- 89 -
him the burden of showing that he lacked possession, custody, or
control of the documents in question. Petitioner contends that
it was respondent's burden to establish those circumstances in
order to prevail on her motion to compel.
Petitioner is incorrect in contending that respondent bore
the burden of demonstrating that he had possession, custody, or
control of the documents with respect to which the Court granted
respondent's motion to compel. The burden is on the party ob-
jecting to show that that party's objections to a request for
production of documents should be sustained by the Court. See
Branerton Corp. v. Commissioner, 64 T.C. 191, 193 (1975); see
also 4A Moore's Federal Practice, par. 34.05[3], at 34-36 (2d ed.
1994) (on motion to compel production under rule 34 of Federal
Rules of Civil Procedure, from which Rule 72 is derived, see
Rosenfeld v. Commissioner, 82 T.C. 105, 120 (1984), the party
objecting to discovery must show that production should not be
ordered).61 A claim that a party is not in possession, custody,
61 In 1970, Fed. R. Civ. P. 34 was amended to eliminate the re-
quirement that a party show "good cause" (e.g., a showing that
the party from whom discovery was sought had possession, control,
or custody of the documents requested) in order to obtain discov-
ery of documents. See 4A Moore's Federal Practice, par.
34.08[2], at 34-43 to 34-44 (2d ed. 1994); 8A Wright & Miller,
Federal Practice and Procedure, par. 2210, at 396-397 (2d ed.
1994); see also Norman v. Young, 422 F.2d 470, 472-473 (10th Cir.
1970) (describing requirements imposed on party seeking discovery
under Fed. R. Civ. P. 34 prior to its amendment in 1970). Rule
72 is derived from Fed. R. Civ. P. 34 as amended in 1970. Rule
72, like Fed. R. Civ. P. 34 as amended in 1970, requires no show-
ing of good cause by the party requesting discovery as a prereq-
(continued...)
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