UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

CASE NO. 1:22-cv-24023-SCOLA/GOODMAN

KENNETH C. GRIFFIN,

Plaintiff,

v.

INTERNAL REVENUE SERVICE and U.S. 

DEPARTMENT OF THE TREASURY,

Defendants.

PLAINTIFF’S MOTION TO COMPEL DISCOVERY

PURSUANT TO THE COURT’S ADMINISTRATIVE ORDER [ECF 99]

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i

TABLE OF CONTENTS

Page

I. Preliminary Statement .....................................................................................................1

II. Timeline Of Events Regarding Mr. Littlejohn, The Unlawful Disclosures, And 

DOJ’s Representations.....................................................................................................4

III. Background .....................................................................................................................4

A. The Government Fails To Comply With Its Discovery Obligations......................4

B. This Court Orders The Government To Begin Producing Documents, And 

Also Orders Briefing On The Investigatory Privilege And Section 6103 ..............5

1. The Government Is Ordered To Produce Documents................................5

2. Briefing Regarding The Investigatory Privilege ........................................6

3. Briefing Regarding Applicability And Exceptions To Section 6103 ...........6

4. The Government’s Ongoing Discovery Delays..........................................7

C. The Court Orders The Government To Produce As Many Of 

Mr. Littlejohn’s Documents As Possible Prior To His Deposition ........................7

IV. Requested Relief..............................................................................................................8

V. Argument ........................................................................................................................9

A. This Court Should Order The Government To Produce Its Investigative 

Files.....................................................................................................................9

1. Mr. Littlejohn’s Testimony Confirms That The Government’s 

Investigative Files Contain Information Critical To Mr. Griffin’s 

Claims....................................................................................................10

2. The Government’s Privilege Logs Fail To Comply With The 

Applicable Rules.....................................................................................12

3. Section 6103 Does Not Prohibit The Government From Disclosing 

Its Investigative Files To Mr. Griffin.......................................................13

4. The Law Enforcement Investigatory Privilege Does Not Apply ...............14

5. The Privacy Act Does Not Prohibit Disclosure Of PIN’s 

Documents..............................................................................................17

B. This Court Should Order The Government To Produce Communications 

Between Mr. Littlejohn And A Limited Number Of IRS Personnel....................18

VI. Conclusion ....................................................................................................................20

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TABLE OF AUTHORITIES

Page(s)

Cases

Baskin v. United States,

135 F.3d 338 (5th Cir. 1998) ...............................................................................................13

Fed. Election Comm’n v. Rivera,

335 F.R.D. 541 (S.D. Fla. 2020)........................................................................ 14, 15, 16, 17

J. H. Rutter Rex Mfg. Co. v. N. L. R. B.,

473 F.2d 223 (5th Cir. 1973) ...............................................................................................15

Lane v. Cap. Acquisitions,

242 F.R.D. 667 (S.D. Fla. 2005)............................................................................................9

Laxalt v. McClatchy,

809 F.2d 885 (D.C. Cir. 1987).............................................................................................17

Perry v. State Farm Fire & Cas. Co.,

734 F.2d 1441 (11th Cir. 1984)............................................................................................17

Ryan v. United States,

74 F.3d 1161 (11th Cir. 1996) .............................................................................................14

SEC v. Merkin,

283 F.R.D. 689 (S.D. Fla. 2012)............................................................................................9

Sirmans v. City of S. Miami,

86 F.R.D. 492 (S.D. Fla. 1980)............................................................................................15

In re The City of N.Y.,

607 F.3d 923 (2d Cir. 2010) ................................................................................................14

TIC Park Ctr. 9, LLC v. Cabot,

2017 WL 9988744 (S.D. Fla. June 1, 2017).........................................................................12

Tuite v. Henry,

181 F.R.D. 175 (D.D.C. 1998).............................................................................................14

In re U.S. Dep’t of Homeland Sec.,

459 F.3d 565 (5th Cir. 2006) ...............................................................................................15

United States v. Littlejohn,

No. 1:23-cr-00343 (D.D.C. Sept. 29, 2023) .....................................................................4, 11

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Statutes & Rules

5 U.S.C. § 552a.........................................................................................................................17

26 U.S.C. § 6103................................................................................................................passim

26 U.S.C. § 7431....................................................................................................1, 2, 11, 18, 19

Fed. R. Civ. P. 26...................................................................................................... 9, 12, 17, 19

Fed. R. Civ. P. 34......................................................................................................................20

Fed. R. Crim. P. 6 .......................................................................................................................3

S.D. Fla L.R. 26.1 .....................................................................................................................11

Other Authorities

28 C.F.R. § 16.91......................................................................................................................17

DOJ Criminal Tax Manual (2022).............................................................................................13

The IRS, the President’s Fiscal Year 2023 Budget, and the 2022 Filing Season: 

Hearing before the S. Comm. On Finance, 117th Cong. (Apr. 7, 2022) .................................2

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In accordance with the Court’s March 8, 2024 Post-Discovery Hearing Administrative 

Order (“Administrative Order,” ECF 99),1 Plaintiff Kenneth C. Griffin (“Mr. Griffin”) respectfully

submits this motion to compel discovery from Defendants Internal Revenue Service (“IRS”) and 

U.S. Department of the Treasury (collectively, the “Government”).

I. PRELIMINARY STATEMENT

Beginning as early as September 2017, the IRS serially violated 26 U.S.C. § 7431(a)(1) by 

unlawfully disclosing Mr. Griffin’s confidential tax return information. Although 26 U.S.C. 

§ 6103(n) required the IRS to restrict Charles Edward Littlejohn’s access to Mr. Griffin’s taxpayer 

identity information to instances in which Mr. Littlejohn specifically needed it, Mr. Littlejohn 

revealed in his deposition that he had access to every single tax return filed with the IRS over the 

past 15 years. Mr. Littlejohn explained that he could “access tax returns at will,” and that “

.”

2 What is more, the IRS 

failed to heed more than a decade of warnings that its systemic failures to establish data security 

safeguards made it vulnerable to exactly this manner of unlawful disclosure; as Mr. Littlejohn 

testified, he could search, download, and without 

encumbrance.

3

 

In November 2020, Mr. Littlejohn used this virtually limitless access to unlawfully disclose 

Mr. Griffin’s and approximately 7,500 other taxpayers’ confidential tax return information to 

1

 The Court’s Discovery Procedures Order provides that no motions to compel “shall be 

filed unless specifically authorized by the Court.” ECF 16 at 3. Mr. Griffin files the instant motion 

in response to the Court’s invitation to “demonstrate to the Court through Mr. Littlejohn’s 

deposition testimony why the Court should require the Government to resume its document 

production.” ECF 99 at 2 (emphasis in original). As directed by the Court, this motion “cite[s] 

(page and line) to testimony from Mr. Littlejohn’s deposition and . . . additional theories which 

might implicate the relevance of any continued discovery.” See id.

2

 See Ex. 1, Littlejohn Dep. Tr. (Mar. 19, 2024) (“Littlejohn Dep.”), at 92:22-93:1, 128:7-

10, 201:3-16; 303:5-7. 

3

 See id. at 92:22-93:3, 145:14-16, 196:4-15, 302:13-21, 200:3-4, 304:9-18. 

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ProPublica,

4

and in April and July 2022, ProPublica published Mr. Griffin’s confidential tax return 

information on its website. Consequently, in December 2022, Mr. Griffin brought this action 

against the Government for its unlawful disclosures of his confidential return information (both to 

Mr. Littlejohn and to ProPublica), in violation of Section 7431(a)(1). 

The Government, for its part, has consistently kept the American public in the dark 

regarding its unlawful disclosures. For example, in the summer of 2022, months before Mr. Griffin 

filed his complaint, the then-IRS Commissioner told the Senate Finance Committee that, “I don’t 

believe it’s been indicated that [taxpayer information] was actually stolen from the IRS.”5 But the

statements coming from the IRS were so obviously wrong that, according to Mr. Littlejohn, 

“everybody mocked them for that.”6 The Government moved to dismiss Mr. Griffin’s complaint 

in April 2023 based on the same obfuscation, asserting that the Government was “[w]ithout any 

clue as to which employee(s) allegedly misappropriated Griffin’s confidential information and 

gave that information to ProPublica” and that Mr. Griffin could not rule out a “hostile foreign 

actor” being responsible for the unlawful disclosures. See ECF 23 at 16 (emphasis added). 

Mr. Littlejohn’s deposition, however, revealed that the Government knew that these 

arguments lacked factual merit almost a year and a half before moving to dismiss. As early as 

November 2021, Mr. Littlejohn and his lawyer were communicating with the Government about

the unlawful disclosures, and by March 2022, Mr. Littlejohn had been interviewed by TIGTA 

investigators, testified before a federal grand jury, and litigated against the Government’s motion 

4

 See id. at 197:6-13, 198:10-20. 

5

 See The IRS, the President’s Fiscal Year 2023 Budget, and the 2022 Filing Season: 

Hearing before the S. Comm. On Finance, 117th Cong. (Apr. 7, 2022), 2:29:20-2:29:30 (statement 

of Charles P. Rettig). 

6

 See Littlejohn Dep. at 230:9-15. 

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to compel additional testimony from him before that grand jury.7 Any investigation by the 

Government—much less a diligent one—would have uncovered the DOJ Public Integrity Unit’s

(“PIN”) investigation of Mr. Littlejohn pursuant to the grand jury exception under Federal Rule of 

Criminal Procedure 6(e)(3)(A)(i). Affording the Government every benefit of the doubt, its 

attorneys must have failed to undertake even the most basic investigation prior to advancing

purportedly good-faith arguments before this Court. 

Indeed, Mr. Griffin remained in the dark about the Government’s longstanding 

investigation of Mr. Littlejohn—until his deposition, at which Mr. Littlejohn revealed that the 

Government’s “investigative files” contain evidence that is directly relevant to Mr. Griffin’s claims

and responsive to his discovery requests, but that the Government improperly withheld and even 

concealed. For example, Mr. Littlejohn revealed that the Government seized (and concealed the 

existence of) a journal where Mr. Littlejohn kept his “most private thoughts” about “what had 

happened with . . . ProPublica” from January 2020 through September 2020,

8

and that the 

Government failed to produce important communications involving Mr. Littlejohn. 

In December 2023, Judge Scola denied the Government’s motion to stay discovery and, 

this week, denied its motion to dismiss Mr. Griffin’s unlawful disclosure claim, establishing that 

Mr. Griffin is entitled to discovery to prove his claim against the Government for its unlawful 

disclosures to Mr. Littlejohn and to ProPublica. By way of this motion, Mr. Griffin respectfully 

asks this Court to put an end to the Government’s continued obfuscation and stonewalling, and 

order the Government to identify and produce the evidence integral to his claims—as any other 

litigant would be required to do. 

7

 See id. at 237:12-20, 239:4-12, 245:5-18, 246:14–247:3. 

8

 See id. at 276:3-277:21, 278:3-13.

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II. TIMELINE OF EVENTS REGARDING MR. LITTLEJOHN, THE UNLAWFUL

DISCLOSURES, AND DOJ’S REPRESENTATIONS

Ex. 2.

III. BACKGROUND

A. The Government Fails To Comply With Its Discovery Obligations

The Government has been evading its discovery obligations since the outset of this 

litigation. In its initial discovery responses—served almost two years after the Government began 

investigating Mr. Littlejohn—the Government claimed that, “if and to the extent that there is an 

ongoing investigation [...] the information sought is protected from disclosure by the law 

enforcement investigatory privilege,” and refused to provide any meaningful discovery.

9

 In 

September 2023, after Mr. Littlejohn was charged with disclosing Mr. Griffin’s and thousands of 

other taxpayers’ confidential information, see ECF 1, United States v. Littlejohn, No. 1:23-cr00343 (D.D.C. Sept. 29, 2023), the Government changed tactics, insisting that all discovery should 

9

 See, e.g., Ex. 3, USA Responses to Plaintiff’s First Set of Interrogatories, at 6 (objection

to Interrogatory No. 2) (emphasis added).

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be postponed until after Mr. Littlejohn’s October 12, 2023 plea hearing,

10 then, on the eve of that 

hearing, the Government tried again to unilaterally postpone discovery “until [Mr. Littlejohn’s] 

sentencing,” which was set for January 29, 2024.

11

 

By the end of November 2023—nearly a year into this litigation—the Government had 

produced a total of six (6) documents, all publicly available. As Mr. Littlejohn’s deposition 

confirmed, the Government has the documents Mr. Griffin needs to prove his case, and the 

Government’s efforts to avoid its basic discovery obligations—even setting aside its lack of any 

investigation before responding to Mr. Griffin’s complaint—calls into question whether it has 

litigated this case in good faith. Indeed, the Government’s constant refrain that Mr. Griffin should

“sue Mr. Littlejohn” neither satisfies nor excuses the Government’s discovery obligations. 

B. This Court Orders The Government To Begin Producing Documents, And 

Also Orders Briefing On The Investigatory Privilege And Section 6103

1. The Government Is Ordered To Produce Documents

Mr. Griffin requested a discovery hearing for November 28, 2023, seeking this Court’s 

guidance on, e.g., the “applicability and scope of 26 U.S.C. § 6103,” and the “applicability and 

scope of the law enforcement investigatory privilege”—the Government’s purported bases for 

failing to engage in discovery. See ECF 49 at 1-2. At that hearing, given that the Government had 

imposed its own unilateral stay of discovery, the Court inquired “why [hadn’t the Government] 

filed a motion for a stay if you’re not producing discovery based on that theory?” Id. at 7:3-5. The 

Government’s counsel responded that the case “completely changed” on September 29, 2023, 

because they were “not aware of Mr. Littlejohn being under criminal investigation until it was 

10

 Ex. 4, Ltr. from S. Sasarak to A. Merton on Oct. 10, 2023. See also Ex. 5, Email from 

S. Sasarak to A. Merton on October 10, 2023 (“If you wish to chat about this matter, we think any 

discussion should take place after that plea hearing.”). 

11

 Ex. 6, Ltr. from M. Smith to A. Merton on Nov. 21, 2023. 

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made public”—despite the Government’s investigation into Mr. Littlejohn having predated the

discovery hearing by at least two years. Nov. 28, 2023, H’rg Tr. at 11:6-15. 

The Court ordered that “[i]f the Government intends to seek a stay, then it will file a motion 

to stay” by December 1, 2023. ECF 63 at 2. This Court further ordered, in the spirit of “mak[ing] 

sure that there isn’t any undue delay,” see Nov. 28 H’rg Tr. at 40:1-2, that the Government begin 

producing documents related to Mr. Littlejohn’s employment status by December 8, 2023, and

documents responsive to search terms by December 11, 2023, see ECF 63 at 3-4. On 

December 22, 2023, Judge Scola denied the Government’s motion to stay discovery. ECF 79. By 

then, the Government had violated this Court’s order by failing to run Mr. Griffin’s proposed 

search terms by December 11 as directed. See ECF 63 at 3-4. 

2. Briefing Regarding The Investigatory Privilege

During the discovery hearing, this Court instructed that “[i]f the Government intends to 

rely, in any part, on the law enforcement investigatory privilege,” it must submit a memorandum 

discussing (1) “why it believes the privilege exists,” (2) “which particular documents or categories 

of documents it believes it covers,” and (3) “whether a traditional privilege log is required for 

materials covered by the law enforcement investigatory privilege.” ECF 63 at 2-3. This issue was 

fully briefed on December 15, 2023, and is under submission. See ECF 77. 

3. Briefing Regarding Applicability And Exceptions To Section 6103

Mr. Griffin noticed another discovery hearing for December 29, 2023, at which the Court 

ordered the parties to submit briefing “discussing whether there are any provisions in 26 U.S.C. 

§ 6103 which would permit the disclosure of materials responsive to a discovery request.” ECF 84 

at 1. Mr. Griffin submitted a memorandum of law on January 8, 2024 explaining that Section 6103 

does not apply to Mr. Littlejohn’s investigative file and that, in any case, Section 6103(h) allows 

the Government to produce its investigative files to Mr. Griffin in this proceeding. ECF 88. This 

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issue was fully briefed on January 12, 2024, and is under submission. See ECF 89. 

4. The Government’s Ongoing Discovery Delays

This Court also ordered the Government to “respond to all other outstanding discovery 

requests” from Mr. Griffin’s written discovery by January 30, 2024, ECF 84 at 2, yet on January 30

the Government had produced only 380 documents and claimed that it would take two more 

months to complete its review of even a limited set of responsive materials.12 Over the next month, 

the Government produced an additional 2,854 documents but, because the Government had defied 

the Court’s order to respond to all remaining discovery requests by January 30, 2024, ECF 84, 

Mr. Griffin noticed a third discovery hearing before this Court.

C. The Court Orders The Government To Produce As Many Of Mr. Littlejohn’s 

Documents As Possible Prior To His Deposition

Following that third discovery hearing, the Court ordered the Government to produce 

documents with “herculean efforts” up until the date of Mr. Littlejohn’s deposition and then submit 

an affidavit detailing those efforts. ECF 99 at 2; Mar. 8 H’rg Tr. at 40:12. The Government 

produced 331 documents between the March 8 hearing and Mr. Littlejohn’s deposition on 

March 19, 2024. As of Mr. Littlejohn’s deposition, the Government had produced just 3,236 of 

the 7,388 “priority documents” from the files of Mr. Littlejohn and his direct supervisor.13 

Following the discovery hearing, this Court entered an order inviting Mr. Griffin to 

“demonstrate to the Court through Mr. Littlejohn’s deposition testimony why the Court should 

require the Government to resume its document production.” ECF 99 at 2. Mr. Griffin now 

respectfully submits the instant motion in accordance with this Court’s Administrative Order. 

12

 See Ex. 7, Ltr. from M. Smith to A. Merton on Jan. 30, 2024. 

13

 Ex. 8, Email from M. Smith to P. Fountain on Feb. 20, 2024. 

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IV. REQUESTED RELIEF

Mr. Griffin respectfully requests that the Court compel the Government to produce the 

following discovery, which it has improperly withheld and/or concealed, and which likely contains

crucial evidence necessary to investigate and prosecute Mr. Griffin’s claims:

The Government’s Investigative Files regarding Mr. Littlejohn, including but not limited 

to: 

1. Mr. Littlejohn’s electronic journal concerning the unlawful inspection and disclosure 

of Mr. Griffin’s and others’ confidential return information, which the Government 

seized but never produced, logged, or otherwise disclosed;

2. a data dictionary that Mr. Littlejohn provided to ProPublica identifying the categories 

of confidential return information being unlawfully disclosed; 

3. memoranda of interviews with IRS personnel about their knowledge of 

Mr. Littlejohn’s duties and responsibilities; 

4. records of information and communications Mr. Littlejohn prepared, sent, or 

received about and including the confidential return information he inspected and 

disclosed; 

5. proffer memoranda that include a description of Mr. Littlejohn’s motivations and 

actions, including his communications with ProPublica, his knowledge about IRS 

systems, and the database queries Mr. Littlejohn used to inspect and disclose 

Mr. Griffin’s return information; 

6. search warrants, including corresponding affidavits, issued in connection with the 

investigation of Mr. Littlejohn; 

7. pleadings and corresponding court order(s) regarding the United States’ motion to 

compel Mr. Littlejohn’s testimony in grand jury proceedings in 2022; 

8. communications between Mr. Littlejohn and his representatives, on the one hand, and 

the United States, on the other hand; and

9. communications between Mr. Littlejohn and ProPublica.

Communications (including emails, texts, and instant messages) between 

Mr. Littlejohn and each of the following IRS personnel:

• Paul Wight, Mr. Littlejohn’s Supervisor at the IRS (see Littlejohn Dep. at 

93:10-19, 301:4-11); 

• Cody Thierry, Paul Wight’s deputy (id. at 106:3-15);

Case 1:22-cv-24023-RNS Document 111 Entered on FLSD Docket 04/24/2024 Page 12 of 26
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• Marsha Coleman, IRS Contracting Officer that Mr. Littlejohn would “go to 

when [he] needed access to certain things” (id. at 107:16-108:6); 

• Nanette Downing, Director of Identity Assurance (id. at 94:13-95:2); 

• Rene Schwartzman, Director of Identity Assurance (id. at 109:2-12); 

• Adrienne Smith, IRS employee who worked with Mr. Littlejohn to introduce 

a chat bot to help with the project Mr. Littlejohn worked on (id. at 104:9-105:1);

• Mark Halpin, IRS employee with whom Mr. Littlejohn worked on fraud issues 

with the IRS (id. at 105:2-21); 

• Brandi Warren, IRS employee who Mr. Littlejohn trained (id. at 103:11-

104:1); 

• Annelise Fabian, IRS contractor who worked directly with Mr. Littlejohn; had, 

on information and belief, unfettered access to return information like 

Mr. Littlejohn; and with whom Mr. Littlejohn had a romantic relationship at the 

time of his unlawful inspection and disclosure of Mr. Griffin’s confidential 

return information. 

V. ARGUMENT

A. This Court Should Order The Government To Produce Its Investigative Files

The Government continues to improperly withhold—and conceal the contents of—its 

investigative files regarding its now-concluded investigation into Mr. Littlejohn’s criminal 

conduct. According to the Government, Section 6103 and the investigatory privilege prohibit the 

Government from disclosing its investigative files to Mr. Griffin in this case. That is wrong. 

Government agencies are “subject to the same discovery rules as private litigants,” which 

provide that “parties may discover any non-privileged matter relevant to the ‘claim or defense of 

any party.’” SEC v. Merkin, 283 F.R.D. 689, 696 (S.D. Fla. 2012); Lane v. Cap. Acquisitions, 242 

F.R.D. 667, 669 (S.D. Fla. 2005) (quoting Fed. R. Civ. P. 26(b)(1)). The Government’s 

investigative files, and communications between Mr. Littlejohn and certain IRS employees,

contain information that is critical to Mr. Griffin’s claims and unavailable elsewhere. Accordingly, 

and in accordance with this Court’s Administrative Order, Mr. Griffin moves for an order 

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compelling the production of (1) the Government’s investigative files regarding the investigation 

of Mr. Littlejohn; and (2) emails, texts, and instant messages between Mr. Littlejohn, on the one 

hand, and a limited number of IRS personnel, on the other hand, who were identified in 

Mr. Littlejohn’s deposition or otherwise have information relevant to Mr. Griffin’s claims—which 

includes information about Mr. Littlejohn’s roles and responsibilities at the IRS.

1. Mr. Littlejohn’s Testimony Confirms That The Government’s Investigative 

Files Contain Information Critical To Mr. Griffin’s Claims

Mr. Littlejohn’s testimony revealed the importance and existence of critical evidence that

the Government improperly withheld, for example, Mr. Littlejohn’s electronic journal containing

a detailed account of his “most private thoughts” regarding “this case,” including his observations 

from his time at the IRS.

14

 Mr. Littlejohn’s deposition testimony also provided critical evidence 

that he functioned as a de facto employee of the IRS, among other reasons: 

• Booz Allen did not provide Mr. Littlejohn an office; rather, the IRS provided him

an office at “IRS headquarters” and directed him to work there four out of the five 

days a week and from home on the fifth (see Littlejohn Dep. at 109:20-110:13);

• The IRS directed Mr. Littlejohn to arrive at IRS headquarters at a particular time in 

the mornings, normally between 7:45 am and 9:00 am (id. at 301:1-11, 117:4-11); 

• Mr. Littlejohn had an IRS supervisor who directed his work, and Mr. Littlejohn

also reported to other IRS employees, including “other directors of Identity 

Assurance, and [...] other IRS analysts on the team” (id. at 301:4-11, 94:4-8);

• The IRS provided Mr. Littlejohn an IRS email address and an IRS laptop that were 

indispensable to his job (id. at 111:13-22, 112:15-21); and

• Mr. Littlejohn “managed” IRS employees, including “[f]unctionally” “acting like a 

manager for these people” and “task[ing]” them with assignments (id. at 121:4-20). 

The Government is withholding memoranda of interviews of IRS personnel about their knowledge 

of Mr. Littlejohn’s duties and responsibilities when he worked at the IRS,15 which would 

14

 See Littlejohn Dep. at 276:3-277:21, 278:3-13.

15

 See Ex. 9, TIGTA Privilege Log, Entry 2.

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corroborate this testimony and establish, by the Government’s own knowledge and admission, 

Mr. Littlejohn was a de facto IRS employee.16 The investigative files also contain information—

such as memoranda and documents from Mr. Littlejohn’s proffers17—which will show whether 

the Government violated Section 7431(a)(1) by disregarding the requirements of Section 6103(n) 

and providing Mr. Littlejohn unfettered access to tax returns, and by failing to employ appropriate 

data-security measures.

18

Separately, the Government’s investigative files are necessary to test the veracity of the

Government’s submissions surrounding Mr. Littlejohn’s criminal plea agreement and sentencing. 

For example, the Government filed a Factual Statement to support Mr. Littlejohn’s plea agreement, 

which claims that he used “two virtual machines [... and then...] promptly destroyed these 

machines after he used them to steal the data from the IRS.”

19 In reality, however, Mr. Littlejohn 

testified that he 20 Instead, Mr. Littlejohn confirmed that he 

to steal Mr. Griffin’s and thousands of others’ 

tax returns .

21

 Mr. Littlejohn’s deposition 

also confirmed that the IRS . See id. at 200:18-201:16.

16

 The Government’s attempt to elicit Mr. Littlejohn’s conclusion that he was an employee 

of Booz Allen rather than the IRS, see Littlejohn Dep. at 307:5-308:14, is of no moment because

the question of whether Mr. Littlejohn was an “employee of the United States” is a fact intensive 

inquiry, see ECF 108 at 10.

17

 The Government waived any investigative privilege over these memoranda because 

they were made available to Mr. Littlejohn for review. See Littlejohn Dep. at 268:2-11. 

18

 See, e.g., id., at 267:6-13 (“I think that the mere description of events and, you know, 

how I went about the crime gave them enough to ... try to prevent similar things in the future.”).

19

 See ECF 9, Littlejohn, No. 1:23-cr-00343 ¶ 11 (D.D.C. Oct. 12, 2023). 

20

 

 

. 

21

 Compare ECF 9, U.S. v. Littlejohn, No. 1:23-cr-00343 ¶ 11 (D.D.C. Oct. 12, 2023), 

with Littlejohn Dep. at 198:22-199:9 ( ). 

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2. The Government’s Privilege Logs Fail To Comply With The Applicable 

Rules

The Government’s investigative file privilege logs are facially insufficient to withhold the 

investigative files because they do not “identify each document and the individuals who were 

parties to the communications with sufficient detail to permit the compelling party or court to 

determine if the privilege is properly claimed.” TIC Park Ctr. 9, LLC v. Cabot, 2017 WL 9988744, 

at *4 (S.D. Fla. June 1, 2017) (quotation omitted). Specifically, the Government’s privilege logs 

often omit “the type of document,” “general subject matter of the document,” “the date,” and “such 

other information as is sufficient to identify the document . . . including, where appropriate, the 

author, addressee, and any other recipient.” S.D. Fla L.R. 26.1(e)(2)(B)(ii)(a). 

Both logs fail to sufficiently “describe the nature of the documents” to “enable other parties 

to assess the claim.” Fed. R. Civ. P. 26(b)(5). TIGTA’s privilege log omits dates, authors, 

addressees, recipients, file types, and any meaningful subject matter description. The first entry, 

labeled simply “TIGTA investigative file,” purports to rely on a blanket invocation of investigatory 

privilege and “Section 6103” over “various” documents concerning Mr. Littlejohn’s unlawful 

disclosures, and are being withheld over improper, blanket assertions of privilege.

Excerpt Of The Government’s TIGTA Privilege Log22

PIN’s privilege log is likewise devoid of critical information: for example, an entire 

category of materials is labeled “Documents about a Twitter account,” and it generally does not 

22

 Ex. 9, TIGTA Privilege Log. 

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list the dates necessary to identify when material was seized.23 Because the Government has not 

met its burden as to any applicable privileges, it should be ordered to produce the material.

3. Section 6103 Does Not Prohibit The Government From Disclosing Its 

Investigative Files To Mr. Griffin

The Government claims that Section 6103 prohibits it from disclosing its investigative files 

to Mr. Griffin in this case. Not so. Section 6103(h)(4) provides an exception that allows the 

Government to disclose its investigative files to Mr. Griffin in this litigation, as explained in detail 

in Mr. Griffin’s Section 6103 brief. See ECF 88 at 4-7; 26 U.S.C. § 6103(h)(4)(A); see also DOJ 

Criminal Tax Manual, Updated 2022, 7 n.6 (“Sections 6103(h)(4) [...] permit[s] the Department 

to disclose such returns or return information in civil or criminal judicial proceedings relating to 

tax administration[.]”). Mr. Griffin is suing the Government for violating Section 6103, and 

Congress authorized the disclosure of return information in precisely these circumstances.

But the Court need not even reach that exception because Mr. Littlejohn’s testimony

confirms that Section 6103 does not apply. Section 6103 does not apply to the Government’s 

investigative files in this case because the materials were collected as part of a DOJ investigation, 

not a TIGTA investigation. ECF 88 at 3-4, see also DOJ Criminal Tax Manual (2022), 8 n.7 

(“TIGTA does not have authority to issue a summons and does not conduct ‘administrative’ 

investigations related to potential tax violations.”). In this case, as Mr. Griffin first learned from 

Mr. Littlejohn’s testimony, DOJ has led the criminal investigation of Mr. Littlejohn from as early 

as December 2021.

24 As a result, all investigative materials the Government subsequently 

collected are neither return information under Section 6103 nor subject to its restrictions. See id.;

see also Baskin v. United States, 135 F.3d 338, 342-43 (5th Cir. 1998) (material that IRS Special 

23

 See Ex. 10, PIN Privilege Log. 

24

 See Littlejohn Dep. at 239:2-13, 249:21-250:2, 294:11-295:19.

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Agent obtained during grand jury investigation was not “return information”). The mere 

involvement of TIGTA does not render information collected as part of a DOJ investigation return 

information under Section 6103. See Ryan v. United States, 74 F.3d 1161, 1163 (11th Cir. 1996). 

Thus, the Government’s claim that Section 6103 applies to its investigative files is wrong. 

4. The Law Enforcement Investigatory Privilege Does Not Apply

The Government is also withholding materials on the basis of the investigatory privilege, 

which it claims prohibits disclosure of all seven categories on the PIN log, along with TIGTA’s 

“investigative file,” two proffer memoranda (which may or may not be the same memoranda 

referenced in the PIN log), and some ambiguous mix of “investigative notes, evidence, digital 

evidence analysis reports.” These investigatory privilege claims fail. 

The investigatory privilege is a “qualified” privilege that is intended “to prevent disclosure 

of law enforcement techniques and procedures, to preserve the confidentiality of sources, to protect 

witnesses and law enforcement personnel, to safeguard the privacy of individuals involved in an 

investigation, and otherwise prevent interference in an investigation.” Fed. Election Comm’n v. 

Rivera, 335 F.R.D. 541, 547-48 (S.D. Fla. 2020) (Goodman, M.J.); see also ECF 71. The 

Government bears the burden to “show that the documents contain information that the law 

enforcement privilege is intended to protect,” In re The City of N.Y., 607 F.3d 923, 944 (2d Cir. 

2010), and to determine whether the burden has been met, courts treat each item independently, 

analyzing the facts and circumstances “with an eye towards disclosure,” Tuite v. Henry, 181 F.R.D. 

175, 177 (D.D.C. 1998), aff’d, 203 F.3d 53 (D.C. Cir. 1999). 

Here, the Government has tried to minimize disclosure and shirk its burden by improperly 

advancing a blanket privilege claim over all materials tied to the investigation of Mr. Littlejohn. 

The Government has refused to produce anything at all from PIN or TIGTA, suggesting its 

misperception that anything an investigatory agency collected or created is, by definition,

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privileged. See J. H. Rutter Rex Mfg. Co. v. N. L. R. B., 473 F.2d 223, 234 (5th Cir. 1973) (“[T]he 

qualified privilege we here recognize is not a blanket privilege that arises solely from the fact that 

the information being sought is investigatory matter in the hands of an investigatory or 

prosecutorial agency.”).

In any event, the Government fails on the merits of the privilege assertions. Courts, 

including this one, apply a set of non-exhaustive factors for determining “whether the qualified 

. . . privilege protects against disclosure or whether it must give way” to the search for truth,

Rivera, 335 F.R.D. at 547-48, and those factors weigh heavily in favor of disclosure here.

First, the privilege is limited to “files relating to ongoing criminal investigations.” See 

Sirmans v. City of S. Miami, 86 F.R.D. 492, 495 (S.D. Fla. 1980) (emphasis added); In re U.S. 

Dep’t of Homeland Sec., 459 F.3d 565, 571 (5th Cir. 2006) (“[T]he privilege lapses either at the 

close of an investigation or at a reasonable time thereafter.” (emphasis added)). Here, because 

the DOJ has represented to Mr. Griffin that there is no longer an ongoing criminal investigation, 

the Government cannot meet its burden to establish the privilege.

Second, the Government has not shown that disclosure will “thwart governmental 

processes by discouraging citizens from giving the government information,” or that it will have 

an “impact upon persons who have given information of having their identities disclosed.” Rivera,

335 F.R.D. at 547-48. The Government has not claimed that the investigative files would reveal 

identities of confidential or nonconfidential informants. Instead, the Government explicitly noted 

that “Mr. Littlejohn is, and remains, the primary source of the proffers.”25

Third, production to Mr. Griffin will not increase “the degree to which governmental selfevaluation and consequent program improvement will be chilled by disclosure.” Rivera, 335 

25

 Ex. 11, USA Supp. Resp. to Pls’ Third Requests for Production, at n.1 (Jan. 30, 2024). 

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F.R.D. at 548. Notably, the Government’s misconduct here stems from its failure to evaluate and 

improve its programs. Accountability and remediation would reassure, rather than alarm, 

taxpayers. Mr. Griffin’s actions may even be spurring, rather than chilling, the Government’s self 

evaluation. Similarly, the Government has not claimed that “any interdepartmental disciplinary 

proceedings have arisen or may arise from the investigation,” nor has it claimed that sensitive law 

enforcement personnel data is at stake. Id.

Fourth, much of “the information sought is factual data” rather than “evaluative summary.” 

Id. Screenshots of communications between Mr. Littlejohn and ProPublica do not reveal law 

enforcement technique, nor do Mr. Littlejohn’s Twitter data or other online account information.

26

 

Fifth, “the importance of the information sought” to Mr. Griffin’s case clearly weighs in 

favor of disclosure. Rivera, 335 F.R.D. at 548; see supra at 9-11. Mr. Griffin alleged that the IRS 

provided more access than necessary to Mr. Littlejohn; Entry 3 of the TIGTA log contains the 

“database queries and the code used” and should confirm that the IRS allowed Mr. Littlejohn to 

access tax returns at will, ECF 55 ¶¶ 45-46, 56; Littlejohn Dep. at 93:2-3. Mr. Griffin also alleged 

that the IRS’s lack of safeguards to protect against unlawful inspection caused Mr. Littlejohn’s 

disclosures to ProPublica, see ECF 55 ¶¶ 52, 56, and the Government’s declaration provides that 

the withheld information includes the “details of IRS security audit, logging, and monitoring 

systems.”27 This “integral” information should be disclosed because “plaintiff’s suit is nonfrivolous and brought in good faith.” Rivera, 335 F.R.D. at 546, 548; see ECF 108 (denying the 

Government’s motion to dismiss Mr. Griffin’s Section 7431 claim).

Finally, the information sought is not “available through other discovery or from other 

26

 See Ex. 10, PIN Privilege Log, Entries 1, 2, 6. 

27

 Ex. 12, Decl. of TIGTA Special Agent in Charge Erik Wood, at ¶ 8. 

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sources,” Rivera, 335 F.R.D. at 548, because the Government seized Mr. Littlejohn’s documents. 

5. The Privacy Act Does Not Prohibit Disclosure Of PIN’s Documents

The Government also purports to withhold every responsive document in PIN’s possession 

by claiming that the Privacy Act, 5 U.S.C. § 552a, prohibits disclosure of records maintained in 

the Criminal Division’s system of records.28 But the Privacy Act is not a shield from discovery, 

nor does it override the Government’s civil discovery obligations under the federal rules. To the 

contrary, Section 552a(b)(11) expressly permits government agencies to release information

“pursuant to the order of a court of competent jurisdiction,” particularly where the need for the 

disclosure outweighs the potential harm to the subject of the disclosure. See Perry v. State Farm 

Fire & Cas. Co., 734 F.2d 1441, 1447 (11th Cir. 1984).29 

Here, the balance weighs heavily in favor of disclosure. Mr. Littlejohn testified at his 

deposition and has admitted his wrongdoing, which mitigates any hypothesized harm to him. 

Indeed, he expressed that, in keeping his journal and then voluntarily providing it to the 

Government, he “wanted to demonstrate, you know, honesty . . . [I]f I’m coming forward, I’m 

saying all these things . . . here’s this, you know, flash drive with all my most private thoughts; 

you can take a look at it; it’s fine.” Littlejohn Dep. at 278:8-13.30 On the other hand, the 

Government’s investigative files are highly relevant to each of Mr. Griffin’s theories of liability, 

see supra at 9-11, and, unlike in Perry, the Government’s blanket withholding has rendered the 

28

 See Ex. 10, PIN Privilege Log; Ex. 11, USA Supp. Resp. to Pls’ Third Requests for 

Production, at Obj. 6 (citing 5 U.S.C. § 552a(j)(2), (k)(2) and 28 C.F.R. § 16.91 as exempting 

records from disclosure).

29

 Consistent with Perry’s recognition that the Privacy Act does not prohibit discovery, 

most courts assess a request for documents that are subject to the Privacy Act only under Federal 

Rule of Civil Procedure 26. See, e.g., Laxalt v. McClatchy, 809 F.2d 885, 888 (D.C. Cir. 1987).

30

 When statutory privacy restrictions apply, “traditional devices as protective orders and 

in camera inspection offer reliable means with which to give effect to liberal discovery principles 

without threatening the interests protected by statutory publication bans.” Laxalt, 809 F.2d at 889.

Case 1:22-cv-24023-RNS Document 111 Entered on FLSD Docket 04/24/2024 Page 21 of 26
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critical evidence otherwise inaccessible, 734 F.2d at 1447 (denying request for production of 

Social Security Administration testimony because party “could have utilized normal discovery 

procedures to obtain [the requested] information”). Notably, the United States and the public at 

large will benefit by harnessing the disinfectant power of sunlight, not by stonewalling discovery. 

Accordingly, this Court should order disclosure of the investigative files. 

B. This Court Should Order The Government To Produce Communications 

Between Mr. Littlejohn And A Limited Number Of IRS Personnel

Mr. Griffin’s Second Amended Complaint alleges three distinct theories of liability under 

Section 7431(a)(1): First, Mr. Littlejohn was himself an “employee” of the United States within 

the meaning of Section 7431(a)(1) when he unlawfully inspected and disclosed Mr. Griffin’s 

confidential tax return information. See RFPs 48-51, 88-89. Second, IRS employees unlawfully 

disclosed Mr. Griffin’s confidential tax return information to Mr. Littlejohn in violation of Section 

7431(a)(1) by failing to observe the statutory requirements for disclosing return information to IRS 

contractors under Section 6103(n). See RFPs 58-59, 62-63. Third, IRS employees failed to 

comply with the IRS’s own data-security requirements, which led to the unlawful disclosure of 

Mr. Griffin’s confidential return information to ProPublica. See RFPs 16-18. Mr. Griffin issued 

Requests for Production of Documents seeking documents regarding each theory of liability.

In response, the Government unliterally limited its ESI review to two record custodians:

Mr. Littlejohn and Mr. Paul Wight. When Mr. Griffin made the limited request that the 

Government run search terms across four additional individuals whom the Government itself

identified as possessing relevant information, so that the hit report could inform the discussion of

whether those individuals may be appropriate custodians, the Government flatly refused, asserting 

Case 1:22-cv-24023-RNS Document 111 Entered on FLSD Docket 04/24/2024 Page 22 of 26
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that it would be “unduly burdensome to require the IRS to pull ESI and run search terms.”

31

Mr. Littlejohn’s deposition testimony revealed, however, that Mr. Littlejohn regularly 

communicated—by email, Skype (or other instant messaging services), and sometimes by text 

messages32—with the IRS employees identified above, and Mr. Littlejohn’s testimony and the 

Government’s document production further indicate that these employees are likely to have 

information relevant to whether Mr. Littlejohn was a de facto employee of the IRS, whether the 

IRS violated Section 7431 by failing to adhere to the statutory requirements under Section 6103(n) 

when it provided Mr. Littlejohn unfettered access to each and every tax return filed with the IRS 

over the past 15 years, and whether IRS employees violated Section 7431(a)(1) by failing to 

employ adequate data security safeguards over confidential tax return information33

Mr. Griffin has furthered tailored his requests following Mr. Littlejohn’s deposition, and 

to minimize the burden of search term review at this time, respectfully requests that the Court order 

the Government to produce emails, instant messages, and text messages within its possession, 

custody or control (that is, from the IRS’s files, Mr. Littlejohn’s seized cellphone, or otherwise), 

between Mr. Littlejohn, on the one hand, and the limited number of IRS personnel listed above on 

pages 8-9. 

This Court should grant Mr. Griffin’s request, in accordance with its Administrative Order, 

because the Federal Rules permit broad discovery “regarding any nonprivileged matter that is 

relevant . . . and proportional to the needs of the case,” Fed. R. Civ. P. 26(b)(1), and “a party must 

31

 Ex. 13, Email from M. Smith to P. Fountain on Mar. 6, 2024; see also Ex. 14, USA Am. 

Resp. to Interrogatories 1-5 & 7-9 and Resp. to Interrogatories 12-20, at ROG 18 and 20 (Jan. 15, 

2024); Ex. 15, USA Am. Resp. to Interrogatories 6 & 10 and Resp. to Interrogatories 11 & 21, at 

ROG 11 (Jan. 8, 2024). 

32

 See Littlejohn Dep. 95:3-6 and 100:3-17. 

33

 See id. 105:18-21 (“Q: Okay. [... A]ll these people, you’re communicating with them 

about your job, correct? A: Yea. And their job.”).

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20

produce documents in response to a request for production where those documents are ‘in the 

responding party’s possession, custody, or control,” Fed. R. Civ. P. 34(a)(1). A party asserting an 

undue burden defense, as the Government does here, “must explain specifically how the proposed 

discovery is unduly burdensome.” See All Moving Servs., Inc. v. Stonington Ins. Co., 2012 WL 

718786, at *5 (S.D. Fla. Mar. 5, 2012). The Government’s rote assertions of burden cannot deny 

Mr. Griffin the discovery necessary to pursue his case, especially given the strong relevance of the 

communications—confirmed by Mr. Littlejohn’s deposition testimony. 

VI. CONCLUSION

For the foregoing reasons, the Court should grant the relief requested herein. 

CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7.1(a)(3)

Undersigned counsel conferred with counsel for Defendants by phone on April 18, 2024 

and by email on April 19, 2024, in a good-faith effort to resolve by agreement the issues raised 

herein, but were unable to reach any resolution of the issues.

By: /s/ Jason D. Sternberg

Jason D. Sternberg

Fla. Bar No. 72887

 jasonsternberg@quinnemanuel.com 

Case 1:22-cv-24023-RNS Document 111 Entered on FLSD Docket 04/24/2024 Page 24 of 26
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Dated: April 24, 2024 Respectfully submitted,

 By: Jason D. Sternberg

 William A. Burck (pro hac vice)

 Derek L. Shaffer (pro hac vice)

 Alexander J. Merton (pro hac vice)

QUINN EMANUEL URQUHART & SULLIVAN LLP

1300 I Street, N.W., Suite 900

Washington, DC 20005

(202) 538-8334 

williamburck@quinnemanuel.com

derekshaffer@quinnemanuel.com

ajmerton@quinnemanuel.com

John F. Bash (pro hac vice)

QUINN EMANUEL URQUHART & SULLIVAN LLP

300 West 6th St, Suite 2010

Austin, TX 78701

(737) 667-6100

johnbash@quinnemanuel.com

Jason D. Sternberg (Florida Bar No. 72887)

QUINN EMANUEL URQUHART & SULLIVAN LLP

2601 South Bayshore Dr, Suite 1550

Miami, FL 33133

(305) 402-4880

jasonsternberg@quinnemanuel.com

Christopher D. Kercher (pro hac vice)

Peter H. Fountain (pro hac vice)

QUINN EMANUEL URQUHART & SULLIVAN LLP

51 Madison Avenue, 22nd Floor,

New York, New York 10010

(212) 849-7000 

christopherkercher@quinnemanuel.com

peterfountain@quinnemanuel.com

Counsel to Plaintiff Kenneth C. Griffin

Case 1:22-cv-24023-RNS Document 111 Entered on FLSD Docket 04/24/2024 Page 25 of 26
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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that, on this 24th day of April, 2024, I caused a copy of the foregoing 

document to be filed with the Clerk of Court using the CM/ECF electronic filing system, which 

will send notification to all counsel of record.

By: /s/ Jason D. Sternberg

Jason D. Sternberg

Fla. Bar No. 72887

jasonsternberg@quinnemanuel.com 

Case 1:22-cv-24023-RNS Document 111 Entered on FLSD Docket 04/24/2024 Page 26 of 26