IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
March 2, 2012
DONALD R. HUENE, PLAINTIFF,
U.S. DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE; SIU CHAN; AND ANTHONY SHELLEY, DEFENDANTS.
The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
On March 1, 2012, the undersigned conducted a status (pretrial scheduling) conference in this action, in which plaintiff seeks access to certain tax-related documents pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552.*fn1 Plaintiff, who is proceeding without counsel, appeared by telephone and represented himself. Although defendants failed to file a status report in advance of the scheduling conference,*fn2 attorney Anne E. Blaess of the U.S. Department of Justice appeared at the conference by telephone on behalf of the Internal Revenue Service ("IRS").*fn3
The undersigned declines to schedule this case at this time for two primary reasons. First, plaintiff agreed during the scheduling conference to dismiss defendants Chan and Shelley from this action as improper defendants in regards to his FOIA claim. The court directed Ms. Blaess to promptly facilitate the preparation and filing of a stipulation of dismissal as to defendants Chan and Shelley.
Second, there is a reasonable possibility that plaintiff will dismiss his FOIA claim in the near term. Plaintiff has consistently stated that he simply seeks the documents at issue and believed that the parties had already agreed to a protocol for disclosure and, if necessary, in camera review of the documents by the court. At the scheduling conference, plaintiff again agreed to stipulate to the dismissal of this action if the IRS satisfactorily provides him with the requested documents. Ms. Blaess represented at the scheduling conference that the IRS has provided her with a cache of responsive documents that she believes she can provide to defendant within seven to ten days. She represented that any redactions of those documents could be addressed by way of dispositive motions and an in camera review by the court. Accordingly, the court orders the IRS to deliver the subject documents to plaintiff within ten days of the date of this order. The parties shall thereafter file a joint status addressing whether this case has been resolved to plaintiff's satisfaction or should proceed to the filing of a dispositive motion or motions, including possible provision of a so-called "Vaughn index."*fn4 See Lane v. Dep't of Interior, 523 F.3d 1128, 1134 (9th Cir. 2008) ("While ordinarily the discovery process grants each party access to evidence, in FOIA . . . cases discovery is limited because the underlying case revolves around the propriety of revealing certain documents. Accordingly, in these cases courts may allow the government to move for summary judgment before the plaintiff conducts discovery.") (citation omitted).
For the foregoing reasons, IT IS HEREBY ORDERED that:
1. Within seven days of the date of this order, the parties shall file a stipulation to the dismissal of defendants Siu Chan and Anthony Shelley from this action.
2. Within ten days of the date of this order, the IRS shall deliver to plaintiff the documents that it believes are responsive to plaintiff's FOIA request. Within seven days of such delivery, the IRS shall file written notice with the court confirming timely delivery to plaintiff.
3. Within 45 days of the date of this order, the parties shall file a
joint status report addressing whether: (1) following delivery of the
subject documents, plaintiff is satisfied with the document production
such that the parties intend to file a stipulation dismissing this
action; or (2) the court should set a deadline for the filing of
dispositive motions concerning the documents produced*fn5
or impose some other schedule.
4. Any failure to reasonably communicate with plaintiff on the part of the IRS or Ms. Blaess may result in the imposition of sanctions against the IRS, Ms. Blaess, or both.
IT IS SO ORDERED.