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Friday, April 25, 2014

Ind. Decisions - Tax Court posts 2, filed April 24th

In Nick Popovich v. Indiana Department of State Revenue (first motion), a 20-page opinion, Judge Wentworth writes:

This matter involves Nick Popovich’s first Motion to Compel the Indiana Department of State Revenue to respond to fifty-three (53) of his discovery requests and the Department’s Motion for Protective Order that seeks to protect from disclosure the information and documents requested by Popovich. The Court grants the parties’ motions in part and denies them in part. * * *

The Department contends that the information and documents that Popovich seeks are shielded from discovery because they are not relevant, are protected by the deliberative process, work-product, and attorney-client privileges as well as a bar against probing the mental impressions of decision-makers. The Department also maintains that Popovich’s discovery requests are objectionable on several other grounds. Popovich, however, claims that the information and documents he seeks are discoverable because all of the Department’s objections to disclosure lack merit. * * *

[T]he proper inquiry is whether the information and documents sought pertain to the subject-matter of the pending action, the very inquiry answered affirmatively above. Accordingly, the Court finds that Popovich’s discovery requests are relevant. * * *

[T]he Court fails to find that Indiana recognizes a deliberative process privilege applicable to the discovery rules and leaves it to the Legislature to elevate public policy regarding the protection of deliberative processes into a privilege. Consequently, the Department’s objections to disclosure based on an alleged deliberative process privilege fail. * * *

[A] bar against probing the mental processes and deliberations of quasi-judicial decision-makers does not extend to protect the information or documents regarding Popovich’s audit from disclosure. * * *

The Department has provided no reasoning, argument, or citation to precedent or persuasive authority in support of its claims that the work-product and attorney-client privileges bar it from responding to Popovich’s discovery requests.17 Thus, the Department has attempted to shift the responsibility of articulating and adequately supporting its assertions of privilege to the Court. This the Court will not condone. * * *

Conclusion. “[W]hen the discovery matters cannot be resolved by the sincere efforts of counsel, the issues presented to the court should be sharply focused in fact, law, and number, so that the trial court’s time required is minimal and well spent.” Howard, 813 N.E.2d at 1223. Unfortunately, neither party fully complied with this expectation and the Court admonishes them both for failing to do so.

For all the above-stated reasons, the Court GRANTS Popovich’s Motion to Compel, with the exception of Interrogatory Number 4. The Court DENIES the Department’s Motion for Protective Order, with the exception of Interrogatory Number 4. The Department must fully respond to Popovich’s discovery requests and identify the work-product and attorney-client privilege objections with respect to Interrogatory Number 4 with the particularity contemplated by Trial Rule 26(B)(5) within forty-five (45) days of this Order. 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.

In Nick Popovich v. Indiana Department of State Revenue (2nd motion), a 6-page opinion, Judge Wentworth writes:
This matter involves Nick Popovich’s Second Motion to Compel requesting that the Court order the Indiana Department of Revenue to produce certain original documents for use at a deposition. The Court denies Popovich’s Motion. * * *

“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.

Posted by Marcia Oddi on April 25, 2014 09:17 AM
Posted to Ind. Tax Ct. Decisions