Friday, April 25, 2014

Tax Court Issues Second Related Discovery Order

Excerpts of the Tax Court's Decision follow:

Popovich maintains that by not producing the original documents he requested during the deposition, the Department has failed to cooperate in discovery in contravention of Trial Rule 37(A)(2). (See Pet’r Sec. Mot. Compel at 5.) Popovich therefore requests that the Court order the Department to produce the requested originals for use at the deposition.

Indiana Trial Rule 26(F) requires a party seeking to compel discovery to attempt to resolve the discovery dispute before seeking Court intervention and to document its attempts in the motion. See T.R. 26(F); see also generally Walker v. McCrea, 725 N.E.2d 526, 531 (Ind. Ct. App. 2000). The failure to comply with either of these requirements may result in a dismissal of the party’s motion. See T.R. 26(F).

Popovich’s Motion and his oral argument focus on the Department’s purported “bad acts” before and after the deposition. (See Pet’r Sec. Mot. Compel; Pet’r Reply; Hr’g Tr. at 84-93.) This litany of bad acts, however, did not document Popovich’s informal attempts to resolve the discovery dispute as required by Trial Rule 26(F).

Nonetheless, Popovich’s Motion did report that he sent an email modifying the number of originals requested as an accommodation. This alone, however, is an insufficient showing under Trial Rule 26(F) because the Rule indicates that the moving party must attempt to reach an agreement with the opposing attorneys, not just send a “message in a bottle” communication. Although Popovich’s Motion reported that an email was sent, the Motion did not state whether this communication hit its mark to indicate a back and forth exchange had occurred. Nor did the Motion report that the parties had any discussion to resolve the impasse after Popovich adjourned the deposition, even though the Department produced an original document that was material to one of Popovich’s claims immediately thereafter. Instead, Popovich’s Motion merely reported that he filed his Second Motion to Compel about two weeks later. Accordingly, Popovich failed to provide the required showing in his Motion to meet the requirements of Trial Rule 26(F).

“The vital resource of [this Court’s] time should be spent on discovery issues rarely and sparingly.” Howard v. Dravet, 813 N.E.2d 1217, 1223 (Ind. Ct. App. 2004). The expectation that the movant will make a reasonable effort to resolve discovery disputes with the opposing party before moving to enforce, modify, or limit discovery holds true even in instances where, like here, the entire discovery process has been imbued with acrimony. See n.1. Therefore, for all of the above-stated reasons, the Court DENIES Popovich’s Second Motion to Compel. Consistent with the requirements of Indiana Trial Rule 37(A)(4), the Court will schedule a hearing regarding the propriety of an award of expenses by separate order.