Opinion
24703-21
09-06-2024
NORTH DONALD LA PROPERTY, LLC NORTH DONALD LA INVESTORS, LLC, TAX MATTERS PARTNER, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Albert G. Lauber Judge
This case is calendared for trial at an initial session of the Court beginning September 9, 2024, and a second session beginning October 7, 2024, both in New Orleans, Louisiana. The case involves a charitable contribution deduction claimed by North Donald LA Property, LLC (North Donald), for a conservation easement.
On August 30, 2024, RESPEC Company, LLC (RESPEC) filed a Motion to Quash a subpoena that petitioner issued to it on August 21, 2024. The subpoena is addressed to a "corporate representative" of RESPEC and requests that this "[d]esignated individual" appear at the trial to be questioned as a witness. RESPEC is the former employer of Edmundo Laporte, who prepared the clay mining feasibility study used to support the value claimed for the conservation easement. The subpoena indicates that the "corporate representative" would be questioned about RESPEC's work for North Donald, its experience in matters concerning clay mining and mining generally, and the activities of its former employee Edmundo Laporte in and around 2017. Both parties deposed Mr. Laporte in June 2024, and he is listed in the parties' Pretrial Memoranda as a potential trial witness.
We will grant the Motion. The Pretrial Scheduling Order in this case, served December 21, 2023, set rules about who may be called as a witness at trial. It stated that each party's pretrial memorandum "shall identify all witnesses expected to testify at trial" and that "[w]itnesses who are not so identified will not be permitted to testify . . . unless otherwise agreed to by the parties or allowed by the Court upon sufficient showing of good cause." The parties have now filed their Pretrial Memoranda. Neither party identified anyone from RESPEC, or RESPEC itself, as a trial witness.
There is no indication that it has been "agreed to by the parties" that RESPEC may be called as a witness. And we do not find "good cause" for allowing petitioner to call RESPEC at this stage. During the normal course of discovery, petitioner could have deposed a RESPEC "corporate representative" on the exact topics presented in the subpoena, but no such deposition was ever requested. Alternatively, petitioner could have elicited information on these same topics from Mr. Laporte when the parties deposed him in June. And petitioner may seek that same information from Mr. Laporte during trial, where he is expected to be called as a witness.
We also find that calling a RESPEC "corporate representative" to testify on the topics presented in the subpoena would be unduly burdensome. Rule 147(d)(3)(A)(iii) states that "the Court must quash or modify a subpoena that . . . subjects a person to undue burden," meaning a burden that outweighs the value of the subpoenaed information to the serving party. See Amazon.Com, Inc. & Subs. v. Commissioner, T.C. Memo. 2014-245, 108 T.C.M. (CCH) 245, 253-54. Factors to be considered include the relevance of the information sought, the serving party's need for that information, the breadth of the request, the time period covered by the subpoena, the particularity of the request, and the burden imposed. Id. at 253.
The subpoena requests information from a "corporate representative" about RESPEC's work for North Donald. But it was Mr. Laporte who prepared the feasibility study that North Donald hired RESPEC to complete, and it would seem obvious that he is much better positioned than a "corporate representative" to shed light on RESPEC's work for North Donald. The subpoena also requests that a RESPEC representative be prepared to testify about the company's experience in clay mining and mining generally. That information strikes us as irrelevant-what work other RESPEC employees may have performed on other projects or for other clients sheds no light on the specific clay feasibility report that Mr. Laporte prepared for North Donald in or around 2017.
By Order served June 24, 2024, we granted RESPEC's motion to quash a document subpoena issued to it by petitioner, to the extent the subpoena requested mining reports that were not highly pertinent to Mr. Laporte's 2017 feasibility report for North Donald. The subpoena currently before the Court appears to be requesting from RESPEC, in testimonial form, information that we have already ruled RESPEC is not required to supply. For this reason as well, we will grant RESPEC's Motion to Quash.
RESPEC's Motion to Quash also requests attorney's fees. We find that a fee award is not appropriate at this time.
Upon due consideration, it is
ORDERED that RESPEC's Motion for Leave to File Motion to Quash or Modify Subpoena, filed August 30, 2024, is granted. It is further
ORDERED that RESPEC's Motion to Quash or Modify Subpoena, filed August 30, 2024, is granted. It is further
ORDERED that, in addition to regular service, the Clerk of the Court shall serve a copy of this Order on RESPEC as follows:
RESPEC Company, LLC Counsel: Mr. Peter Hardy 1735 Market St., 51st Floor Philadelphia, PA 19103-7599