UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

United States of America 

 v. Case No. 08-cv-499-SM 

David M. Hulick; Caroline P.

Hulick; and State of New Hampshire

Department of Employment Security 

O R D E R

The United States of America has sued to: (1) reduce an 

unpaid tax liability owed by David Hulick (“Hulick”) to 

judgment; (2) establish the validity of federal tax liens on 

Hulick’s property; (3) foreclose on a parcel of real estate in 

which Hulick has an interest; and (4) get permission to conduct 

a judicial sale of that property. Hulick asserts a counterclaim 

for breach of contract. Before the court are the Hulicks’ 

renewed first motion to compel plus their second motion to 

compel. For the reasons that follow, defendants’ renewed first 

motion to compel, document no. 69, is granted in part and denied 

in part, and their second motion to compel, document no. 53, is 

denied.

Legal Principles

“Unless otherwise limited by court order, the scope of 

discovery . . . [extends to] any nonprivileged matter that is 

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relevant to any party’s claim or defense – including the 

existence, description, nature, custody, condition, and location 

of any documents . . . . Relevant information need not be 

admissible at the trial if the discovery appears reasonably 

calculated to lead to the discovery of admissible evidence.” 

Fed. R. Civ. P. 26(b)(1). A party seeking broader discovery, 

that is, discovery of “any matter relevant to the subject matter 

involved in the action,” is required, under the Rule, to show 

“good cause.” Id.; see also In re Subpoena to Witzel, 531 F.3d 

112, 118 (1st Cir. 2008). “[T]he purpose of pretrial discovery 

is to ‘make trial less a game of blindman’s bluff and more a 

fair contest with the basic issues and facts disclosed to the 

fullest practicable extent.’” Wamala v. City of Nashua, No. 09-

cv-304-JD, 2010 WL 3746008, at *1 (D.N.H. Sept. 20, 2010) 

(quoting Macaulay v. Anas, 321 F.3d 45, 53 (1st Cir. 2003)). 

The court, however, “must limit the frequency or extent of 

discovery otherwise allowed” if and when it determines that:

(i) the discovery sought is unreasonably cumulative

 or duplicative, or can be obtained from some

 other source that is more convenient, less

 burdensome, or less expensive;

(ii) the party seeking discovery has had ample 

opportunity to obtain the information by 

discovery in the action; or

(iii) the burden or expense of the proposed discovery 

outweighs its likely benefit . . . .

Fed. R. Civ. P. 26(b)(2)(C). 

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When a party does not produce the discovery requested from

it, the Federal Rules permit that party to “move for an order 

compelling disclosure or discovery.” Fed. R. Civ. P. 37(a)(1). 

In this court, the party moving to compel discovery over an 

adversary’s objection bears the burden of showing that the 

information he seeks is relevant and not privileged. Id. at *2; 

see also Saalfrank v. Town of Alton, No. 08-cv-46-JL, 2009 

3578459, at *3 (D.N.H. Oct. 27, 2009).

Discussion

With the foregoing principles as a backdrop, the court 

turns to the specific discovery requests at issue.

A. Renewed First Motion to Compel

In their renewed first motion to compel, the Hulicks seek 

responses to four interrogatories and also seek the production 

of certain documents.

1. Interrogatory #3

In Interrogatory #3, the Hulicks asked the United States to 

explain how one or more IRS employees calculated certain 

collection statute expiration dates (or “CSEDs”) communicated by 

the IRS to David Hulick in 2006. The United States answered: 

“The United States, in its reply in support of its motion to 

dismiss . . . sets forth the proper calculation of the CSED, and 

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shows that this case was timely filed, and attaches its reply 

hereto as Exhibit C.”

In their motion to compel, the Hulicks call the United

States’ answer evasive. In response, the United States argues 

that the thought processes of the IRS agents involved in 

Hulick’s case are irrelevant and that it has produced the IRS’s 

entire case file, including multiple documents that contain the 

information requested in Interrogatory #3.

Plainly, much in this case turns on determining the correct 

CSED(s). As the United States correctly notes, that 

determination is a question of law. Mary Beyers’ letter to 

Peter Sang, dated December 19, 2006, explains how the IRS 

initially determined that the last relevant limitation period 

was due to expire on October 1, 2008. That letter is attached 

to the Hulicks’ objection to the United States’ first motion to 

dismiss. The United States’ reply in support of that motion

explains the calculation of the July 26, 2009, CSED the IRS now 

says is correct. Each one of those calculations is either 

correct or incorrect, as a matter of law. Comparison of the two 

calculation shows the sole difference between them; the first

calculation was based on a determination that the limitation 

period was not tolled during the IRS’s consideration of Hulick’s 

first offer in compromise, while the second calculation is based 

on 355 days of tolling during that same period. The point is, 

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it appears that everything that the Hulicks seek in 

Interrogatory #3 is already a part of the record of this case. 

The United States has satisfied its obligations with respect to 

this interrogatory. 

2. Interrogatory #5

In Interrogatory #5, the Hulicks asked the United States to 

explain why there was a discrepancy between the two different 

CSEDs the IRS calculated, and they requested specific details 

concerning the IRS’s discovery of that discrepancy and any 

actions they took upon discovering it. The United States 

objected on grounds that the information the Hulicks sought was 

not relevant and not likely to lead to the discovery of 

admissible evidence, and without waiving these objections, 

answered by referring the Hulicks to “the proper calculation of 

the CSED” as shown in Exhibit C to the United States’ reply. 

The IRS’s discovery of the discrepancy between the CSEDs, and 

the actions it took upon discovering the discrepancy are 

relevant to the Hulick’s estoppel (or affirmative misconduct) 

defense and may lead to the discovery of admissible evidence. 

The United States’ objection is not sufficiently specific and 

its reference to the “proper” CSED calculation is not responsive 

to the interrogatory. The United States must respond to 

Interrogatory #5 and each subpart therein.

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3. Interrogatory #10

In Interrogatory #10, the Hulicks asked the United States 

to identify, with considerable specificity, any IRS personnel

who were involved in investigating Hulick’s case and pursuing 

the collection action against him. The United States objected 

on grounds of over-breadth and relevance but, without waiving 

its objections, provided the names of three IRS employees who 

were involved in investing Hulick’s case. In their motion to 

compel, the Hulicks argue:

Interrogatories 10 and 11 inquire about the 

investigation of Mr. Hulick and others at the

Precision companies. This information is relevant –

or at least discoverable – to the Hulicks’ defenses 

and their counterclaims. As discussed, Mr. Hulick 

challenges the propriety of the underlying assessment 

against him. Similarly, the IRS is bound to follow 

all applicable law in its collections activity. The 

Hulicks, therefore, simply seek information to discern 

whether and to what extent the IRS improperly assessed 

the [trust fund recovery penalty] against Mr. Hulick 

and/or improperly engaged in certain collections 

activity.

Defs.’ Mem. of Law (doc. no. 38-1), at 13. While this argument 

is conclusory and lacking in specifics, the court finds that the 

Hulicks’ request for the names of those IRS employees most 

intimately involved in the investigation of Mr. Hulick is 

relevant to the Hulicks’ defenses in this case. The United 

States has supplied the names of three different employees who 

investigated Mr. Hulick’s case. The court presumes that these 

three individuals are the key employees responsible for the 

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investigation. The United States has not answered the five 

subparts in Interrogatory #10 with respect to these three 

employees. Once the United States provides answers to 

Interrogatory #10(a)-(e) with respect to the three employees

(whose names the United States has already provided to the 

Hulicks), the United States will have satisfied its obligations 

with respect to this discovery request.

4. Interrogatory #11

In Interrogatory #11, the Hulicks asked the United States 

to identify, with considerable specificity, the steps the IRS 

took to pursue collection from other responsible persons. The 

United States objected but also provided the following response:

John Gallichon was assessed for all of the same trust 

fund recovery penalty (“TFRP”) periods that Mr. Hulick 

was assessed. Mr. Gallichon submitted an offer in 

compromise that was accepted and has been completed. 

Also subject to the United States’ objection, Allyn 

Caruso was assessed for two of the same TFRPs for the 

period ending June 30, 1994, and the statutory period 

for collections on his account ran in 2007.

Defs.’s Mot. to Compel (doc. no. 38-1), at 12. The court does 

not find the Hulicks’ conclusory arguments with respect to this 

interrogatory sufficient to carry its burden on relevance. It 

is not clear how the steps the IRS took toward other responsible 

persons is relevant to the Hulicks’ defense or contract claim, 

or likely to lead to admissible evidence. The limited 

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information the IRS provided in response to this interrogatory 

more than satisfies the obligations with respect thereto.

5. Request for Production #7

In Request for Production #7, the Hulicks asked the United 

States to produce “a complete copy of the current IRS review 

manual section(s) governing the ‘Collection Process’ and all 

prior versions of the same in effect since June 20, 1993.” 

Defs.’ Mem. of Law (doc. no. 38-1), at 12. The United States 

objected on grounds that the request was overly broad and unduly 

burdensome, and also objected on grounds of relevance. Without 

waiving its objection, however, the United States provided the

Hulicks with an internet link to the complete IRS manual 

containing its policies and procedures.

According to the Hulicks:

The relevance of the sought-after documents is or 

should be obvious. The IRS manuals directly relate to 

determining whether and to what extent the IRS 

followed [its] own procedure in investigating Mr. 

Hulick (and others), assessing the TFRP against him, 

and/or then undertaking dubious collection activities, 

including misrepresenting to him the CSED, allowing 

him to make voluntary payments after that 

misrepresentation, and then filing [t]his action to 

foreclose on his home after “recalculating” the 

“proper” CSED.

Id. at 14. 

Internal IRS policies and procedures governing the 

collection process, if violated, may be relevant to the Hulicks’ 

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estoppel defense. To the extent internal policies and 

procedures may have been violated in this case, such procedures 

would be those in effect as of 2006, when the IRS provided Mr. 

Hulick with the 2008 CSED calculations. It is not clear to the

court how policies in existence before or after 2006 are 

relevant. Through an estoppel defense, the Hulicks presumably 

seek to estop the United States from relying on any CSED 

calculation other than that calculated and communicated to Mr. 

Hulick in 2006. Assuming for purposes of this discovery motion 

that equitable estoppel applies here, to prove entitlement to 

the defense the Hulicks must prove: (1) the IRS made a “definite 

misrepresentation of fact” to Mr. Hulick and had reason to 

believe that he would rely upon it; (2) Mr. Hulick relied on the 

misrepresentations to his detriment; and (3) such reliance was 

reasonable. See Dickow v. United States, 654 F.3d 144, 152 (1st 

Cir. 2011). For the moment, the court will put aside the 

illogic of attempting to prove that the IRS committed misconduct 

by providing a 2006 calculation that turned out to be more 

favorable to Mr. Hulick than that the IRS made at a subsequent 

date. That aside, any alleged misconduct would have occurred in 

or around 2006, when the IRS made and communicated the 

calculation subject to putative estoppel.

Accordingly, the Hulicks’ motion to compel a response to 

Request for Production #7 is granted only with respect to any 

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portions of an IRS manual governing the “Collecting Process” in 

effect in 2006. To the extent, therefore, that the current 

manual is identical in this respect to any manual(s) in effect 

in 2006, the United States has satisfied its obligations with 

respect to this discovery request.

B. Second Motion to Compel

In their second motion to compel, the Hulicks ask the court 

to compel the United States to answer certain interrogatories 

and produce various documents. In their second set of 

interrogatories, the Hulicks asked the United States about: (1) 

the documents and persons it consulted when responding to the 

Hulicks’ first set of interrogatories (Interrogatory #18); (2) 

the IRS’s document-storage procedures (Interrogatory #19); (3) 

documents that were responsive to their first sets of discovery 

requests but are no longer available to the IRS (Interrogatory 

#20); (4) the IRS’s policies for document retention and/or 

destruction from 1993 to the present (Interrogatory # 21). In 

addition, in Interrogatory #22, the Hulicks asked the United 

States to 

identify each and every reason why, exclusive of 

claimed privilege or work-product protection, only 659 

pages of documents were produced by you in response 

to:

(a) David M. Hulick’s and Caroline P. Hulick’s 

First Set of Interrogatories Propounded Upon 

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Plaintiff United States of America (Nos. 1 to 

17); or

(b) David M. Hulick’s and Caroline P. Hulick’s 

First Set of Document Requests Propounded Upon 

Plaintiff United States of America (Nos. 1 to 

15).

Defs.’ Second Mot. to Compel, Ex. 1 (doc. no. 53-2), at 11. In 

their second set of document requests, the Hulicks asked the 

United States to produce all documents referred to in response 

to Interrogatories 18 through 22, including any policies 

pertaining to document retention and/or destruction.

In response, the United States objected to the number of 

interrogatories propounded by the Hulicks and to the burdensome

nature of the second sets of discovery requests. In addition, 

the United States objected on grounds of relevance, and also 

asserted that Interrogatory #19 requested electronically stored 

information which, in its view, is not discoverable under the 

agreed-upon discovery plan.

Rather than sorting through each of the United States’ 

objections, the court turns directly to the dispositive issue: 

relevance. This is a case about whether Hulick is liable to the 

IRS and, if so, whether the IRS may satisfy that liability by 

placing a lien on the Hulicks’ house, foreclosing, and then 

selling the house. Aside from the estoppel defense, which 

arguably allows limited inquiry into the IRS’s CSED calculation 

in 2006, this is not a case about the internal operations of the 

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IRS. Additionally, the Hulicks’ belief that the IRS must have 

more documents than it produced does not make the IRS’s 

document-retention policies and procedures relevant. 

As for Interrogatory #22, which asks why the IRS only 

produced 659 pages of documents, the Hulicks already have the 

answer: the IRS produced 659 pages of documents because the IRS 

believed it had only 659 pages of responsive documents to 

produce. The IRS has stated that it produced the entire IRS 

administrative file pertaining to this case. The United States 

has satisfied its obligations with respect to this interrogatory 

and the remainder of discovery requested in the Hulicks’ second 

motion to compel.

Conclusion

For the foregoing reasons, the Hulicks’ renewed first 

motion to compel, document no. 69, is granted in part and denied 

in part and their second motion to compel, document no. 53, is 

denied. While the renewed first motion to compel is granted in 

part, the court declines to award any attorneys’ fees.

SO ORDERED. 

__________________________

Landya McCafferty 

United States Magistrate Judge 

November 3, 2011

 

cc: Patrick B. Gushue, Esq.

Andrea A. Kafka, Esq.

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Richard J. Lavers, Jr., Esq.

Daniel E. Will, Esq.

Joshua M. Wyatt, Esq.

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