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. 

)

) 

) 

) 

) 

) 

) 

) 

) 

)

REPLY IN SUPPORT OF THE UNITED STATES’ LIMITED OBJECTION TO THE 

MAGISTRATE JUDGE’S OMNIBUS ORDER ON 

PLAINTIFF’S MOTION TO COMPEL 

 Through its limited objection, the United States seeks confirmation that it is not required 

to produce materials protected by the attorney-client privilege and attorney work product 

doctrine from the files of Department of Justice, Public Integrity Section related to the 

prosecution of Charles E. Littlejohn. The United States has consistently maintained that such 

privileged materials are not responsive to Plaintiff’s discovery requests. And Plaintiff has never 

challenged that position. But Magistrate Judge Goodman ordered the production of PIN’s 

“prosecutorial investigative file (but not those portions of the file which were obtained 

exclusively from TIGTA’s investigation or any grand jury materials).” ECF No. 141. This 

language potentially sweeps in PIN’s privileged materials. Because Plaintiff did not seek these 

materials in his motion to compel, ECF No. 111 at 12 (listing requested documents from PIN’s 

files), and does not seek them now, ECF No. 148 at 7 n.1, the United States asks the Court to 

limit Magistrate Judge Goodman’s order to non-privileged portions of PIN’s file and confirm

that the United States has not waived any privileges over PIN’s file. 

Case 1:22-cv-24023-RNS Document 157 Entered on FLSD Docket 06/07/2024 Page 1 of 5
2 

ARGUMENT

PIN’s internal work product and attorney client communications (whether before or after 

this suit was filed) were not responsive to any of Plaintiff’s discovery requests, and thus, not 

properly subject to Plaintiff’s motion to compel. “Before a court will compel a party to produce 

discovery, the party requesting discovery must show that the producing party improperly 

declined to voluntary comply with a formal discovery request under Rule 34.” Walker v. 

Dorriety, No. 1:20-cv-1007, 2022 WL 20209780*1 (M.D. Ala. Apr. 4, 2022) (emphasis added). 

Here, Plaintiff issued discovery requests seeking certain information—and not specifically 

internal communications or attorney client communications—from PIN’s files. For seven of 

these discovery requests, Plaintiff sought certain communications and added the phrase “and all 

documents concerning communications.” On January 16, 2024, the Government objected to the 

language “and all documents concerning communications” as too overbroad, vague, unduly 

burdensome, and not proportional to the needs of the case. “It is unreasonable for PIN or any 

other Justice Department to search its files to determine whether there are any documents that 

‘concern’ a particular communication.” (ECF No. 111-1 Ex. 11.) The Government also notified 

Plaintiff that it intended to withhold attorney-client communications and work product of both 

PIN and the Tax Division attorneys created after Plaintiff filed his complaint and that according 

to the local rules such items were not required to be included on a privilege log. Id. 

The Government limited Plaintiff’s request and responded consistent with its objections. 

As PIN’s internal communications and attorney client communications were not responsive, the 

Government was not required to provide a privilege log. 

Plaintiff never challenged the Government’s objection to the “concerning” language or 

the Government’s intention to withhold all post-suit attorney client and work product 

Case 1:22-cv-24023-RNS Document 157 Entered on FLSD Docket 06/07/2024 Page 2 of 5
3

communications, including in his motion to compel. Indeed, Plaintiff “neither desires nor expect 

the Government to produce truly privileged information and communications.” ECF No. 148 at 7 

n.1. Yet, Plaintiff wants a privilege log for non-responsive material to determine if nonresponsive material is in fact privileged. Id. A responding party is not required to provide a 

privilege log for non-responsive materials. And the responding party makes the determination of 

what materials are responsive. 

In responding to Plaintiff’s discovery, the United States was upfront about what it 

considered responsive and about the materials it would include a privilege log. Plaintiff could 

have challenged the United States’ position then. But he chose not to because he admittedly does 

not want PIN’s privileged materials. Requiring the United States to provide a privilege log for 

thousands of internal communications serves no purpose and will not advance this suit. 

Finally, as Plaintiff acknowledges, Magistrate Judge Goodman did not address the United 

States’ privilege claims for PIN’s files. ECF No. 148 at 6. This, however, does not operate as a 

privilege waiver. Nor does the United States’ May 29th production waive privilege. The May 

29th production is consistent with the United States’ limited objection and position throughout 

this case. PIN’s protected work product and attorney-client communications are not responsive 

to Plaintiff’s discovery. A log for those materials is thus not required. 

CONCLUSION

For the reasons above and its in limited objection, ECF No. 145, the United States 

requests that the Court limit Magistrate Judge Goodman’s order to non-privileged portions of 

PIN’s prosecutorial investigative file (but not those portions that were obtained exclusively from 

TIGTA’s investigation or any grant jury materials) and determine that the United States did not 

waive any privilege over PIN’s files.

Case 1:22-cv-24023-RNS Document 157 Entered on FLSD Docket 06/07/2024 Page 3 of 5
4 

Dated: June 7, 2024 Respectfully Submitted,

DAVID A. HUBBERT

Deputy Assistant Attorney General 

Beatriz T. Saiz 

MARY ELIZABETH SMITH

Maryland Bar No. 0712110235 

STEPHANIE A. SASARAK

Maryland Bar No. 1012160096 

BEATRIZ T. SAIZ

New Jersey Bar No. 024761995 

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 

Case 1:22-cv-24023-RNS Document 157 Entered on FLSD Docket 06/07/2024 Page 4 of 5
5 

CERTIFICATE OF SERVICE

I hereby certify that on June 7, 2024, 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. 

Beatriz T. Saiz

BEATRIZ T. SAIZ

Trial Attorney

 U.S. Dept. of Justice, Tax Division 

Case 1:22-cv-24023-RNS Document 157 Entered on FLSD Docket 06/07/2024 Page 5 of 5