ALFRED SK TEO, Plaintiff, v. UNITED STATES INTERNAL REVENUE SERVICE, Defendant CASE NO. 20-81351-CV-MIDDLEBROOKS United States District Court, S.D. Florida Signed July 02, 2021 Entered July 06, 2021 Counsel Samuel A. Stern, Stern LLC, Miami, FL, for Plaintiff. Kyle L. Bishop, U.S. Department of Justice, Catriona M. Coppler, Washington, DC. for Defendant. Middlebrooks, Donald M., United States District Judge ORDER ON PLAINTIFF'S APPEAL OF MAGISTRATE JUDGE'S ORDER (DE 30) DENYING EXPEDITED MOTION TO COMPEL *1 THIS CAUSE comes before the Court upon Plaintiff's Appeal to the District Court of the Magistrate Judge's Order Denying Plaintiff's Expedited Motion to Compel (DE 42). Defendant, the United States Internal Revenue Service (“IRS”) filed a response (DE 45), and Plaintiff replied (DE 46). For the reasons set forth below, the Magistrate Judge's Order is affirmed. Prior to the filing of this Freedom of Information Act (“FOIA”) lawsuit, Plaintiff sought production of documents from Defendant, the IRS, related to Plaintiff's 2016 tax return and Defendant's audit. At the time of Plaintiff's original FOIA request, Plaintiff's exam file was held by revenue agent Jamie Roberts, who sent the file to disclosure specialists in response to Plaintiff's request. When Defendant failed to produce any responsive documentation or a written determination by the statutory deadline, Plaintiff filed this lawsuit. Defendant moved for summary judgment, arguing that it conducted a reasonable, good-faith search for responsive records and that the search was reasonably calculated to produce all responsive documents. Defendant's motion relies upon the declaration of an IRS disclosure manager (Celeste Neal). After Defendant's summary judgment motion was filed, Plaintiff filed an expedited motion to compel the deposition of revenue agent Roberts. Plaintiff argues that Roberts's deposition “is necessary to assess the adequacy of [Defendant's] efforts” to search for responsive records, given Roberts's “unique and exclusive personal knowledge” regarding Plaintiff's file and the Defendant's search. (DE 42). Plaintiff also points out that he identified multiple actual inadequacies in the IRS's production, and argues that only Roberts was in a position to identify all responsive documents, which is why his deposition should be permitted. If a party files objections to a magistrate judge's order on a non-dispositive pretrial matter, “[t]he district judge in the case must ... modify or set aside any part of the order that is clearly erroneous or is contrary to law.” Fed. R. Civ. P. 72(a). “A finding is clearly erroneous when the reviewing court, after assessing the evidence in its entirety, is left with a definite and firm conviction that a mistake has been committed.” Krys v. Lufthansa German Airlines, 119 F.3d 1515, 1523 (11th Cir. 1997) (citing Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573 (1985)). Judge Brannon's denial of Plaintiff's motion to compel was not clearly erroneous. He correctly recognized the very limited scope of permissible discovery in FOIA actions, and reasonably concluded that Plaintiff's criticisms of Defendant's chosen declarant regarding the IRS's records search did not justify compelling Roberts to testify at a deposition. In the briefing for this appeal, Plaintiff points to numerous instances of what appear to be deficiencies in Defendant's production of responsive documents. Plaintiff characterizes his motive for wanting to depose Roberts as an effort to uncover the “scope of these deficiencies.” (DE 46 at 11 (emphasis added)). However Plaintiff's arguments relating to the inadequacy of Defendant's search for records may be raised in response to Defendant's motion for summary judgment, and it appears to me that this can be done without need of the requested deposition. Indeed, as Plaintiff notes in his Reply: “we submit that the same facts precluding summary judgment also support an order compelling the sole [IRS] employee assigned exclusive responsibility for its search to finally and definitively identify the existence of responsive records.” (DE 46 at 13). Even if Celeste Neal was not an ideal declarant, she was a suitable one. Allowing FOIA discovery is the exception, not the rule, and the Magistrate Judge's discretionary call on this issue, based upon the record before him, was not clearly contrary to law. *2 Based upon the foregoing, it is ORDERED AND ADJUDGED that Plaintiff's Appeal to the District Court of the Magistrate Judge's Order Denying Plaintiff's Expedited Motion to Compel of Discovery Order (DE 42) is DENIED, and Magistrate Judge Brannon's Order (DE 30) is affirmed.