Anthony Teong-Chan Gaw as Transferee of Radcliffe Investment LTD. - Page 191

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            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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