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Popovich v. Indiana Dep't of State Revenue

Tax Court of Indiana

March 7, 2016

NICK POPOVICH, Petitioner,
v.
INDIANA DEPARTMENT OF STATE REVENUE, Respondent

          ATTORNEY FOR PETITIONER: JAMES K. GILDAY, GILDAY & ASSOCIATES, P.C., Indianapolis, IN.

         ATTORNEYS FOR RESPONDENT: GREGORY F. ZOELLER, INDIANA ATTORNEY GENERAL; JOHN P. LOWREY, DEPUTY ATTORNEY GENERAL, Indianapolis, IN.

         ORDER ON PETITIONER'S REQUEST FOR EXPENSES PURSUANT TO INDIANA TRIAL RULE 37(A)(4)

         Martha Blood Wentworth, Judge.

         Nick Popovich has requested expenses in the amount of $51,210.29 for successfully prosecuting his first motion to compel. See generally Popovich v. Indiana Dep't of State Revenue (Popovich I), 7 N.E.3d 406 (Ind.Tax Ct. 2014). The Court finds that Popovich is entitled to be reimbursed for reasonable expenses and awards him $24,963.00.

         BACKGROUND[1]

         On February 20, 2012, just 10 days before the hearing on Popovich's first motion to compel, the Court ordered the Department to provide " a discrete and numbered list of each item it [sought] to be protected from discovery[.]" (See Order, Feb. 20, 2012.) The Department's response indicated that it was raising about 418 separate objections to nearly all of Popovich's interrogatories and requests for production. (See generally Resp't Resp. Item No. 2, Feb. 29, 2012.) (See also Pet'r Mot. Compel, Ex. A at 15-70 and Ex. G at 9-103, Nov. 22, 2011; Pet'r Reply Supp. Mot. Compel, Ex. L at 1-98 and Ex. N at 1-7, Jan. 17, 2012.) For example, the Department claimed that Popovich's discovery requests were not relevant and violated both the deliberative process privilege and the general bar against probing the mental processes of administrative decision-makers. (See, e.g., Pet'r Mot. Compel, Ex. A at 15-70; Pet'r Reply Supp. Mot. Compel, Ex. L at 1-98.) The Department also claimed that Popovich's discovery requests violated the work-product and attorney-client privileges and that they were oppressive, ambiguous, and unduly burdensome; contained compound questions; posed hypothetical questions; and improperly sought legal conclusions. (See, e.g., Pet'r Mot. Compel, Ex. A at 15-70.)

         On April 24, 2014, the Court issued an order that rejected the Department's claims regarding:

1) the relevance of Popovich's discovery requests because they concerned the subject-matter of the case;
2) the deliberative process privilege because the Department failed to show that " Indiana recognize[d] a deliberative process privilege applicable to the discovery rules[; ]"
3) the general bar against probing the mental processes of administrative decision-makers because Popovich expressly stated that he was not seeking to pry into the hearing officer's mental processes and the bar simply did not apply to the Department's audit process; and
4) the work-product privilege, the attorney-client privilege, and all of the Department's remaining objections because it had done nothing more than assert a series of blanket objections.

See Popovich I, 7 N.E.3d at 412-19.[2]

         On October 22, 2014, the Court conducted a hearing on Popovich's request for expenses as required by Indiana Trial Rule 37(A)(4). ...


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