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UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Alexandria Division

The NATIONAL ORGANIZATION FORMARRIAGE, INC.,

Plaintiff,

v.

The UNITED STATES OF AMERICA,

INTERNAL REVENUE SERVICE,

Defendant.

Civ. No. 13-cv-1225-JCC/IDD

PLAINTIFFS MOTION TO COMPEL PRODUCTION OF DOCUMENTS FROM

MATTHEW S. MEISEL AND FOR IN CAMERA REVIEW

Pursuant to Federal Rule of Civil Procedure 37 and Local Rule 37, Plaintiff National

Organization for Marriage, Inc. (NOM),through counsel, submits this Motion to Compel

Production of Documents From Matthew S. Meisel and forIn CameraReview, a non-party fact

witness, and respectfully requests that this Court compel Mr. Meisel to search for and produce all

documents responsive toNOMs discovery requests that do not implicate his Fifth Amendment

right to self-incrimination as determined by this Courts in camerareview. Specifically, NOM

moves the Court to produce the following documents:

1. Copies of NOMs 2007 and 2008 IRS Form 990s that Mr. Meisel received from the IRSin response to the IRS Form 4506-A he submitted to the IRS in or around January 2011.

2. A copy of the IRS Form 4506-A, Request for Public Inspection or Copy of Exempt orPolitical Organization IRS Form, Mr. Meisel submitted to the IRS in or around January

2011 to obtain copies of NOMs tax returns.

Case 1:13-cv-01225-JCC-IDD Document 41 Filed 02/21/14 Page 1 of 3 PageID# 180

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3. The IRS 3983C Letter that was sent to Mr. Meisel along with copies of NOMs 2007 and2008 IRS Form 990s and in response to the IRS Form 4506-A Mr. Meisel submitted to

the IRS.

4. Documents constituting communications between Mr. Meisel and the individualidentified by Mr. Meisel as his Promising Conduit.

For the reasons set forth in the accompanying Memorandum in Support, the Court should grant

the Motion.

Respectfully submitted this 21st day of February, 2014.

/s/ Jason Torchinsky

Jason Torchinsky (Va. 47481)Shawn Toomey Sheehy (Va. 82630)

Holtzman Vogel Josefiak PLLC

45 North Hill Drive, Suite 100

Warrenton, VA 20186(540) 341-8808 (telephone)

(540) 341-8809 (fax)

[email protected]@hvjlaw.com

Counsel for Plaintiff

John C. Eastman (Cal. 193726)*Anthony T. Caso (Cal. 88561)*

Center for Constitutional Jurisprudence

c/o Chapman University School of LawOne University Drive

Orange, CA 92866

(877) 855-3330 x2 (telephone)(714) 844-4817 (fax)

[email protected]

[email protected] for Plaintiff

Cleta Mitchell, of counsel

(D.C. 433386)*

William E. Davis, of counsel


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(D.C. 280057)*

Mathew D. Gutierrez, of counsel

(Fla. 0094014)*Kaylan L. Phillips (Ind. 30405-84)*

Noel H. Johnson (Wisc. 1068004)*

ACTRIGHT LEGAL FOUNDATION209 West Main StreetPlainfield, IN 46168

(317) 203-5599 (telephone)

(888) 815-5641 (fax)[email protected]

[email protected]

[email protected]

[email protected]@actrightlegal.org


* AdmittedPro Hac Vice


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Alexandria Division

The NATIONAL ORGANIZATION FOR

MARRIAGE, INC.,

Plaintiff,

v.



Defendant.


Local Rule 37(e) Meet and Confer Certification

Counsel for the parties conferred in a good faith attempt to resolve Mr. Meisels

discovery objections as follows:

1.

Phone conferences between counsel for NOM and counsel for Mr. Meisel on February 6,

February 13, and February 20, 2014.

2. Phone conference between counsel for NOM and counsel for Defendant on February 20,2014.

NOM and counsel for Mr. Meisel were unable to resolve their disputes. Counsel for Defendant

stated that Defendant takes no position on this motion.


/s/ Jason TorchinskyJason Torchinsky (Va. 47481)

Shawn Toomey Sheehy (Va. 82630)

Holtzman Vogel Josefiak PLLC45 North Hill Drive, Suite 100

Case 1:13-cv-01225-JCC-IDD Document 41-1 Filed 02/21/14 Page 1 of 2 PageID# 183

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Warrenton, VA 20186

(540) 341-8808 (telephone)

(540) 341-8809 (fax)[email protected]

[email protected]


John C. Eastman (Cal. 193726)*

Anthony T. Caso (Cal. 88561)*

Center for Constitutional Jurisprudencec/o Chapman University School of Law

One University Drive

Orange, CA 92866(877) 855-3330 x2 (telephone)

(714) 844-4817 (fax)

[email protected]


Cleta Mitchell, of counsel(D.C. 433386)*


(D.C. 280057)*Mathew D. Gutierrez, of counsel

(Fla. 0094014)*

Kaylan L. Phillips (Ind. 30405-84)*Noel H. Johnson (Wisc. 1068004)*

ACTRIGHT LEGAL FOUNDATION

209 West Main StreetPlainfield, IN 46168

(317) 203-5599 (telephone)

(888) 815-5641 (fax)

[email protected]@foley.com

[email protected]

[email protected]@actrightlegal.org


* Admitted Pro Hac Vice


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Alexandria Division


Plaintiff,

v.



Defendant.


NOTICE OF HEARING FOR PLAINTIFFS MOTION TO COMPEL PRODUCTION

OF DOCUMENTS FROM MATTHEW S. MEISEL AND FOR IN CAMERA REVIEW

Plaintiff National Organization for Marriage, Inc. (NOM),respectfully NOTICES a

hearing on its Motion to Compel Production of Documents From Matthew S. Meisel and forIn

CameraReview for Friday, February 28, 2014 at 10:00 a.m.


/s/ Jason Torchinsky_______

Jason Torchinsky (Va. 47481)Shawn Toomey Sheehy (Va. 82630)

Holtzman Vogel Josefiak PLLC

45 North Hill Drive, Suite 100Warrenton, VA 20186

(540) 341-8808 (telephone)(540) 341-8809 (fax)

[email protected]@hvjlaw.com



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John C. Eastman (Cal. 193726)*

Anthony T. Caso (Cal. 88561)*Center for Constitutional Jurisprudence

c/o Chapman University School of Law

One University DriveOrange, CA 92866(877) 855-3330 x2 (telephone)

(714) 844-4817 (fax)

[email protected]@chapman.edu


Cleta Mitchell, of counsel(D.C. 433386)*


(D.C. 280057)*Mathew D. Gutierrez, of counsel

(Fla. 0094014)*

Kaylan L. Phillips (Ind. 30405-84)*

Noel H. Johnson (Wisc. 1068004)*ACTRIGHT LEGAL FOUNDATION

209 West Main Street

Plainfield, IN 46168(317) 203-5599 (telephone)

(888) 815-5641 (fax)

[email protected]

[email protected]@foley.com

[email protected]




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Alexandria Division


Plaintiff,

v.



Defendant.


MEMORANDUM IN SUPPORT OF PLAINTIFFS MOTION TO COMPEL

PRODUCTION OF DOCUMENTS FROM

MATTHEW S. MEISEL AND FOR IN CAMERA REVIEW

This case centers on the unauthorized disclosure of confidential tax return information

namely the confidential donor list of a non-profit organization, Plaintiff National Organization

for Marriage (NOM). At issue here are the documents involved in making the request to the

Internal Revenue Service (IRS) for the public information available about NOMstax return,

the method by which the information was disclosed by the IRS, and the specific information that

was actually disclosed. The Defendant (hereafter, the Government)has been unable to produce

the forms submitted to it to request the tax returns, is unable to produce the actual transmittal

letters sent out to the requester, and is unable to produce evidence of the specific documents

transmitted.

1

1 Specifically, the Government provided evidence showing that the clerk involved in thedisclosure of NOMs tax returns here printed the unredacted original 2008 tax return and theunredacted amended 2008 tax return within several minutes of each other, but maintains that the


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As a result of the lack of availability of this information from the Government, NOM

(and the Government) sought the requested information from the person the Government has

identified as the requester, Matthew S. Meisel, who submitted a request for NOMs tax returns to

the IRS and receivedNOMsconfidential tax return information. To date, Mr. Meisel, the third-

party witness in this case, has declined to produce these highly relevant documents and related

documents in his possession, citing to his Fifth Amendment act of productionprivilege against

self-incrimination.

With respect to the requested documents, Mr. Meisels invocation of that privilege is

improper. For the reasons explained below, NOM respectfully requests that this Court compel

the production of requested documents from Mr. Meisel. In the alternative, for any of the

requested documents whose very production may arguably be testimonial in nature, NOM

requests that Mr. Meisel produce those documents, in camera, so the Court may properly

determine whether their production (as opposed to their content) presents a real and substantial

risk of self-incrimination.

FACTUAL BACKGROUND

This is an action against the Government seeking damages pursuant to 26 U.S.C. 7431

for the unlawful inspection and disclosure of NOMs tax return and tax return information by

agents of the IRS in violation of 26 U.S.C. 6103.

NOM is a tax-exempt organization that was founded in 2007 pursuant to Section

501(c)(4) of the Internal Revenue Code. (Verified Complaint (VC) 8.) As a tax-exempt

organization, NOM is required to file an IRS Form 990 annually with the IRS. See 26 U.S.C.

clerk mailed only the unredacted amended 2008 tax return without any documents, evidence ordeposition testimony to support its assertions.


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6033. Schedule B to Form 990 is a schedule of donors who have contributed $5,000 or more

during the reporting period. Certain portions of NOMs Form 990 must be made available for

public inspection. However, Schedule B, in unredacted form, is filed solely with the IRS and is

not a publicly available document. 26 U.S.C. 6104(b).

Pursuant to 26 U.S.C. 6103, tax returns and return information are confidentialand

their inspection and public disclosure is prohibited except as authorized by Section 6103. Title

26, U.S.C. 7431 provides taxpayers a cause of action for damages against the Government for

knowing or negligent unauthorized inspection or disclosure of tax return information in violation

of 26 U.S.C. 6103. For each negligent disclosure or inspection, a taxpayer may recover actual

damages or statutory damages of $1,000. If the inspection or disclosure is wilful or grossly

negligent, a taxpayer may be entitled to punitive damages.

In March 2012, NOMs amended 2008 Schedule B2 appeared on the websites of the

Human Rights Campaign (HRC) and the Huffington Post. (VC 14-16.) HRCs mission is

directly opposed to NOMs mission. On each page of the amended 2008 Schedule B were

official, internal IRS markings,3which indicated that the source of the published document was

the IRS itself. (VC 23.)

At NOMs request, the Treasury Inspector General for Tax Administration (TIGTA)

conducted an investigation into the unauthorized disclosure of NOMs unredacted 2008 Schedule

B. (VC 51.) The results and conclusions of TIGTAs investi gation were not shared with NOM

until after the complaint was filed in this matter. (VC 52.) Consequently, NOM was forced to

2For the 2008 tax year, NOM filed both an original and an amended tax return. The version ofthe tax return posted online was from the Amended 2008 tax return.

3The markings on the 2008 Schedule B published by HRC were originally obscured, but NOMwas able to remove the obstructions.


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undertake significant and costly effortsincluding the filing and administrative appeals of five

Freedom of Information Act requests and one Privacy Act Requestto obtain information about

the illegal disclosure of its donor information, but TIGTA and the IRS consistently withheld

completely or redacted all materially relevant information concerning TIGTAs investigation in

response to those requests until after this lawsuit was filed. (VC 53-55.) According to TIGTA,

26 U.S.C. 6103 prohibited it from disclosing to NOM any information concerning its

investigation, or even disclosing the existence of such investigation regarding the unlawful

disclosure of NOMs unredacted 2008 Schedule B. (VC 63.)

Not until October 30, 2013 did NOM learn the identity of the individual to whom its tax

returns were disclosed. As part of its investigation into the targeting of conservative applicants

for tax-exempt status (VC 88-90), the House Ways and Means Committee revealed to the

media that it had identified that individual as Matthew Meisel, a former employee of Bain &

Company, the company where former Republican Presidential Candidate Mitt Romney served as

interim CEO in the early 1990s. See Eliana Johnson, Investigation IDs IRS Leaker, National

Review Online, Oct. 30, 2013, http://www.nationalreview.com/article/362667/investigation-ids-

irs-leaker-eliana-johnson. The Ways and Means Committee also revealed that Mr. Meisel

furnished to HRC the copy of NOMs 2008 Schedule B he received from the IRS.Id. According

to communications produced by HRC in discovery, Mr. Meisel is a self-described armchair

activist with a small interest in investigating NOM. Document Production of Human Rights

Campaign at 2 (attached as Exhibit A, hereafter, HRC Production).

As part of its initial disclosures in this action, the Government identified an IRS

processing clerk in Ogden, Utah as one of the individuals who is likely to have discoverable

information. Initial Disclosures of Defendant United States of America at 3 (attached as Exhibit


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B, hereafter, Initial Disclosures).According to the Government, in January 2011, that named

IRS agent received an IRS Form 4506-A, Request for Public Inspection or Copy of Exempt or

Political Organization IRS Form,from Mr. Meisel, who requested copies of NOMs 2007 and

2008 tax returns, IRS Form 990s.4Discovery Response at 3 (c)-(d), 7 (q). The named IRS

agent then accessed and printed the requested documents, including the original and amended

versions of NOMs 2008 Form 990s. Id. at 7 (o). The named IRS agent also accessed and

printed both a redacted and unredacted version of NOMs original and amended 2008 Schedule

B, id. at 7 (r). The Government alleges that the named IRS agent then failed to redact the

names and addresses of [NOMs] contributors, even though redacting that information was her

responsibility and normal practice and procedure, and was required to satisfy the Internal

Revenue Code and the IRSpolicies and procedures.Id. at 8 (s).

According to the Government, the named IRS agent then caused the IRSs systems to

create a Form 3983C letter, which is a typical letter used in responding to Form 4506-A

requests. Id. at 8 (u). The named IRS agent then sent photocopied versions of NOMs 2007

and amended 2008 Form 990 to the IRS CRX Unit, which then printed the 3983C letter, and

assembled it with NOMs tax returns.Id. at 8 (v). The named IRS then mailed these documents

to Mr. Meisel. Id. at 8 (w). Even though the named IRS agent accessed and printed NOMs

4According to the Government, when a tax return such as an IRS Form 990 is accessed and

printed from the IRS database system, a unique identifying number is created as a watermark,which is embedded into the printed copy of the tax return. The identifying number correspondsto the specific IRS employee who accessed and printed the tax return. Governments Objectionsand Responses to Plaintiffs First Discovery Requests at 7 (a)-(b) (attached as Exhibit C,hereafter Discovery Response). The identifying number that appears on the 2008 Schedule Bthat was published on HRCs website allowed the Government to identify the IRS agent whoaccessed and printed that document.


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original 2008 Form 990, including the Schedule B, the Government alleges that the IRS did not

produce that document to Mr. Meisel.Id. at 8 (t).

According to the Government, the named IRS agent does not recall doing any of these

things. See, e.g., id. at 6 (g) (the IRS clerk does not recall the request for Plaintiffs 2008 Form

990, nor does she recall processing the request). Moreover, the Government has been unable to

produce a copy of the IRS Form 4506-A it claims Mr. Meisel submitted to the IRS, or the 3983C

letter it claims it mailed to Mr. Meisel in response to his request for NOMs tax returns. Nor has

the Government produced copies of the tax returns accessed and printed by the named IRS agent,

or copies of the tax returns mailed to Mr. Meisel by the IRS. The Government claims all of these

documents have been destroyed in accordance with IRS procedure.

As part of this action, NOM and the Government served Mr. Meisel with a subpoena to

produce documents, which asked Mr. Meisel to produce, inter alia,

1. All documents that you filed with, sent to, or received from the InternalRevenue Service includ[ing] copies of NOMs Form 990s, any other taxreturns, documents revealing the identifies of NOMs donors, IRS Forms4506-A requesting informationpertaining to NOM [and] IRS Form 3983-Cletters you received from the IRS.

2. All documents that you filed with, sent to, or received from the IRS that relateto any requests you made for NOMs 2007 Form 990. This would include IRSForms 4506-A, NOMs 2007 Form 990 [and] IRS Form 3983-C letters youreceived from the IRS.

3. All documents constituting or referencing communications between or amongyou and any third partyincluding, but not limited to the Human Rights

Campaign that relate to NOMs Complaint or the IRS disclosu re oralleged inspection ofNOMs 2008 Form 990.

Subpoena to Produce Documents Issued by Defendant United States of America to Matthew S.

Meisel (Dec. 23, 2013) at 8 (attached as Exhibit D, hereafter Governments Document

Subpoena).NOM requested that Mr. Meisel also produce to NOM all documents responsive to


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the Governments requests. Subpoena to Produce Documents Issued by Plaintiff NOM to

Matthew S. Meisel (Jan. 7, 2013) at 9 (attached as Exhibit E, hereafter NOMs Document

Subpoena). Additionally, NOM requested that Mr. Meisel produce all documents constituting

communications between you and [named IRS agent], David Hamilton, and/or any other current

or former employee of the IRS, the Treasury Department, or any other federal agency that relate

to the [NOM],NOMs tax returns or return information, and/or NOMs donors.Id.

In response, Mr. Meisel produced thirty-six pages of documents, but withheld an

unknown number of documents based on his belief that the documents are subject to the act of

production privilege under the Fifth Amendment to the United States Constitution. See

Document Production of Matthew S. Meisel (Jan. 16, 2013) at 2 (attached as Exhibit F, hereafter,

Meisel Production). Mr. Meisel did not produce any of the documents the Government claims

he sent to and received from the IRS, including copies of NOMs tax returns, the IRS Form

4506-A, and the 3983C letter. Mr. Meisel did not produce a privilege log for these documents,

asserting that such a log would also implicate his Fifth Amendment rights.

ARGUMENT

The instant motion was necessitated by Mr. Meisels refusal to produce documents

known by the parties to exist and to be in his possession. As the Supreme Court explains, the

production of such documents does not rise to the level of testimonial, and therefore does

implicate any Fifth Amendment rights. Consequently, Mr. Meisel has no valid reason to

withhold these documents.

Moreover, a sustainable assertion of the Fifth Amendment privilege requires more than

compelled testimony; it requires that testimony to be incriminating. Whether testimony is

incriminating is a determination made by this Court, not Mr. Meisel. Should this Court find that


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the mere act of production of certain documents (as opposed to the content contained in those

documents) would be testimonial in nature, NOM respectfully requests that this Court compel

Mr. Meisel to produce, in camera, those documents the mere act of production of which he

believes pose a real and substantial risk of incrimination. Any document for which Mr. Meisel

cannot sufficiently demonstrate such a risk must be produced.

I. Mr. Meisel Has Inappropriately Invoked the Act of Production Privilege toWithhold Documents.

[T]he Fifth Amendment protects the person asserting the privilege only from compelled

self-incrimination. United States v. Doe, 465 U.S. 605, 610 (1984) (citations omitted) (emphasis

in original). A subpoena that demands production of documents, however, does not compel

oral testimony, id. at 610-11, and therefore a person may be required to produce specific

documents even though they contain incriminating assertions of fact or belief because the

creation of those documents was not compelledwithin the meaning of the privilege. United

States v. Hubbell, 530 U.S. 27, 35-36 (2000). In other words, documents may not be withheld

solely on the grounds that the documents contents will lead to incrimination because the

contents of those records are not privileged. Doe, 465 U.S. at 612; see also id. n.10 (If the

party asserting the Fifth Amendment privilege has voluntarily compiled the document, no

compulsion is present and the contents of the document are not privileged.).5

5

Mr. Meisel does not claim of any of the documents he has withheld was compelled within themeaning of the Fifth Amendment. However, because of Mr. Meisels sweeping assertion of hisFifth Amendment rights against production of any additional documentsincluding a privilegelogNOM is unable to sufficiently assess the basis for Mr. Meisels assertion of his FifthAmendment rights. For this reason, NOM requests Mr. Meisel produce, in camera, a privilegelog and the documents he believes are properly withheld under the act-of-production privilege sothat the Court may determine the validity of his objections.


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While the contents of documents are not privileged, the act of producing them may be

privileged under certain narrow circumstanceswhere the act of production itself implicitly

communicate[s] statements of fact,such as the witnesss admission that the papers existed,

were in his possession or control, and were authentic. Hubbell, 530 U.S. at 36 & n.19 (citation

omitted). However, if the existence of the requested documents is a foregone conclusion and

therefore the production of documents adds little or nothing to the sum total of the [requesting

partys] information by conceding that he in fact has the papers, the Fifth Amendment is not

implicated because [t]he question is not of testimony but of surrender.Fisher v. United States,

425 U.S. 391, 411 (1976). In other words, [w]hether an act of production is sufficiently

testimonial to implicate the Fifth Amendmentdepends on the [requesting partys] knowledge

regarding the documents before they are produced. United States v. Ponds, 454 F.3d 313, 319-

320 (D.C. Cir. 2006) (summarizingHubbell andFisher).

The requesting party is not required to have actual knowledge of the existence and

location of each and every responsive document.Doe v. United States (In re Grand Jury

Subpoena), 383 F.3d 905, 910 (9th Cir. 2004); see also Ponds, 454 F.3d at 325(Fisher does not

demand that the subpoena name every scrap of paper that is produced.). Rather, the requesting

party must merely establish its knowledge of the existence, possession, and authenticity of the

subpoenaed documents with reasonable particularitybefore the communication inherent in the

act of production can be considered a foregone conclusion. Ponds, 454 F.3d at 320 (quoting

United States v. Hubbell, 167 F.3d 552, 579-80 (D.C. Cir. 1999), affd byHubbell, 530 U.S. 27);

see also Doe, 383 F.3d at 910 (same); United States v. Doe (In re Grand Jury Subpoena Duces

Tecum), 670 F.3d 1335, 1344 (11th Cir. 2012) (same). In other words, [p]roduction may not be

refused if the [requesting party] can demonstrate with reasonable particularity that it knows of


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the existence and location of subpoenaed documents.In re Grand Jury Subpoena Duces Tecum

Dated October 29, 1992, 1 F.3d 87, 93 (2d Cir. 1993). Ultimately, whether the act of producing

responsive documents is sufficiently testimonial that the Fifth Amendment applies, depend[s]

on the facts and circumstances of particular cases.Fisher, 425 U.S. at 410.

A. Mr. Meisel Must Produce Documents NOM and the Government Describedwith Reasonable Particularity.

Under the standards recited above, Mr. Meisel may not withhold documents of which

NOM or the Government can demonstrate knowledge with reasonable particularity. For the

following reasons, NOM believes Mr. Meisel has improperly withheld the following documents:

1. Copies of NOMs 2007 and 2008IRS Form 990s that Mr. Meisel Receivedfrom the IRS in response to the IRS Form 4506-A He Submitted to the

IRS in or Around January 2011.

On or before October 30, 2013, the House Ways and Means Committee identified Mr.

Meisel as the individual to whom the IRS disclosed NOMs unredacted 2008 Schedule B. See

Johnson,suprap. 4. Shortly thereafter, the Government disclosed in its initial disclosures that a

request had been made by Mr. Meisel to the IRS for copies of NOMs 2008 IRS Form 990,

which includes NOMs Schedule B. Initial Disclosures at 1, 3.

The Government has since stated that Mr. Meisel obtained NOMs 2008 Schedule B by

submitting to the IRS an IRS Form 4506-A, Request for Public Inspection or Copy of Exempt

or Political Organization IRS Form, around January, 2011. Governments Objections and

Responses to Plaintiffs First Discovery Requests at 4 (attached as Exhibit C, hereafter

Discovery Response). Mr. Meisel also requested and received NOMs 2007 Form 990, which

the IRS produced to Mr. Meisel at the same time it produced the 2008 Form 990, along with the

unredacted 2008 Schedule B.Id. at 8 (q). In short, the requested documents were prepared by


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and given to Mr. Meisel by the Government. Further, HRC, a third-party fact witness, has

produced to NOM copies of emails revealing that Mr. Meisel furnished to HRC a copy of

NOMs unredacted 2008 Schedule B, which HRC posted to its website. HRC Production at 2-6.

Based on the foregoing, the existence of copies of NOMs 2007 and 2008 IRS Form 990s

and Mr. Meisels possession of the same is a foregone conclusion. Fisher,425 U.S. at 411.

These documents were not only described with reasonable particularity, but were specifically

requested by NOM and also by the Government, which possessed and prepared the requested

documents before mailing them to Mr. Meisel. Cf. Fisher, 425 U.S. at 410-411 (admitting the

existence and possession of papers that belong to and were prepared by another party does not

rise to the level of testimony within the protection of the Fifth Amendment);6see also Ponds,

454 F.3d at 325 (government must have known of the existence of correspondence

because it was a party to that correspondence). Mr. Meisel adds little or nothing to the sum

total of the Governments information by conceding that he in fact has the papers. Id. at 411.

Consequently, these documents should have been produced either in response to Governments

Requests for Production (1) and (2) suprap. 6 (specifically requesting NOMs 2007 and 2008

Form 990s) and/or NOMs Requests for Production (1) and (2) supra p. 7 (requesting, in part,

documents requested by the Government and correspondence with IRS). See United

6Fisher involved the investigation of two taxpayers for tax violations. 425 U.S. at 393-94.During the investigation, the taxpayers obtained from their accountants documents used inpreparing their tax returns and gave the documents to their lawyers. See id.at 394. The

government then sought to subpoena the records. The Court concluded it was doubtful thatimplicitly admitting the existence and possession of the papers rises to the level of testimonywithin the protection of the Fifth Amendment where [t]he papers belong to the accountant,

were prepared by him, and are the kind usually prepared by an accountant working on the taxreturns of his client.Id. at 411. As inFisher, so here: The existence and location of the papersare a foregone conclusion and [Mr. Meisel] adds little or nothing to the sum total of theGovernments information by conceding that he in fact has the papers.Id.


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2. A Copy of the IRS Form 4506-A, Request for Public Inspection or Copyof Exempt or Political Organization IRS Form, Mr. Meisel Submitted to

the IRS in or Around January 2011 to Obtain Copies of NOMs Tax

Returns.

IRS Form 4506-A is the standard and only form used to request from the IRS copies of

the tax returns filed by tax-exempt organizations. According to the IRS, a completed 4506-A

form may be mailed or faxed to the IRS. See Instructions for Form 4506-A, July 2013, available

athttp://www.irs.gov/pub/irs-pdf/i4506a.pdf.

As explained, the Governments initial disclosures revealed to NOM that a request had

been made to the IRS for copies of its tax returns. Governments Initial Disclosures at 3. Prior to

that revelation, it was reported that Mr. Meisel received from the IRS copies of NOMs 2008

Schedule B. See Johnson, supra at p. 4. According to the Government, Mr. Meisel obtained

NOMs tax returns by submitting an IRS Form 4506-A, through which he requested copies of

NOMs 2007 and 2008 Form 990s. See Discovery Response at 4 (d) (The United States

contends that Matthew Meisel requested Plaintiffs 2008 Form 990 via an IRS Form 4506-A

around January, 2011.); see also id. at 7 (c), 8 (n), (q), (w). In short, the IRS previously

possessed a copy of the document now requested from Mr. Meisel.

For the reasons explainedsuprapart I.A.1., the existence, possession, and authenticity of

IRS Form 4506-A is a foregone conclusion. Based on parties previous knowledgeand in the

case of the Government, its possession,Fisher, 425 U.S. at 410-411;Ponds, 454 F.3d at 325

the Form 4506-A form was specifically requested by the Government and NOM. Mr. Meisel

adds little or nothing to the sum total of the Governments information by conceding that he in

fact has the [form]. Id. at 411. Consequently, it should have been produced by Mr. Meisel in


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response to the specific requests for this document. See suprap. 6-7. Lang, 792 F. 2d at 1240-

1241. NOM respectfully requests that Mr. Meisel be compelled to produce this document.

3. The IRS 3983C Letter That was Sent to Mr. Meisel Along with Copies ofNOMs 2007 and 2008 IRS Form 990s and in Response to the IRS Form4506-A Mr. Meisel Submitted to the IRS.

According to the Government, a 3983C letter is a typical letter used in responding to

Form 4506-A requests. Discovery Response at 10 (u). Upon learning from the Government

and Congress that a request had been made for NOMs tax returns and that Mr. Meisel was the

recipient of that request, NOM was aware that Mr. Meisel also received a 3983C letter. The

Government, as the entity that prepared and provided the 3983C letter to Mr. Meisel, was aware

of this fact even earlier:

[T]he IRS clerk caused the IRS systems to create a Form 3983C letter, which is atypical letter used in responding to Form 4506-A requests. A 3983C letter wasprinted at the Ogden Service Center print center in response to an instructionentered into the IRS database system and sent to CRX, where it was assembledwith the relevant photocopied Forms, and put out for picking up by IRS mailclerks and mailed. [T]he IRS produced a 3983C letter and the 2007 Form 990and amended 2008 Form 990 in response to a Form 4506-A request. [T]heactual disclosure of Plaintiffs amended 2008 Form 990, unredacted Schedule Bto Mr. Meisel occurred in or around March, 2011.

Discovery Response at 8 (u)-(x).

For the reasons explainedsuprapart I.A.1., the existence, possession, and authenticity of

the 3983C letter is a foregone conclusion. Based on parties previous knowledgeand in the

case of the Government, its possession,Fisher, 425 U.S. at 410-411,Ponds, 454 F.3d at 325

the 3983C letter was specifically requested by the Government and NOM. Mr. Meisel adds little

or nothing to the sum total of the Governments information by conceding that he in fact has the

[letter].Id. at 411. Consequently, it should have been produced by Mr. Meisel in response to the


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specific requests for this document. See supra p. 6-7. Lang, 792 F. 2d at 1240-1241. NOM

respectfully requests that Mr. Meisel be compelled to produce this document.

4. Documents Constituting Communications Between Mr. Meisel and theIndividual Identified by Mr. Meisel as the Promising Conduit.

Included in the documents produced to NOM by Mr. Meisel is the chat log of a Gmail

conversation between Mr. Meisel and an individual named Ian Grady. Meisel Production at 3-9.

During that conversation, Mr. Meisel discusses his desire and ability to obtain a copy of NOMs

complete 990, with donor list and solicits Mr. Gradys advice as to how to further disseminate

it publicly when he obtained it. Id. at 7-9. Near the end of the conversation, Mr. Meisel states,

[I] dont actually have anything all that interesting on [NOM]but I have a promising

conduit.Id. at 9.

Mr. Meisels conversation with Mr. Grady took place on February 24, 2011,

approximately three weeks before Mr. Meisel received the copies of NOMs 2007 and 2008 IRS

Form 990s from the IRS that Government has claimed are the source of the disclosure of NOMs

unredacted Schedule B. Discovery Response at 4 (The United States contends that the

disclosure occurred on or around March 14, 2011.). The logical import of Mr. Meisels

conversation with Mr. Grady is that Mr. Meisel knew he would soon obtain NOMs unredacted

2008 Schedule B from the IRS because he was working with a promising conduit within the

agency that could disclose it to him in response to the request he had already submitted. And, in

fact, Mr. Meisel did receive a copy of NOMs unredacted 2008 Schedule B from the IRS in

response to his request less than three weeks later. Discovery Response at 4 (b).

Mr. Meisels revelation concerning his promising conduit comes as no surprise to

NOM, which has maintained that the disclosure of its 2008 Schedule B by the IRS was made


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willfully or as a result of gross negligence. (See, e.g., VC at 3.) It was on the basis of that belief

that NOM requested from Mr. Meisel copies of his communications with IRS and Treasury

Department employees that relate to NOM, its tax return and its donors. See suprap. 7.

NOMs request to Mr. Meisel for communications with IRS and Treasury Department

employees concerning NOMs tax return information was made with reasonable particularity

based on its knowledge concerning the unique and suspicious circumstances surrounding the

disclosure. Moreover, Mr. Meisel has directly admitted the existence and his use of a conduit

with whom he communicated and through whom he obtained a copy of NOMs unredacted 2008

Schedule B. Cf. Rue, 819 F.2d at 1494 (existence and possession of documents a foregone

conclusion where party implicitlyacknowledged and indirectly admitted the existence and

possession of those records.). Mr. Meisels correspondence with his promising conduitadds

little or nothing to the sum total of the Governments information by conceding that he in fact

has the [communications]. Id. at 411. Consequently, these documents should be produced by

Mr. Meisel in response to the specific requests for those documents. See suprap. 7. Lang, 792

F.2d at 1240-1241.

The authenticity of the requested communications is also a foregone conclusion as they

can be independently authenticated pursuant to Federal Rule of Evidence 901(b)(1) by the

conduit,Stone, 976 F.2d at 911, orby their appearance, contents, substance, internal patterns,

or other distinctive characteristics of the item[s], taken together with all the circumstances

pursuant to Federal Rule of Evidence 901(b)(4).Rue,819 F.2d at 1494. A court may, of course,

rely on such evidence for authentication purposes. Pasquotank Action Council v. City of

Virginia Beach, 909 F. Supp. 376, 385 (E.D. Va. 1995); Lorraine v. Markel Am. Ins. Co., 241

F.R.D. 534, 546 (D. Md. 2007) (Fed. R. Evid. R. 901(b)(4) is one of the most frequently used to


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authenticate e-mail and other electronic records.);see also United States v. Siddiqui, 235 F.3d

1318, 1322-23 (11th Cir. 2000) (allowing the authentication of an e-mail entirely by

circumstantial evidence).

For these reasons, the act of producing the requested communications is not testimonial

in nature, and therefore Mr. Meisels Fifth Amendment rights are not implicated. NOM

respectfully requests that he be compelled to produce the requested communications.7

II. The Requested Documents Should be Produced Because Their Production DoesNot Pose a Substantial and Real Hazard of Self-Incrimination to Mr. Meisel.

In delineating the contours of a Fifth Amendment privilege claims, the Supreme Court

has crafted a framework that requires the presence of each of three distinct elements. Hubbell,

167 F.3d at 567, affd by Hubbell, 530 U.S. 27. Whether addressed to oral testimony or to

documentary evidence, the doctrine necessitates a showing of: i) the compulsion; ii) of

testimony; iii) that incriminates. Id. (citing Fisher, 425 U.S. at 409); see alsoDoe, 670 F.3d

1341 (An individual must show three things to fall within the ambit of the Fifth Amendment:

(1) compulsion, (2) a testimonial communication or act, and (3) incrimination.).

Therefore, even if the existence, possession, and authenticity of certain requested

documents is not a foregone conclusion, Mr. Meisel may not withhold those document if their

production does not pose a substantial and real hazard of self-incrimination.

7NOM believes that Mr. Meisel has also improperly asserted a Fifth Amendment privilege in notproducing a copy of communications (and an email attachment) between Kevin Nix at the HRC

and himself. See HRC Production at 2-6. Because NOM has already received a copy of thosecommunications from the recipient, their existence is a foregone conclusion and therefore theact of producing them adds nothing to what is already known. However, because NOM hasalready received those documents from HRC, it has decided not to compel their production inthis motion.


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The privilege against self-incrimination protects only those assertions of fact which the

witness reasonably believes could be used in a criminal prosecution or could lead to other

evidence that might be so used. Kastigar v. United States, 406 U.S. 441, 444-45 (1972).

However, where documents are concerned, the courts looks only to whether some aspect of the

production itself is incriminating, while ignoring the contents, which, if compiled voluntarily, are

not privileged. See United States v. OShea, 662 F. Supp. 2d 535, 544 (S.D. W. Va. 2009) (citing

Doe, 465 U.S. at 612;Fisher, 425 U.S. at 410) (act of production privilege may apply if the act

of producing a document communicates potentially incriminating information independent of the

contents of the document) (emphasis in original). The party making the assertion must be

confronted by substantial and real, and not merely trifling or imaginary, hazards of

incrimination.Doe, 465 U.S. at 614 (citations and quotations omitted).

The act of producing the documents sought from Mr. Meisel does not pose a substantial

and real hazard of self-incrimination. According to the Government, NOMs 2007 and amended

2008 Form 990s, the IRS Form 4506-A, and the 3983C letter were all possessed by Mr. Meisel

in connection with a valid request for copies of NOMs tax returns. According to the

Government, nothing about Mr. Meisels request was illegal or improper. Cf. Fisher, 425 U.S. at

412 ([A]ssuming that these aspects of producing the accountants papers have some minimal

testimonial significance, surely it is not illegal to seek accounting help in connection with ones

tax returns.). Indeed, no law makes it a crime to request or receive tax return information from

the IRS, even when what is received constitutes an unauthorized disclosure by the IRS in

violation of 26 U.S.C. 6103, as was the case here.

Nor is it incriminating to admit to the existence and possession of communications with

Mr. Meisels promising conduit. In fact, Mr. Meisel has already tu rned over communications


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that directly make such an admission, suggesting that Mr. Meisel does not believe that conceding

their existence and possession implicates his Fifth Amendment rights. NOM is unable to identify

any law which would punish the mere possession of communications with an employee of the

federal government.

Therefore, the documents reflecting communications with the IRS and his receipt of

NOMstax return information cannot incriminate him or provide a link in the chain leading to

potential prosecution.

III. Mr. Meisel Must Submit His Documents for I n Camera Review So the CourtCan Determine Whether the Privilege Has Been Properly Asserted.

It is this Court, and not Mr. Meisel, who decides whether the privilege has been properly

asserted with respect to a given question or document. United States v. Sharp, 920 F.2d 1167,

1170 (4th Cir. 1990); United States v. Argomaniz, 925 F.2d 1349, 1355 (11th Cir. 1991). Mr.

Meisel cannot avoid turning over documents merely because he declares that in so doing he

would incriminate himselfhis say-so does not of itself establish the hazard of incrimination. It

is for the court to say whether his silence is justified . . . . Hoffman v. United States, 341 U.S.

479, 486 (1951). Instead, the Court must make a particularized inquiry, deciding whether or

not the privilege is well-founded on a document-by-document basis. United States v. Harrison,

1976 App. LEXIS 8275, 7 (4th Cir. 1976);Argomaniz, 925 F.2d at 1355;see also United States

v. Wujkowski, 929 F.2d 981, 984 (4th Cir. 1991). Courts, including the Fourth Circuit, have

generally agreed that this is best accomplished through an in camera proceeding in which the

person claiming privilege may substantiate his claims and the Court has the opportunity to


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consider documents at issue.8 Wujkowski, 929 F.2d at 984; Argomaniz, 925 F.2d at 1355 and

n.13. The determination of whether or not a constitutional privilege applies cannot be based on

presumption. Wujkowski, 929 F.2d at 984.

In other words, Mr. Meisel cannot adjudicate his own Fifth Amendment claims. United

States v. Myers, 593 F.3d 338 (4th Cir. 2010). The Court must perform a sufficient review to

determine whether there is a reasonable basis for believing a danger to the witness exists in

producing a particular document. Anton v. Prospect Caf Milano, Inc., 233 F.R.D. 216, 218

(D.D.C. 2006). The burden of demonstrating such a danger rests with Mr. Meisel, who must

establish, first, that he has a substantial and reasonable fear of prosecution and, second, that the

act of producing the document would be incriminating.Anton, 233 F.R.D. at 219. For the reasons

explained above, Mr. Meisel cannot make such a showing, and the requested documents should

be produced.

Respectfully submitted this 21st day of February 2014,

/s/ Jason Torchinsky__________Jason Torchinsky (Va. 47481)Shawn Toomey Sheehy (Va. 82630)Holtzman Vogel Josefiak PLLC45 North Hill Drive, Suite 100Warrenton, VA 20186(540) 341-8808 (telephone)(540) 341-8809 (fax)[email protected]@hvjlaw.comCounsel for Plaintiff

8The Fifth Amendment is not infringed by producing documents for in camerainspection.In reThree Grand Jury Subpoenas, Dated Jan. 5, 1988, 847 F.2d 1024, 1028-29 (2d Cir. 1988).


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John C. Eastman (Cal. 193726)*Anthony T. Caso (Cal. 88561)*Center for Constitutional Jurisprudencec/o Chapman University School of LawOne University Drive

Orange, CA 92866(877) 855-3330 x2 (telephone)(714) 844-4817 (fax)[email protected]@chapman.eduCounsel for Plaintiff

Cleta Mitchell, of counsel(D.C. 433386)*William E. Davis, of counsel(D.C. 280057)*

Mathew D. Gutierrez, of counsel(Fla. 0094014)*Kaylan L. Phillips (Ind. 30405-84)*Noel H. Johnson (Wisc. 1068004)*ACTRIGHT LEGAL FOUNDATION209 West Main StreetPlainfield, IN 46168(317) 203-5599 (telephone)(888) 815-5641 (fax)[email protected]@[email protected]@[email protected] for Plaintiff



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Exhibit A


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30/106Ex. A, Page 1


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31/106Ex. A, Page 2


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32/106Ex. A, Page 3


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33/106Ex. A, Page 4


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34/106Ex. A, Page 5


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Exhibit B


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IN THE UNITED STATES DISTRICT COURTFOR TH EASTERN DISTRICT OF VIRGINIA

Alexandria DivisionTHE NATIONAL ORGANIZATION FORMARRIAGE, INC.

Plaintiff,v Civil Action No. 13-1225-JCC-IDD

THE UNITED STATES OF AMERICA,Defendant.

INITIAL DISCLOSURES OF DEFENDANT UNITED STATES OF AMERICAThe United States of America, by its undersigned attorneys, makes its initial disclosures

in accordance with Fed. R Civ. P 26(a)(l ) and the parties' proposed scheduling order, asfollows:I . The name, and, if known, the address and telephone number of each individual likely tohave discoverable information along with the subjects of that information that thedisclosing party may use to support its claims or defenses, unless the use would be solely

for impeachment:(a) Representative(s) for Plaintiffc/o Plaintiffs counsel

Subject: Plaintiffs designee has information pertaining to the allegeddisclosure of and alleged damages resulting from the inadvertent disclosure ofPlaintiff's 2008 Form 990, as well as the other allegations in its VerifiedComplaint.

(b) Matthew MeiselWaltham, Massachusettsc/o Matt Kaiser, The Kaiser Law Firm PLLC, 1400 I St, NW, 525,Washington, D.C. 20005, (202) 640-2850.Subject: Mr. Meisel has information pertaining to the request for thedisclosure of Plaintiffs 2008 Form 990, the IRS's production of Plaintiffs2008 Form 990, the receipt by the Human Rights Campaign of Plaintiffs

1

Ex. B, Page 1


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DANA J BOENTEACTING UNITED STATES ATTORNEYDavid MoskowitzAssistant U.S. Attorney2100 Jamieson AvenueAlexandria, Virginia 22314Telephone: 703) 299-3845Fax: 703) 299-3983E-Mail: [email protected] for the United States o America

Admitted pro hac vice

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CERTIFIC TE OF SERVICEI HEREBY CERTIFY that on December 20, 2013, I served the foregoing InitialDisclosures on counsel o record below by electronic mail and U.S. Mail addressed as follows:

Jason Brett TorchinskyHoltzman Vogel Josefiak PLLC45 North Hill DriveSuite 100Warrenton, VA 20186540-341-8808Fax: 540-341-8809Email: [email protected] Toomey SheehyHoltzman Vogel Josefiak PLLC45 North Hill DriveSuite 00Warrenton, VA 20186540-341-8808Fax: 540-341-8809Email: [email protected]

6

CHRISTOPHER D BELEN, VSB 78281Trial Attorney, Tax DivisionU.S. Department o Justice

Ex. B, Page 6


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Exhibit C


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43/106Ex. C, Page 1


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11016338.2

IN THE UNITED STATES DISTRICT COURT


Alexandria Division

THE NATIONAL ORGANIZATION FOR )

MARRIAGE, INC. ))

Plaintiff, )

)v. ) Civil Action No. 13-1225-JCC-IDD

)

THE UNITED STATES OF AMERICA, et al., ))

Defendants. )

_________________________________________ )

DEFENDANTS OBJECTIONS AND RESPONSES TO PLAINTIFFSFIRST DISCOVERY REQUESTS

Pursuant to Local Rule 26(C) and Federal Rules of Civil Procedure 33, 34, and 36,

Defendant, the United States of America, through its undersigned counsel, provides the

following responses and objections to Plaintiffs first set of interrogatories, requests for

admission, and requests for production of documents in the above-captioned action. The

responses below incorporate, as if fully set forth in general and for each specific discovery

request, the United States Objections to Plaintiffs First Discovery Requests, dated January 7,

2014. As discovery is ongoing and the Internal Revenue Service (IRS) is searching for

additional documents, the United States will supplement these discovery responses in accordance

with Fed. R. Civ. P. 26(e).

INTERROGATORY OBJECTIONS AND RESPONSES

1. Identify the individual(s) who was/were in any way involved in the inspection,

dissemination and/or disclosure of Plaintiffs return and/or return information as well as the

supervisor(s) of the individual(s).

Ex. C, Page 2


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2

Response: Defendant incorporates its objections dated January 7, 2014 in its response to

this interrogatory. Subject to these objections, Defendant states as follows: Wendy J. Peters is

identified as being involved in the disclosure of Plaintiffs amended 2008 Form 990, Return of

Organization Exempt From Income Tax (Form 990), including an unredacted Schedule B.

Her former immediate supervisor was Ben Aaron Johanson. The United States also contends

that Matthew Meisel was involved, and that individuals associated with the Human Rights

Campaign (HRC), the Huffington Post, and other news outlets and third parties may have been

involved in the unforeseeable dissemination of Plaintiffs amended 2008 Form 990, unredacted

Schedule B. The United States does not know these individuals supervisors, if any.

2. For each individual(s) identified in Interrogatory Number 1, state all facts and

describe in detail any inspections and/or disclosures of NOMs return and return information,

including the following for each disclosure:

(a) What specific return and/or return information was inspected and/or disclosed;

(b) Where and when such inspection(s) and/or disclosure(s) occurred;

(c) Regarding disclosure(s), to whom was the return and/or return information disclosed;

(d) Regarding disclosure(s), whether and how the disclosure(s) was/were requested;

(e) Which individuals associated with the United States, if any, were consulted or

informed of the inspection(s) and/or disclosure(s);

(f) When any individuals listed in (e), if any, were informed of such inspection(s) and/or

disclosure(s);

(g) Identify all documents and persons with knowledge that tend to support or undermine

your contentions in (a) through (f) above.

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4

the filing of this action. Subject to these objections and the general objections incorporated

above, the United States avers that, after the publication of Plaintiffs amended 2008 Form 990,

unredacted Schedule B in late March and early April 2012 by persons not employed by or

affiliated with the IRS, the following individuals were informed of the disclosure or were asked

to help determine whether a disclosure had been made: agents and employees for the Treasury

Inspector General for Tax Administration (TIGTA); IRS employees listed or otherwise named

in the TIGTA Report of Investigation (ROI), dated October 10, 2012; Sherry Whitaker, Robert

Blackwell, David Hamilton, Karl Hinds, Michael Leszcz, Ben Aaron Johanson, Kelli Graser,

Connie Peek, Debra Scott, JaLynne Archibald, Debbie Bybee, Rhonda Gill, Linda Oram, Stacy

Fisher, Christina DAmico, Roberta Zarin, Lois Lerner, Michelle Eldridge, David Fish, Joseph

Urban, Dawn Marx, Andy Megosh, Laurice Ghougasian, Holly Paz, Joseph Grant, Doble

Gregorio, Maria Hooke, Moises Medina, Richard Daly, Marian Bodart, Justin Lowe, Thomas

Miller, Judith Kindell, Sharon Light, Christina Navarrete-Wasson, Jeffrey Cooper, Kevin

Cunningham, Marci Ansley Plyer, Christina Hartman, Shelley Moore, Steven Miller and J.

Russell George. To the extent any other individuals are not listed, and in accordance with Fed.

R. Civ. P. 33(d), the United States incorporates any other individuals listed in the documents

produced in response to Plaintiffs document requests that involve communications pertaining to

the disclosure of Plaintiffs amended Form 2008, unredacted Schedule B.

(f) The United States objects that this information is not reasonably calculated to lead to

the discovery of admissible evidence. Subject to these objections and the general objections

incorporated above, individuals associated with the United States were informed on various dates

of the disclosure of Plaintiffs amended 2008 Form 990, unredacted Schedule B, beginning on or

around April 5, 2012.

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5

(g) The United States identifies the TIGTA ROI, dated October 10, 2012, in support of its

contentions, the relevant sections of the Internal Revenue Manual (IRM) that identify the

applicable policies, and the IRS database history indicating approximately when the Letter

3983C, EO Photocopy Request Response, at issue was processed in March 2011. The United

States will identify additional responsive documents if and when they are produced. Individuals

with knowledge in support of the United States contentions include individuals listed or

identified in (i) the TIGTA ROI, (ii) documents produced by HRC and Matthew Meisel, (iii) the

United States initial disclosures, and (iv) in response to subpart (e) of this interrogatory.

3. Please state with specificity all facts and identify all documents that tend to

support or undermine your contention that the disclosure of Plaintiffs return and/or return

information was inadvertent and limited to one occurrence. SeeAnswer, 105-08.


this interrogatory. Subject to these objections, Defendant states as follows with regard to

documents: The United States identifies the TIGTA ROI in support of its contentions, the

relevant sections of the IRM that identify the applicable procedures and policies governing the

disclosure, and the documents pertaining to the processing of and response to the Form 4506-A

at issue (including when the responding RAIVS (Return and Income Verification Services)

clerk entered a command into the IRS database system used by RAIVS clerks to instruct the

system to prepare a 3983C letter). The United States will identify additional responsive

documents if and when they are produced. With regard to the facts and in addition to the United

States January 7, 2014 objections, the United States objects to this interrogatory as unduly

burdensome because it demands that Defendant prove a negative that more than one

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7

(h)the IRS clerk has denied intentionally disclosing Plaintiffs amended 2008 Form990, Schedule B without the proper redactions;

(i) at the time of the disclosure, the IRS clerk did not know Matthew Meisel, KevinNix, Sam Stein, anyone at the Human Rights Campaign (HRC) or the

Huffington Post, or Fred Karger;

(j) at the time of the disclosure, the clerk did not know any of the other individualsPlaintiff identified to TIGTA as persons who disagree with Plaintiffs mission;

(k)at the time of the disclosure, the IRS clerk was processing a substantial majorityof the approximately 100 to 300 requests for copies of Form 990s the IRSreceived per week;

(l) the IRS Wage and Information Division (W & I) unit tasked with responding torequests for Form 990s the W & I RAIVS unit located in the Ogden, Utah IRS

Service Center processed over approximately 11,000 Form 4506-A requests in2010 and over approximately 13,000 Form 4506-A requests in 2011;

(m)at the time of the disclosure and through the time of the TIGTA investigationleading to its ROI dated October 10, 2012, the IRS W & I Ogden Accounting

Operations Quality Review unit, which reviewed RAIVS unit completed workrelated to the IRS production of copies of Form 990s, had never detected errors

with regard to the IRS clerk who disclosed Plaintiffs amended 2008 Form 990,

unredacted Schedule B;

(n)before responding to Mr. Meisels request for the Form 990, the IRS clerkcontacted an IRS media relations specialist to determine whether Mr. Meisel wasa member of the media, which he claimed to be when he completed and filed theIRS Form 4506-A;

(o)before responding to Mr. Meisels request for a copy of Plaintiffs Form 990 andafter she printed both copies of the original and the amended versions of

Plaintiffs 2008 Form 990s, the IRS clerk waited over a month for the IRS media

relations specialist to determine that Mr. Meisel was not a member of the media;

(p)the IRS clerk e-mailed the IRS media relations employee a total of five timesbetween January and March, 2011, waiting for a determination of Mr. Meisels

status as a member of the media;

(q)Mr. Meisel also requested Plaintiffs 2007 Form 990, which the IRS produced atthe same time as its amended 2008 Form 990, in March 2011;

(r) in January, 2011, the IRS clerk printed both versions of Plaintiffs 2008 Form990, including an unredacted Schedule B, at a printer located within the RAIVSunit;

Ex. C, Page 8


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(s) after printing Plaintiffs amended 2008 Form 990 in January 2011, the IRS clerkfailed to redact the names and addresses of Plaintiffs contributors, even though

redacting that information was her responsibility and normal practice and

procedure, and was required to satisfy the Internal Revenue Code and the IRS

policies and procedures;

(t) the IRS clerk did not produce to Mr. Meisel a copy of Plaintiffs original 2008Form 990, a tax return that included a Schedule B that listed more donors than theSchedule B attached to Plaintiffs amended Schedule B;

(u)the IRS clerk caused the IRS systems to create a Form 3983C letter, which is atypical letter used in responding to Form 4506-A requests;

(v)the IRS clerk did not mail the copy of Plaintiffs Forms 990 that were produced toMr. Meisel. The IRS clerk sent photocopied Forms 990 to the CRX unit, which

was responsible for assembling photocopied tax forms together with 3983C lettersresponding to the persons requesting the copies. A 3983C letter was printed at the

Ogden Service Center print center in response to an instruction entered into the

IRS database system and sent to CRX, where it was assembled with the relevant

photocopied Forms, and put out for picking up by IRS mail clerks and mailed;

(w)the IRS produced a 3983C letter and the 2007 Form 990 and amended 2008 Form990 in response to a Form 4506-A request;

(x)the actual disclosure of Plaintiffs amended 2008 Form 990, unredacted ScheduleB to Mr. Meisel occurred in or around March, 2011, a year before the disclosure

became widely known and a year before the Schedule B information wasunforeseeably publicized and disseminated by HRC, the Huffington Post, andFred Karger;

(y)the Internal Revenue Service responded to three subsequent Form 4506-Arequests for Plaintiffs Form 990s in August, September and December 2011,

including two by the clerk who inadvertently disclosed the Form 990 at issue,

and properly redacted the names and addresses of Plaintiffs contributors; and,

(z) the Internal Revenue Service played no part in any effort by any third parties,including Mr. Meisel, HRC, or the Huffington Post, to obscure the unique

identifiers located on the Schedule B that Plaintiff allegedly uncovered through itsinvestigation.

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9

4. Please state with specificity all facts and identify all documents that tend to

support or undermine your contention that the United States did not engage in any unauthorized

inspections. SeeAnswer, 112.


this interrogatory. Specifically, Defendant states that Interrogatory 4 is unduly burdensome

because it demands that Defendant prove a negative. Plaintiff bears the burden of proving that

Defendant engaged in any alleged unauthorized inspection but has asserted no facts supporting

such a contention. Subject to and without waiving its objections, the United States states that the

IRS clerk properly inspected Plaintiffs 2007 and 2008 Form 990 in order to respond to Matthew

Meisels Form 4506-A request.

5. Please identify each and every individual or entity who was an employee,

contractor or vendor of or to the United States that conducted any kind of analysis (including

computer and/or forensic), investigation (whether internal or conducted by a third party), created

any report, conducted any interviews or provided any presentations to the United States relating

to the disclosure and/or inspection of NOMs return and return information or this lawsuit, and

identify all documents relating to the same.


this interrogatory. Subject to these objections, Defendant states as follows: The United States

identifies the TIGTA ROI in support of its contentions, and will identify additional responsive

documents if and when they are produced. Subject to those statements, the United States

identifies the following individuals and entity in response to this interrogatory: TIGTA and

agents of TIGTA, as identified in the TIGTA ROI; IRS employees identified in the TIGTA ROI,

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this interrogatory. Subject to these objections, Defendant states as follows: The United States

identifies the following IRS individuals in response to this interrogatory: Marylou Andrews

(ret.) provided on-the-job training, including on the relevant governing IRM provisions, to

Wendy Peters relating to the photocopying and disclosure of return information. Computer

training on disclosure and privacy issues was provided by the centralized IRS Training

department. Various individuals, including RAIVS employees, provided on-the-job training to

Ben Aaron Johanson.

8. Identify the date, type and nature of training provided to any individual(s)

identified in Interrogatory Number 1.


this interrogatory. Subject to these objections, Defendant states that Wendy Peters was provided

on-the-job training, a W & I February, 2009 training regarding the procedures for processing tax

form transcript requests received through the Income Verification Express Service (IVES)

program, in addition to learning about the protocols detailed in the Internal Revenue Manual,

through on-the-job training and experience gained from preparing numerous responses to Form

4506-A requests. IRS computerized trainings on disclosure and privacy issues were provided on

September 22, 2008, and on information security on April 21, 2009, and April 13, 2010.

Documents regarding training are being produced by the government.

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9. Identify all persons within the Department of the Treasury and/or the Internal

Revenue Service, who communicated, either internally or externally, regarding Plaintiff and the

inspection and/or disclosure of Plaintiffs confidential return and/or return information.


this interrogatory. Defendant specifically objects to the overly broad and unduly burdensome

request for information regarding Plaintiff, as applied to any communication, internally or

externally, by all persons within two large government agencies with tens of thousands of

employees, in the context of this case, which pertains to a lone, inadvertent disclosure of tax

return information. As such, the Defendant would be required to expend an exorbitant number

of hours to locate and identify all individuals in offices nationwide in order to determine who

may have communicated with anyone regarding Plaintiff and the inspection and/or disclosure of

Plaintiffs confidential return and/or return information. Moreover, Defendant objects because

this interrogatory is irrelevant and not reasonably calculated to lead to the discovery of

admissible evidence. Subject to these objections, Defendant states that IRS and TIGTA

employees listed in the TIGTA ROI, as well as individuals listed in response to subpart (e) of

Interrogatory 2 and other individuals identified in the documents produced in response to

Plaintiffs document requests, communicated about Plaintiff after the publishing of Plaintiffs

amended 2008 Form 990, Schedule B and as it related to the disclosure of its amended 2008

Form 990, Schedule B.

10. Identify all Internal Revenue Manual [sic] Treasury Regulations, Delegation

Orders, Treasury Orders, Treasury General Counsel Orders, General Counsel Memoranda, Chief

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Counsel Advice, Internal Revenue Bulletins, Revenue Procedures, and Technical Advice

Memoranda, relating to the inspection and the disclosure of returns or return information.

Response: Defendant objects to Interrogatory 10 as unduly burdensome because

Plaintiff has equal access to public documents that may be responsive to Plaintiffs request.

Plaintiff seeks those materials that Defendant believes relat[e] to the inspection and the

disclosure of returns or return information, and, therefore, Defendant objects because

Interrogatory 10 seeks attorney work product and it requires Defendants counsel to conduct

legal research for Plaintiff, which is not proper under Fed. R. Civ. P. 33. Subject to and without

waiving these objections, the Defendant identifies the following materials that concern the

disclosure of return information under 26 U.S.C. 6103, 6104: portions of the Code of Federal

Regulations, including, 26 C.F.R. 301.6103(a)-1, 301.6103(a)-2, 301.6103(c)-1,

301.6103(h)(2)-1, 301.6103(1)-1, 301.6103(j)(1)-1, 301.6103(j)(1)-1T, 301.6103(j)(5)-1,

301.6103(k)(6)-1, 301.6103(k)(9)-1, 301.6103(l)-1, 301.6103(l)(2)-1, 301.6103(l)(2)-2,

301.6103(l)(2)-3, 301.6103(l)(14)-1, 301.6103(m)-1, 301.6103(n)-1, 301.6103(n)-2,

301.6103(p)(2)(B)-1,301.6103(p)(4)-1, 301.6103(p)(7)-1; 26 C.F.R. 301.6104(a)-1,

301.6104(a)-2, 301.6104(a)-3, 301.6104(a)-4, 301.6104(a)-5, 301.6104(a)-6, 301.6104(b)-1,

301.6014(c)-1, 301.6104(d)-0, 301.6104(d)-1, 301.6104(d)-2, 301.6104(d)-3; 26 C.F.R.

601.702; IRM sections 3.5.20, 3.11.12, 3.20.12, 3.20.13, and 11.3.1 et seq.(specifically 11.3.9),

and others cited in response to Interrogatory 6, above. In addition, the Disclosure and Privacy

Law Reference Guide, Publication No. 4639, Catalogue No. 50891P, a publication of the IRS,

Office of Chief Counsel, Procedure & Administration, is made available to the public at

www.irs.gov. In particular, Chapter 13, Part III, of that publication addresses Publicity of

Information Required From Certain Exempt Organizations I.R.C. 6104.

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11. If the documents in response to any of these interrogatories or requests for

production are in the possession of a third party, and you are not providing them in response to

any of the document production requests, please identify the third party and which document(s)

it possesses.

Response: The United States identifies Matthew Meisel as a third party that may possess

documents that are responsive to this request. These documents could include the Form 4506-A

Mr. Meisel submitted to the IRS, the 2007 and 2008 Form 990s he received from the IRS and the

3983C letter that accompanied the IRS response.

12. Please identify all individuals who assisted in and/or conferred with you in the

preparation of the responses to these interrogatories, the requests for production of documents

and the requests for admission.

Response: Defendant objects to Interrogatory 12 to the extent it seeks information that is

subject to the attorney-client privilege, protections of the attorney work-product doctrine, or the

law enforcement investigative privilege. Subject to these objections, Defendant states that

counsel for the United States, counsel for the Internal Revenue Service and counsel for TIGTA

assisted in or were conferred with regarding the preparation of Defendants responses to

Plaintiffs first set of discovery. Beyond those individuals and the individuals who provided

counsel with copies of the documents in their possession and/or control, the following

individuals assisted in or were conferred with in the preparation of the responses to Plaintiffs

first set of discovery: Karl Hinds, JaLynne K. Archibald, Christina L. Navarrete-Wasson, Connie

Peek, and Sherry Whitaker.

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13. If you do not provide an unqualified admission in response to all of the requests

for admission below, separately for each request for admission, state all facts and identify all

persons with knowledge and documents that support your response.

Response: To the extent the United States does not provide an unqualified admission,

the facts, individuals, and documents in support of its response are listed for each request,

respectively.

DEFENDANTS OBJECTIONS AND RESPONSES TO SPECIFIC REQUESTS FOR ADMISSION

1. Please admit that NOMs 2008 Schedule B that was published on the Human

Rights Commission and the Huffington Posts websites on March 30, 2012 is identical to the

version that was disclosed by the United States.


this request for admission. Subject to those objections, the United States responds as follows:

the United States is unable to admit or deny based upon a diligent inquiry. The United States

does not have the exact document that was produced to Matthew Meisel and does not know what

was published on the Human Rights Campaign and the Huffington Posts websites on March 30,

2012. The United States admits that the unique identifying diagonal watermark on the excerpted

page from Plaintiffs amended 2008 Form 990 attached to Plaintiffs Verified Complaint and

that Plaintiff alleges was redacted from the amended 2008 Form 990, Schedule B, which

currently exists on the Huffington Posts website matches a copy of a page from Plaintiffs

amended 2008 Form 990, Schedule B that the IRS inadvertently disclosed. The United States

will supplement this response in accordance with Fed. R. Civ. P. 26(e) to the extent necessary.

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2. Please admit that every retrieval of a Form 990 from the IRS internal computer

systems is logged, tracked, and traceable to a specific employee, vendor or contractor.



Denied. The United States admits that, except for qualified systems administrators, every access

of Plaintiffs amended 2008 Form 990 from the IRS database named Online SEIN or OL-SEIN

(Statistics of Income Exempt Organizations Return Image Network) is logged and traceable to a

specific date, time, and IRS employee.

3. Please admit that accessing the IRS internal computer systems containing

complete unredacted Form 990s requires one or more log-in steps that any person seeking access

to such files must follow.



Denied as written. The United States admits that IRS employees must have specific permissions

to log into particular systems. Access to a complete, unredacted Form 990 requires authorized

IRS employees, except qualified and authorized systems administrators, to properly login using

several steps before being able to view an unredacted Form 990.

4. Please admit that the donor information contained on Schedule B of Form 990 is

confidential taxpayer information.



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Denied. The United States admits that the names and addresses of contributors reported on

Plaintiffs amended 2008 Form 990, Schedule B is protected by 26 U.S.C. 6103.

5. Please admit that the release of the unredacted Schedule B to third parties did not

follow normal IRS internal procedures for responding to requests for Form 990s.



Denied as written. The United States admits that the IRS clerk who processed the request for

Plaintiffs amended 2008 Form 990 normally would have redacted the names and addresses

contained on the Schedule B before she sent the Form 990 out to any third party in accordance

with the Internal Revenue Code and the relevant sections of the Internal Revenue Manual as

outlined in response to Interrogatory Numbers 6 and 10, and inadvertently failed to do so.

DEFENDANTS OBJECTIONS AND RESPONSES TO SPECIFIC REQUESTS FOR PRODUCTION

1. All documents regarding the IRSs disclosure and/or inspection of NOMs return

and return information (including its 2008 Form 990, Schedule B), including documents relating

to the Treasury Inspector General for Tax Administration's (TIGTA) Complaint Number 63-

1204-0051-C, as well as internal and external communications.


this request for production. Subject to those objections, the United States responds that it is

producing responsive, relevant and non-privileged documents along with these responses and

objections, and that it will supplement its production of such documents to the extent additional

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responsive, relevant and non-privileged documents are located, and in accordance with the

Federal Rules of Civil Procedure or this districts Local Rules.

2. All documents constituting communications to or from any individual working at

the Department of the Treasury and/or the Internal Revenue Service-including but not limited to

political appointees, employees, anyone within the Treasury Inspector Generals Office and

independent contractors-relating to the inspection and/or disclosure of Plaintiff's return and

return information. The communications sought are both internal communications within either

the Internal Revenue Service or the Department of the Treasury and external communications

between a person within either the Department of the Treasury or Internal Revenue Service and

someone outside either agency, including but not limited to: reporters, persons working for other

government agencies, other branches of the federal government including Congressional

Committees, representatives of the national political parties, political candidates, elected federal

officials, persons at non-profit entities, etc.







3. All documents including and relating to training materials, written procedures, or

other instructions concerning the review of requests for information about tax exempt

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organizations that were provided to any individual(s) identified in response to Interrogatory

Number 1, above.







4. All documents containing any written instruction, formal or informal, by any

individual working at the Department of the Treasury and/or the Internal Revenue Service-

including but not limited to political appointees, employees, anyone within the Treasury

Inspector Generals Office and independent contractors -- relating to the processing, screening,

review and/or scrutiny of Form 990s based on the taxpayers political viewpoint, associate [sic]

or affiliation or other categorization based on perceived public policy viewpoint by the taxpayer.


this request for production.

5. Produce the Treasury Inspector Generals Report concerning the investigation

int

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