The opinion of the court was delivered by: Allison Claire United States Magistrate Judge
This matter came on for hearing on January 30, 2013 for the government's motion to quash motion for protective order and motion to stay discovery and for plaintiff's motion to compel and motion for sanctions. Donald Huene appeared in pro per. Gerald Role and Anne Oliver appeared for defendant. Upon review of the motions, the documents filed in support and opposition, hearing the arguments of plaintiff and counsel, and good cause appearing therefor, THE COURT FINDS AS FOLLOWS:
RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
A. Allegations in Plaintiff's First Amended Complaint This action was filed on August 5, 2011 and is proceeding on a first amended complaint ("FAC") filed August 7, 2012 seeking damages pursuant to 26 U.S.C. § 7431 against the Internal Revenue Service ("IRS") for wrongful disclosure in violation of 26 U.S.C. § 6103(a).*fn1 Plaintiff alleges the IRS disclosed information to plaintiff's Certified Public Accountant ("CPA") Richard Holland without plaintiff's consent.
Generally, the FAC concerns the actions of the IRS and its agents Anthony Shelly and Siu Chan in connection with a continuing tax audit of plaintiff.*fn2 Plaintiff alleges that the IRS had "previously ordered Plaintiff for examinations of schedule F filings on numerous occasions," and "decided to renew their examination." FAC ¶ 1. Plaintiff then alleges that on December 14, 2010, he granted permission for his accountants Holland and Necia Wollerman, CPA, to represent him; both were given power of attorney to contact and complete the audit. Id. Plaintiff identifies Wollerman as a CPA, but it is unclear who this person is or what role he or she played in the events alleged in the FAC.
Plaintiff claims that Shelly and Chan requested voluminous records in connection with the audit. See FAC ¶ 1. Because of the volume of documents requested, plaintiff decided to represent himself before the IRS. Id. Accordingly, he advised the IRS, through a letter to Chan dated April 7, 2011, that Holland was no longer representing plaintiff, that the power of attorney previously granted to Holland had been rescinded, that plaintiff would be representing himself, and that plaintiff should be the only person contacted by the IRS in connection with the audit. See id. ¶¶ 1-2.
Plaintiff alleges that on or about June 6, 2011, he received an e-mail from Holland indicating that Holland had been contacted by Shelly. FAC ¶ 3. In response to Shelly's contact with Holland, plaintiff again advised the IRS, in a letter dated June 7, 2011, that plaintiff had completely rescinded Holland's authority to represent plaintiff, that plaintiff was representing himself, that Shelly's contact with Holland was an unlawful disclosure of tax information in violation of 26 U.S.C. § 6103(a)*fn3 , and that plaintiff was being billed by Holland for Shelly's unauthorized contact with Holland. See id. ¶ 4.
By letter dated June 7, 2011, plaintiff informed Shelly that plaintiff was giving him "the opportunity to deny that [Shelly's] actions were willful, wanton, or malicious," but Shelly never responded to this letter. FAC ¶ 6.
By letter dated June 11, 2011, plaintiff told Shelly "that the only inference that could possibly be drawn [from Shelly's non-responsiveness to the June 7, 2011 letter] was a silent admission to the willful, wanton, and malicious conduct."
Plaintiff alleges that as a result of Shelly's unlawful actions, he has sustained monetary damages.
B. The Subpoenas Duces Tecum
On October 3, 2012, plaintiff served defense counsel with two subpoenas duces tecum scheduling a deposition for Anthony Shelly on November 15, 2012 (Role Decl., Ex. A) and a deposition for Siu Chan on November 30, 2012 (id., Ex. B).
On October 29, 2012, plaintiff contacted Ms. Oliver to confirm that Shelly would appear at the deposition because plaintiff was being asked to make a non-refundable deposit in preparation for the deposition. Pl.'s Mot. to Compel, Ex. 4.
On October 31, 2012, this case was re-assigned from Ms. Oliver to AUSA Gerald Role. Role Decl. ¶ 2. At this time, Mr. Role first became aware of the subpoenas. Role Supp. Decl. ¶ 3.
On November 1, 2012, Mr. Role, emailed plaintiff to let him know that the IRS had issues with the subpoenas and was preparing a formal objection. Role Decl., Ex. C at 5. He also advised plaintiff to cancel any deposition services for which he had arranged in light of the dispute concerning the subpoenas. Id.
On November 2, 2012, defense counsel served formal objections to the subpoenas on plaintiff. See Role Decl., Ex. D (as to Shelly) and Ex. E (as to Chan).
On November 14, 2012, the IRS filed its motion to quash / motion for protective order and motion to stay discovery. ECF No. 45. Neither Shelly nor Chan appeared at their scheduled depositions.
On November 15, 2012, plaintiff filed a motion to compel and motion for sanctions.
1. The IRS's November 14, 2012 Motion for Protective Order The IRS seeks a stay or deferral of discovery until after their soon-to-be-filed motion for summary judgment is adjudicated. The IRS argues that plaintiff's claim here is only that Shelly made unauthorized disclosures to plaintiff's accountant after receiving notice by letter that plaintiff revoked his accountant's power of attorney. The IRS admits that it received plaintiff's letter, but asserts that the letter ...