UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

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

KENNETH C. GRIFFIN,

Plaintiff,

v. 

INTERNAL REVENUE SERVICE and U.S.

DEPARTMENT OF THE TREASURY,

Defendants. 

_______________________________________/ 

POST-DISCOVERY HEARING ADMINISTRATIVE ORDER

On November 28, 2023, the Undersigned held an in-person hearing on the parties’ 

discovery disputes. [ECF Nos. 49; 61]. At the hearing, the Undersigned ordered as 

follows:

 The Government (a/k/a the “Defendants”) expressed its intent to move for a 

discovery stay while its motion to dismiss [ECF No. 58] is pending. This case was referred 

to the Undersigned for all discovery matters. [ECF No. 15]. A motion to stay discovery, if 

one were to be filed, falls outside the scope of a discovery referral.

Absent a specific referral order, the Undersigned does not have jurisdiction to rule 

on such a motion and, in any event, I would be issuing a Report and Recommendations 

(as opposed to an Order). But within the scope of the discovery referral, the Undersigned 

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does have jurisdiction to adjust the discovery timetables and require that certain 

discovery be made before other discovery.

The Undersigned has taken a preliminary peek at the Government’s motion to 

dismiss [ECF No. 58] and cannot fairly characterize it as frivolous. Nor can the Second 

Amended Complaint [ECF No. 55] be labeled as such. The Undersigned acknowledges 

that this action was brought against government agencies and, unlike this matter, the 

typical lawsuit does not involve claims of sovereign immunity. At the same time, 

discovery must keep moving and the Court should avoid unnecessary delays. With these 

concerns in mind, I will permit some discovery to go forward and set certain deadlines

while the parties litigate the to-be-filed motion for a stay and brief the law enforcement 

investigatory privilege which Defendants have asserted in their objections to some of the 

outstanding written discovery propounded to them.

If the Government intends to seek a stay, then it will file a motion to stay (not 

exceeding seven pages, double-spaced (excluding the signature block and the certificate 

of service)) by no later than Friday, December 1, 2023. If such a motion were to be filed, 

then Plaintiff will file a response with the same page limitations by no later than Friday, 

December 8, 2023. Defendants may file their optional reply (not exceeding three pages, 

double-spaced (excluding the signature block and the certificate of service)) by Tuesday, 

December 12, 2023.

If the Government intends to rely, in any part, on the law enforcement 

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investigatory privilege, then it will file a memorandum of law (not exceeding eight pages, 

double-spaced (excluding the signature block and the certificate of service)) by no later 

than Tuesday, December 5, 2023. In this filing, the Government will discuss why it 

believes the privilege exists, which particular documents or categories of documents it 

believes it covers, and whether a traditional privilege log is required for materials covered 

by the law enforcement investigatory privilege. Plaintiff will file a response (with the 

same page limitations) by no later than Thursday, December 7, 2023. The Government 

may file an optional reply (not exceeding four pages, double-spaced (excluding the 

signature block and the certificate of service)) by Friday, December 15, 2023.

The Undersigned will permit certain parts of discovery to proceed and other parts 

to be on a de facto hiatus until Judge Scola rules on the Government’s motion to stay or 

until Thursday, December 28, 2023, whichever comes first. As to those portions of 

discovery which are subject to the de facto hiatus, if the motion to stay is denied or if there 

is no ruling by December 28th, then the Undersigned will hold a Zoom discovery hearing 

on Friday, December 29, 2023 at 3:30 PM.

1 As to the other discovery portions not subject 

to the hiatus, the parties will adhere to the following deadlines:

By Friday, December 8, 2023, Defendants will produce all contracts (including 

draft contracts) between the Internal Revenue Service (“I.R.S.”), the U.S. Department of 

the Treasury (“Treasury Department”), or any other agency involved and the Booz Allen

1 The Zoom link and instructions are available at ECF No. 62.

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firm concerning the work Charles Edward Littlejohn (“Littlejohn”) did for Booz Allen

pursuant to its contracts with Defendants. Defendants will also provide discovery 

concerning Littlejohn’s status as either an employee, a “constructive” employee, or a 

person employed by an independent contractor. This will include production of 

documents reflecting whether it was Booz Allen, the Government or another entity which 

directly paid Littlejohn’s salary and benefits and who evaluated Littlejohn’s performance 

in written assessments. This production will also include whether Defendants in any way 

approved Littlejohn’s assignment under the contract(s) with Booz Allen and whether 

Littlejohn communicated directly with the Government (as opposed to communicating 

with Booz Allen) about his employment obligations and access to financial information 

of citizens.

By Monday, December 11, 2023, the Government will run search terms on its files 

with Littlejohn’s name and produce non-privileged documents responsive to Plaintiff’s 

document requests. If Defendants believe that any of the responsive documents are 

privileged, then Defendants will, by the same deadline, provide a privilege log, which 

complies with Local Rule 26.1(e).

The parties shall, as soon as possible, seek to obtain an agreement on what search 

terms the Government will be using if and when the de facto discovery hiatus ends. By 

Friday, December 1, 2023, Plaintiff’s counsel will send to defense counsel a list of search 

terms. If the Government objects to some or all of those search terms, then it will make 

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those objections known to Plaintiff’s counsel by no later than Thursday, December 7, 

2023. Once the parties agree (in whole or in part), the Government will begin using those 

search terms on documents in its possession, custody, or control. If the parties do not 

reach a complete agreement, then the search will proceed on the agreed-to terms.

If the Government finds it impossible or exceedingly difficult to comply with the 

production deadlines, then it will confer with Plaintiff. If necessary, the Government may 

produce the documents on a rolling basis in order to avoid delays in discovery pending 

a ruling on the motion for a stay. 

DONE AND ORDERED in Chambers, in Miami, Florida, on November 29, 2023. 

Copies furnished to:

The Honorable Robert N. Scola, Jr. 

All Counsel of Record

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