Microsoft Corporation v. Internal Revenue Service

Opinion

HONORABLE RICARDO S. MARTINEZ

FOR THE WESTERN DISTRICT OF WASHINGTON

NO. 2:15-cv-01605 RSM Plaintiff, JOINT STATUS REPORT AND ORDER vs. REGARDING CASE SCHEDULE INTERNAL REVENUE SERVICE, Defendant. 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 this action remains open. The parties agree to adopt the following procedures to resolve their outstanding disputes in this action: 1. The parties agree that the Defendant shall complete a Vaughn index for all records that had been withheld in full based on the 5 U.S.C. § 552(b)(5) exemption. See Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). To the extent that the Defendant previously asserted an alternative basis (other than the 5 U.S.C. § 552(b)(5) exemption) for withholding the record in full, the Defendant need not include the record on the Vaughn index. To the extent that the Defendant takes the position that the record is exempt from disclosure based on an exemption (other than the 5 U.S.C. § 552(b)(5) exemption) that the Defendant did not previously assert, the Defendant will include an entry in the Vaughn index for such record. 2. The parties propose adoption of the following schedule for this FOIA case: SCHEDULE Event Date Defendant to provide declaration(s) concerning the adequacy of its search to the August 31, 2020 Plaintiff by: Defendant to complete Vaughn index and provide to the Plaintiff by: November 30, 2020 Plaintiff to complete list of challenges to Defendant’s exemption claims on records November 30, 2020 withheld in part and provide to Defendant by: Plaintiff to identify any remaining outstanding issues requiring briefing to Defendant by: February 14, 2021 Defendant’s motions for summary judgment (or stipulated dismissals) filed with the Court March 31, 2021 by: 3. Without prejudice to the Plaintiff’s right to raise additional issues pursuant to the schedule set forth in paragraph 2, the parties presently anticipate that any dispute requiring briefing may be limited to the following issues: a. Whether records created and/or assembled by the law firm Quinn Emanuel Urquhart & Sullivan, LLP, pursuant to its contract with the Defendant for the provision of services, constitute agency records under FOIA. b. Whether the Defendant conducted an adequate search of the hard drive of Samuel Maruca, Defendant’s former Director of Transfer Pricing Operations. c. Whether the Defendant’s handling of Mr. Maruca’s hard drive rendered Defendant’s search of that hard drive “unreasonable” as to Mr. Maruca’s records. d. Whether the Defendant properly withheld records (in whole or in part) based on a claim that such records were exempt from disclosure under 5 U.S.C. § 552(b)(5). The parties jointly request that this action remains open and that the Court enter an order adopting the case schedule proposed in paragraph 2. Respectfully submitted this 17th day of March, 2020.

BAKER & McKENZIE LLP CALFO EAKES & OSTROVSKY LLP

By: s/ Daniel A. Rosen By: s/ Patricia A. Eakes Daniel A. Rosen, NYBA #2790442 By: s/ Andrea D. Ostrovsky Pro Hac Vice Patricia A. Eakes, WSBA #18888 452 Fifth Avenue Andrea D. Ostrovsky, WSBA #37749 New York, NY 10018 1301 Second Avenue, Suite 2800 Tel: (212) 626-4272 Seattle, WA 98101 Fax: (212) 310-1600 Tel: (206) 407-2200 Email: daniel.rosen@bakermckenzie.com Fax: (206) 407-2224 Email: pattye@calfoeakes.com andreao@calfoeakes.com

Attorneys for Plaintiff Microsoft Corporation U.S. DEPARTMENT OF JUSTICE By: s/ Richard J. Hagerman Richard J. Hagerman Trial Attorney, Tax Division U.S. Department of Justice Post Office Box 227 Washington, DC 20044 Tel: (202) 616-9832 Fax: (202) 514-6866 Email: richard.j.hagerman@usdoj.gov

Attorneys for Defendant Internal Revenue Service

It is SO ORDERED this 18 day of March, 2020. A CHIEF UNITED STATES DISTRICT JUDGE

Presented by:

BAKER & McKENZIE LLP CALFO EAKES & OSTROVSKY LLP

By: s/ Daniel A. Rosen By: s/ Patricia A. Eakes Daniel A. Rosen, NYBA #2790442 By: s/ Andrea D. Ostrovsky Pro Hac Vice Patricia A. Eakes, WSBA #18888 452 Fifth Avenue Andrea D. Ostrovsky, WSBA #37749 New York, NY 10018 1301 Second Avenue, Suite 2800 Tel: (212) 626-4272 Seattle, WA 98101 Fax: (212) 310-1600 Tel: (206) 407-2200 Email: daniel.rosen@bakermckenzie.com Fax: (206) 407-2224 Email: pattye@calfoeakes.com andreao@calfoeakes.com

Attorneys for Plaintiff Microsoft Corporation

By: s/ Richard J. Hagerman Richard J. Hagerman Trial Attorney, Tax Division U.S. Department of Justice Post Office Box 227 Washington, DC 20044 Tel: (202) 616-9832 Fax: (202) 514-6866 Email: richard.j.hagerman@usdoj.gov Attorneys for Defendant Internal Revenue Service