Opinion
CIVIL ACTION NO. 1:02-cv-1702-GET
June 17, 2003
ORDER
The above-styled matter is presently before the court on plaintiffs' motion to compel discovery [docket, no. 17],
Pursuant to 28 U.S.C. § 1340 and 1346, plaintiffs filed the instant action on June 20, 2002 for recovery of $31,884.64 plus interest for taxes allegedly erroneously assessed and collected. Discovery ended on March 6, 2003. On March 5, 2003, plaintiffs filed a motion to compel discovery.
Plaintiffs have filed a motion to compel defendant to produce two documents: an internal IRS memorandum and notes of communications between an IRS attorney and IRS employees. Plaintiffs also request that the court conduct an in camera review of the documents in dispute. Having reviewed both parties1 briefs, the court concludes that an in camera examination is not necessary.
With regard to the internal memorandum, defendant claims the deliberative process privilege. The deliberative process privilege "protects the internal decisionmaking processes of the executive branch in order to safeguard the quality of the agency decisions."Nadler v. U.S. Dep't of Justice, 955 F.2d 1479, 1490 (11th Cir. 1990), abrogated on other grounds. U.S. Dep't of Justice v. Landano, 508 U.3. 165 (1993). To invoke the privilege, the document must be "(1) predecisional, i.e., prepared in order to assist an agency decisionmaker in arriving at his decision, and (2) deliberative, i.e., a direct part of the deliberative process in that it makes recommendations or expresses opinions on legal or policy matters." Florida House of Representatives v. U.S. Dep't of Commerce, 961 F.2d 941, 945 (11th Cir. 1992) (internal citations omitted). Plaintiffs can overcome this privilege, however, by demonstrating that a "particularized need . . . outweigh[s] the reasons for confidentiality." See United States v. Farley, 11 F.3d 1385, 1389 (7th Cir. 1993).
The memorandum at issue discusses the IRS's rejection of plaintiffs1 1993 "Offer-in-Compromise" ("OIC"). The document was "deliberative" as it recommends collection methods that could be instituted against plaintiffs. The memorandum was also "predecisional" since it was issued before collection activities commenced. Plaintiffs have failed to demonstrate a "particularized need" that outweighs confidentiality concerns since the memorandum does not discuss the 1996 OIC at issue in this action. See Farley, 11 F.3d at 1389. Therefore, plaintiffs' motion to compel production of the IRS memorandum is DENIED.
With regard to the notes of communications between an IRS attorney and IRS employees, defendant asserts attorney-client privilege and alternatively, the deliberative process privilege. "An agency can be a `client' and agency lawyers can function as `attorneys' within the relationship contemplated by the privilege." Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 863 (D.C. Cir. 1980). Generally, the privilege will apply to documents prepared by an attorney on behalf of a client who requested an opinion of law. See In re Grand Jury Proceedings, 89-10 (MIA), 938 F.2d 1578, 1581 (11th Cir. 1991). However, the one asserting the privilege must also prove that the communication was "(1) intended to remain confidential and (2) under the circumstances was reasonably expected and understood to be confidential."United States v. Bell, 776 F.2d 965, 971 (11th Cir. 1985). Here, defendant simply states the subject, source, and recipient of the legal opinion rendered. Defendant has not shown 1) that the notes at issue were intended to remain confidential, and 2) that the IRS employees who prepared the notes reasonably expected confidentiality. Therefore, the attorney-client privilege does not apply. See Mead Data Cent., Inc. v. U.S. Dep't of Air Force, 566 F.2d 242, 254 (D.C. Cir. 1977) (ruling that the court cannot assume that the communications at issue are confidential).
In the alternative, defendant asserts the deliberative process privilege. Defendant does not state how the deliberative process privilege applies to the notes of communications. However, it is clear from the description provided to the court that the notes at issue were both predecisional and deliberate. The notes constitute a legal opinion prepared to assist IRS employees in evaluating the merits of plaintiffs' legal claim regarding annual income calculations. Moreover, plaintiffs have not adequately shown that their need for the notes outweigh confidentiality concerns in order to overcome the privilege. Thus, plaintiffs' motion to compel production of the notes of communications between an IRS attorney and IRS employees is DENIED.
Plaintiffs' motion to compel discovery [docket no. 17] is DENIED.
Summary
Plaintiffs' motion to compel discovery [docket no. 17] is DENIED.
SO ORDERED.