- 8 - sought to take the depositions of two third-party witnesses. The two witnesses were 62 and 69 years of age, respectively. Upon review of the application, we explained that the procedure under Rule 82 was not intended to be used as a discovery device. See Ash v. Cort, 512 F.2d 909, 911 (3d Cir. 1975). We also stated that, where an application under Rule 82 suggests that the proposed deposition might be used for discovery purposes, our decision whether to grant such an application will turn on a weighing of the discovery aspects of the deposition against the applicant’s need to perpetuate testimony. See Masek v. Commissioner, 91 T.C. at 1100. In denying the application in that case, we concluded that the proposed depositions of third- party witnesses reflected “more than a trace of discovery” and the applicant/taxpayer had not shown (through medical records or otherwise) that the proposed deponents’ testimony would likely be lost before trial. Id. at 1100-1101. In our Supplemental Opinion, Masek v. Commissioner, 92 T.C. 814 (1989), we denied the applicant/taxpayer’s motion to reconsider our earlier opinion, stating that our focus under Rule 82 “is directed to the risk that the testimony will be unavailable when a trial commences, and the applicant must establish that that risk is significant.” Id. at 815.Page: Previous 1 2 3 4 5 6 7 8 9 10 11 Next
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