Free Motion to Compel - District Court of Federal Claims - federal

Case 1:06-cv-00245-EJD

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Filed 11/15/2007

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS Nos. 06-245T, 06-246T, and 06-247T
(Consolidated)

MURFAM FARMS, LLC, By and Through Wendell H. Murphy, Jr., a Partner Other Than Tax Matters Partner,

PSM FARMS, LLC, By and Through Stratton K. Murphy, a Partner Other Than Tax Matters Partner, MURPHY PORK PARTNERS, LLC By and Through Wendell H. Murphy, Jr. a Partner Other Than Tax Matters Partner, Plaintiffs, v. UNITED STATES OF AMERICA, Defendant.

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____________ DECLARATION OF DAVID STEINER IN SUPPORT OF UNITED STATES' MOTION TO COMPEL RESPONSES TO INTERROGATORIES ___________

DAVID M. STEINER, an attorney duly admitted to practice before this Court, hereby declares, pursuant to 28 U.S.C. § 1746, as follows: 1. I am a trial attorney at the United States Department of Justice and am one of the attorneys responsible for defending the interests of the United States in this matter. I submit this declaration in support of the United States' Motion to Compel Responses to Interrogatories. 1

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2.

On September 25, 2007, the United States served its interrogatories on Plaintiffs which the United States erroneously numbered as Interrogatories ## 71 through 95. In fact, the United States had already served 91 interrogatories in these consolidated cases and should have numbered these interrogatories as ## 92 through 116. On or about October 26, 2007, Plaintiffs served Plaintiffs' Objections and Responses to the United States' Interrogatories (Nos. 71 through 95), annexed hereto. Plaintiffs did not respond to any of the interrogatories. Rather, Plaintiffs responded to each interrogatory thusly: Plaintiffs object to this Interrogatory on the grounds that the United States has well exceeded the 100 written interrogatories that it may serve upon a party to this litigation without leave of court or written stipulation under Rule 33 of the Rules of the Court of Federal Claims, and no such leave of court or stipulation has been obtained. Plaintiff hereby reserves its right to assert any additional objections to this Interrogatory in the event that the Court grants the United States leave to propound additional interrogatories or otherwise orders Plaintiffs to respond to this Interrogatory.

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On October 30, October 31, November 1 and November 6, counsel for the United States and Plaintiffs discussed Plaintiffs' objection, via telephone and e-mail, without reaching a resolution. Not until November 6 did Plaintiff explain to the Untied States its objections with any specificity. As Plaintiffs acknowledge, the United States may propound up to 100 per party in the cases involving the COBRA tax shelter. Plaintiffs have informed the United States that part of their reasons for determining that Defendant has propounded too many interrogatories in these matters is that the United States has already served 91 interrogatories before serving the 25 contention interrogatories at issue in this motion. The fact that the Court has consolidated these three matters for trial does not alter the fact that they remain three matters. The United States has served 116 interrogatories herein, far less than the 300 allowed.

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I, David M. Steiner, declare under penalty of perjury that the foregoing is true and correct. Executed on November 15, 2007.

s/ David M. Steiner DAVID M. STEINER Trial Attorney, Tax Division U.S. Department of Justice Post Office Box 55 Ben Franklin Station Washington, D.C. 20044 Telephone: (202) 307-5892

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CERTIFICATE OF SERVICE I hereby certify that on November 15th, 2007, I electronically filed the foregoing Declaration with the Clerk of the Court using the ECF system which will send notification of such filing to the following: Joel N. Crouch Texas State Bar No. 05144220 Meadows, Collier, Reed Cousins & Blau, L.L.P. 901 Main Street, Suite 3700 Dallas, Texas 75202 s/ David M. Steiner David M. Steiner Trial Attorney, Tax Division U.S. Department of Justice Post Office Box 55 Ben Franklin Station Washington, D.C. 20044 (202) 307-5892

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