-9-
determined by respondent. Petitioners' counsel did not dispute
that claim.
Petitioners contend that the diary is admissible and may be
used to refresh Mr. Fox's memory under rule 612 of the Federal
Rules of Evidence. We disagree. The diary fell within the scope
of respondent's discovery requests but was not produced during
discovery or exchanged as required by the Court's pretrial order.
See G.J.B. & Associates, Inc. v. Singleton, 913 F.2d 824, 831
(10th Cir. 1990). In the Singleton case, the plaintiffs had not
exchanged discoverable documents as required by the Court's
pretrial order and sought to use the documents to refresh a
witness' memory. The U.S. Court of Appeals for the Tenth Circuit
rejected the assertion that, because the notes were being used to
refresh the memory of a witness for the plaintiffs, their counsel
had no duty to reveal the notes. Id. We conclude that
respondent properly objected to the admission of the diary into
evidence and to Mr. Fox's use of the diary to refresh his
recollection at trial.
B. Whether To Recognize Prindle as a Trust for Federal Tax
Purposes
1. Mr. and Mrs. Fox Retained Control Over the Purported
Trust Assets
Respondent contends that Prindle should not be recognized
for Federal income tax purposes because it is a sham.
Petitioners contend that Prindle is not a sham.
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