Opinion
ACTION NO. 2:01CV377
May 31, 2002
OPINION AND ORDER
On February 11, 2002, the Court heard argument on Plaintiffs Motion for Entry of Order Compelling Discovery (Document No. 15), Defendant's Motion to Compel Complete Answers to Defendant's First Set of Interrogatories and First Request for Production of Documents (Document No. 26), and Joint Motion to Extend Rule 16(b) Scheduling Order Deadlines (Document No. 23).
Representing the plaintiff was Frank M. Northam, Esq. Representing the defendant was Robert L. Welsh, Esq. The contract court reporter was Paul McManus.
At the hearing the Court GRANTED the defendant's motion to extend deadlines and to continue the trial and entered an Order on February 13, 2002 setting a new trial date. See Supplemental Rule 16(b) Scheduling Order. Also at the hearing the Court ORDERED additional submissions by the parties and those documents have been received.
A. Plaintiffs Motion for Entry of Order Compelling Discovery
The plaintiffs motion to compel was narrowed at oral argument to address only the documents for which the defendant asserted the deliberative process privilege. At the conclusion of oral argument, the Court DIRECTED the United States to submit a Vaughn Index of documents withheld pursuant to the deliberative process privilege only. That document was submitted and the Clerk is now DIRECTED to file the document.
The deliberative process privilege, or executive privilege, is an evidentiary privilege traditionally accorded documents to protect the deliberative decision-making functions of the government. NLRB v. Sears, Roebuck Co., 421 U.S. 132, 149-50 (1975). In City of Virginia Beach v. Dept. of Commerce, 995 F.2d 1247, 1252 (4th Cir. 1993), the Court held that the deliberative process privilege is "designed to protect the quality of administrative decisionmaking by ensuring that it is not done `in a fishbowl.'" The Court of Appeals for the Fourth Circuit engaged in a lengthy description of the deliberative process privilege in City of Virginia Beach and set out reasons for the privilege, including (1) it encourages free discussion of alternatives within the agency, (2) it eliminates public confusion that could result from premature release of internal agency discussions that are not the final opinion of the agency, and (3) it protects against the chilling effect that would likely occur if officials were to be judged on the matters they considered before they made up their minds and issued a binding opinion. 995 F.2d at 1252. In order to apply this privilege, the government must demonstrate that in "the context in which the materials are used," the documents are both predecisional and deliberative. City of Virginia Beach, 995 F.2d at 1252, quoting Wolfe v. Dept. of Health Human Services, 839 F.2d 768, 774 (D.C. Cir. 1988) (en banc). Thus this Court must determine whether the contested documents were predecisional to, and deliberative of, the Internal Revenue Service's final ruling regarding The Christian Coalition International's qualification for tax-exempt status.
In reaching the determination as to whether the government has met the twin prongs of the deliberative process exemption, the Court in its discretion may order an in camera review of the documents to determine the applicability of the claimed privilege, but it need not do so. In this case, the agency submitted a Vaughn Index, which provided to the Court "specific information sufficient to place the documents within the exemption category, if this information is not contradicted in the record and if there is no evidence in the record of agency bad faith." Center for Auto Safety v. EPA, 731 F.2d 16, 22 (D.C. Cir. 1984).
The Court has examined the Vaughn Index submitted by the government within the context of the case. The Court FINDS that all of the documents listed in the United States' log of documents withheld pursuant to the deliberative process privilege dated February 12, 2002 fully qualify for protection under the deliberative process exception. The Court FINDS that, in reviewing the index, there was sufficient identification of the addressee, author, and description of the document to allow the Court to determine whether the deliberative process test could successfully be applied. The Court FINDS that these documents, as set out in the Vaughn index, were predecisional to, and deliberative of, the Internal Revenue Service's final decision related to the plaintiffs qualification for tax-exempt status for the years in question. The Court FINDS there is no need to conduct an in camera inspection of the documents at issue and that there is no evidence presented of any bad faith by the Internal Revenue Service in this case and no evidence in the record that would contradict the assertion of the deliberative process exception.
Therefore, Plaintiffs Motion for Entry of Order Compelling Discovery (Document No. 15) for production of the documents listed in the February 12, 2002 log is DENTED.
B. Defendant's Motion to Compel Complete Answers to Defendant's First Set of Interrogatories and First Request for Production of Documents
Defendant's Motion to Compel Complete Answers to Defendant's First Set of Interrogatories and First Request for Production of Documents (Document No. 26) may be divided into three categories:
1. Motion to Compel Interrogatories 1-5, 7-14, and 17
The United States moves the Court to compel the plaintiff to provide written answers to the above government interrogatories. The Christian Coalition objects, stating that it has produced business records pursuant to Federal Rule of Civil Procedure 33(d), which adequately answer the government's interrogatories. The Court has reviewed the pleadings in detail in this case with the attachments.
The Court GRANTS the motion to compel answers to the above interrogatories. As set out in the brief of the United States, a party relying on a Rule 33(d) business record production to answer interrogatories must (1) affirm that the information sought by the interrogatory in fact is available in the specified records, (2) be able to demonstrate that answering the interrogatory in the traditional manner would impose a burden on it, (3) establish that the burden of compiling information is substantially the same for the inquiring and responding parties, and (4) specify which records contain the information sought by the interrogatory. Volume 8A, C. Wright, A. Miller R. Marcus, Fed. Prac. Proc. Civ.2d, § 2178 (1994). In reviewing the answers of the plaintiff to the interrogatories in question in this section, the Court FINDS that there is no affirmation by the plaintiff in each of the interrogatories that the information contained in the production of documents will answer the questions. Indeed, The Christian Coalition, in its answers to the interrogatories, expressly states that it cannot guarantee a full answer to the interrogatories by the production of the documents. There is no need for the Court to venture further in the analysis of this issue because it is impossible for the plaintiff to prevail.
Therefore, the Court ORDERS that the plaintiff, by June 12, 2002, provide full and complete answers to the above-stated interrogatories. The interrogatories, of course, must be answered under oath by the plaintiff.
2. Interrogatories No. 6. Disparate Treatment. Nos. 15 and 16 (vagueness claims)
These interrogatories can be disposed of quickly. The plaintiff has asserted that the Internal Revenue Service engaged in disparate treatment against the plaintiff in its treatment of the plaintiffs tax status, In addition, the plaintiff claims that Sections 501(c)(4) and 527 of the Tax Code and the related Treasury regulations are unconstitutionally vague. The Court has examined Interrogatory Nos. 6, 15, and 16, and the arguments of both plaintiff and defendant. The plaintiffs arguments fail because the United States is requesting specific evidence to support these two allegations. The Court FINDS that the interrogatories are well taken and DIRECTS that the plaintiff respond to the interrogatories by June 12, 2002.
3. The Government's Motion to Compel Production of Documents
The government contends that the privilege log issued by the plaintiff for asserting the attorney/client privilege is inadequate because it does not identify various individuals in the log. At the hearing, the Court directed the plaintiff to certify under oath if the individuals named in the privilege log were an officer/employee of The Christian Coalition International or an individual protected by attorney/client privilege. On February 14, 2002, a certification under oath was received and filed by the Clerk from Alan P. Dye, Esq., counsel for The Christian Coalition International (Document No. 37). This document certifies that the individuals identified in the privilege log were officers or employees or otherwise covered by the attorney/client privilege except for six documents identified in the certification for which the plaintiff withdrew the privilege. The Court is satisfied that the privilege log, as supplemented by the certification under oath, is sufficient to withstand the government's motion to compel. Therefore the government's motion to compel documents is DENIED since the documents are protected by the attorney/client privilege.
The Clerk is DIRECTED to mail a copy of this Order to all counsel of record.