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United States of America v. Lowell Baisden

July 20, 2012


The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge



Plaintiff, United States of America, filed its Complaint for Permanent Injunction under sections 7402, 7407, and 7408 of the Internal Revenue Code (26 U.S.C. or I.R.C.) on September 29, 2006, seeking to bar Defendant Lowell Baisden from providing tax advice or preparing income tax returns for others. (ECF No. 1.) The Court stayed the case pending resolution of not-yet-filed but anticipated criminal charges. (ECF No. 178.) The case has since been reopened and limited additional discovery authorized.

On June 18, 2012, Defendant filed a motion to compel responses to his discovery requests. (ECF No. 204.) On July 2, 2012, Plaintiff filed an opposition to Defendant's motion. (ECF No. 205.) The Court having deemed the matter submitted on the written briefs (Local Rule 230(g); Fed. R. Civ. P 58), the motion to compel is now before the Court for resolution.


Parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense, and for good cause the Court may order discovery of any matter relevant to the subject matter involved in the action. Fed. R. Civ. P. 26(b)(1). Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. Id. District courts have broad discretion in determining relevancy for discovery purposes. Surfvivor Media, Inc. v. Survivor Prods., 406 F.3d 625, 635 (9th Cir. 2005).

A litigant may propound interrogatories or document requests relating to any matter that may be inquired into under Federal Rule of Civil Procedure 26(b). Fed. R. Civ. P. 33(a), 34(a). In turn, the responding party is obligated to respond to the discovery requests to the fullest extent possible, Fed. R. Civ. P. 33(b)(3), 34(b)(2)(B), and any objections must be stated with specificity. Fed. R. Civ. P. 33(b)(4), 34(b)(2)(C).

"If the party requesting discovery is dissatisfied with any of the responses, the party may move to compel further responses by informing the court 'which discovery requests are the subject of [the] motion to compel, and, for each disputed response, inform the [c]court why the information sought is relevant and why [the opposing party's] objections are not justified.'" Brown v. Beagley, 2012 WL 1795250, *1 (E.D. Cal. May 16, 2012) (citing Ellis v. Cambra, 2008 WL 860523, *4 (E.D. Cal. Mar. 27, 2008)); see also Randle v. Franklin, 2010 WL 3069205, *2 (E.D. Cal. Aug. 3, 2010) (explaining the Eastern District of California's minimum standards on a motion to compel); Brooks v. Alameida, 2009 WL 331358, *2 (E.D. Cal. Feb. 10, 2009) (noting that unless the court is informed which responses the moving party seeks to compel or on what grounds, the court cannot grant the motion to compel).


Defendant moves to compel Plaintiff's response to interrogatories and document requests. (ECF No. 204.) While the original discovery request included five interrogatories and four docum ent requests, the m otion to com pel does not discuss the fifth interrogatory or the fourth docum ent request. In accord with Brooks, supra, the Court will only address those specific discovery requests actually addressed in Defendant's motion.

Defendant argues that the requested discovery is necessary to demonstrate that the government "acted illegally or unconstitutionally while operating parallel civil and criminal investigations against [Defendant] for nearly a decade." (Id. at 1.) According to Defendant, such conduct "may support possible sanctions, including, but not limited to, suppression of evidence, suppression of testimony, and dismissal." (Id.)

A. Interrogatories One and Two and Document Request One

Interrogatories one and two and document request one seek records of communication, with regard to Defendant, between criminal division employees of the Internal Revenue Service (IRS) and civil division employees of either the IRS or Department of Justice (DOJ). (Id. at 14, 16.) Plaintiff objected on the grounds that the requested material was not relevant and was privileged. (Id. at 19-22.)

In his motion Defendant argues that the requested discovery is relevant because it may lead to information demonstrating that the government conducted parallel civil and criminal investigations illegally in violation of his Fourth and Fifth Amendment rights. Defendant claims that such illegally obtained evidence should be suppressed. Defendant offers two examples of the purported illegal conduct. First, Defendant alleges that a civilian auditor investigating his tax materials discovered firm indications of fraud and referred his case to the criminal division. (Id. at 5, 6.) Defendant cites to United States v. McKee, 192 F.3d 535 (6th Cir. 1999) for support. (ECF No. 204. at 4.) According to McKee, under such circumstances the civil audit is to be suspended to protect the citizen's right to avoid disclosing incriminating evidence in what ...

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