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to permit a consensual deposition. Specifically, Rule 75(b) sets
forth the standards controlling the availability of this
discovery device, as follows:
The taking of a deposition of a nonparty witness
under this Rule is an extraordinary method of discovery
and may be used only where a nonparty witness can give
testimony or possesses documents or things which are
discoverable within the meaning of Rule 70(b) [any
matter which is not privileged and which is relevant to
the subject matter involved in the pending case] and
where such testimony, documents, or things practicably
cannot be obtained through informal consultation or
communication (Rule 70(a)(1)) or by a deposition taken
with consent of the parties (Rule 74). If such
requirements are satisfied, then a deposition may be
taken under this Rule, for example, where a party is a
member of a partnership and an issue in the case
involves an adjustment with respect to such
partnership, or a party is a shareholder of an electing
small business corporation (as described in Code
Section 1371(b) prior to the enactment of the
Subchapter S Revision Act of 1982), and an issue in the
case involves an adjustment with respect to such
corporation. * * *
The comments accompanying promulgation of the Rule similarly
reiterate that:
The new Rule 75 provides an extraordinary method of
discovery which may be used only where the information
sought cannot be obtained by informal consultation or
by other discovery methods. For example, if the other
requirements of the Rule are satisfied, a deposition
might be taken under the Rule in a case involving the
tax liability of a limited partner who does not have
access to the books and records of the partnership, or
where a bank or other person possesses records which
are relevant to the tax liability of a party and are
otherwise unavailable. [79 T.C. 1141-1142 (1982).]
In the instant proceeding, petitioners assert that they are
entitled to depose Mr. Darwish on the following grounds:
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Last modified: May 25, 2011