IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

United States of America, :

Plaintiff, :

v. : Case No. 2:12-cv-1034

John D. Allen, individually and : JUDGE GEORGE C. SMITH

doing business as Magistrate Judge Kemp

Allen & Associates, :

Defendants. 

OPINION AND ORDER

This matter is before the Court on a motion for sanctions

filed by Plaintiff the United States of America. (Doc. #34). 

For the following reasons, the motion will be denied to the

extent a default judgment is sought, but granted to the extent

that Mr. Allen will be directed to provide further responses to

discovery.

I. Background

In its motion, the United States moves for sanctions against

Defendant John D. Allen based on his alleged failure to comply

with this Court’s order compelling him to respond to

interrogatories and requests for production of documents. The

United States asserts that Mr. Allen has not provided the

requested discovery despite multiple requests and this Court’s

order. Consequently, the United States seeks an entry of default

against Mr. Allen as a sanction. Mr. Allen has not filed an

opposition to the motion for sanctions.

II. Discussion

Fed. R. Civ. P. 37(b) authorizes sanctions for a party’s

failure to obey an order requiring discovery. The strongest

sanction available to address discovery abuses is the entry of a

default judgment against a defendant or an order of dismissal

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against a plaintiff. See Quinn v. Kennedy, No. 1:07-cv-1036,

2008 WL 4145445, at *1 (W.D. Mich. Aug. 20, 2008)(citing Grange

Mut. Cas. Co. v. Mack, 270 F. App’x 372, 376 (6th Cir. 2008)). 

In the Sixth Circuit, courts are to consider four factors

including “(1) whether the party’s failure to cooperate in

discovery is due to willfulness, bad faith, or fault; (2) whether

the adversary was prejudiced by the party’s failure to cooperate

in discovery; (3) whether the party was warned that failure to

cooperate could lead to the sanction; and (4) whether less

drastic sanctions were first imposed or considered.” Id. (citing

Freeland v. Amigo, 103 F.3d 1271, 1277 (6th Cir. 1997)).

As this Court found in its previous opinion and order, the

relevance of the requested discovery is apparent, given that the

United States brought this action seeking to enjoin Mr. Allen

from, among other activities, preparing federal tax returns for

others, promoting any plan or arrangement that advises or helps

taxpayers to violate internal revenue laws or unlawfully evade

the assessment or collection of their federal tax liabilities,

and engaging in any other conduct that is subject to penalty

under the Internal Revenue Code or that interferes with the

proper administration and enforcement of internal revenue laws. 

(Doc. #1). Consequently, the Court found that Mr. Allen bore the

burden of establishing that the information either is not

relevant or is so marginally relevant that the presumption of

broad disclosure is outweighed by the potential for undue burden

or harm. To that end, Mr. Allen has provided an explanation for

his failure to produce documents and has made several objections

to the interrogatories. The Court now examines Mr. Allen’s

arguments.

1. Document Requests

With respect to the document requests numbered 1 through 7,

Mr. Allen responded by handwriting “NONE” in response to each

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request. The United States argues against Mr. Allen’s position

that he does not have any responsive documents, stating that it

already possesses “a limited number of documents, obtained from

Allen’s customers . . . which bore Allen’s signature or to which

were appended post-it notes bearing Allen’s handwriting, name, or

signature.” (Doc. #34 at 3). The United States asserts that

“Allen likely has many other similar documents, related to these

and other customers, which are responsive to these document

requests.” Id. In essence, the United States argues that Mr.

Allen has not made a good faith effort to produce documents in

response to the request.

Ordinarily, a party’s representation that responsive

documents no do not exist is sufficient absent credible evidence

that the representation is inaccurate. See Brown v. Tellermate

Holdings, Ltd., No. 2:11-cv-1122, 2013 WL 1363738, at *6 (S.D.

Ohio Apr. 3, 2013)(citing Alexander v. F.B.I., 194 F.R.D. 299,

301 (D.D.C. 2000)). Consequently, the United States has the

burden to demonstrate that such documents indeed exist and are

being improperly withheld. See id. Here, the United States has

not satisfied that burden. The fact that Mr. Allen’s customers

may have documents responsive to the discovery requests is not

evidence that Mr. Allen maintained responsive documents. Thus,

the Court will not award the United States sanctions based upon

Mr. Allen’s failure to produce documents in response to document

requests numbered 1 through 7.

Document requests 8 and 9, and Mr. Allen’s objections to

those requests, are as follows

8. All documents identified in your response to the

interrogatories served upon you.

Objection: over burdensome.

9. All documents which support the factual contentions

in your Answer to the Complaint.

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Objection: over burdensome and not possible.

(Doc. #34, Ex. 3 at 17). The United States argues that Mr.

Allen’s objections are untimely and waived.

Pursuant to Fed. R. Civ. P. 34, a party objecting to

document requests must make such an objection within thirty days

after being served with the request. Fed. R. Civ. P. 34(b)(2). 

Thus, this Court agrees that Mr. Allen’s objections are untimely. 

Even if the objections were timely, however, the Court is

unconvinced that documents exist which would be responsive to the

requests. With respect to document request number 8, Mr. Allen

did not provide substantive responses to the interrogatories.

Instead, Mr. Allen objected to each interrogatory and relied upon

various statutes as the basis for each objection. Similarly, as

to document request number 9, Mr. Allen did not set forth any

“factual contentions” in his answer as described by the request. 

To the extent that any documents responsive to requests 8 and 9

indeed exist, Mr. Allen may not withhold them based upon his

objections. Rather, the Court will order Mr. Allen to produce

any documents responsive to those requests within twenty-eight

days of the issuance of this opinion and order.

2. Interrogatories

In the motion for sanctions, the United States argues that

Mr. Allen “refused to answer any of the interrogatories, instead

asserting incoherent objections.” (Doc. #34 at 3-4). The first

set of interrogatories, and Mr. Allen’s responses to them, are as

follows

1. Identify all Customers for whom you or Allen &

Associates filed, prepared, and/or signed Form 1040

federal income tax returns or Form 1040X amended federal

income tax returns and for whom you or Allen & Associated

[sic] advised or assisted with the preparation of Form

1040 federal income tax returns or Form 1040X amended

federal income tax returns, from January 1, 2006 to the

present. For each Customer, identify: the name of the

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person who filed, prepared, and/or signed the federal tax

return, whether it was you, your employee, an employee of

Allen & Associates, or the Customer; the address,

telephone number, and social security number or employer

identification number of the individual or entity; and

the tax year of the federal tax return(s).

ANSWER:

Objection: see 26 USC 7701(36)(B) and the Privacy Act.

2. Identify all Customers for whom you or Allen &

Associates prepared and/or filed, or advised or assisted

with the preparation and/or filing of, Forms 4852, Forms

1099-R, Forms W-2, or Forms W-4 with the IRS from January

1, 2006 to the present. For each Customer, identify: 

the name of person who filed, prepared, and/or signed the

Form 4852, Form 1099-R, Form W-2, or Form W-4, whether it

was you, your employee, or an employee of Allen &

Associates, or the Customer; the address, telephone

number, and social security number or employer

identification number of the individual or entity; and

the tax year of the Form 4852, Form 1099-R, Form W-2, or

Form W-4.

ANSWER:

Objection: see 26 USC 7701(36)(B) + Privacy Act.

3. Identify all individuals or entities to whom or to

which you or Allen & Associates marketed, promoted, or

sold the tax arrangements described in the Complaint and

identified as “Scheme 1: Tax Returns Reporting ‘None’ for

Income and Tax,” “Scheme 2: Tax Returns Reporting Bogus

Itemized Deductions to Offset Income,” and “Scheme 3:

Frivolous Amended Tax Returns Claiming That Wages Are

Non-Taxable,” since January 1, 2006, whether or not they

participated in the tax arrangement or whether or not you

or Allen & Associates filed, prepared, and/or signed

federal tax returns. For each individual or entity,

identify: which arrangement you or Allen & Associates

marketed, promoted, or sold to the individual or entity;

when you or Allen & Associates marketed, promoted, or

sold the program, product, or arrangement to the

individual or entity; the documents provided to the

individual or entity; the name of the person who

marketed, promoted, or sold the arrangement, product, or

arrangement [sic]; and the address, telephone number,

[sic] and the name, address, phone number, and email

address of the individuals or entities to whom you or

Allen & Associates marketed, promoted, or sold the

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program, product, or arrangement.

ANSWER:

Objection: see 26 USC 7701(36)(B) + Privacy Act.

4. Identify all of your employees and employees of Allen

& Associates from January 1, 2006 to the present. 

Include their name, home address, telephone, position(s)

at Allen & Associates, duties performed for you or in

their position(s) at Allen & Associates, and dates of

employment for you or at Allen & Associates.

ANSWER:

Objection: see Privacy Act and U.S. + Ohio constitutions.

5. Identify all partners, shareholders, managers, and/or

directors of Allen & Associates from January 1, 2006 to

the present. Include their name, home address,

telephone, position(s) at Allen & Associates and dates

each person held such position.

ANSWER:

Objection: see #4.

6. Identify your most recent employer(s), including the

positions that you have held since January 1, 2006, and

your duties in each position.

ANSWER:

Objection: see #4.

7. Describe in detail the ownership and managerial

structure of Allen & Associates, including all positions

that you have held at Allen & Associates, and the duties

and responsibilities for each position you have held. 

Include the dates that you held each position and, if you

oversaw employees in any position, the names and

positions of the employees acting under your authority.

ANSWER:

Objection: see #4.

8. Describe how you and/or Allen & Associates were

compensated for filing, preparation, and/or signing of

federal tax returns for Customers from January 1, 2006 to

the present. For each Customer for whom you and/or Allen

& Associates filed, prepared, signed, and/or advised or

assisted with the preparation of federal tax returns

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since January 1, 2006, your answer should include the

amount of payment received, a description of the services

provided for such payment, how you calculated such

payment, and when the individual or entity made the

payment.

ANSWER:

Objection: see 26 USC 7701(36)(B), Privacy Act + U.S. +

Ohio constitutions. 

9. Identify any and all steps you have taken to determine

whether the federal tax returns filed, prepared, signed

by you or Allen & Associates, and tax returns which you

or Allen & Associates advised or assisted with the

preparation of, described in interrogatory number 1

above, are lawful, including the name of any publication 

you have consulted, the specific relevant information or

opinions contained in the publication, the identity of

any person with whom you have conferred, the specific

information or opinions provided by that person, any job

titles held by that person, and the basis of that

person’s knowledge.

ANSWER: 

Objection: see #8.

10. Describe in detail how you learned to prepare returns

utilizing tax arrangements described in the Complaint and 

identified as “Scheme 1: Tax Returns Reporting ‘None’ for

Income Tax,” “Scheme 2: Tax Returns Reporting Bogus

Itemized Deductions to Offset Income,” and “Scheme 3:

Frivolous Amended Tax Returns Claiming That Wages Are

Non-Taxable,” including identifying the individuals,

entities, publications, software, promotional materials, 

or other tax law or tax preparation material you

consulted.

ANSWER:

Objection: see #8.

11. Identify by date, type of communication, location (if

it occurred in person), and name and contact information 

of the Customer on whose behalf you were communicating,

all instances in which you have communicated with any IRS

employee relating to your and/or Allen & Associates’s

preparing, filing, and/or signing of federal tax returns,

and your advising and assisting with the preparation of

federal tax returns, since January 1, 2006.

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ANSWER:

Objection: see #8.

12. Please describe in detail all education or training

you have received on the subject of federal income

taxation.

ANSWER:

Objection: see #8.

Id., Ex. 3 at 5-14. The “second set of interrogatories” consists

of just one interrogatory. That interrogatory, and Mr. Allen’s

response, are as follows

1. If you deny any of the United States’ First Set of

Requests for Admission to John Allen, for each denial and

with supporting facts the basis for your denial. 

ANSWER:

Objection: see 26 USC 7701 (36)(B), Privacy Act + U.S. +

Ohio constitutions.

Id., Ex. 4 at 1. The United States argues, inter alia, that Mr.

Allen’s objections are untimely and waived. This Court agrees.

At the outset, Mr. Allen failed to comply with Fed. R. Civ.

P. 33(b)(2)’s requirement that he answer or object to the

interrogatories within 30 days after service. Thereafter, on

August 19, 2003, this Court issued an opinion and order granting

the motion to compel and ordering Mr. Allen to provide the

requested discovery within fourteen days. The United States did

not receive Mr. Allen’s responses to the discovery requests until

October 10, 2013. Although Mr. Allen filed an objection to the

decision granting the motion to compel, which the Court

overruled, the Court did not grant Mr. Allen any extension to

respond pending resolution of any objections to the opinion and

order. When a party fails to make timely objections to

interrogatory requests, those objections are deemed to have been

waived. See, e.g., Drutis v. Rand McNally & Co., 236 F.R.D. 325,

327 (E.D. Ky. 2006) (finding that plaintiffs waived any

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objections by failing to make them in a timely fashion)(citing

Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1473

(9th Cir. 1992). Here, Mr. Allen failed to raise timely

objections to the interrogatories made by the United States. 

Consequently, Mr. Allen waived those objections.

Even if it were to consider Mr. Allen’s objections on their

merits, the Court would overrule them. Mr. Allen’s objections

are based upon 26 U.S.C. §7701(36)(B), the Privacy Act, and the

United States and Ohio Constitutions. As the United States

argues, Mr. Allen does not explain how these authorities pertain

to the interrogatories and why they provide a basis for

withholding the requested information. The United States

explained this in its November 5, 2013 letter to Mr. Allen, again

urging Mr. Allen to comply with his discovery obligations. Fed.

R. Civ. P. 26 is to be construed liberally in favor of allowing

discovery, and any matter not privileged that is relevant, in the

sense that it reasonably may lead to the discovery of admissible

evidence, can be discovered. See Dunn v. Midwestern Indem., 88

F.R.D. 191, 194-95 (S.D. Ohio 1980). Because the requested

information is within the permissible scope of discovery, this

Court will order Mr. Allen to provide interrogatory responses

within twenty-eight days of the issuance of this opinion and

order.

III. Conclusion

From the outset of this litigation, Mr. Allen has

continuously refused to participate meaningfully in discovery. 

Although Mr. Allen is acting without counsel, this does not

excuse him from producing discovery. In re Family Resorts of

Am., Inc., 972 F.2d 347 (Table), No. 91-4127, 1992 WL 174539, at

*3 (6th Cir. July 24, 1992). Mr. Allen is, therefore, ordered to

produce the discovery as set forth herein within twenty-eight

days of the issuance of this opinion and order. At this

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juncture, the Court will provide Mr. Allen an additional

opportunity to respond and, consequently, the motion for

sanctions is denied. (Doc. #34). This Court warns Mr. Allen for

a second time that his failure to provide discovery responses

could result in the imposition of sanctions including a default

judgment under Fed. R. Civ. P. 37(b). 

IV. Procedure on Objections

Any party may, within fourteen days after this opinion and

order is filed, file and serve on the opposing party a motion for

reconsideration by a District Judge. 28 U.S.C. §636(b)(1)(A),

Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 91-3, pt.

I., F., 5. The motion must specifically designate the order or

part in question and the basis for any objection. Responses to

objections are due fourteen days after objections are filed and

replies by the objecting party are due seven days thereafter. 

The District Judge, upon consideration of the motion, shall set

aside any part of this order found to be clearly erroneous or

contrary to law.

This opinion and order is in full force and effect,

notwithstanding the filing of any objections, unless stayed by

the Magistrate Judge or District Judge. S.D. Ohio L.R. 72.3.

/s/ Terence P. Kemp 

United States Magistrate Judge

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