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in Greenberg's Express, Inc. v. Commissioner, 62 T.C. 324 (1974),
to deny petitioner access to a document that was created prior to
the issuance of the notice of deficiency is not an appropriate
defense to discovery in this case.
The expert report is relevant to the subject matter of this
case and appears reasonably calculated to lead to admissible
evidence, which is the threshold requirement of Rule 70(b). The
only issue presented in this case concerns the fair market value
of the donated films. The expert report appears to relate to the
value of the films and is relevant. Although petitioner may not
be able to offer respondent's expert report into evidence and it
may be inadmissible for other reasons, that aspect does not
preclude discovery of the expert report under Rule 70(b) as long
as the expert report appears reasonably calculated to lead to the
discovery of admissible evidence. Hickman v. Taylor, 329 U.S.
495, 501 (1947); see also United States v. Procter & Gamble Co.,
356 U.S. 677, 682-683 (1958); Zaentz v. Commissioner, 73 T.C.
469, 478 (1979).
Respondent also argues that the expert report is not
discoverable under rule 26(b)(4)(B) of the Federal Rules of Civil
Procedure (hereafter rule 26(b)(4)(B), which limits discovery
relating to opinions of experts not expected to be called to
testify at trial. Rule 26(b)(4)(B), generally prohibits the
discovery of experts retained or specifically employed by the
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