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; 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 asserts claims pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552; the Privacy Act, 5 U.S.C. § 552a; and 42 U.S.C. § 1983.*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, attorney Anne E. Blaess of the U.S. Department of Justice appeared at the conference*fn2 by telephone on behalf of the Internal Revenue Service ("IRS").*fn3
The undersigned declines to enter a formal scheduling order in this
case at this time for two reasons. First, there is a reasonable
possibility that plaintiff will dismiss his FOIA claim in the near
term. As an initial matter, that FOIA claim appears to be duplicative
of plaintiff's FOIA claim in case number 2:11-cv-02109 JAM KJN PS. In
any event, 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 was
agreeable to a stipulation of dismissal of the FOIA claim in this case
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). The court
entered a similar order in the related case numbered 2:11-cv-02109 JAM
Second, defendant Shelley's motion to dismiss is pending before the court and is scheduled for a hearing on April 12, 2012. The court can more appropriately schedule this case after resolution of the motion, which will determine whether Shelley is a party to this action or merely a witness.
For the foregoing reasons, IT IS HEREBY ORDERED that: 1. 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.
2. 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.
3. 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.
4. The court will enter a formal scheduling order in this case after resolution of the motion to dismiss filed by defendant Anthony Shelley.
IT IS SO ORDERED.