Tax Court grants partial reimbursement on discovery enforcement motions

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The Indiana Tax Court has awarded reimbursement fees to both the University of Phoenix Inc. and the Indiana Department of State Revenue after finding that the two entities were entitled to reimbursement on some, though not all, of the discovery enforcement motions filed in their litigation.

After the University of Phoenix served a non-party subpoena to the former commissioner of the Department of Revenue in October 2016, the department moved for a protective order explaining that information in the 2015 House Bill 1349, September 2014 Tax Competitiveness and Simplification Report and a presentation of the report were not relevant and was most likely obtainable from “lesser-ranking officials.” Although Indiana Tax Court Judge Martha Blood Wentworth initially quashed the subpoena, she later allowed the university to depose the former commissioner in November 2016 despite the department’s filing of a second protective order.

However, before the November 2016 decision was handed down, the university had already filed a discovery enforcement motion seeking to compel the department to produce documents regarding the deposition topics. Wentworth granted and denied in part that request earlier this month.

Additionally, in January 2017, the Tax Court conducted an evidentiary hearing on both parties’ requests for expenses under Trial Rule 37(A)(4), and in a Thursday order, Wentworth granted reimbursement expenses to both litigants totaling more than $20,000.

Under Rule 37(A)(4), when a court grants or denies a discovery enforcement motion, the party who necessitated the motion or the party advising such conduct, or both, are required to pay the “reasonable expenses incurred in obtaining the order” to the moving party. Thus, the question in this case was whether both the university and the department were entitled to reimbursement for successfully resisting their opponent’s discovery enforcement motions or prosecuting their own, either in whole or in part, Wentworth wrote Thursday.

A reasonable person could have concluded that there was a genuine issue as to whether the department was bound to comply with the university’s request to depose the former commissioner, the judge wrote, so it was substantially justified in filing its first motion for protective order. However, because that motion was denied and because the department merely re-stated the same legal arguments in its second motion for a protective order, it was not justified in filing for a protective order a second time.

Similarly, Wentworth wrote that the university was not justified in filing its motion to compel because there existed a genuine issue as to whether it was entitled to its requested discovery.

Although the University of Phoenix had requested $159,446.40 in reimbursement expenses, Wentworth opted to award the school $9,850.50 because it was not entitled to reimbursement on the first motion for protective order or its motion to compel. Additionally, she awarded the state Department of Revenue with a reimbursement of $12,900 for resisting the motion to compel.

The case is The University of Phoenix, Inc. v. Indiana Department of State Revenue, 49T10-1411-TA-00065.


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  1. Employers should not have racially discriminating mind set. It has huge impact on the society what the big players do or don't do in the industry. Background check is conducted just to verify whether information provided by the prospective employee is correct or not. It doesn't have any direct combination with the rejection of the employees. If there is rejection, there should be something effective and full-proof things on the table that may keep the company or the people associated with it in jeopardy.

  2. Unlike the federal judge who refused to protect me, the Virginia State Bar gave me a hearing. After the hearing, the Virginia State Bar refused to discipline me. VSB said that attacking me with the court ADA coordinator had, " all the grace and charm of a drive-by shooting." One does wonder why the VSB was able to have a hearing and come to that conclusion, but the federal judge in Indiana slammed the door of the courthouse in my face.

  3. I agree. My husband has almost the exact same situation. Age states and all.

  4. Thanks Jim. We surprised ourselves with the first album, so we did a second one. We are releasing it 6/30/17 at the HiFi. The reviews so far are amazing! Skope Mag: It’s Just Craig offers a warm intimacy with the tender folk of “Dark Corners”. Rather lovely in execution, It’s Just Craig opts for a full, rich sound. Quite ornate instrumentally, the songs unfurl with such grace and style. Everything about the album feels real and fully lived. By far the highlight of the album are the soft smooth reassuring vocals whose highly articulate lyrics have a dreamy quality to them. Stories emerge out of these small snapshots of reflective moments.... A wide variety of styles are utilized, with folk anchoring it but allowing for chamber pop, soundtrack work, and found electronics filtering their way into the mix. Without a word, It’s Just Craig sets the tone of the album with the warble of “Intro”. From there things get truly started with the hush of “Go”. Building up into a great structure, “Go” has a kindness to it. Organs glisten in the distance on the fragile textures of “Alone” whose light melody adds to the song’s gorgeousness. A wonderful bloom of color defines the spaciousness of “Captain”. Infectious grooves take hold on the otherworldly origins of “Goodnight” with precise drum work giving the song a jazzy feeling. Hazy to its very core is the tragedy of “Leaving Now”. By far the highlight of the album comes with the closing impassioned “Thirty-Nine” where many layers of sound work together possessing a poetic quality.

  5. Andrew, if what you report is true, then it certainly is newsworthy. If what you report is false, then it certainly is newsworthy. Any journalists reading along??? And that same Coordinator blew me up real good as well, even destroying evidence to get the ordered wetwork done. There is a story here, if any have the moxie to go for it. Search ADA here for just some of my experiences with the court's junk yard dog. Yep, drive by shootings. The lawyers of the Old Dominion got that right. Career executions lacking any real semblance of due process. It is the ISC way ... under the bad shepard's leadership ... and a compliant, silent, boot-licking fifth estate.