Paul L. Caron

Friday, October 31, 2014

The IRS Scandal, Day 540

IRS Logo 2Legal Times:  IRS Official Fights Video Depo, Citing Fear of Harassment:

An Internal Revenue Service employee caught up in the controversy over tax-exempt groups wants a federal judge to block a subpoena for her videotaped testimony. The official, Holly Paz, cites privacy and safety fears.

A group that applied for tax-exempt status in 2012, Citizen Awareness Project Inc., sued the agency in Colorado federal district court, claiming officials wrongfully released its application to the media. Federal officials admitted there was an “unauthorized disclosure,” but they disagreed it was willful or that the group was entitled to damages.

In a 2013 report, the Treasury Inspector General for Tax Administration found that IRS officials had improperly flagged organizations perceived to have conservative or Tea Party ties for additional scrutiny when they applied for tax-exempt status. The Colorado lawsuit is focused on the disclosure issue, not the broader scandal. However, the plaintiff claimed that because of a media report about its application, the group may have been subjected to additional scrutiny by the IRS—an allegation the government denied.

Paz served as the agency’s director of exempt organizations rulings and agreements. She isn’t a defendant in the Colorado case, but lawyers for Citizen Awareness Project subpoenaed her to provide videotaped deposition testimony on Oct. 28.

In court papers filed on Oct. 23 in the U.S. District Court for the District of Columbia, Paz’s lawyers at Steptoe & Johnson LLP asked for an order barring the deposition from being videotaped. Alternatively, they've asked for an order that would keep any videotaped deposition confidential.

Steptoe partner Brigida Benitez wrote that after Paz’s name became publicly associated with the larger IRS scandal, she faced “continued harassment, oppression and intimidation, including threats of bodily harm to her and her family, including her young children.”

Paz didn’t object to testifying, Benitez wrote, but she feared that a video of her speaking, if publicly disclosed, could be used “as another means of harassment and intimidation.”

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Since when are public officials protected by a "right to privacy" about performance (or malfeasance) of their public duty?

Posted by: Bruce | Oct 31, 2014 9:04:21 AM

What are you on about? Video deposition testimony is frequently presented in bench trials. I've done it myself several times. Judges tend to prefer it over having testimony read into the record or admission of a naked transcript. There is a subtle difference in the use of non-transcript deposition testimony in jury and non-jury trials, but it's not relevant here.

The relevant rule is FRCP 32(c):

c) Form of Presentation. Unless the court orders otherwise, a party must provide a transcript of any deposition testimony the party offers, but may provide the court with the testimony in nontranscript form as well. On any party's request, deposition testimony offered in a jury trial for any purpose other than impeachment must be presented in nontranscript form, if available, unless the court for good cause orders otherwise.

Posted by: RJ | Oct 31, 2014 9:03:21 AM

Publius Novis, you miss the irony of her statement. A minion of Lois Learner who publicly stated that the IRS used its power to 'harass and intimidate' Tea Party groups is now complaining that the shoe is on the other foot. These people are political operatives, and any opportunity to drag them through the slime should not be wasted.

Posted by: Donald Campbell | Oct 31, 2014 9:01:32 AM

"Judges do not watch videos of deps in bench trials." Depends on the judge. I have seen judges do it.

Posted by: Ankylus | Oct 31, 2014 8:44:54 AM

Another tempest in a TEApot. First, this is not a jury case. Although the plaintiff initially demanded a jury trial, it stipulated a withdrawal of its jury demand–probably because jury trials have not been authorized in wrongful disclosure cases against the United States since 1982. So why does the plaintiff want a videotaped dep? Judges do not watch videos of deps in bench trials. But of course, certain House chairs would be interested. Second, the U.S. has admitted liability in this case (a clerk mistakenly disclosed six pending, not-yet-approved forms 1024 in a batch of 67 approved applications released in response to a FOIA request). With liability conceded, the only remaining issue concerns actual damages, which the plaintiff has stipulated are capped at $9,900. What relevant information can Paz contribute to the amount of actual damages–between $0 and $9,900–suffered by the plaintiff? Third, assuming there is a compelling need for a video dep of Paz on the issue of the amount of the plaintiff’s actual damages, there is a simple solution. Conduct the video deposition before a magistrate judge. That would permit the plaintiff access to Paz’ apparently vital information on damages while ensuring that the plaintiff does not abuse the video dep process.

Posted by: Publius Novus | Oct 31, 2014 7:08:06 AM