Richard L. Bennett - Page 12

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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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