., Requests 7, 8, 11, 16, 17, 41, 60, 61, 67, 68, and 69). No additional documents were found with respect to respect to 8 of these requests (i.e.. Requests 7, 8,11, 16,17, 41, 60, and 61). With respect to 3 of the requests (i.e.. Requests 67, 68, and 69), petitioner anticipated "producing any remaining documents during the week beginning May 6, 2024."
The "Request" numbers referenced by this Order relate to requests for production from four different Requests for the Production of Documents underlying respondent's three Motions to Compel. Some referenced Request numbers may appear duplicative, but are to different requests for production made by respondent.
With respect to the remaining 6 requests, petitioner anticipated the search would be completed at various times: (1) the week of April 30 for Requests 5 and 7; (2) "in two to three weeks" from April 30 for Requests 9 and 10; (3) "within three to four weeks" from April 30 for Request 40, and (4) in four to six weeks for a portion of Request 62 (although the Status Report is not entirely clear on this last item). With respect to two of these requests (i.e.. Requests 5 and 7), petitioner reported that "any additional documents located will be produced during the week beginning May 6th." The Response did not provide an anticipated timeline for the production of any documents located in response to the other requests.
"Search Is Complete But Review Continues" Category
Respondent's Status Report listed 25 requests with respect to which the search had been reported as complete but production of the relevant documents was not yet done (i.e., Requests 1-3, 8-12, 6-7, 20-28, 40, 63, 41, and 48-50). With respect to these requests, petitioner's Response states it "anticipates producing additional responsive documents, if any, during the week beginning May 6th," and "thereby complete its search at that time."
"Other Miscellaneous Issues" Category
In Requests 53 and 54, respondent asked for plant tours of two of petitioner's plants. Petitioner objects to the tours on the grounds that respondent has not demonstrated that the site inspection and recording of present-day operations will lead to admissible evidence and therefore fails to meet the requirements of Rule 72(b)(2) of the Tax Court Rules of Practice and Procedure. In the alternative, even if the inspections and recording pass the threshold for relevance and probative value, petitioner objects under Rule 70(b)(1) and (c)(A) that these requests are cumulative of voluminous information and documents previously provided, transcribed interviews and a prior tour of one of the facilities by respondent's Examination agents, and will impose undue burden and expense on petitioner that outweigh the benefit to be gained by granting the request.
Discussion
In view of our prior discussions with the parties, we will consider complete any requests for the production of documents that were not addressed in respondent's Status Report.
As the background discussion outlined above makes clear, the informal discovery process has resulted in the resolution of the vast majority of the discovery issues in this case. In light of petitioner's Response, only a handful of items remain open. And, given petitioner's undertakings with respect to those items reflected in respondent's Status Report (for example, that the search for virtually all items would be complete by now and that any responsive documents for some 25 requests would be produced the week beginning May 6), the Court would expect that almost all of the requests would be closed by now.
But, should that expectation be misplaced, given the length of time it has taken petitioner to respond to respondent's requests, in the interest of moving the case forward and judicial economy, the Court is prepared to rule now on respondent's three Motions to Compel. First, we will deny respondent's Motions as moot to the extent he did not mention a specific request for the production of documents in his April 16, 2024, Status Report. Second, we will deny respondent's third Motion to Compel, filed on November 16, 2023, to the extent respondent seeks to compel site visits at petitioner's plants because they are not document requests and because we find petitioner's objections with respect to the proposed site visits persuasive. Finally, we will grant respondent's Motions as to the remaining items respondent raised in his Status Report for which petitioner has not indicated in its Response that no responsive documents exist. We will direct petitioner to produce any responsive documents within 60 days of the date of this Order. The deadline we set out here is generally more generous than the timeline to which petitioner committed itself in its Response and somewhat more expeditious than the deadlines respondent proposed in respondent's Status Report.
Upon due consideration, it is hereby
ORDERED that respondent's Motions to Compel the Production of Documents filed on May 4, 2023 (Doc. 36), May 25, 2023 (Doc. 60), and November 16, 2023 (Doc. 214), are denied as moot to the extent that they relate to any requests for the production of documents not addressed in respondent's April 16, 2024, Status Report. It is further
ORDERED that respondent's third Motion to Compel the Production of Documents, filed on November 16, 2023, is denied to the extent that respondent seeks to compel site visits at petitioner's plants. It is further
ORDERED that respondent's Motions to Compel the Production of Documents filed on May 4, 2023 (Doc. 36), May 25, 2023 (Doc. 60), and November 16, 2023 (Doc. 214), are granted as to the remaining requests for the production of documents respondent raised in his April 16, 2024, Status Report for which petitioner did not indicate in its April 30, 2024, Response that no responsive documents exist. It is further
ORDERED that petitioner shall produce any documents responsive to respondent's remaining requests for the production of documents, or a proper privilege log, no later than July 15, 2024.