Free Reply to Response to Motion - District Court of Federal Claims - federal

Case 1:06-cv-00123-FMA

Document 25

Filed 03/31/2007

Page 1 of 2

IN THE UNITED STATES COURT OF FEDERAL CLAIMS ____________ No. 06-123 T (Judge Francis M. Allegra) EVERGREEN TRADING, LLC, by and through GLEN NUSSDORF AND CLAUDINE STRUM on behalf of GN INVESTMENTS, LLC, Partners Other Than the Tax Matters Partner, Plaintiffs v. THE UNITED STATES, Defendant ____________ REPLY FOR THE UNITED STATES IN SUPPORT OF ITS MOTION FOR ENLARGEMENT OF THE DISCOVERY PERIOD ____________ The United States writes solely to address two incorrect statements in plaintiffs' conditional concurrence to the motion for a 50-day enlargement of the discovery period. 1. Plaintiffs state that they have "produced tens of thousands of pages of documents"

during discovery. In fact, plaintiffs have produced only about 1100 pages of documents during discovery. See Attached Exhibit A (spreadsheet listing all of the documents produced by plaintiffs in Evergreen).1

All of the documents produced by plaintiffs here were identified by plaintiffs with an exhibit number (P-001 through P-227) and a Bates Number beginning with a prefix of "NS****".) The attached spreadsheet summarizes the data and totals the pages produced. It also and shows large gaps in the documents produced; only 1100 pages were produced by plaintiffs, although the NS series of document contains documents bearing Bates Numbers as high as NS013090. A separate discovery dispute involving plaintiffs' refusal to produce the missing documents from the NS series of documents is currently developing. 1
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Case 1:06-cv-00123-FMA

Document 25

Filed 03/31/2007

Page 2 of 2

2.

Plaintiffs suggest that there is some sort of improper "imbalance" in the

respective quantities of discovery taken by the parties. In fact, any imbalance is a result of the inherent nature of tax litigation. As is frequently the case, the United States did not even learn of the transactions at issue until years after their execution, while plaintiffs and their associates planned and executed the transactions. Thus, it is inevitable that the United States has a far greater need to conduct discovery to develop the facts than does the taxpayer. Regardless, depositions here are largely complete; as we previously indicated, the United States is planning only four additional depositions (although some limited additional discovery may be needed). WHEREFORE, the United States requests that the Court allow the requested enlargement of discovery. Respectfully submitted, /s Stuart J. Bassin STUART J. BASSIN Attorney of Record for Defendant Department of Justice Post Office Box 26 Ben Franklin Post Office Washington, D.C. 20044 TELEPHONE (202) 307-6418 FAX (202) 514-2507 E-MAIL: [email protected] EILEEN J. O'CONNOR Assistant Attorney General DAVID GUSTAFSON Chief, Court of Federal Claims Section ADAM F. HULBIG Trial Attorney JOSEPH B. SYVERSON Trial Attorney Of Counsel Attorneys for the United States March 31, 2007 2
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