IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

Case No. 1:22-cv-24023-SCOLA/GOODMAN

KENNETH C. GRIFFIN,

 Plaintiff,

 v.

INTERNAL REVENUE SERVICE, et al.,

 Defendants. 

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DEFENDANTS’ MEMORANDUM OF LAW 

REGARDING LAW ENFORCEMENT INVESTIGATORY PRIVILEGE

The United States submits this memorandum of law in accordance with the 

Court’s Post-Discovery Hearing Administrative Order (ECF. No. 63) and represents that 

it does not intend to assert the investigatory privilege at this time. But the information 

gathered by the Treasury Inspector General for Tax Administration (“TIGTA”) in its 

investigation of Charles Edward Littlejohn for the unauthorized disclosure of tax return 

information of Plaintiff and others is Mr. Littlejohn’s return information. 26 U.S.C. 

§ 6103(b)(2); Berkun v. Comm’r of Internal Rev., T.C. Memo 2023-127, 2023 WL 

6973206, at *6 (Oct. 23, 2023). Thus, TIGTA’s investigative file may not be disclosed to 

Plaintiff in discovery, unless the disclosure is authorized by § 6103. 26 U.S.C. § 6103(a). 

While undersigned counsel was unaware of an investigation of Mr. Littlejohn until 

it was publicly announced in an Information on September 29, 2023, the United States 

alerted Plaintiff at the outset of this case that the existence and substance of any 

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investigation of the ProPublica leak constituted third-party return information that was 

prohibited from disclosure by § 6103.1 (ECF No. 29 ¶¶ I.K, II.B). We maintained this 

position in our discovery responses and asserted—as a protective measure to avoid any 

argument of waiver—that certain materials in the (yet unknown) investigative file may be 

protected by common law privileges, including the law enforcement investigatory 

privilege. The United States did not provide a privilege log because the attorneys 

assigned to this matter lacked access to TIGTA’s file and, in any event, Plaintiff 

expressly stated that they did not seek the investigative file. For these reasons, the 

investigative file was not in the possession, custody, or control of the United States as 

defined in Plaintiff’s discovery requests, nor was the investigative file responsive to his 

requests. 

Although Plaintiff makes no attempt to argue that the investigative file may be 

disclosed to him under § 6103, Plaintiff questions the applicability of the United States’ 

protective claim to the investigative privilege. Thus, as directed by the Court, the United 

States submits this brief to address whether the privilege exists, the particular documents 

or categories of documents the privilege covers, and whether a traditional privilege log is 

required for materials covered by the privilege. 

1 We also invited Plaintiff to join our request for an initial discovery conference with the Court to 

address this issue before discovery commenced. Plaintiff declined. See ECF 29 at 4 (comparing 

the United States’ and Plaintiff’s positions on the subject and timing of discovery).

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ARGUMENT

I. Courts Recognize the Law Enforcement Investigatory Privilege

Courts throughout the country all agree. A qualified law enforcement investigatory 

privilege exists to protect “disclosure of law enforcement techniques and procedures, to 

preserve the confidentiality of sources, to protect witness and law enforcement personnel, 

to safeguard the privacy of individuals involved in an investigation, and otherwise 

prevent interference with an investigation.” Dinler v. City of New York, 607 F.3d 923, 

940-41 (2d Cir. 2010) (citation and quotation omitted); see also United States v. Van 

Horn, 789 F.2d 1492, 1507 (11th Cir. 1986). Indeed, this Court recognized the privilege 

in Federal Election Commisson v. Rivera, 335 F.R.D. 541, 547 (S.D. Fla. 2020) 

(Goodman, M.J.). 

Just as the privilege applied to the FEC as an investigatory agency in Rivera, the 

privilege applies to TIGTA, which is an investigative office within the Department of 

Treasury, and any other offices within the Treasury Department and IRS that conduct 

civil and criminal investigation. Id. Thus, TIGTA’s investigative file of Mr. Littlejohn is 

protected from disclosure by this privilege unless Plaintiff shows that, on balance, his 

need for the information outweighs the Government’s interest in protecting the files from 

disclosure. Id. at 547-48 (listing ten factors that courts consider to determine whether the 

privilege applies). That is, however, an academic question because TIGTA’s 

investigative file is Mr. Littlejohn’s return information, and Plaintiff can cite no 

authorization in § 6103 that permits its disclosure in response to his discovery requests. 

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II. The Law Enforcement Investigatory Privilege Applies to at Least Three 

Categories of Documents within TIGTA’s File

As noted in the introduction, counsel for the United States did not have access to 

TIGTA’s file when it responded to Plaintiff’s first requests for production. After the 

November 28th hearing, undersigned counsel received permission to speak with TIGTA 

agents about the investigation of Mr. Littlejohn to determine where potentially responsive 

information to Plaintiff’s discovery requests may be found from sources outside of 

TIGTA.

Based on conversations with TIGTA personnel, we contend that the privilege 

applies to at least three categories of documents within TIGTA’s files. The first category 

of privileged documents concerns techniques, methods, and processes used to analyze 

potential unauthorized access at the IRS. The second category of privileged documents 

concerns details of IRS security audit, logging, and monitoring systems that, if publicly 

known, might enable circumvention of portions of these systems. And the third category 

of privileged documents concerns techniques for circumventing IRS information system 

security measures. 

Plaintiff has no need for any materials that fall within these three categories of 

documents. Documents that reveal TIGTA’s investigative techniques are not relevant to 

either of his claims. And, in any event, the source of the disclosure of his return 

information is now known. If Plaintiff’s second amended complaint survives the United 

States’ motion to dismiss, discovery should be limited to discrete factual issues that 

remain unresolved. 

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III. A Privilege Log Is Not Required for Non-Responsive Documents

Local Rule 26(e)(2)(B) requires a privilege log for documents withheld under a 

claim of privilege. However, a party withholds a document for privilege only if the 

document is responsive. Here, Plaintiff has repeatedly stated that he does not seek 

TIGTA’s investigative file. Indeed, Plaintiffs recently advised Government counsel that 

“the information sought in Plaintiff’s set of discovery requests exists independently of 

any investigative file, and Plaintiff’s pending requests do not seek any investigative 

materials at this time—e.g., interview memoranda, law enforcement documents, etc.”

Exhibit A, Letter from Plaintiff’s counsel dated Nov. 24, 2023. Plaintiff maintained this 

position at the November 28th hearing, informing the Court that he does not seek the 

Government’s investigative file and instead seeks responsive documents that exist 

independent of the investigative file. 

As Plaintiff unambiguously states, the TIGTA file that would otherwise implicate 

the investigatory privilege is not responsive to any pending discovery request. As nonresponsive information, the United States has no obligation to provide a privilege log of 

its contents. If Plaintiff issues a specific discovery request for TIGTA’s file, the United 

States will assert the privilege as necessary and provide a log in accordance with the 

Local Rules.

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Dated: December 5, 2023 Respectfully Submitted

DAVID A. HUBBERT

Deputy Assistant Attorney General

Mary Elizabeth Smith

MARY ELIZABETH SMITH

Maryland Bar No. 0712110235

STEPHANIE A. SASARAK

Maryland Bar No. 1012160096

Trial Attorneys, Tax Division

U.S. Department of Justice

P.O. Box 14198

Washington, D.C. 20044

202-307-2089 (v) | 202-514-4963 (f)

Mary.E.Smith@usdoj.gov

Stephanie.A.Sasarak@usdoj.gov 

Counsel for the United States

Of counsel:

MARKENZY LAPOINTE

United States Attorney

Southern District of Florida

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CERTIFICATE OF SERVICE

I hereby certify that on December 5, 2023, I filed a copy of the foregoing 

document with the Clerk of Court using the CM/ECF system, which will send 

notification to counsel of record. 

Mary Elizbeth Smith

MARY ELIZABETH SMITH

Trial Attorney

 U.S. Dept. of Justice, Tax Division

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