PORTFOLIO

Obtaining Information from the Government in Discovery and Disclosure-Related Damages Actions Against the Government (Portfolio 626)

Be a trusted advisor to your clients with Bloomberg BNA Tax Portfolios. This portfolio discusses the scope of discovery and the discovery tools available to a taxpayer in the context of civil tax litigation in the federal district courts, the U.S. Tax Court, and the U.S. Court of Federal Claims. 

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DESCRIPTION

Obtaining Information from the Government in Discovery and Disclosure – Related Damages Actions Against the Government discusses the scope of discovery and the discovery tools available to a taxpayer in the context of civil tax litigation in the federal district courts, the U.S. Tax Court, and the U.S. Court of Federal Claims.  

Specifically, it outlines the government defenses to discovery, including the attorney-client privilege, attorney work product doctrine and deliberative process as well as damages actions that can be brought against the government to remedy unlawful disclosures and other violations of taxpayer privacy.

The discovery for specific actions or issues, and internal limitations on IRS responses to discovery is also discussed.

 


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AUTHORS

Bloomberg BNA Portfolios are written by leading tax professionals who set the standard as leaders in their fields. The Obtaining Information from the Government in Discovery and Disclosure – Related Damages Actions Against the Government portfolio was authored by the following attorneys.  

 

CHRISTOPHER P. MURPHY

Christopher P. Murphy, B.A received his J.D. from The American University Washington College of Law. He is a member of the American Bar Association, Section of Taxation and bars of New York and the District of Columbia. He held the position of associate at McKee Nelson LLP from2006–2009.

 

 

Credentials /

 

Christopher P. Murphy, B.A.: Boston College (2001); J.D., The American University Washington College of Law (2006); member, American Bar Association, Section of Taxation, bars of New York and the District of Columbia; associate, McKee Nelson LLP, 2006–2009


NEERAJ D. PAI

Neeraj D. Pai, B.S. obtained his J.D. from Harvard Law School. He was an associate, at Gibson, Dunn & Crutcher from1999–2001 and an associate at McKee Nelson LLP from 2001–2008Neeraj is also the co-author of Obtaining Information from the Government — Disclosure Statutes (Portfolio 625). He is a member of the bars of Pennsylvania and the District of Columbia.

 

Credentials / 

Neeraj D. Pai, B.S.:Villanova University (1996); J.D. Harvard Law School (1999); associate, Gibson, Dunn & Crutcher, 1999–2001; associate, McKee Nelson LLP, 2001–2008; co-author, T.M. 625, Obtaining Information from the Government — Disclosure Statutes; member, bars of Pennsylvania and the District of Columbia.

 

 

 


PHILIP D. MACWILLIAMS

Philip D. MacWilliams, B.S.: obtained his J.D., from the University of Maryland School of Law. Philip was a Law Clerk to the Honorable John A. Terry, District of Columbia Court of Appeals from 2002–2003.He is a member of the  American Bar Association and bars of Maryland and the District of Columbia.

 

Credentials / 

Philip D. MacWilliams, B.S.: Xavier University (1996); M.A., University of Nevada, Las Vegas (2000); J.D., University of Maryland School of Law (2002); Law Clerk to the Honorable John A. Terry, District of Columbia Court of Appeals, 2002–2003; member, American Bar Association, bars of Maryland and the District of Columbia.

 

 

 


TABLE OF CONTENTS

Portfolio 626-1st: Obtaining Information from the Government in Discovery and Disclosure-Related Damages Actions Against the Government

 Portfolio Description

 Authors

 Technical Advisors

 Description

 Detailed Analysis

 I. Discovery Against the Government in Civil Tax Litigation

 Introductory Material

 A. Introduction

 B. Pre-Litigation Depositions and Document Requests

 1. Federal District Court and Court of Federal Claims

 a. Expectation of Litigation under Fed. R. Civ. P. 27(a)(1)

 b. Showing as to Substance of Testimony Under Fed. R. Civ. P. 27(a)(1)

 c. Failure or Delay of Justice Under Fed. R. Civ. P. 27(a)(3)

 2. U.S. Tax Court

 C. Discovery in Federal District Court and Court of Federal Claims

 1. Informal Discovery

 2. Timing and Sequence of Formal Discovery

 a. Initial Disclosures

 (1) Basic Disclosure Requirements

 (2) Agreements Between the Parties

 (3) Initial Disclosure of “Electronically Stored Information”

 (4) Sanctions

 b. Developing a Discovery Plan

 (1) U.S. District Court: Fed. R. Civ. P. 26(f) Conference and Fed. R. Civ. P. 16(b) Scheduling Conference

 (2) Court of Federal Claims: Joint Preliminary Status Report and RCFC 16(b) Scheduling Conference

 (3) Failure to Prosecute

 c. Sequence of Discovery

 d. The Potential Overlap of Discovery and Motions for Summary Judgment

 e. Culmination of Discovery

 3. Overview of Formal Discovery

 a. Scope of Discovery: The Relevancy Standard

 b. Methods of Formal Discovery

 c. Frequency

 d. Proper Service of and Response to Discovery Requests

 4. Interrogatories

 a. Appropriate Use of Interrogatories

 b. Limitations on the Use of Interrogatories

 c. Answering or Objecting to Interrogatories

 5. Requests for Production of Documents

 a. Service of a Request for Production

 b. Responding to a Request for Documents

 c. Document Requests Issued to Government in Tax Cases

 6. Depositions

 a. Use of Depositions

 b. Typical Deponents in Tax Cases

 c. Notice of Deposition

 d. Conduct of a Deposition

 7. Requests for Admission

 a. Use of Requests for Admission

 b. Responding to Requests for Admission

 c. Common Requests for Admission in Tax Cases

 d. Withdrawing or Amending Admissions

 8. Expert Discovery

 a. Discovery Regarding Testifying Expert Witnesses

 b. Deposing Testifying Expert Witnesses

 c. Discovery of Non-Testifying Experts

 9. Discovery Motion Practice and Sanctions

 a. Protective Order

 b. Motion to Compel Discovery

 c. Sanctions for Discovery Misconduct

 10. Supplementation

 11. Use at Trial

 D. Discovery in U.S. Tax Court

 1. Introduction

 2. Timing and Sequence

 a. Timing

 b. Sequence

 c. Stipulated Discovery Plans

 d. Limitations on the Use of Discovery

 3. Scope of Discovery

 a. Relevancy in General

 b. Specific Tax Court Restrictions on Scope of Discovery

 4. Informal Discovery

 5. Stipulations of Fact

 a. Use of Stipulations

 b. Objecting to Stipulations

 c. Binding Effect of Stipulations

 d. Compelling Stipulations

 6. Interrogatories

 a. Use of Interrogatories

 b. Service of Interrogatories

 c. Answering Interrogatories

 d. Objecting To Interrogatories

 e. Producing Business Records in Response to Interrogatories

 7. Requests for Production of Documents

 a. Proper Use of Document Requests

 b. Specific Requests

 c. Responding to Document Requests

 8. Depositions

 a. Discovery Depositions

 (1) Consensual Depositions

 (2) Nonconsensual Depositions of Nonparty Witnesses

 b. Depositions To Perpetuate Testimony

 (1) Depositions While Case Is Pending (Tax Ct. R. 81)

 (2) Depositions Before Commencement of a Case (Tax Ct. R. 82)

 (3) Depositions Upon Written Questions

 9. Requests for Admission

 a. Use of Requests for Admission

 b. Responding to Requests for Admission

 c. Effect of Tax Ct. R. 90 Admissions

 d. Withdrawing or Amending Admissions

 10. Expert Discovery

 a. Stipulated Expert Discovery

 b. Deposing Expert Witnesses

 c. Serving Interrogatories on Experts

 d. Expert Witnesses Not Expected to Testify

 e. Expert Witness Reports

 11. Discovery Motion Practice and Sanctions

 a. Protective Orders

 b. Motions to Compel

 c. Sanctions

 12. Supplementation of Responses

 13. Use at Trial

 E. Electronic Discovery

 1. Historical Treatment of Electronic Discovery

 2. Requesting and Producing “Electronically Stored Information”

 a. Defining “Electronically Stored Information”

 b. Requesting and Producing Electronically Stored Information

 3. Limiting the Scope of the Discovery of Electronically Stored Information

 4. Inadvertent Disclosures

 5. Safe Harbors for Inadvertent Loss of ESI

 F. Document Retention and Spoliation

 1. Government Document Retention Policy

 2. Duty to Preserve Evidence

 3. Establishing a Spoliation Claim

 4. Sanctions for Spoliation

 G. Privilege Logs

 II. Discovery for Specific Actions or Issues

 Introductory Material

 A. Summons Enforcement Proceedings

 B. TEFRA

 1. Responsibility for Serving and Responding to Discovery Requests

 2. Discovery Related to Settlement Agreements

 C. Tax Shelter Litigation

 D. Promoter Penalty Litigation

 1. Overview: Types of Proceedings

 2. Pre-Filing Discovery

 3. Post-Filing Discovery

 III. Discovery for Specific Actions or Issues

 A. Transfer Pricing

 B. Employee/Independent Contractor

 C. Section 6672

 D. Jeopardy and Termination Assessment Proceedings

 E. Bankruptcy Cases

 F. Criminal Discovery

 G. Miscellaneous

 1. Injunctions

 2. Tort Actions

 3. Section 6001 Actions

 4. Unrelated Non-Tax Cases

 H. Requests for Tax Information in Non-Tax Civil Proceedings

 1. Discovery Sought from Government

 2. Discovery Sought from Private Litigants

 IV. Internal Limitations on IRS Responses to Discovery

 V. Government Liability for Unauthorized Disclosures

 A. Section 7431 — Damages for Unauthorized Disclosures

 B. Federal Tort Claims Act (FTCA)

 a. FTCA as Remedy for IRS Misconduct During Audit

 b. FTCA as Remedy for Unlawful Disclosures

 C. Section 7213

 D. Unauthorized Enticement

 E. Return Preparers

 F. Unauthorized Inspection

 G. Right to Financial Privacy Act


WORKING PAPERS

 Working Papers

 Table of Worksheets

 Worksheet 1 Interrogatories — District Court

 Worksheet 2 Interrogatories — Tax Court

 Worksheet 3 Requests for Production — District Court

 Worksheet 4 Requests for Production of Documents — Tax Court

 Worksheet 5 Requests for Admission — District Court

 Worksheet 6 Requests for Admission — Tax Court

 Worksheet 7 Request to Perpetuate Testimony — Tax Court

 Worksheet 8 Tax Court Rule 74 Notice — Stipulation for Taking Disposition

 Worksheet 9 Branerton Letter — Tax Court

 Bibliography

 Advisory and Explanatory Notes

 Books and Periodicals

 1994

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