Lowery v. USA

Filing 22

ORDER granting with modification 15 MOTION For Leave To Take More Than Ten Fact Witnesses and To Extend Discovery Deadlines and Entry Of a Modified Case Management Order. Signed by Magistrate Judge David Keesler on 7/7/2017. (eef)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL ACTION NO. 3:16-CV-701-DCK
MARSHALL O. LOWERY,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

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ORDER

THIS MATTER IS BEFORE THE COURT on the “The United States Of America’s
First Motion For Leave To Take More Than Ten Fact Witnesses and To Extend Discovery
Deadlines and Entry Of a Modified Case Management Order” (Document No. 15) filed June 12,
2017. The parties have consented to Magistrate Judge jurisdiction pursuant to 28 U.S.C. § 636(c),
and this motion is now ripe for disposition. Having carefully considered the motion and the record,
the undersigned will grant the motion, with modification.
By the instant motion, Defendant seeks to increase the number of depositions it is allowed
to take of fact witnesses from 10 to 26. (Document Nos. 15 and 15-1). In the alternative,
Defendant requests that it be allowed 85 hours to take any deposition it deems necessary. Id.
The crux of Defendant’s request to modify the discovery plan is that at issue in this case
are 25 individual penalties assessed pursuant to 26 U.S.C. § 6694(b). (Document No. 15-1, p.2).
According to Defendant, the penalties are assessed on a per return basis, and apply to the tax
preparer who prepares a return that understates liability. Id. Defendant contends this case
essentially consists of 25 micro-cases pulled into one proceeding that involves 16 third-party
customers whose income tax returns were prepared by 10 return preparers, including Plaintiff. Id.

As such, Defendant asserts that it must be allowed to depose each third-party customer and each
return preparer. Id.
Defendant further represents that most of the proposed depositions can be conducted in
about one (1) hour, and several can be completed on one day in Charlotte, North Carolina – where
Plaintiff and his counsel are located. (Document No. 15-1). Defendant recognizes that it is
currently allowed to take 10 depositions over a total of 70 hours, but proposes that it now be
allowed to take 26 depositions over 82 hours, or in the alternative a total of 85 hours for all
depositions. (Document No. 15-1, p.5).
Plaintiff opposes Defendant’s motion. (Document No. 17). Plaintiff essentially argues
that Defendant’s request is inconsistent with the parties’ discussions at the initial attorney’s
conference and that the request is not proportional to the needs of the case. Moreover, Plaintiff
contends that extension of the deadlines will result in hardship and prejudice for Plaintiff.
The undersigned recognizes Plaintiff’s concerns, and is not entirely persuaded Defendant
should not have foreseen this issue; nevertheless, it appears to be in the best interests of justice
and efficient case management to allow the pending motion, with modification. Specifically,
Defendant will be allowed to take up to 26 depositions over a total of 70 hours. Moreover,
Defendant shall work diligently to accommodate Plaintiff’s convenience by among other things
holding the proposed depositions in Charlotte, North Carolina and scheduling as many depositions
consecutively as is efficient for all counsel.
In addition, the undersigned will extend the case deadlines; however, if the parties are able
to work together and complete discovery ahead of schedule, the Court will consider a motion by
Plaintiff to revise the deadlines again. The new case deadlines are as follows: discovery

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completion – November 6, 2017; mediation report – November 28, 2017; dispositive motions –
December 8, 2017; trial ready date – April 2, 2018.
IT IS, THEREFORE, ORDERED that the “The United States Of America’s First Motion
For Leave To Take More Than Ten Fact Witnesses and To Extend Discovery Deadlines and Entry
Of a Modified Case Management Order” (Document No. 15) is GRANTED with modification,
as directed herein.
Signed: July 7, 2017

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