UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA 

MIAMI DIVISION

KENNETH C. GRIFFIN,

Plaintiff,

v.

INTERNAL REVENUE SERVICE and U.S. 

DEPARTMENT OF THE TREASURY,

Defendants.

Case No. 1:22-cv-24023-Scola/Goodman

PLAINTIFF’S MEMORANDUM OF LAW

IN RESPONSE TO DEFENDANTS’ MEMORANDUM OF LAW

REGARDING LAW ENFORCEMENT INVESTIGATORY PRIVILEGE

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TABLE OF CONTENTS

INTRODUCTION ......................................................................................................................1

BACKGROUND ........................................................................................................................2

ARGUMENT..............................................................................................................................3

I. THE GOVERNMENT IS REQUIRED TO PRODUCE RESPONSIVE

DOCUMENTS REGARDLESS OF WHETHER THEY RESIDE IN THE 

INVESTIGATIVE FILE..................................................................................................3

A. The Investigatory Privilege Is Qualified, Limited, And Fact-Specific, And 

The Government Fails To Carry Its Burden To Establish The Privilege 

Here.....................................................................................................................3

B. The Parties Agree That A Log Is Required For Documents Withheld 

Under Any Claim Of Privilege.............................................................................5

II. THE GOVERNMENT CANNOT RELY ON SECTION 6103 TO ABDICATE 

ITS RESPONSIBILITY TO REVIEW THE INVESTIGATIVE FILE.............................6

CONCLUSION...........................................................................................................................7

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Plaintiff Kenneth C. Griffin (“Mr. Griffin”) respectfully submits this response to the 

memorandum of law (“MOL,” ECF 70) filed by Defendants Internal Revenue Service (“IRS”) 

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

INTRODUCTION

The instant dispute arises from discovery requests Mr. Griffin served five months ago. In 

response to those requests, the Government refused to produce either documents or a privilege 

log (much less both), relying on the boilerplate objection that, “if and to the extent there is an 

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

enforcement investigatory privilege.” After a discovery hearing on November 28, this Court 

ordered the Government to begin producing documents and 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.

In its memorandum, the Government fails to address why it believes the privilege may 

apply in this case, instead stating “that it does not intend to assert the investigatory privilege at 

this time” because Mr. Griffin “stated that [he] did not seek the investigative file.” MOL at 1–2 

(emphasis added). This is sleight of hand. Mr. Griffin has not sought materials that are solely 

investigative in nature—e.g., interview memoranda or other work product—and yet has been 

stymied by the Government’s invocation of the possibility of the law enforcement privilege, 

which the Government seems to misapprehend, as that privilege is not implicated merely because

the Government happens to place in an investigatory file material that is responsive to 

conventional discovery. In any event, the Government has now waived any claim as to the law 

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enforcement privilege by refusing to identify specific categories of documents it believes are 

covered by the privilege, as required by the relevant authorities and this Court’s on-point order. 

And even if the law enforcement privilege had been properly invoked, the Government admits 

that any documents it withholds, on any basis, must be logged. 

Without meaningfully addressing the privilege, the Government invokes Section 6103, 

arguing that the “investigative file may not be disclosed to [Mr. Griffin] in discovery, unless the 

disclosure is authorized by § 6103,” and that the file was not even “in [its] possession, custody, 

or control” because it constitutes Mr. Littlejohn’s confidential “return information” under the 

statute. Id. Yet the Government did not raise this objection at the November 28 hearing, and 

any half-hearted attempt to do so now is a red herring. To the extent the investigative file 

constitutes confidential return information, it cannot be shielded from Mr. Griffin as Mr. Griffin

seeks redress, with Congress’s express authorization, for an acknowledged violation of 

Section 6103 that occurred at Mr. Griffin’s expense. As such, the Government cannot preserve

any objection to discovery based on Section 6103 with a straight face.

BACKGROUND

Mr. Griffin served his first set of discovery requests on the Government five months ago, 

on July 28, 2023. Those requests sought information related to the inspection and disclosure of 

Mr. Griffin’s confidential return information, as well as the IRS’s failure to establish appropriate 

safeguards to protect that information. The Government responded with boilerplate and 

conclusory objections (notwithstanding this Court’s rules prohibiting such practices), asserting 

more than 50 times that, hypothetically, “if and to the extent there is an ongoing investigation,” 

“the information sought is protected from disclosure by the law enforcement investigatory 

privilege.” 

Mr. Griffin’s requests never specifically sought investigatory materials—e.g., interview 

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memoranda and other work product—and it was unclear, at best, how the Government could

refuse to produce documents based on a hypothetical investigation. Accordingly, Mr. Griffin 

explained that the Government need only look to the investigatory file if that is the sole 

repository for the routine discovery material he seeks—which would seem highly unlikely. 

Despite this explanation, the Government appears to have stood on the law enforcement privilege

(among other objections) to not produce anything; to date, it has produced a total of six 

documents, all of which are publicly available. 

It came as a surprise, therefore, when the Government on November 21, 2023, revealed 

that it had just recently, and apparently for the first time, “asked [Treasury Inspector General for 

Tax Administration (‘TIGTA’)]’s counsel to advise whether TIGTA’s Office of Investigations 

intends to assert the investigative privilege over the investigative file.” As of the date of this 

submission, the Government still has not revealed whether it has, in fact, reviewed the materials

in TIGTA’s investigative file for potentially responsive information and documents, much less 

invoked the privilege over any responsive documents therein. 

ARGUMENT

I. THE GOVERNMENT IS REQUIRED TO PRODUCE RESPONSIVE 

DOCUMENTS REGARDLESS OF WHETHER THEY RESIDE IN THE 

INVESTIGATIVE FILE

A. The Investigatory Privilege Is Qualified, Limited, And Fact-Specific, And 

The Government Fails To Carry Its Burden To Establish The Privilege Here. 

The Government errs in two ways: (i) applying an erroneous standard for the application 

of the investigative privilege, and (ii) purporting to assert the privilege over vague categories of 

information to which the privilege is inapplicable. The Government suggests that the privilege 

attaches categorically to any agency that “conduct[s] civil and criminal investigation[s].” MOL 

at 3. To the contrary, the determination of whether the privilege applies requires a fact- and 

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circumstance-specific analysis “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); see also 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.”). Notably, the “proponent of the law-enforcement privilege bears the 

ultimate burden of demonstrating its applicability.” F.T.C. v. Timeshare Mega Media & Mktg. 

Grp., Inc., 2011 WL 6102676, at *4 (S.D. Fla. Dec. 7, 2011).

The Court ordered that the Government identify “which particular documents or 

categories of documents it believes [the investigatory privilege] covers.” ECF 63 at 3. In 

response, the Government identified instead three vague and hypothetical categories of 

information: (i) documents “concern[ing] techniques, methods, and processes used to analyze 

potential authorized access at the IRS,” (ii) documents “concern[ing] details of IRS security 

audit, logging, and monitoring systems,” and (iii) documents “concern[ing] techniques for 

circumventing IRS information system security measures.” MOL at 4. This is insufficient.

As an initial matter, these categories of documents are not sufficiently specific to enable 

intelligent testing of any assertion by the Government (were one made) that the law enforcement 

privilege applies. Because the privilege is limited and qualified, courts tailor its protections to 

the particular facts of an investigation and the risks associated with disclosure of that

investigation’s materials. See, e.g., Est. of Whitfield v. City of Indianapolis, 2023 WL 7128593, 

at *3–5 (S.D. Ind. Oct. 30, 2023) (considering ten factors and reviewing documents before 

declining to uphold the privilege). Given the qualified and limited nature of the privilege, the 

need for specificity is particularly acute where—as here—the party seeking the documents 

alleges he is a victim of government misconduct and is not the subject under investigation. See

MacNamara v. City of N.Y., 249 F.R.D. 70, 78–79 (S.D.N.Y. 2008) (in asserting investigative 

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privilege, one “must do more than alert the court to the relevant privilege or the generalized 

policies which support it,” it must “make a substantial threshold showing that there are specific 

harms likely to accrue from disclosure of specific materials”) (cleaned up). But the Government 

does not even purport to make any such showing. 

Moreover, Mr. Littlejohn has already pled guilty, and the Government has not argued that 

any investigation is ongoing, which typically lessens the sensitivity of the information and any

putative law enforcement interest in protecting the information. 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 based on a particularized assessment of the 

document.”); cf. Timeshare Mega, 2011 WL 6102676, at *4 (privilege applied because, among 

other reasons, agent’s testimony “would interfere with ongoing law enforcement investigations 

and proceedings”). Nor has the Government articulated any risk that the disclosure would chill 

any governmental program or “thwart” any processes. See Fed. Election Comm’n v. Rivera, 

335 F.R.D. 541, 547 (S.D. Fla. 2020). 

At bottom, the Government’s vague and conclusory statements deny Mr. Griffin any 

meaningful opportunity to ascertain whether the Government has even looked at the materials in 

the investigative files, let alone which documents are supposedly privileged. The Government 

has not come close to carrying its burden of establishing the investigative privilege applies here.

1

B. The Parties Agree That A Log Is Required For Documents Withheld Under 

Any Claim Of Privilege.

Mr. Griffin agrees with the Government’s unqualified statement that “Local 

Rule 26(e)(2)(B) requires a privilege log for documents withheld under a claim of privilege.” 

1

It is no wonder that the categories are vague and overbroad, since the Government 

appears to acknowledge it has not even seen the information in question. See MOL at 4.

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MOL at 5. The law compels this acknowledgement—for documents withheld on the basis of the 

investigatory privilege, Section 6103 (discussed further below), or otherwise. See, e.g., Ford 

Motor Co. v. United States, 2009 WL 2176657, at *2 (E.D. Mich. July 21, 2009) (“Therefore, in 

accord with Fed. R. Civ. P. 26(b)(5)(A)(ii), the Government must produce for Ford an 

adequately detailed privilege log for the responsive documents that it withholds from production. 

This log must include responsive documents withheld on the basis that section 6103 prohibits 

disclosure.”); United States v. 2,640 Cases of Imported Bottled Alcohol, 2020 WL 6150917, at 

*10 (C.D. Cal. Aug. 5, 2020) (“If the Government withholds any documents on the basis of . . . 

the investigatory privilege, . . . it shall provide a sufficiently detailed privilege log to enable 

defendants to evaluate the applicability of the privilege or other protection asserted.”).

II. THE GOVERNMENT CANNOT RELY ON SECTION 6103 TO ABDICATE ITS 

RESPONSIBILITY TO REVIEW THE INVESTIGATIVE FILE

The Government also passingly asserts that “TIGTA’s investigative file may not be 

disclosed to [Mr. Griffin] in discovery, unless that disclosure is authorized by § 6103.” MOL 

at 1. Whether Section 6103—which protects against public access to “return information” in 

certain circumstances and was not raised at the November 28 hearing—says anything about 

disclosure to Mr. Griffin of materials exclusively in the investigative file is irrelevant to the sole 

subject of the Government’s instant memorandum, which is application of the law enforcement 

privilege. Nor would any (unraised) objection under Section 6103 afford any plausible basis for 

the Government to abdicate its own responsibility to review the investigative files for potentially 

responsive materials and produce a privilege log of materials that it seeks to withhold. 

In any event, because Mr. Griffin here is complaining of unlawful disclosure by 

Mr. Littlejohn in violation of Section 6103, any disclosure of material arguably constituting 

“return information” would be “directly related to the resolution of an issue in this proceeding.”

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See 26 U.S.C. § 6103(h)(4)(B). Any contrary suggestion flies in the face of Congress’s 

authorization for aggrieved taxpayers like Mr. Griffin to sue for violations of Section 6103—Mr. 

Griffin would be denied smoking-gun evidence of the violation he is suing for merely because

the evidence was turned up and filed away when the Government was investigating the precise 

violation alleged. See 26 U.S.C. § 7431. Needless to say, that would not be a fair understanding 

of Congress’s intent in authorizing Mr. Griffin to proceed against the United States for a Section 

6103 violation, nor is it compatible with how civil discovery properly works. 

* * *

In sum, the Government has not come close to carrying its burden to assert and 

substantiate any investigative privilege attaching to the requested information. Even assuming 

arguendo that certain protections may attach to information contained in an “investigative file,”

that would at most underscore the need for particularized assertions of protection, which the 

Government has yet to offer. See Friedman v. Bache Halsey Stuart Shields, Inc., 738 F.2d 1336, 

1343 (D.C. Cir. 1984) (“That the qualified privilege is not claimed as to the entire file[] only 

adds to the necessity that the process of adjudication of the privilege begin with a deliberate and 

reasonably specific delineation of the claim by [the agency].”). By no means can the 

Government flip the established burden on its head, as it is attempting to do, by asserting that 

anything and everything potentially in an investigative file is necessarily off limits (in the 

Government’s words, “non-responsive”) and refusing even to look there as discovery proceeds.

CONCLUSION

The Court should enter an order that (i) the Government has not met its burden with 

respect to the investigative privilege as to the three categories of information identified in the 

Government’s memorandum of law; and (ii) the Government must provide a privilege log for 

any documents withheld on the basis of any claimed privilege or protection.

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Dated: December 7, 2023 Respectfully submitted,

 By: /s/ 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

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that, on this 7th day of December, 2023, 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 

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