United States v. Hughes

Background

Timberly E. Hughes, representing herself, moved to compel the United States to produce an unredacted page from an IRS Form 9984. The United States had redacted notes from an IRS case-activity record, relying on the deliberative process privilege and attorney-client privilege. After the parties discussed the issue, the United States produced a revised version with fewer redactions, but Hughes continued to rely on the original, more heavily redacted version in her reply.

The United States explained that the redacted notes concerned communications among the revenue agent, IRS attorneys, managers, and coordinators before the IRS decided whether to assess penalties against Hughes in an FBAR examination. It said the notes reflected the agent’s opinions and planned or completed activities, and that the final agency decisions appeared in other documents that had been produced.

Hughes also asked the court to strike duplicate pages in the United States’ document production. Separately, she moved under Federal Rule of Civil Procedure 12(f) to strike statements in the United States’ case-management statement and joint discovery letter brief. She argued that those statements created the appearance that she had lied in her discovery responses.

Motion to Compel

The court explained that discovery generally covers relevant, nonprivileged information that is proportional to the needs of the case. The deliberative process privilege protects predecisional documents that reflect advisory opinions, recommendations, or deliberations involved in formulating government decisions, when disclosure could discourage candid internal discussion.

The court assumed, for purposes of its analysis, that Hughes’s speculation was correct—that the redacted material might show the revenue agent initially believed Hughes had not willfully failed to report information. Even on that assumption, the court held that the material fell within the deliberative process privilege. The notes concerned internal IRS discussions before the decision to assess penalties, and protecting such discussions allowed agency personnel to candidly evaluate the strengths and weaknesses of a potential case.

The court found no need to review the document privately because Hughes’s briefs did not address the requirements of the deliberative process privilege or provide a reason the privilege did not apply. The court denied the motion to compel based on that privilege and did not reach the arguments concerning relevance or attorney-client privilege.

Requests to Strike

The court denied Hughes’s request to strike duplicate discovery pages. Hughes cited no legal authority for striking documents already produced, identified no prejudice from the duplicates, and did not explain what an order striking them would accomplish.

The court also denied the motion to strike statements in the United States’ case-management statement and joint discovery letter brief. Rule 12(f) applies only to material in a pleading, and the filings at issue were not pleadings under the Federal Rules of Civil Procedure. The court further found that Hughes had identified no other basis for striking the material and did not understand the United States’ filings to accuse her of dishonesty. The court stated that its separate discovery ruling requiring Hughes to answer an interrogatory and explain her document search was not based on a finding that she was dishonest or on bias against her.

Disposition

Judge Joseph C. Spero denied Hughes’s motion to compel and denied her motion to strike. The court stated that it had not ruled on the merits of the underlying case.