In the United States Court of Federal Claims

No. 11-153C

(Filed Under Seal: April 13, 2015 | Reissued: April 22, 2015)*

CONFIDENTIAL INFORMANT 

59-05071,

Plaintiff,

v.

THE UNITED STATES OF AMERICA,

Defendant.

)

)

)

)

)

)

)

)

)

)

)

)

)

Discovery; Attorney-Client Privilege; 

Crime-Fraud Exception; Request for 

Production; RCFC 26(b)(1); Sanctions; 

RCFC 37(a)(5).

 

 

Thomas Scott Tufts, Tufts Law Firm, PLLC, Maitland, FL, for plaintiff

Jonathan Reid Prouty, United States Department of Justice, Civil Division, 

Commercial Litigation Branch, Washington, D.C., for defendant. With him on 

the briefs were Jessica R. Toplin, Trial Attorney, Patricia M. McCarthy, Assistant 

Director, Bryant G. Snee, Acting Director, and Stuart F. Delery, Assistant 

Attorney General

OPINION AND ORDER

KAPLAN, Judge.

Currently before the Court is plaintiff’s motion to compel discovery and for sanctions 

pursuant to Rules of the Court of Federal Claims (“RCFC”) 37(a)(5). In its1 motion, the plaintiff

in this case, Confidential Informant 59-05071, challenges the assertion of the attorney-client 

privilege by the United States (“the government” or “defendant”) in response to plaintiff’s

requests for production of certain documents. In addition, plaintiff seeks to compel the 

production of additional documents that plaintiff alleges are discoverable under RCFC 26(b)(1). 

Plaintiff also seeks an award of the costs of the depositions it conducted of certain current and 

* This Opinion was originally issued under seal, and the parties were given the opportunity to 

request redactions. In light of the plaintiff’s suggested redactions, filed on April 20, 2015, the 

Opinion is now reissued with redactions indicated by brackets.

1

In the interest of protecting plaintiff’s identity, the Court will refer to the plaintiff throughout 

this opinion by use of the pronoun “it.”

 
former government employees, arguing that it will need to re-depose those individuals in light of 

the government’s delayed production of documents following the court’s December 11, 2012 

order granting in part and denying in part plaintiff’s first motion to compel. Plaintiff also seeks 

an award of attorney fees. For the reasons stated below, the Court GRANTS IN PART and 

DENIES IN PART plaintiff’s current motion to compel and GRANTS IN PART and DENIES 

IN PART plaintiff’s motion for sanctions.

BACKGROUND

I. Plaintiff’s Claims

The background of this case is discussed in the earlier decisions and orders of the Court. 

See Confidential Informant 59-05071 v. United States, No. 11-153C, at 2-4 (Fed. Cl. Nov. 22, 

2011) (filed under seal), ECF No. 16 [hereinafter “Opinion on MTD”]; Confidential Informant 

59-05071 v. United States, 108 Fed. Cl. 121, 128-29 (2012). To briefly summarize, in plaintiff’s 

Second Amended Complaint (filed by leave of court on April 22, 2013), plaintiff alleges that in 

February 2002, it entered into a written Reward Agreement with the Internal Revenue Service

(IRS) in which plaintiff agreed to provide information regarding the underpayment of taxes by 

certain third-party taxpayers for tax years [. . .] through [. . .]. Mot. to File Second Am. Compl. 

Ex. 1 ¶¶ 5-7, April 9, 2013, ECF No. 76 [hereinafter “Second Am. Compl”]; see generally

Second Am. Compl. Ex. A [hereinafter “Reward Agreement” or “agreement”]. Under the 

agreement, the IRS committed to protect against disclosure of plaintiff’s identity, Reward 

Agreement ¶ 5, and—subject to certain conditions—pay plaintiff a percentage of any taxes 

collected as a result of the information plaintiff supplied. Id. ¶¶ 6-8. Consistent with the 

agreement, on March 28, 2002 and then again in early 2005, plaintiff provided the IRS with

information about alleged underreporting of federal tax liabilities [. . .] and a [. . .], which 

plaintiff alleged totaled more than $100,000,000. Second Am. Compl. ¶¶ 8, 12.

The Reward Agreement was modified by the mutual consent of the parties sometime in 

the spring of 2005. Second Am. Compl. ¶¶ 14-18; see also Second Am. Compl. Ex. B. The 

amendment extended by five years the time period for which plaintiff would offer information to 

the IRS; added a provision stating that plaintiff would wear a body wire if the need arose; and 

replaced the IRS official designated to receive information from plaintiff with Special Agents 

Casimir P. Tyska and Crystal Ashley. Second Am. Compl. Ex. B at 1.2

On or about May 3, 2005, the IRS requested that plaintiff and plaintiff’s counsel meet 

with the criminal investigation division of the IRS and provide proof of plaintiff’s identity.

Second Am. Compl. ¶ 19. A week later, plaintiff provided the IRS with “new information 

concerning an additional [. . .] in the United States engaging in [. . .] cash skimming.” Id. ¶ 21. 

2 Although it is unclear whether any IRS official ever actually signed the proposed amendment, 

the government has acknowledged that its terms were agreed to by both parties. Def.’s Resp. to 

Pl.’s Mot. Compel 3 (citing Def.’s App. 50), March 10, 2014, ECF No. 99. [hereinafter “Def.’s 

Resp.”].

2

 
Plaintiff contends that on or between May 3, 2005 and December 31, 2005, it had 

“multiple” telephone conversations with Agent Tyska, as well as one or two in-person meetings, 

without its counsel present. Id. ¶ 22. Plaintiff claims that on these occasions “Agent Tyska 

made repeated statements and representations aimed at swaying, influencing, and manipulating 

[plaintiff].” Id. ¶ 23. Specifically, plaintiff claims that Agent Tyska (allegedly at the direction of 

his superiors at the IRS) told plaintiff: (1) that plaintiff’s counsel was incompetent and that the 

protections contained in the Reward Agreement counsel negotiated were similar to those already 

required by the IRS rules and regulations; (2) that the Reward Agreement tied Agent Tyska’s 

hands; (3) that plaintiff should sign an IRS Form 211 (Application for Award for Original

Information); (4) that plaintiff should execute a new amendment to the Reward Agreement; (5) 

that special agents were investigating the taxpayers plaintiff had identified; and (6) “that Special 

Agent Tyska could not proceed unless an Amendment is executed.” Id. ¶ 25. Plaintiff further 

alleges “[o]n information and belie[f]” that “the directions given by at least one higher ranking 

individual with the IRS were that Special Agent Tyska was to do nothing proactive, that the 

reward agreement, as amended, was ‘null and void,’ and that he was to get [plaintiff] to act 

within the constraints of a Form 211.” Id. ¶ 24.

The purpose of a Form 211 (the document plaintiff alleges that Agent Tyska demanded 

that plaintiff execute) is to request a monetary reward from the IRS under 26 U.S.C. § 7623 

(2006). See Capelouto v. United States, 99 Fed. Cl. 682, 690 (2011). The current version of 

section 7623 provides, in relevant part, that if an individual provides information to the IRS that 

results in the detection of a tax underpayment or the prosecution of a tax law violation, that 

person “shall . . . receive as an award at least 15 percent but not more than 30 percent of the 

collected proceeds . . . resulting from the action . . . or from any settlement in response to such 

action.” 26 U.S.C. § 7623(b)(1). At the time that plaintiff provided information to the IRS, 

however, the provision of an award under section 7623 was entirely discretionary. See Colman 

v. United States, 96 Fed. Cl. 633, 638-39 (2011). 3

According to plaintiff, in a November 28, 2005 email to Agent Tyska, plaintiff stated that 

it did not wish to sign and submit a Standard Form 211 in lieu of the existing Reward 

Agreement. Id. ¶ 43. Plaintiff further claims that in this email plaintiff asked Agent Tyska to 

3

 Because the pre-2006 version of the statute made an award payment entirely discretionary, this 

court had repeatedly held that § 7623 was not a money-mandating statute for purposes of 

establishing Tucker Act jurisdiction. Id. at 638 (citing Dacosta v. United States, 82 Fed. Cl. 549, 

556 (2008); Conner v. United States, 76 Fed. Cl. 86, 87 (2007); Destefano v. United States, 52

Fed. Cl. 291, 293 (2002); Confidential Informant v. United States, 46 Fed. Cl. 1, 6 (2000)). In 

the Tax Relief and Health Care Act of 2006, Pub. L. No. 109-432, § 406, 120 Stat. 2922, 2958-

60 (2006), Congress added a new subsection (b) to § 7623, which created a non-discretionary 

award reviewable in the U.S. Tax Court, but only where the tax, penalties, interest additions, and 

additional amounts in dispute exceed $2,000,000. Id. at 2958-59. The new non-discretionary 

award only applies to information provided to the IRS after the date of enactment of the Act. Id.

at 2960. Under the new statutory scheme, rewards for amounts in dispute under $2,000,000 are 

governed by § 7623(a). 

3

 
clarify why he viewed the information and documents that plaintiff had provided as “too old” to 

be usable for investigative purposes. Id. ¶ 44. On January 3, 2006, plaintiff contends, it “sent a 

letter to Special Agent Tyska indicating that Plaintiff was resisting Defendant’s effort to force 

Plaintiff to renegotiate the previously bargained for benefits set forth in the Reward Agreement, 

as amended.” Id. ¶ 52. On February 1, 2006, plaintiff alleges that it inquired about whether 

plaintiff’s January 3, 2006 email had been received “and again sought assurances that Defendant

was going to pursue the case.” Id. ¶ 53. Further, plaintiff contends that it “again sought 

assurances from Defendant, by and through Special Agent Tyska, on May 22, 2006, via e-mail 

and by certified mail, on June 9, 2006,” but that “Defendant did not provide any of the requested 

assurances.” Id. ¶ 56, 57.

In December 2010, plaintiff “made a formal demand on . . . Defendant to duly render an 

accounting with respect to the information and documentation submitted.” Id. ¶ 34. However, 

defendant, “acting by and through the Whistleblower Office, indicated that it had no record of 

having ever received the file.” Id. ¶ 35.

Plaintiff filed its initial complaint setting forth three causes of action in March 2011.

Plaintiff has since twice amended its complaint. In Count I of plaintiff’s second amended 

complaint (entitled “Anticipatory Repudiation”), plaintiff alleges that after it fully performed its 

obligations under the Reward Agreement, the IRS repudiated the agreement when, acting 

through Special Agent Tyska, it attempted to coerce the plaintiff to execute a new agreement and 

agree to submit a Form 211 by threatening that if plaintiff refused to do so the IRS would 

“refus[e] to proceed and perform . . . under the Reward Agreement.” Second Am. Compl. ¶ 40. 

Further, plaintiff alleges, the IRS also engaged in anticipatory repudiation when it failed to 

provide plaintiff with “assurances” that the information it had supplied was not stale and that IRS 

intended to go ahead with an investigation based on the information. Id. ¶ 57.

Count II is a claim for damages for breach of the duty of good faith and fair dealing. Id.

¶¶ 59-64. Plaintiff alleges that the IRS acted in bad faith by making “repeated statements and 

representations to induce [the plaintiff] to proceed without counsel and to wrongfully attempt to 

abrogate the Reward Agreement, after having obtained the Plaintiff’s identity.” Id. ¶¶ 63. 

Finally, in Count III, plaintiff seeks an accounting from the government and the payment of 

moneys potentially due to plaintiff under the agreement. Id. ¶¶ 65-69.

II. The Denial of the Government’s Motion to Dismiss

The government previously moved to dismiss plaintiff’s first complaint for failure to state 

a claim upon which relief can be granted. Def.’s Mot. to Dismiss, June 8, 2011, ECF No. 7. It 

contended that the Reward Agreement did not obligate the IRS to conduct an investigation based 

on the information plaintiff provided; accordingly, even assuming the truth of plaintiff’s 

allegations that the IRS had threatened not to investigate unless plaintiff agreed to modify the 

agreement, plaintiff failed to state a claim for anticipatory repudiation. Id. at 6.

The judge previously assigned to this case rejected the government’s argument. While

the court agreed that the Reward Agreement did not obligate the government to investigate, it

observed that the agreement’s “plain language” did require the IRS “to protect plaintiff’s identity 

4
from disclosure and to pay plaintiff a percentage of the money recovered from the investigation 

of the Taxpayers identified by plaintiff.” Opinion on MTD at 13 (citations omitted). The court

noted that when ruling on a motion to dismiss for failure to state a claim, the court should 

employ a liberal construction of the complaint. Id. at 5. Applying that standard, the court

concluded that plaintiff’s complaint, which alleged that Agent Tyska had threatened that “[t]he 

IRS would refuse to proceed and perform as required under the Reward Agreement could be 

interpreted as a refusal to perform—that is, to withhold a reward payment to plaintiff.” Id. at 15

(citations omitted).

 The court also rejected the government’s motion to dismiss Count II of the complaint, 

alleging a violation of the duty of good faith and fair dealing. It concluded that plaintiff’s 

allegation—that Agent Tyska sought to “force a renegotiation” of plaintiff’s bargained for 

benefits after plaintiff had fully performed under the Reward Agreement by threatening that the 

IRS would not provide any reward payment under the agreement—was sufficient to support a 

claim for breach of the covenant of good faith and fair dealing. Opinion on MTD at 20-21 

(citing McDonald’s Corp. v. Barnes., No. 92-36552, 1993 WL 358556, at *4 (9th Cir. Sept. 14, 

1993)).

The Court declined to address Count III of plaintiff’s claims, only noting that “[t]he 

Reward Agreement contemplates the possibility that plaintiff may, in appropriate circumstances, 

seek an accounting.” Id. at 22.

III. Prior Discovery Disputes

The motion to compel that is currently before the court is the second one plaintiff has 

filed in this case. In its first motion to compel, filed on October 25, 2012, plaintiff sought, 

among other things, the production of documents which the government had withheld on the 

basis of a variety of privileges. The court partially granted and partially denied plaintiff’s motion 

to compel as reflected in its decision of December 11, 2012. See generally 108 Fed. Cl. 121. It 

concluded that certain portions of the government’s privilege log were inadequate; that the 

government had wrongfully invoked the deliberative process privilege for some of the 

documents; that section 6103 of the Internal Revenue Code did not preclude IRS from providing 

the plaintiff with information about a 2007 undercover operation that had been undertaken based 

on plaintiff’s disclosures; and that the government should search for certain additional 

documents that the plaintiff had requested. Id. In addition, citing RCFC 37(a)(5)(C), which 

allows the court to apportion the reasonable expenses for a motion to compel that is granted in 

part and denied in part, the court gave the plaintiff until January 9, 2013 to request such 

apportionment. See id. at 150.

After the court issued its opinion on plaintiff’s motion to compel, the government 

informed the court that it possessed additional documents within the scope of the court’s order

that it had previously asserted were not available. Def.’s Status Report 1, 4-6, Dec. 19, 2012, 

ECF No. 62. In particular, the government advised the court that when it initially responded to 

plaintiff’s document requests, it had not conducted any searches of the computers of former 

employees because counsel had understood that the IRS routinely deleted any electronically 

stored information (“ESI”) from former employees’ computers upon their departure from the 

5
IRS. Id. at 1, 5. The government also revealed that it had in its possession audio recordings of 

certain undercover operations that were within the scope of the plaintiff’s original request that it 

had not timely produced. Id. at 4.

In an order issued on January 7, 2013, the court directed the government to obtain and 

review these records for production to plaintiff’s counsel. Order at 1, ECF No. 68. In addition, 

the court ordered the defendant to produce to plaintiff’s counsel, “from time to time as they 

become available, . . . records responsive to plaintiff’s production requests that it obtains and 

reviews.” Id. The court further suspended all previous deadlines in the case, including the 

deadline for plaintiff to submit its request for apportionment of reasonable expenses incurred in 

connection with its motion to compel. Id.

From March to September 2013, the government produced ESI generated by the IRS 

discovery office. See Def.’s Status Reports, March 21, 2013, ECF No. 71; June 7, 2013, ECF 

No. 84; July 16, 2013, ECF No. 86; Sept. 5, 2013, ECF No. 88. According to the government, it 

directed the e-discovery office to perform searches of the electronically stored information of 

former employees that was in the possession of the IRS as well as electronically stored 

information of current employees whose computers it had previously directed the e-discovery 

office to search. Def.’s Status Report 1, March 21, 2013, ECF No. 71. Using search terms that it 

had supplied to plaintiff’s counsel, see Def.’s App. 110, the government searched records of 

custodians that plaintiff had identified prior to December 2012 as well as additional custodians 

and places that plaintiff subsequently identified. Def.’s Status Report, Sept. 5, 2013; Def.’s App. 

109.

In addition, during the period between December 2012 and July 2013, the government 

provided revised privilege logs to plaintiff. It also produced transcripts of audio recordings

related to the 2007 undercover operation as plaintiff had requested. Def.’s Status Report 3, Feb. 

19, 2013, ECF No. 69. Because the recordings were of undercover agents who still used their 

aliases for other undercover work, id., the government imposed an audible “bleep” over portions 

of the audio files in which the aliases were stated and then provided the files to plaintiff on 

March 20, 2013. Def.’s Status Report 2-3, Mar. 21, 2013, ECF No. 71; Def.’s Resp. 10.

In the meantime, while this production of documents was proceeding, the plaintiff 

continued to express concerns about the government’s compliance. On March 27, 2013, the 

plaintiff filed a “Notice of Filing” in which it alleged that the government had allowed spoliation 

of evidence by failing to place a litigation hold on potentially relevant documents as early as 

May of 2005. Pl.’s Objections to Def.’s Mar. 21, 2013 Status Report 3-8, Mar. 27, 2013, ECF 

No. 74. Plaintiff also objected to, among other things, the pace of the government’s production 

of documents, id. at 1-2, 11-14, and the scope of the search the government was conducting. Id.

at 3, 5.

In a May 7, 2013 Order, the court rejected the plaintiff’s spoliation argument, noting that 

the plaintiff “failed to persuade the court that defendant’s duty to preserve documents in this 

case arose prior to December 2010, when plaintiff’s counsel sent a letter to the IRS 

Whistleblower Office.” Order at 3, ECF No. 82. It also rejected the plaintiff’s other claims that 

the government’s document production efforts were inadequate. Id. at 4. The court observed 

6
that the plaintiff “does not appear to take issue with the key word searches described by 

defendant’s Response [to the Notice of Filing] but instead with the availability of recoverable 

documents.” Id. In that regard, while the court did not disagree that the government’s response 

had been delayed, it noted that “the United States has acknowledged its mistake of stating that 

documents of certain IRS employees had been destroyed when they, in fact, had not, and the 

United States appears to be acting in good faith in now producing the documents necessary to 

evaluate plaintiff’s claims.” Id.

On June 19, 2013, in a joint status report, the parties notified the court that, in the 

government’s view, it had completed production of all documents the plaintiff had requested. 

Def.’s Status Report 1, ECF No. 86. The report further recited that plaintiff’s counsel wished to 

have additional time to “review the documents produced, to propound appropriate follow-up 

requests to the Government, and to determine what further objections he may have to the 

Government’s means of document production or remedies that he may seek.” Id. at 2. The 

parties therefore requested that the proceedings in this case be continued until September 5, 

2013, at which point the government would submit a status report informing the court of any 

agreed-upon way forward. Id. On the other hand, if the parties disagreed, then each would file 

their own status reports setting forth their respective positions. Id.

Unfortunately, the parties were unable to agree on a way forward and each filed its own

separate status report on September 5, 2013. The government stated that it had provided to 

counsel for plaintiff “all documents referenced in prior status reports, as well as their 

accompanying privilege logs.” Def.’s Status Report 1, ECF No. 88. “The final production,” the 

government represented, was made on September 4, 2013 and “included documents that had not 

been previously produced due to technical problems, but all those documents with technical 

problems that we have been able to resolve have been provided and all those with technical 

problems that cannot be resolved have been identified, and that information conveyed to counsel 

for [plaintiff].” Id. The government reiterated that, in its view, “it has fully complied with its 

discovery obligations; that additional, extensive discovery sought by [plaintiff] is tangential to 

the issues presented by this case and would be unduly burdensome; and that admissions made by 

[plaintiff] make this case ripe for summary judgment.” Id. at 2.

The plaintiff, on the other hand, stated that it was “concerned that the same discovery 

problems previously arising are rearing their head again as the Defendant appears determined to 

‘wall off’ areas of inquiry.” Pl.’s Status Report, ECF No. 89. Therefore, the plaintiff proposed 

that it would file a second motion to compel, possibly coupled with a motion for sanctions under 

RCFC 37(a)(5)(A). Id.

IV. Plaintiff’s Second Motion to Compel

The case was reassigned to the undersigned on November 25, 2013. On January 8, 2014, 

following a status conference, the Court issued an order setting a schedule for the briefing of 

plaintiff’s motion to compel additional discovery and for sanctions. ECF No. 95. In accordance 

with that Order, plaintiff filed its motion on February 8, 2014. Mot. to Compel, ECF No. 98

[hereinafter “Pl.’s Mot.”]. The Court held oral argument on the motions on January 27, 2015.

7
DISCUSSION

I. Preliminary Observations

Plaintiff has filed lengthy memoranda, along with voluminous declarations and exhibits 

in support of its second motion to compel and for sanctions. See Pl.’s Mot., ECF No. 98; Tufts 

Decl. of Correspondences, Feb. 7, 2014, ECF No. 97; Tufts Decl. of Deposition Costs, Feb. 7,

2014, ECF No. 96; Tufts Decl. in Supp. of Reply, March 24, 2014, ECF No. 100; Confidential 

Informant Decl., March 24, 2014, ECF No. 101. Portions of its memoranda and declarations replow old ground.4

 More significantly, notwithstanding the length and detail supplied in

plaintiffs’ filings, the Court has had some difficulty discerning from its written submissions (and 

from plaintiff’s oral argument on January 27, 2015) exactly which additional documents (or 

categories of documents) plaintiff is still seeking to have produced by the government, and how 

any such documents are either relevant to its claims, or likely to lead to relevant evidence.

In that regard, and admittedly without the benefit of briefing on the merits, the Court 

remains uncertain as to the exact nature of plaintiff’s current claims. Plaintiff has never 

contended, for example, that the IRS did in fact recover back taxes based on the information 

plaintiff provided, and the government has produced several declarations from IRS officials that

it did not. Further, plaintiff does not appear to be making the claim that the judge previously 

assigned to this case concluded might fairly be read from its complaint: that when the IRS 

allegedly threatened to “proceed” or “perform” on the Reward Agreement with plaintiff, the IRS 

was threatening not to either not protect plaintiff’s identity or not pay plaintiff any reward even if 

back taxes were recovered. Opinion on MTD at 15. Rather—despite counsel’s somewhat 

ambiguous assertions to the contrary at the oral argument—it now seems clear that plaintiff’s

allegation is that the IRS threatened that it would not conduct or complete any investigation 

based on the information that plaintiff provided, unless plaintiff agreed to modify the reward 

provisions of the Reward Agreement.5 This, of course, is precisely the claim that the previous 

judge already found insufficient to support a cause of action for anticipatory repudiation.6

4 For example, among plaintiff’s arguments is a request that this Court revisit certain attorney 

client privilege determinations made by the prior judge, on the grounds that the recent production 

of documents by the government has revealed that the documents found privileged were more 

important than previously understood. Pl.’s Mot. 5 n.6, 8, 11-13.

5 At oral argument, the Court repeatedly asked counsel for plaintiff to clarify the nature of the

IRS actions that plaintiff was alleging constituted an anticipatory repudiation of the Reward 

Agreement. Counsel agreed that a threat by IRS officials not to investigate would not constitute 

an anticipatory repudiation of the contract. Or. Arg. Tr. 7:15-8:7, 11:21-12:5. And while he 

asserted that “the threat of nonperformance was much larger than that” (id. at 8:11-12) he never 

articulated to the Court’s satisfaction the components of this allegedly “much larger” threat of 

nonperformance.

6 To be sure, in plaintiff’s second amended complaint (which was filed subsequent to the prior 

judge’s denial of the government’s motion to dismiss), plaintiff also appears to be alleging that 

8

 
The basis for plaintiff’s allegation that the government violated the implied duty of good 

faith and fair dealing in its interactions with the plaintiff is also murky. “Every contract imposes 

upon each party a duty of good faith and fair dealing in its performance and enforcement.” 

Metcalf Constr. v. United States, 742 F.3d 984, 990 (Fed. Cir. 2014) (quoting Restatement 

(Second) of Contracts § 205 (1981)). “The covenant [of good faith and fair dealing] imposes 

obligations on both contracting parties that include the duty not to interfere with the other party’s 

performance and not to act so as to destroy the reasonable expectations of the other party 

regarding the fruits of the contract.” Centex Corp. v. United States, 395 F.3d 1283, 1304 (Fed.

Cir. 2005). “Both the duty not to hinder and the duty to cooperate are aspects of the implied duty 

of good faith and fair dealing.” Precision Pine & Timber, Inc. v. United States, 596 F.3d 817, 

820 n.1 (Fed. Cir. 2010).

In general, “what th[e] duty entails depends in part on what [the] contract promises (or 

disclaims).” Precision Pine, 596 F.3d at 830. Thus, the “implied duty of good faith and fair

dealing cannot expand a party’s contractual duties beyond those in the express contract or create

duties inconsistent with the contract’s provisions.” Metcalf Constr., 742 F.3d at 991 (quoting 

Precision Pine, 596 F.3d at 831). In short, as the Federal Circuit has observed, “[t]he implied

duty of good faith and fair dealing is limited by the original bargain,” as it “prevents a party’s

acts or omissions that, though not proscribed by the contract expressly, are inconsistent with the

contract’s purpose and deprive the other party of the contemplated value.” Metcalf Constr., 742

F.3d at 991.

In the second amended complaint, the plaintiff recites that the duty of good faith and fair 

dealing requires that the government “avoid the taking of any actions that may unreasonably 

delay or hinder any contractual performance,” ¶ 62, but the complaint fails to specify what 

actions plaintiff alleges the government took to delay or hinder either its own contract 

performance or plaintiff’s. Instead, plaintiff alleges that the government “acted with bad faith 

insofar as it made repeated statements and representations to induce Plaintiff to proceed without 

counsel and to wrongfully attempt to abrogate the Reward Agreement, after having obtained the 

Plaintiff’s identity,” and that “[u]p to and including the time of Defendant’s repudiation and 

refusal, Plaintiff was ready, willing, and able to continue performance of the Reward 

Agreement.” Second Am. Compl. ¶¶ 63-64.

Again reading the allegations in the complaint liberally, the prior judge assigned to this 

case concluded that plaintiff’s complaint stated a claim that the government violated the duty of 

good faith and fair dealing by alleging that—after plaintiff had fully performed under the 

the IRS repudiated the contract by failing to respond to plaintiff’s requests for “reassurances” of 

IRS’ intent to perform under the contract. Second Am. Compl. ¶¶ 44, 50, 53, 56; Oral Arg. Tr. 

10:18-11:4. But with respect to this new claim as well, it appears that the reassurances sought 

related to whether the IRS intended to use the information that plaintiff provided to investigate 

the taxpayers plaintiff identified, not whether IRS intended to pay him any reward money that 

might become due or protect plaintiff’s identity.

9

 
contract—the IRS sought to force a renegotiation of the contract terms by threatening not to pay 

plaintiff any reward money that might become due under the agreement unless plaintiff agreed to 

modify the agreement. Opinion on MTD at 20-21. But as with its anticipatory repudiation 

claim, it now appears clear that the plaintiff is not alleging that the IRS threatened not to pay 

plaintiff any reward money; rather, plaintiff is alleging that the IRS threatened not to pursue the 

return of any back taxes based on the information plaintiff provided unless plaintiff agreed to a 

modification of the terms of the agreement.7

The merits of plaintiff’s claims, of course, are not currently before the Court. 

Nonetheless, in exercising its discretion whether and to what extent to direct further discovery, 

the Court must take into consideration whether the additional proposed discovery is relevant to 

the plaintiff’s claims (or at least reasonably calculated to lead to relevant evidence) within the 

meaning of Rule 26(b). The lack of clarity in plaintiff’s presentation of its claims has not been 

helpful to that endeavor.

At the same time, the Court also recognizes that—as the government itself has 

acknowledged—the IRS’s initial document production efforts left much to be desired. In 

addition, the Court believes that plaintiff was prejudiced to some extent by the shortcomings of 

the government’s efforts. In particular, plaintiff was hampered in its ability to conduct effective 

depositions of several of the individuals it has identified as key actors in this matter by the 

government’s failure to produce documents in a timely fashion.

II. Plaintiff’s Motion to Compel

With the above considerations in mind, the Court turns to plaintiff’s motion to compel 

and for sanctions. For ease of reference, the Court breaks its discussion into three categories: 

(1) plaintiff’s challenges to the defendant’s assertion of attorney-client privilege in connection 

with both the pre-December 2012 production and the most recent production; (2) plaintiff’s 

7 At the oral argument on plaintiff’s motion to compel, the Court attempted to secure greater 

clarity from plaintiff’s counsel regarding the basis for his claim of a violation of the duty of good 

faith and fair dealing. The Court’s attempts were less than successful. See Oral Arg. Tr. 11-19. 

Counsel variously asserted that proof of the following facts would support such a claim: (1) that 

the IRS failed to communicate with plaintiff, id at 11:5-12 (citing Conway v. United States, 56 

Fed. Cl. 572 (2003)); (2) that “behind the scenes” at the IRS between 2006 and 2008 its 

personnel were discussing how to modify the Reward Agreement to retain more discretion for 

the agency, id. at 14:24-15:9; (3) that after plaintiff declined to modify the agreement, the agency 

“put him in the dark” and their “conduct shifted to how do we then deal with this situation,” id.

at 15:10-17; (4) that IRS personnel were working on drafts of a modified agreement starting in 

February 2006, but they never communicated the proposed modifications to the plaintiff , id. at 

15:23-25); (5) that the IRS engaged in conduct that was aimed at dissuading plaintiff from 

having counsel, id. at 18:9-11; and (6) that IRS officials talked amongst themselves about 

“scrap[ping]” the Reward Agreement. Id. at 22:24-23:12.

10

 
request that the government undertake additional document searches; and (3) plaintiff’s request 

for sanctions against the government in the form of an award of costs.

A. Attorney-Client Privilege

Plaintiff does not challenge the sufficiency of the privilege logs the government has 

supplied since the court granted in part plaintiff’s first motion to compel. Instead, plaintiff 

challenges the government’s assertion of attorney-client privilege with respect to a number of the 

documents identified in the logs, including some documents for which the previous judge

assigned to this case had already found the privilege properly invoked. Pl.’s Mot. 14-21. 

Plaintiff argues that the privilege is either inapplicable or that it should be pierced based on either 

the crime/fraud exception or on plaintiff’s allegedly “compelling need” for the privileged 

material. Id. at 21, 39-40.

“The attorney-client privilege protects the confidentiality of communications between 

attorney and client made for the purpose of obtaining legal advice.” Genentech, Inc. v. United 

States Int’l Trade Comm’n, 122 F.3d 1409, 1415 (Fed. Cir. 1997). This protection encompasses 

“the attorney’s thought processes and legal recommendations.” Id. (quoting Zenith Radio Corp. 

v. United States, 764 F.2d 1577, 1580 (Fed. Cir. 1985)). Whether the attorney-client privilege 

applies depends on the facts and circumstances of a particular case. Upjohn Co. v. United States, 

449 U.S. 383, 396 (1981); In re Spalding Sports Worldwide, Inc., 203 F.3d 800, 805 (Fed. Cir. 

2000).

Plaintiff’s challenges to the government’s assertion of privilege fall into three buckets. 

First, plaintiff argues that several documents that were redacted to delete references to advice 

provided by counsel are not protected because neither the sender nor the recipient of the 

documents is an attorney. Pl.’s Mot. 15. The Court has examined these documents in camera 

and concludes that plaintiff’s argument is without merit because, although the sender and 

recipient are not attorneys, the redacted portions of the documents contain passages that 

communicate the advice of counsel. The forwarding of documents containing counsel’s advice 

by non-attorneys in an organization does not strip the advice contained within them of its 

privileged nature. United States v. Jicarilla Apache Nation, 131 S. Ct. 2313, 2320-21 (2011). 

See, e.g., In re County of Erie, 473 F.3d 413, 419 (2d Cir. 2007) (“At least in civil litigation 

between a government agency and private litigants, the government’s claim to the protections of 

the attorney-client privilege is on a par with the claim of an individual or a corporate entity.”); 

Bank Brussels Lambert v. Credit Lyonnaise (Suisse) S.A., 160 F.R.D. 437, 442 (S.D.N.Y. 1995) 

(observing that the attorney-client privilege “protects from disclosure communications among 

corporate employees that reflect advice rendered by counsel to the corporation”).

Plaintiff’s second contention is that it has established a “compelling need” for all 

communications among IRS officials that occurred after June 2005, because, according to 

plaintiff, the documents that the government has recently produced show that Agent Tyska 

started to act in “bad faith” at the direction of his superiors, including UPM Paul Serletti, in June 

2005. Pl.’s Mot. 14-15, 17-21. “Compelling need” may serve as a basis for overcoming the 

deliberative process privilege, Marriott Int’l Resorts, L.P. v. United States, 437 F.3d 1302, 1307 

(Fed. Cir. 2006), and sufficient need may also serve as a basis for overcoming the work product 

11
privilege. Upjohn Co., 449 U.S. at 397-98 (quoting Hickman v. Taylor, 329 U.S. 495, 510-11

(1947)). But the Court is unaware of any support for the creation of an exception to attorneyclient privilege based on the importance of a privileged communication to the party seeking its 

disclosure (and plaintiff has not cited any). For that reason, plaintiff’s arguments seeking to 

pierce the privilege based on the perceived importance of the documents to its case (including 

those arguments which would require the Court to revisit privilege determinations made by the 

prior judge), are unavailing.

Plaintiff’s final argument is that “certain materials described in the privilege log, even as 

amended, are not properly withheld as privileged” because they “were produced in the 

furtherance of [the alleged] misconduct.” Pl.’s Mot. 39 (emphasis in original); see also id. at 6

n.7, 13, 17-21 (observing that certain documents identified in the government’s privilege log 

were created during a period of time when “fundamental misconduct” occurred). To the extent 

that this argument is intended to invoke the “crime-fraud” exception to attorney-client privilege, 

the argument is devoid of merit.

It is well established that the attorney-client privilege does not extend to 

“communications made for the purpose of getting advice for the commission of a fraud or 

crime.” United States v. Zolin, 491 U.S. 554, 563 (1989) (internal quotation marks and citations 

omitted). In order to invoke this “crime-fraud” exception the party challenging the assertion of 

attorney-client privilege must “make a prima facie showing that the communication [at issue] 

was made ‘in furtherance of’ a crime or fraud.” Spalding Sports, 203 F.3d at 807 (citations 

omitted).

No such prima facie showing has been made in this case. There is no allegation of crime 

or fraud at all with respect to the government’s relationship with the plaintiff; rather, the claim is 

one for breach of contract. To be sure, the Federal Circuit has indicated in a non-precedential 

decision that the crime-fraud exception may be broad enough to encompass documents that are 

“incident” to alleged “fundamental misconduct.” In re United States, 321 F. App’x. 953, 956 

(Fed. Cir. 2009) (per curiam) (unpublished) (internal quotation marks omitted); see, e.g., 

Therasense, Inc. v. Becton, Dickinson & Co., 649 F.3d 1276, 1289 (Fed. Cir. 2011) (en banc) 

(stating that in a patent case, “[a] finding of inequitable conduct may . . . prove the crime or fraud 

exception to the attorney-client privilege”). But even then, to pierce the privilege, the very act of 

making the privileged communication must constitute an element of the misconduct alleged; it is 

not enough that it is relevant to showing the misconduct. Cf. In re United States, 321 F. App’x. 

at 956 (affirming the decision by the United States Court of Federal Claims that certain 

otherwise privileged documents should be produced because the documents were the very ex 

parte contacts that constituted the breach of contract). 

In this case, plaintiff’s argument is that the documents for which privilege is claimed 

were created during a window of time when plaintiff alleges that IRS personnel (including 

several attorneys) were conspiring to force the plaintiff to agree to a modification of the Reward 

Agreement. Pl.’s Mot. 13, 17-21. Plaintiff further alleges (as best as the Court can understand) 

that the documents generated during this period would be highly relevant to its inquiry into this 

“fundamental misconduct.” Id. Such claims do not suffice to satisfy the plaintiff’s prima facie

burden under the crime-fraud exception because they do not allege that the communications 

12
themselves constituted the “misconduct,” as was the case in In re United States. Accordingly, 

the Court rejects the plaintiff’s argument that the crime-fraud exception defeats the government’s 

assertions of attorney-client privilege in this case.

B. Plaintiff’s Request for Additional Documents

Plaintiff has moved to compel the production of additional documentation falling within 

five categories: (1) documents secured from searches of an additional 65 individuals, whose 

names plaintiff secured from an organizational chart for the IRS’ Criminal Division during the 

years 2005-2008, Pl.’s Mot. 23-24; (2) copies of any IRS analyses of the [. . .], as well as the 

[. . .], id. at 28-29, [. . .]; (3) three documents referenced in an audio recording involving an 

undercover operation triggered by the plaintiff’s disclosures to the IRS, id. at 23; (4) the “green 

card” or “letter of deactivation” prepared by Agent Tyska in reference to the plaintiff, id. at 24; 

and (5) documents concerning an alleged investigation of a [. . .]. Id. 8-11. Each of these 

requests is addressed below.

1. Searches of the Files of Additional IRS Employees

At the hearing on plaintiff’s motion, the Court sought clarification from plaintiff 

regarding its request for the production of documents in the possession of the sixty-five

individuals counsel identified by referring to an IRS organizational chart. See Pl.’s Mot. 23-24. 

Based on counsel’s explanations, Oral Arg. Tr. 30-33, 35-36, 50-53, the court understands that 

plaintiff seeks access to additional records in order to determine whether other individuals at 

higher levels of the chain of command in IRS’s Criminal Investigation Division may have been 

involved in what plaintiff alleges was a bad faith effort by Paul Serletti to “scrap” the IRS’ 

Agreement with plaintiff. Oral Arg. Tr. 28. The government, for its part, contends that it has 

“searched the appropriate files and found no evidence that the proposed agreement ever went any 

further than UPM Serletti.” Def.’s Resp. 25, 33 (contending that “the ‘paper trail’ regarding 

upper-level IRS management involvement in the desire to seek modification of the agreement 

from [plaintiff] has been exhausted”).

The Court has no reason to doubt the government’s representations regarding the 

likelihood that additional searches will yield documents suggesting the involvement of other IRS 

employees and officials in the behind-the-scenes discussions regarding the potential modification 

of the Reward Agreement. And the Court is not unsympathetic to the government’s contentions 

that the nexus between the additional searches plaintiff seeks and the allegations in plaintiff’s 

complaint seems tenuous. Nonetheless, the Court believes it would be appropriate to indulge the 

plaintiff’s requests for a few additional searches, particularly in light of the missteps by the 

government earlier in this case.

To that end, at the hearing in this case, the Court suggested that counsel for plaintiff 

consider whether his request could be narrowed by identifying for additional searches three key 

personnel on the list he supplied. Oral Arg. Tr. 53. Counsel agreed that it would be possible to 

do so, and the Court concludes that such compromise is a reasonable one. Accordingly, 

plaintiff’s motion to compel the searches of the records of additional IRS employees for 

13
information related to its claims is GRANTED IN PART. Plaintiff may specify the names of 

three additional IRS employees for whom the government shall conduct document searches.

2. Franchisee Tax Returns

Plaintiff has requested information regarding an IRS analysis of certain [. . .] returns 

which it believes was referenced in a close out memorandum written in connection with the 

ending of a 2007 undercover operation. Pl.’s Mot. 22. See Def.’s App. 13-17. That 

memorandum stated as follows:

Federal income tax returns were ordered and analyzed prior to the undercover 

operation. At this time, additional [. . .] are being requested to further analyze and 

corroborate allegations that the individual [. . .] may be underreporting gross 

receipts.

Def.’s App. 17. Specifically, plaintiff requests the analysis of the “additional returns.” Pl.’s 

Mot. 22-23. According to the Declaration of James Cortier, the Special Agent who wrote the 

memorandum, he did not intend to suggest in this passage that he had in fact ordered copies of 

the [. . .] of the [. . .] and that, in fact, he did not do so. Def.’s App. 10 ¶ 5. He further stated that 

he was involved in no further investigations of any [. . .] based on the information plaintiff 

provided and that there was no reason to believe such investigations were pursued by others in 

his office. Id. at ¶¶ 3, 6. Therefore, there does not appear to be additional documentation to be 

produced that would be responsive to plaintiff’s request. Plaintiff’s motion to compel production 

of such documents is therefore DENIED.

3. Documents Referenced in the Audio Recordings

The plaintiff, as noted above, seeks the production of three documents that plaintiff states 

were referenced in the audio recording of the undercover operation. Pl.’s Mot. 23. Plaintiff 

identifies these documents as a “form requested from one of the principals for one of the targeted 

groups”; a “[. . .] provided to one of the undercover agents”; and the undercover agent’s 

“translation of [. . .] telephone conversations the undercover agent had with a [. . .] as provided to 

her supervisors.” Id. The government represents that it has conducted a search of the hard files 

and computers of the relevant agents and spoken to the agents and that it has not uncovered such 

documents. Def.’s Resp. 28. The Court has no basis for disbelieving that representation. 

Therefore, the Court DENIES plaintiff’s motion to compel production of these documents.

4. “Green Card” or “Letter of Deactivation”

Plaintiff has requested that the government supply copies of a “letter of deactivation” that 

is referenced in an internal memorandum that Special Agent Tyska prepared in connection with 

the closure of plaintiff’s file. Pl.’s Mot. 24. Although the letter is referenced in a memorandum, 

and although the memorandum indicates that the letter was mailed to the plaintiff, Def.’s App. 

22, plaintiff never received such letter. Def.’s Resp. 27. In addition, the government asserts that 

neither its search of Special Agent Tyska’s files, nor its search through the files of the other 

custodians using the relevant key words, uncovered such a letter. Def.’s Resp. 27. In light of 

14
those representations, the plaintiff’s request to compel production of the deactivation letter is 

DENIED.

5. The Second [. . .]

Plaintiff requests additional discovery based on a newly-provided three-page document 

(titled “[. . .]”) that counsel claims alerted plaintiff for the first time that the IRS had conducted 

an investigation of a “[. . .].” Pl.’s Mot. 8-11, Pl.’s Mot. Ex. D. Plaintiff requests that the 

defendant search for information concerning any investigations pursued by the IRS as to [. . .]. 

Pl.’s Mot. 8.

In its response, the government represents that it “has not hidden the information related 

to the mention of [. . .] from [plaintiff]” because it provided to plaintiff a shorter version of the 

three-page summary in May 2012. Def.’s Mot. 23 (citing Def.’s App. 110). Furthermore, the 

government states that its searches “turned up no ‘hits’ on [. . .] that have not already been 

provided.” Id. According to the declarations of Special Agents Tyska and Cortier, because 

[. . .], the investigation of that [. . .] would have required the special agent “to go through certain 

protocols to obtain its tax information,” and both agents specified that they would have

remembered if they “had gone through such protocols.” Def.’s App. 5, ¶ 4 (Declaration of 

Special Agent Tyska); see also Def.’s App. 11, ¶ 7 (Declaration of Special Agent Cortier). The 

Court has no basis for disbelieving the government’s representations that it did not purposefully 

withhold information of its investigation of the [. . .] and that it has provided all documents 

relating to [. . .]. Therefore, the Court DENIES plaintiff’s request for more searches related to 

the second [. . .]. 

C. Motion for Sanctions

In its December 11, 2012 Order, the judge previously assigned to this case gave the

plaintiff an opportunity to file a motion under RCFC 37(a)(5)(C) requesting an apportionment of 

the reasonable expenses plaintiff incurred in bringing the first motion to compel because the

motion was granted in part and denied in part. See 108 Fed. Cl. at 150. Prior to the deadline the 

court set for requesting such an apportionment, it suspended all deadlines in the case in order to 

allow the government to continue its rolling production of electronically stored information. 

Order at 1, Jan. 1, 2013, ECF No. 68. 

In its current motion to compel and for sanctions, plaintiff cites RCFC 37(a)(5)(A). Pl.’s 

Mot. 25. Rule 37(a)(5)(A) governs in cases where a motion to compel is either granted in full or 

where the discovery sought in the motion is provided after the motion is filed. In such cases, 

“the court must, after giving an opportunity to be heard, require the party or deponent whose 

conduct necessitated the motion . . . to pay the movant’s reasonable expenses incurred in making

the motion, including attorney’s fees,” unless “the movant filed the motion before attempting in 

good faith to obtain the disclosure or discovery without court action;” or “the opposing party’s 

nondisclosure, response, or objection was substantially justified;” or “other circumstances make 

an award of expenses unjust.” RCFC 37(a)(5)(A) (emphasis added). In contrast, under RCFC 

37(a)(5)(C), governing cases where a motion to compel is granted in part and denied in part, the 

15
award of expenses is discretionary; thus the rule provides that the court “may, after giving an 

opportunity to be heard, apportion the reasonable expenses for the motion.” (emphasis added).

The Court believes that the applicable rule here is, as the prior judge instructed, RCFC 

37(a)(5)(C). While it is true that the government began supplying some additional documents to 

plaintiff after plaintiff filed its motion to compel, but before the court ruled on it, the continued 

production of those documents was mandated by the court’s order. See 108 Fed. Cl. at 127 n.2.

Along with its opening brief in support of its motion to compel, the plaintiff submitted an 

affidavit of costs for $15,124.61 in connection with the depositions of Paul Serletti, the two 

undercover agents, Marsha Griffith, Ashley Crystal, James Cortier, AngeloTroncoso, and 

Casimir Tyska. Tuft’s Aff. of Costs, Feb. 7, 2014, ECF No. 96. This affidavit was supported by 

an itemized list of the expenses incurred, along with copies of receipts. Id. at Ex. A. Plaintiff 

argues that all of these expenses should be reimbursed because it will be required to incur the 

same expenses again to retake these depositions in light of the documents the government 

produced both after the motion to compel was filed and after the court issued its ruling granting 

the motion in part. Pl.’s Mot. 28-38.

In its response, the government agrees that “a party should be made whole for any costs it 

reasonably incurred re-taking depositions that must be re-taken as a result of inadequate 

discovery responses.” Def.’s Resp. 34. It argues, however, that plaintiff has not sufficiently 

“linked the costs in its Affidavit of Costs to the discovery problems alleged.” Id. And in any 

case, the government contends, the documents produced after the court’s December 2012 order 

were “in large part, documents that had already been provided in 2012 but were being produced 

again in 2013 in order to ensure completeness . . . . What is important is the number of new and 

material documents provided to [plaintiff] in 2013.” Def.’s Resp. 34 n.24.

The Court concludes that some award of costs to plaintiff is appropriate based on the 

government’s failure to timely produce records belonging to the male undercover agent and to 

former IRS employees. Thus, plaintiff has made a sufficient showing that its ability to 

effectively depose the two undercover agents was prejudiced by the government’s failure to 

produce relevant documents contained in the male undercover agent’s computer files prior to that 

deposition. Further, based on the representations made in counsel’s declaration attached to 

plaintiff’s reply brief, it appears to the Court that counsel’s ability to effectively question Paul 

Serletti, as well as his supervisor, Marsha Griffith, and Special Agent Tyska, may have been

hampered by the lack of certain emails and attachments which were subsequently produced by 

the government.

On the other hand, the plaintiff has failed to identify any basis for concluding that 

counsel’s ability to effectively depose Ashley Crystal, James Cortier, or Angelo Troncoso would 

have been enhanced in any material way had plaintiff had in its possession the documents that 

have since been produced by the government. Accordingly, the Court will award the plaintiff 

$12,517.75, representing the expenses counsel has identified he incurred to travel to the 

depositions of the two undercovery agents and of Mr. Tyska, Ms. Griffith and Mr. Serletti.

16
Plaintiff did not request an award of attorney fees in its original motion for sanctions. 

Instead, in a lengthy affidavit submitted along with plaintiff’s reply brief, counsel asserted that 

he had spent some 209 hours on the case between August 2012 and December 31, 2012, of 

which 20.6 hours were spent preparing the first motion to compel filed in October 2012. Tufts 

Decl. 38, March 24, 2014, ECF No. 100. Because the plaintiff did not clearly raise counsel’s 

attorney fee claim in plaintiff’s opening brief, the Court gave the government leave to file a 

surreply to address the allegations in the declaration accompanying plaintiff’s reply brief. Order 

at 1, Apr. 11, 2014, ECF 106. In its surreply, the government opposes an award of attorney fees

to plaintiff, arguing that the fee request was waived because it was not raised in the plaintiff’s

opening brief and/or that plaintiff is not entitled to an award of fees because plaintiff failed to

submit adequate documentation that demonstrates that the fee request is reasonable. Def.’s 

Surreply 1, Apr. 17, 2014, ECF No. 107.

Attorney fees for sanctions pursuant to RCFC 37 or the identical provision of the Federal 

Rules of Civil Procedure must be “reasonable.” RCFC 37(a)(5)(C) (referencing “reasonable 

expenses”); RCFC 37(b)(2)(C) (same); Tollet v. City of Kemah, 285 F.3d 357, 367-68 (5th Cir. 

2002); Martin v. Brown, 63 F.3d 1252, 1263 (3d Cir. 1995). The burden of proving 

reasonableness lies with the moving party. Kister v. District of Columbia, 229 F.R.D. 326, 329 

(D.D.C. 2005). In order for the Court to evaluate what costs and expenses are reasonable, it must 

be provided with sufficiently detailed time records to evaluate whether the costs claimed are 

appropriate. Role Models Am., Inc. v. Brownlee, 353 F.3d 962, 971 (D.C. Cir. 2004) (Equal

Access to Justice Act matter). Fees are not permissible for work that is “excessive, redundant, or 

otherwise unnecessary.” Hensley v. Eckerhart, 461 U.S. 424, 434 (1983).

It is clear that plaintiff’s existing submission is insufficient to support an award of fees. 

The request for fees is not supported by any billing statements at all. See generally Tufts Decl., 

Mar. 24, 2014, ECF No. 100. At the hearing in this case, the Court indicated that it would 

consider giving plaintiff a second opportunity to submit additional documentation to support its 

claim for 20.6 hours of attorney time spent on preparing the first motion to compel. Oral Arg. 

Tr. 70. Upon further reflection, however, the Court is of the view that, under the circumstances 

of this case, an award of attorney fees to the plaintiff is unwarranted.

Thus, for the reasons set forth above, the Court has determined that the plaintiff’s second 

motion to compel is largely without merit. Were the Court to direct an award of attorney fees to 

plaintiff based on its partial success in connection with the first motion to compel, fairness would 

require the court to give the government an opportunity under Rule 37(a)(5)(C) to seek an 

apportionment of reasonable expenses for the work it has performed in connection with its 

response to the second largely meritless motion to compel. In the Court’s view, however, further 

rounds of briefing devoted to debating past discovery disputes would be counter-productive and 

would unduly delay the resolution of this case on its merits. Therefore, the Court concludes that 

both parties should bear their own costs in connection with the second motion to compel and that 

the plaintiff’s recovery of costs with respect to the first motion shall be limited to the expenses it 

incurred with respect to those depositions identified above that counsel states that he will need to

re-convene.

17
CONCLUSION

On the basis of the foregoing, plaintiff’s motion to compel and for sanctions is 

GRANTED IN PART and DENIED IN PART. The government shall reimburse the plaintiff a 

total of $12,517.75 for expenses related to the depositions of the two undercover agents, Ms. 

Griffith, Mr. Serletti, and Mr. Tyska.

Further, within one week of the date of this Order, the plaintiff shall identify for the 

government no more than three additional IRS officials for whom it requests production of 

documents (if it has not already done so). The plaintiff may also depose those officials to the 

extent that any documents produced indicate that such depositions would provide relevant 

information within the meaning of Rule 26(b). In addition, plaintiff may reconvene the 

depositions of the two undercover agents, Ms. Griffith, Paul Serletti, and Agent Tyska for 

purposes of addressing matters raised in the document production that occurred subsequent to the 

time of their original depositions.

Discovery in this matter shall be completed by August 7, 2015. In the interim, the parties 

shall file a joint status report with the Court every 30 days beginning on May 15, 2015. In 

addition, the parties shall file a joint status report within 30 days after the close of discovery, 

suggesting a schedule for further proceedings in this matter.

The parties are strongly encouraged to resolve any discovery disputes going forward 

without the Court’s intervention.

The Clerk of the Clerk is directed to enter judgment accordingly.

IT IS SO ORDERED.

s/ Elaine D. Kaplan 

ELAINE D. KAPLAN

Judge

18