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November 24, 2023

VIA E-MAIL

Mary Elizabeth Smith

Stephanie A. Sasarak

Tom Vanaskie

United States Department of Justice

P.O. Box 14198

Washington, DC 20044

Markenzy Lapointe

United States Attorney’s Office

Southern District of Florida

99 N.E. 4th Street

Miami, FL 33132

Re: Kenneth C. Griffin v. Internal Revenue Service et al.

No. 1:22-cv-24023 (S.D. Fla.)

Dear Counsel:

We write in response to Defendants’ November 21, 2023 letter, which purports to be a 

response to Plaintiff’s letter dated October 25, 2023. While we appreciate the information 

contained within Defendants’ letter and remain ready and willing to continue to confer about these 

matters, it’s clear that the parties fundamentally disagree about Defendants’ discovery obligations 

and that guidance from the Court is necessary as the parties continue to litigate this case.

As an initial matter, the information sought in Plaintiff’s first 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. Defendants’ assertion that they do not have access to investigative files is thus immaterial; 

Defendants have an obligation to search for responsive information outside of the investigative file

even if a copy of the same is also within any such investigative file. The cases cited in Defendants’ 

letter support Plaintiff’s position, as they involved requests for discovery that was solely part of 

the investigative file. See Southern Poverty Law Center v. Internal Rev. Serv., 589 F. Supp. 3d 79, 

85 (D.D.C. 2002) (plaintiff sought “interview memoranda, law enforcement documents, 

communications between law enforcement agencies, and investigation photographs and videos,” 

and defendants still produced some of those investigative materials); Berkun v. Comm'r of Internal 

Revenue, T.C.M. (RIA) 2023-127 (T.C. 2023) (plaintiff sought “grand jury materials,” and 

defendant produced a privilege log of the documents it was withholding).

Case 1:22-cv-24023-RNS Document 70-1 Entered on FLSD Docket 12/05/2023 Page 1 of 2
2

Relatedly, Defendants’ argument that “the IRS has virtually no information or documents 

responsive to Mr. Griffin’s discovery requests because TIGTA conducted the inquiry into the Pro 

Publica leaks that resulted in the prosecution of Mr. Littlejohn” is also of no moment. It simply 

does not follow that the IRS would not have information that Plaintiff requests, for example 

information about the IRS’s own data security safeguards. Moreover, even assuming arguendo 

that the information existed solely in investigative files, Defendants would be required to obtain 

access to those files—which they can do under Section 6103(h)—and to the extent they withhold 

information, provide a privilege log.

Finally, Defendants’ statement that IRS Chief Counsel was “cleared on October 31, 2023 

to inquire further into Mr. Littlejohn’s activities” and thereafter “requested copies of the contracts 

between the IRS and [Booz Allen]” and “is attempting to locate [certain] information responsive 

to Mr. Griffin’s discovery requests,” implicates two separate issues: (i) it demonstrates that the 

information Plaintiff seeks exists outside of the investigative file and (ii) it raises questions about 

what Defendants have done to timely satisfy their discovery obligations, particularly in light of 

Defendants’ concession that TIGTA has not determined that it will assert any investigative 

privilege. We ask that Defendants please promptly let us know: (a) what steps they took prior to 

October 31, 2023 to obtain responsive information, (b) who cleared the IRS Chief Counsel to 

inquire into discoverable information, (c) from whom the IRS Chief Counsel obtained the 

discoverable information listed in Defendants’ letter; and (d) when did the IRS Chief Counsel 

make the request for the information.

In light of pending discovery disputes that remain and will continue to remain even after 

Mr. Littlejohn is sentenced, we cannot agree to Defendants’ request for a continuance of the 

November 28 discovery hearing.

All rights are reserved. 

Sincerely,

Alexander J. Merton

Case 1:22-cv-24023-RNS Document 70-1 Entered on FLSD Docket 12/05/2023 Page 2 of 2