- 90 -
or control of documents constitutes an objection to the produc-
tion of documents. See Henderson v. Zurn Indus., Inc., 131
F.R.D. 560, 567 (S.D. Ind. 1990) (construing analogous provision
of Federal Rules of Civil Procedure).
In telephonic conference calls and written filings with the
Court after respondent filed her motion to compel, petitioner's
counsel described efforts being made to produce the documents
that were the subject of that motion and claimed that certain
documents could not be produced. The Court was not satisfied
that petitioner had demonstrated that he did not have possession,
custody, or control of the documents sought by respondent that he
61(...continued)
uisite to the production of documents. See Morris v. Commis-
sioner, 65 T.C. 324, 325-326 (1975).
The Federal Rules of Civil Procedure now expressly impose on
the party requesting discovery the burden of showing that re-
quested materials are discoverable only with respect to trial
preparation materials described in Fed. R. Civ. P. 26(b)(3) and
(b)(4). Those materials generally consist of documents and tan-
gible things prepared in anticipation of litigation and facts
known to and opinions of experts not expected to be called at
trial.
The present law regarding the burden of proof with respect to
requests for discovery of documents under the Federal Rules of
Civil Procedure may be summarized as follows:
[The good cause] requirement was dropped in 1970, leav-
ing the initiative with the party from whom documents
are sought to object, or apply to the court for a pro-
tective order under * * * [Fed. R. Civ. P.] 26(c), and
to show good cause why the documents should not be pro-
duced. Thus, the burden of making a showing rests on
the party seeking discovery only if seeking documents
or tangible things "prepared in anticipation of litiga-
tion or for trial." * * * [4 Moore's Federal Practice,
par. 26.15[2], at 26-294 (2d ed. 1994); fn. ref. omit-
ted.]
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