ALFRED S.K TEO, Plaintiff, v. UNITED STATES INTERNAL REVENUE SERVICE, Defendant Case No. 20-81351-Civ-Middlebrooks/Brannon United States District Court, S.D. Florida Entered on FLSD Docket December 23, 2020 Counsel Samuel A. Stern, Stern LLC, Miami, FL, for Plaintiff. Kyle L. Bishop, Catriona M. Coppler, U.S. Department of Justice, Tax Division, Washington, DC, for Defendant. Brannon, Dave L., United States Magistrate Judge ORDER ON MOTIONS [DE 22 & 23] *1 THIS CAUSE is before the Court upon Plaintiff's Expedited Motion to Compel Deposition (“Motion to Compel”) [DE 22], and Defendant's Motion for Protective Order or in the Alternative to Stay Discovery (“Motion for Protective Order”) [DE 23], which also served as a response to Plaintiff's Motion to Compel. The Court ordered expediting briefing upon the Order Referring Motions. [DE 24 & 26]. Plaintiff filed a response to the Motion for Protective Order. [DE 27]. Both parties replied to the respective motions. [DE 28 & 29]. Being fully advised, the Court rules as follows. I. BACKGROUND a. Introduction This is a Freedom of Information Act (“FOIA”) lawsuit. In 2020, Plaintiff submitted a FOIA request to Defendant, seeking the production of several documents related to his 2016 tax return and Defendant's audit of that return. [DE 1 at 1-2]. Ultimately, Defendant failed to produce any responsive documentation or a written determination by the statutory deadline, including two extensions thereof, which prompted Plaintiff to file the present action. [DE 1 at 5]. On Defendant's Motion for Parties to be Excused from Discovery and Trial-Related Requirements of Pretrial Scheduling Order [DE 11], the Court vacated the deadlines set forth in the Pretrial Scheduling Order and set a summary judgment briefing schedule. [DE 20]. The Court further ordered that discovery, if appropriate, could be conducted between November 30, 2020 and December 30, 2020, and that the parties must timely file appropriate motions if discovery disputes arise. Id. On November 30, 2020, Defendant filed a motion for summary judgment. [DE 21]. Plaintiff did not file his own motion for summary judgment, and a response to Defendant's motion for summary judgment is not yet due. b. Defendant's Motion for Summary Judgment In Defendant's motion for summary judgment, Defendant relies upon the declaration of IRS Disclosure Manager Celeste Neal for its position that Defendant conducted a reasonable, good-faith search for responsive records and that the research was reasonably calculated to produce all documents responsive to Plaintiff's FOIA request. [DE 21-1 & 4]. Defendant's motion makes the following factual assertions. Plaintiff's request sought two types of records: (1) in paragraphs 2 and 30-32, transcripts; and (2) in the remaining proper requests, records that, to the extent they exist, would be maintained in the 2016 exam file. [DE 21-3 ¶ 9]. Because the FOIA request sought records maintained in the 2016 exam file, and because paragraphs 6 and 24-26 of the FOIA request identified Jamie Roberts as an IRS employee with knowledge of this exam, the FOIA disclosure employee initially assigned to the case – Alan Young – copied contacted the revenue agent who held the exam file – Roberts – approximately one day after receiving the request. Id. ¶ 10. A few weeks later, Roberts sent the entire 2016 exam file to the disclosure specialist via email. Id. ¶ 11. That same day, Young – the disclosure specialist – copied the material Roberts provided to the document review platform used by the IRS Disclosure Office. Id. From July 1 through September 8, 2020, Young worked on this FOIA request. Id. ¶ 12. Due to technical difficulties with the review platform, Young was unable to complete the review of the responsive records, and he released no records in response to this FOIA request. Id. *2 On September 17, 2020, IRS Disclosure Manager Celeste Neal reassigned this FOIA request from Young to Disclosure Analyst Mark Vees to assess the status of the records review. Id. ¶ 13. On this date, Vees confirmed that the 1263 pages of the 2016 exam file records provided by Roberts on June 30, 2020 were already in the review platform. On October 1, 2020, Neal participated in a conference call that included Vees, IRS Chief Counsel attorneys Lowell Thomas and Vikramsing Barad, and Roberts to discuss the status of the request processing and the effect of Plaintiff's judicial complaint. Id. ¶ 14. During the call Roberts confirmed that no other Revenue Agents worked on Plaintiff's 2016 exam other than her, that she had possession of the entire exam file, and that she had forwarded the entire exam file to Young on June 30, 2020. Id. On October 28, 2020, Neal participated in a conference call with Vees, Roberts, Thomas and Barad. Id. ¶ 15). During that call, Vees stated that all of the 2016 exam file records provided on June 30, 2020 were in the Disclosure Office document review platform and that he was in process of reviewing the records for responsiveness and to apply any necessary redactions. Id. Also during that call, Roberts mentioned she had eight pages of material reflecting that Plaintiff's 2016 tax case had been referred to the Department of Justice and reciting the procedures to be followed regarding the exam file. Id. ¶ 16). These records were not included in the June 30, 2020 production to Young. Id. The Counsel attorneys advised that these documents should be included as responsive to the FOIA request. Id. Roberts forwarded these documents to counsel on October 28, 2020. Id. The FOIA request sought the records maintained in plaintiff's 2016 exam file that was assigned to Roberts. Id. ¶ 17. Young obtained that complete file, as confirmed by Roberts. Id. There are no other locations where Plaintiff's 2016 exam file records would be found other than in the custody of Roberts. Id. Therefore, there is no reason to search for additional exam file records in any other location. Id. On or around November 9, 2020, Vees completed his review of the 2016 exam file records provided on June 30, 2020. Id. ¶ 18. With the addition of the eight pages identified on October 28, 2020, the exam records total 1,271 pages. Id. c. The instant motions regarding the deposition of Roberts Shortly after Defendant filed its summary judgment motion, Plaintiff sought to depose Roberts, which is the subject of the instant motions. Plaintiff seeks to conduct this deposition “to assess whether the agency has conducted an adequate search for records, as required by FOIA.” [DE 22 at 3]. Plaintiff asserts that there are genuine, good faith questions regarding the adequacy of Defendant's search and Defendant's submissions in support of its motion for summary judgment establish that Roberts is the only IRS employee with personal knowledge of the search for records responsive to Plaintiff's FOIA Request. [DE 28 (citing DE 21-4)]. Plaintiff now seeks to compel the deposition of Roberts. Defendant's position is that Roberts is not the IRS employee who conducted and supervised the reach, identified the exemptions, or signed the affidavit attached to the summary judgment. [DE 23-1]. Instead, Plaintiff seeks to depose Roberts, whose limited role in the search was directed by Disclosure Office personnel as the methodology of the IRS's search the affidavit describes. Moreover, Roberts handled the civil audit of Plaintiff's 2016 tax year and may be a witness in his upcoming federal criminal trial for, inter alia, alleged crimes committed regarding that tax year. Id.; see United States v. Teo, No. 2:20-cr-00690-KSH (D.N.J.). Defendant now seeks a protective order, or alternatively, asks for a stay of any discovery in this case until after a ruling on its motion for summary judgment. II. APPLICABLE LAW *3 “As a general rule, courts have disallowed discovery in FOIA actions or have permitted discovery, when deemed necessary, only on a limited basis.” Price v. United States Dep't of Justice, 17-CIV-24341, 2018 WL 3730224, at *1 (S.D. Fla. May 21, 2018) (citing Wheeler v. C.I.A., 271 F. Supp. 2d 132, 139 (D.D.C. 2003) (“Discovery is generally unavailable in FOIA actions.”); Schiller v. I.N.S., 205 F. Supp. 2d 648, 654 (W.D. Tex. 2002) (“Typically, discovery is not part of a FOIA case, and the decision whether to allow discovery rests within the discretion of the district court judge.... When discovery is permitted it is to be ‘sparingly granted.’ ”)); see also Broward Bulldog, Inc. v. U.S. Dep't of Justice, No. 12-61735-CIV, 2014 WL 11531367, at *1 (S.D. Fla. Mar. 31, 2014) (“The Court acknowledges that while discovery is not prohibited in FOIA cases, it is often unnecessary and generally limited.”); Davis v. United States Dep't of Veterans Affairs, No. 16-CV-00701-CBS, 2017 WL 3608192, at *7 (D. Colo. Aug. 22, 2017), aff'd, 730 F. App'x 571 (10th Cir. 2018) (“Case law holds that discovery generally is not available in FOIA actions.”). “Discovery is usually not allowed at all if the Court is satisfied that the affidavits/declarations submitted by the agency are sufficiently detailed, non-conclusory, and submitted in good faith.” Price, 2018 WL 3730224, at *1 (citing SafeCard Servs., Inc. v. S.E.C., 926 F.2d 1197, 1200–02 (D.C. Cir. 1991); Grand Central Partnership, Inc. v. Cuomo, 166 F.3d 473, 489 (2nd Cir. 1999); Military Audit Project v. Casey, 656 F.2d 724, 750–52 (D.C. Cir. 1981); Halperin v. Central Intelligence Agency, 629 F.2d 144, 148 (D.C. Cir. 1980)); accord Tamayo v. U.S. Dep't of Justice, 544 F. Supp. 2d 1341, 1343–44 (S.D. Fla. 2008). “However, discovery is permitted when there is a genuine issue as to the adequacy of the agency's search, its identification and retrieval procedures, or its good/bad faith.” Price, 2018 WL 3730224, at *2 (citing Weisberg v. Department of Justice, 627 F.2d 365, 371 (D.C. Cir. 1980); Shurberg Broadcasting of Hartford, Inc. v. FCC, 617 F. Supp. 825, 832 (D.D.C. 1985); Public Citizen Health Research Group v. FDA, 997 F. Supp. 56, 72–73 (D.D.C. 1998), aff'd in part, rev'd in part, 185 F.3d 898 (D.C. Cir. 1999)). “Usually after the agency has moved for summary judgment, limited discovery can be allowed when the plaintiff can show evidence of agency bad faith or that an exemption should not apply.” Price, 2018 WL 3730224, at *2 (citing Judicial Watch, Inc. v. Department of Justice (“Judicial Watch II”), 185 F. Supp. 2d 54, 65 (D.D.C. 2002); Carney v. Department of Justice, 19 F.3d 807, 812 (2nd Cir. 1994); Heily v. Department of Commerce, 69 F. App'x 171, 174 (4th Cir. 2003) (when permitted discovery “generally is limited to the scope of agency's search and its indexing and classification procedures”)). “But even if an agency's affidavits regarding its search are deficient, courts often still do not grant discovery but instead direct the agency to supplement its affidavits.” Price, 2018 WL 3730224, at *2 (citing Judicial Watch II,185 F. Supp. 2d at 65). III. DISCUSSION Plaintiff argues that Neal lacked personal knowledge regarding the search, which renders her account unreliable and insufficient to demonstrate that the Defendant is entitled to summary judgment. [DE 28]. But this is insufficient to establish that there is a genuine issue as to the adequacy of the agency's search, its identification and retrieval procedures, or its bad faith, as required to permit discovery in this case. Price, 2018 WL 3730224, at *1. Although Neal lacked personal knowledge of certain statements contained in her declaration, in a FOIA case, a declarant satisfies the personal knowledge requirement if she attests to her personal knowledge of the procedures used in handling the request and her familiarity with the documents in question. Barnard v. Dep't of Homeland Sec., 531 F. Supp. 2d 131, 138 (D.D.C. 2008) (citations omitted); see also White Coat Waste Project v. U.S. Dep't of Veterans Affs., 443 F. Supp. 3d 176, 193 (D.D.C. 2020) (“FOIA declarants may include statements in their declarations based on information they have obtained in the course of their official duties.”) (citations omitted); Cole v. Copan, No. 19-cv-1182, 2020 WL 7042814, at *6 (D.D.C. Nov. 30, 2020) (quoting Safecard Servs. Inc. v. S.E.C., 926 F.2d 1197, 1201 (D.C. Cir. 1991)) (A declaration may be appropriate when offered by the employee in charge of the search because she “is the most appropriate person to provide a comprehensive affidavit.”). Plaintiff also points to documents it received from Defendant to argue that Neal's declaration is inaccurate. However, because Plaintiff already has the documents in question, this argument is more appropriate in a response in opposition to Defendant's motion for summary judgment. IV. CONCLUSION *4 Accordingly, it is ORDERED and ADJUDGED that 1. Because Plaintiff has made an insufficient showing as to why discovery should be allowed in this case, Plaintiff's Motion to Compel [DE 22] is DENIED. 2. As such, Defendant's Motion for Protective Order [DE 23] is DENIED AS MOOT in light of this order. 3. The Court declines to direct Defendant to supplement its affidavit. If Defendant wishes to supplement its affidavit, it shall follow the governing rules and procedures to do so. DONE AND ORDERED in Chambers at West Palm Beach in the Southern District of Florida, this 23rd day of December, 2020.