Section 887-X-1-.14 - Discovery (Alabama Administrative Code)

§ 887-X-1-.14. Discovery

(1) Parties to a proceeding before the Tax Tribunal may use the discovery methods authorized herein to obtain non-privileged information that is relevant to the subject matter involved in the pending appeal; provided, except as specified below, discovery can only be used with the prior approval of the Tax Tribunal Judge. Before requesting formal discovery, however, the parties to an appeal shall make every reasonable effort to voluntarily and informally exchange information and evidence regarding any matter, not privileged, which is relevant to the subject matter involved in the appeal. Such voluntary exchange of information and evidence may include a request for production of documents and the submission of written questions in the nature of interrogatories to the opposing party without the prior approval of the Tax Tribunal Judge; the intent being that the parties should make every reasonable effort to voluntarily exchange information before petitioning the Tax Tribunal for formal discovery. If voluntary written questions are proffered by a party, the opposing party shall affirmatively respond to all questions that are relevant to the issue or issues involved in the case. The opposing party may also object in writing and refuse, without prejudice, to answer or affirmatively respond to any questions that the party deems to be not relevant to the issue or issues involved in the case or privileged. Questions propounded pursuant to this paragraph shall be limited in number in accordance with the provisions of the Alabama Rules of Civil Procedure 33, and responses shall be executed under oath and in accordance with Alabama Rules of Civil Procedure 33(a) and (d).

(2) If a party cannot obtain relevant information or evidence by voluntary and informal exchange, the party may petition the Tax Tribunal to allow formal discovery. The petition shall (1) explain why the information could not be obtained by voluntary and informal exchange, and (2) identify the type or types of formal discovery requested. The requesting party shall also serve a copy of the petition on the opposing party or the opposing party's authorized representative, who may file a written objection to the requested discovery within 14 days of the date of receipt of the petition requesting discovery. The Tax Tribunal may thereafter allow discovery by the following means: written interrogatories; requests for production and inspection of tax returns, books, papers, documents, and other evidence; depositions of parties, non-party witnesses, and experts; requests for admission; or other forms of discovery authorized by the Tax Tribunal. It is not grounds for objection that the information sought to be discovered is not relevant to the issue or issues involved in the appeal before the Tax Tribunal if the information sought appears reasonably calculated to lead to the discovery of relevant evidence.

(3) Formal discovery authorized by subsection (b) of this regulation shall be allowed only in the discretion of the Tax Tribunal Judge, and only upon a showing that informal consultation and other communications, conducted in good faith, have failed to result in the voluntary exchange of information, documents, and other relevant and non-privileged evidence necessary to the resolution of the issue or issues in dispute in the appeal. The Tax Tribunal Judge shall determine the type of discovery to be allowed, if any, after considering whether the discovery would be unduly burdensome or expensive, and in consideration of the amount in controversy, the extent of the parties' resources, and the necessity and relevance of the information requested.

(4) If discovery is allowed by the Tax Tribunal Judge, discovery requests propounded to a pro se party or to an authorized representative not authorized to practice law in this state or another jurisdiction, shall, at a minimum, include the following information: the deadline for responding to the request; a brief description of the form in which a response or responses should be provided; notice that the response must be signed under penalty of perjury; notice of the right to object to a particular request or seek a protective order, as the case may be; and, with regard to requests for admissions, notice that the matter will be deemed admitted unless the pro se party or the authorized representative answers or objects to the requested admissions within 30 days after the request is served on the pro se party or authorized representative.

(5) If discovery is allowed by the Tax Tribunal Judge, the Tax Tribunal Judge shall issue an order granting discovery which, after consulting with the parties, shall specify therein a date on which discovery shall be completed. A party or parties may petition the Tax Tribunal for additional time within which discovery may be completed. Such petition shall explain the reason why such additional time is required or necessary. The Tax Tribunal Judge may grant such additional time as deemed appropriate by the Tax Tribunal Judge.

(6) Except as ordered by the Tax Tribunal Judge, the methods of discovery allowed by this regulation shall be conducted in accordance with Alabama Rules of Civil Procedure Rule 26 (general provisions governing discovery), Rule 28 (persons before whom depositions may be taken), Rule 29 (authorizing modification of discovery procedures by written stipulation of the parties), Rule 30 (depositions), Rule 33 (interrogatories), Rule 34 (production of documents), and Rule 36 (requests for admissions).

(7) If a party or other person or entity fails or refuses to cooperate or comply with formal discovery allowed by the Tax Tribunal, the discovering party may petition the Tax Tribunal for an order requiring the party, person, or entity to fully cooperate and comply with the discovery request. If the Tax Tribunal issues an order to compel, and the party, person, or entity fails to fully comply with discovery or the order to compel, the Tax Tribunal Judge may grant the discovering party such relief or take such other action as deemed appropriate, fair, and reasonable by the Tax Tribunal Judge under the circumstances.

(Amended by Alabama Administrative Monthly Volume XXXII, Issue No. 12, September 30, 2014, eff. October 14, 2014.)

Author: William L. Thompson

Statutory Authority: Code of Ala. 1975, § 40-2B-1

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