UNITED STATES OF AMERICA Plaintiff, v. MICHAEL WILLIAM FLAHERTY, MARGARET RONA LEE FLAHERTY, BANK OF HAWAII, STATE OF HAWAII DEPARTMENT OF TAXATION, Defendants CIVIL NO. 08-00493 SOM-KSC United States District Court, D. Hawai‘i Filed May 20, 2010 Chang, Kevin S.C., United States Magistrate Judge ORDER DENYING DEFENDANT MICHAEL FLAHERTY'S MOTION TO COMPEL DISCOVERY *1 Before the Court is pro se Defendant Michael Flaherty's (“Defendant”) Motion to Compel Discovery (“Motion”), filed April 12, 2010. On April 28, 2010, Plaintiff United States of America (“Plaintiff”) filed its Opposition. On May 17, 2010, Defendant filed a Counter Argument to the United States' Opposition to Defendant's Motion to Compel (“Reply”).[1] This matter came on for hearing on May 19, 2010. AUSA Harry Yee appeared, and Trial attorneys Jeremy Hendon and Curtis Smith appeared by phone, on behalf of Plaintiff. Defendant appeared on his behalf. Defendant Margaret Rona Lee Flaherty appeared on her behalf. After careful consideration of the Motion, the supporting and opposing memoranda, and Defendant and counsel's arguments, the Court DENIES the Motion. BACKGROUND Plaintiff commenced this action to reduce its federal tax assessments made against Defendant to judgment and to foreclose its relate federal tax liens on real property located at 53-3951 Hiwahiwa Road, Kapaau, Hawaii 96755 (“subject property”). On February 13, 2009, Plaintiff served its initial disclosures. Included in these disclosures were copies of Certificates of Assessments, Payments and Other Specified Matters (Forms 4340) for the 1999, 2000, and 2001 tax years. By way of letter dated March 5, 2009, Defendant requested the assessments at issue. Mot., Ex. 2. On March 9, 2009, Plaintiff sent Defendant a letter in response, explaining that the Forms 4340 constitute presumptive proof of a valid assessment; that a Form 23C is neither required to prove a valid assessment, nor is a taxpayer entitled to the same; and that no discovery dispute existed inasmuch as Defendant had not served discovery requests upon Plaintiff. Opp'n, Ex. 1. Defendant again requested “copies of a procedurally correct, signed and dated assessment” in a letter dated August 7, 2009. Mot., Ex. 3. On October 20, 2009, Defendant issued a request for production of documents, request for answers to interrogatories, and request for admissions. Plaintiff timely responded. This Motion followed. DISCUSSION *2 Defendant seeks an order compelling Plaintiff to produce the original document described in Count I of the Complaint, i.e., assessments, for an in camera inspection. Although Defendant broadened the scope of the Motion in his Reply to include a request to compel all documentation requested in his “First Discovery Request” attached as Exhibit 4 to the Motion,[2] the Court disregards this request because the relief was not sought in the Motion. Moreover, it is clear that Defendant's primary contention is that Plaintiff has yet to produce legitimate assessments. Plaintiff submits that the Motion should be denied because Defendant failed to comply with Local Rule 37.1 and because Plaintiff has already produced Forms 4340, which is all that is required by the treasury regulations, and which constitutes presumptive proof of a valid assessment. FCRP 26 specifically provides: “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense.... Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Fed. R. Civ. P. 26(b)(1). Relevancy, for purposes of Rule 26(b), is a broad concept that is construed liberally. Amendments to the rule in 2000, however, were “designed to involve the court more actively in regulating the breadth of sweeping or contentious discovery.” Fed. R. Civ. P. 26 advisory committee's notes; see also Elvig v. Calvin Presbyterian Church, 375 F.3d 951, 967-68 (9th Cir. 2004); Sallis v. Univ. of Minn., 408 F.3d 470, 477 (8th Cir. 2005). “Under Rule 26(b)(1), for example, discovery must now relate more directly to a ‘claim or defense’ than it did previously, and ‘if there is an objection that discovery goes beyond material relevant to the parties' claims or defenses, the court would become involved.’ ” Elvig, 375 F.3d at 968. In the event a party fails to respond to or permit a Rule 34 request for inspection or fails to answer an interrogatory submitted under Rule 33, the party who served the discovery request may file a motion to compel. Fed. R. Civ. P. 37(a)(3)(B). An incomplete or evasive answer or response is deemed a failure to answer or respond. See id. 37(a)(4). The motion to compel must include a certification that the “movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.” See id. 37(a)(1); see also Local Rule 37.1(a), (b). As an initial matter, the Court notes that Defendant failed to satisfy the meet and confer requirement set forth in Local Rule 37.1. Defendant argues that it is hypocritical for Plaintiff to complain that it was not notified prior to the filing of this Motion when Plaintiff did not notify him prior to filing the motion for summary judgment. Defendant misunderstands Plaintiff's argument. Plaintiff contends, and accurately so, that Defendant failed to comply with Local Rule 37.1. Rule 37.1 does not require a party to notify the other parties in the action that a motion is to be filed. Instead, Rule 37.1 mandates that The court will not entertain any motion pursuant to Fed. R. Civ. P. 26 through 37 ... unless counsel have previously conferred, either in person or by telephone, concerning all disputed issues and, if possible, eliminate the necessity for a motion or expedited discovery assistance.... *3 When filing any motion with respect to Fed. R. Civ. P. 26 through 37 ... counsel for the moving party shall certify compliance with this rule. Local Rule 37.1(a)-(b). Defendant did not confer with Plaintiff at all, much less in person or by telephone. Defendant's “concise statement of facts” does not, as he claims, establish his compliance with the Local Rules. On that basis alone, the Motion is denied. Defendant is reminded that his pro se status does not relieve him of his obligation to comply with all applicable rules. Local Rule 83.13 (“Pro se litigants shall abide by all local, federal, and other applicable rules and/or statutes.”). Even if Plaintiff had complied with Local Rule 37.1, his Motion would be denied. Under Section 6203 of the Internal Revenue Code, an assessment of tax “shall be made by recording the liability of the taxpayer in the office of the Secretary in accordance with rules or regulations prescribed by the Secretary. Upon request of the taxpayer, the Secretary shall furnish the taxpayer a copy of the record of the assessment.” 26 U.S.C. § 6203. The treasury regulations further provide that the assessment shall be made by an assessment officer signing the summary record of assessment, and the summary record of assessment shall provide the name of the taxpayer, the date of assessment, the character of the liability assessed, the taxable period, if applicable, and the amounts assessed. 26 C.F.R. § 301.6203-1. In addition, [i]f the taxpayer requests a copy of the record of assessment, he shall be furnished a copy of the pertinent parts of the assessment which set forth the name of the taxpayer, the date of assessment, the character of the liability assessed, the taxable period, if applicable, and the amounts assessed. Id. The Ninth Circuit has held that “[i]t is settled in this circuit that Certificates of Assessments and Payments are ‘probative evidence in and of themselves and, in the absence of contrary evidence, are sufficient to establish that ... assessments were properly made.’ ” Koff v. United States, 3 F.3d 1297, 1298 (9th Cir. 1993); Hughes v. United States, 953 F.2d 531, 535 (9th Cir. 1992) (“Official certificates, such as Form 4340, can constitute proof of the fact that the assessments actually were made.”). Furthermore, RACS Report 006 satisfies the signature and certification requirements of the treasury regulations. March v. I.R.S., 335 F.3d 1186, 1188-89 (10th Cir. 2003). Thus, “production of a Form 4340 creates a presumption that a Summary Record of Assessment, whether on Form 23C or RACS Report 006, was validly executed and certified.” Id. at 1189. Defendant apparently seeks to obtain an original of the federal income tax assessments described in Count I of the Complaint. However, Plaintiff has already produced Forms 4340 for the 1999, 2000, and 2001 tax years, which constitute proof that the assessments were actually made. Hughes, 953 F.2d at 535. The Court will not require Plaintiff to produce more. Additionally, Defendant has in his possession his summary records of assessment (IRS Forms “RACS 006”). These summary records satisfy the signature and certification requirements of the treasury regulations. Inasmuch as Defendant has the RACS 006 and Plaintiff has produced the Forms 4340, Defendant possesses the requisite assessment documents and Plaintiff has complied with its obligation. To prevent Defendant from continuing to request assessment documentation signed by an assessment officer, which he already has in his possession, the Court hereby issues a protective order prohibiting him from doing so. *4 Lastly, Plaintiff requests its reasonable attorneys' fees incurred in opposing this Motion. FRCP 37 provides: If the motion is denied, the court may issue any protective order authorized under Rule 26(c) and must, after giving an opportunity to be heard, require the movant, the attorney filing the motion, or both to pay the party or deponent who opposed the motion its reasonable expenses incurred in opposing the motion, including attorney's fees. But the court must not order this payment if the motion was substantially justified or other circumstances make an award of expenses unjust. Fed. R. Civ. P. 37(a)(5)(B). Although the Court must ordinarily require the moving party to pay the opposing party's attorneys' fees when a motion to compel is denied, the Court finds that an award of fees would be unjust given Defendant's pro se status. However, Defendant is cautioned that if he should file any frivolous discovery motions in the future that are denied, the Court may order that he pay Plaintiff's reasonable attorneys' fees. CONCLUSION In accordance with the foregoing, Defendant's Motion to Compel Discovery, filed April 12, 2010, is HEREBY DENIED. The Court hereby issues a protective order prohibiting Defendant from continuing to seek discovery regarding assessments signed by an assessment officer. IT IS SO ORDERED. DATED: Honolulu, Hawaii, May 20, 2010. CV 08-00493 SOM-KSC; UNITED STATES OF AMERICA V. FLAHERTY, ET AL.; ORDER DENYING DEFENDANT MICHAEL FLAHERTY'S MOTION TO COMPEL DISCOVERY Footnotes [1] Defendant's Reply was untimely filed. Pursuant to Rule 7.4 of the Local Rules of Practice of the United States District Court for the District of Hawaii (“Local Rules”), which requires that a reply in support of a motion set for hearing be served and filed not less than 14 days prior to the date of the hearing, Defendant's Reply was due on May 5, 2010. Defendant's argument that his time to respond is calculated from the date he received Plaintiff's Opposition is without merit. The briefing deadlines are counted backwards from the date of the hearing. In addition, the 31-page Reply violates Local Rule 7.5(c)'s 15-page limit. Although the Court will not strike the Reply, despite its authority to do so under Local Rule 7.4, the Court disregards all arguments raised for the first time therein. Local Rule 7.4 (“A reply must respond only to arguments raised in the opposition. Any argument raised for the first time in the reply shall be disregarded”). [2] Exhibit 4 is Defendant's “First Set of Admissions Directed to the United States Government.” It is unclear whether Defendant intended to reference this document, or another of his discovery requests, such as the request for production of documents.