Opinion
2:15-cv-01605 RSM
12-06-2021
MICROSOFT CORPORATION, Plaintiff, v. INTERNAL REVENUE SERVICE, Defendant.
BAKER & McKENZIE LLP, Daniel A. Rosen, NYBA #2790442 Pro Hac Vice Attorney for Plaintiff Microsoft Corporation U.S. DEPARTMENT OF JUSTICE, Stephen S. Ho. Trial Attorney, Tax Division, U.S. Department of Justice Attorney for Defendant Internal Revenue Service
BAKER & McKENZIE LLP, Daniel A. Rosen, NYBA #2790442 Pro Hac Vice Attorney for Plaintiff Microsoft Corporation
U.S. DEPARTMENT OF JUSTICE, Stephen S. Ho. Trial Attorney, Tax Division, U.S. Department of Justice Attorney for Defendant Internal Revenue Service
FOURTH CONSENT MOTION AND ORDER REGARDING CASE SCHEDULE
RICARDO S. MARTINEZ, CHIEF UNITED STATES DISTRICT JUDGE
The above-captioned action is for declaratory and injunctive relief under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, as amended, and the Administrative Procedure Act, 5 U.S.C. § 701 et seq. The parties jointly request that the action remain open and that the Court approve the parties' agreed upon, modified schedule set forth in paragraph 3, below. In support of this request, the parties state the following:
1. On September 17, 2021, the Court issued a modified case management order adopting the parties' proposed revised schedule and case management order. Under that schedule, the IRS was required to file a motion for summary judgment by December 3, 2021. 1
2. Counsel for the IRS and Microsoft have had regular discussions over the past months to identify and attempt to narrow the issues for which summary judgment briefing would be necessary. By letters dated September 22, 2021 and November 10, 2021, Microsoft acknowledged that the IRS had addressed some of its concerns, and summarized a variety of outstanding issues it had raised previously regarding the IRS's productions, draft declarations, and draft Vaughn indices, including certain exemption claims. The IRS responded to certain of the issues raised by Microsoft by letter dated November 23, 2021, and in the process, discovered that its previously provided draft Vaughn index was incomplete and missing approximately 3, 400 records. The IRS therefore needs additional time to supplement and revise its previously provided draft Vaughn index. The IRS is also in the process of responding to Microsoft's remaining concerns, and the parties are still engaging in good faith negotiations to narrow the issues that may be addressed in summary judgment proceedings.
3. The IRS accordingly requests, and Microsoft consents, to extend the remaining deadline for the filing of the IRS's motion for summary judgment. The IRS thus requests that the Court adopt a case schedule extending the deadline for filing a motion for summary judgment up to and including January 28, 2022 for the above-captioned case.
4. Recognizing that the parties continue to engage in good faith negotiations, the parties agree that evidence of the IRS's efforts to address Microsoft's concerns, including any revisions to previously exchanged declarations or exemption claims, is not admissible to prove that the IRS's search was unreasonable or that the IRS's exemption claims were improper.
5. The parties jointly request that this action remain open and that the Court enter an order adopting the case schedule proposed in paragraph 3. 2
CERTIFICATE OF SERVICE
I certify that I served a true and correct copy of the foregoing JOINT MOTION via the Court's electronic case filing system on December 2, 2021. 3
ORDER
It is SO ORDERED 4