Microsoft Corporation v. Internal Revenue Service

Filing 45

JOINT STATUS REPORT AND ORDER REGARDING CASE SCHEDULE re: 44 Joint Status Report. The following schedule is adopted: Defendant to provide declaration(s) concerning the adequacy of its search to the Plaintiff by 8/31/2020; Defendant to complete Va ughn index and provide to the Plaintiff by 11/30/2020; Plaintiff to complete list of challenges to Defendant's exemption claims on records withheld in part and provide to Defendant by 11/30/2020; Plaintiff to identify any remaining outstanding issues requiring briefing to Defendant by 2/14/2021; Defendant's motions for summary judgment (or stipulated dismissals) filed with the Court by 3/31/2021. Signed by Judge Ricardo S. Martinez. (PM)

Case 2:15-cv-00369-RSM Document 45 Filed 03/18/20 Page 1 of 5

HONORABLE RICARDO S. MARTINEZ

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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MICROSOFT CORPORATION,
NO. 2:15-cv-00369 RSM

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Plaintiff,
vs.
INTERNAL REVENUE SERVICE,

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Defendant.

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MICROSOFT CORPORATION,

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NO. 2:15-cv-00850 RSM

Plaintiff,

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JOINT STATUS REPORT AND ORDER
REGARDING CASE SCHEDULE

vs.
INTERNAL REVENUE SERVICE,
Defendant.

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The above-captioned actions are for declaratory and injunctive relief under the Freedom

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of Information Act (“FOIA”), 5 U.S.C. § 552, as amended, and the Administrative Procedure

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Act, 5 U.S.C. § 701 et seq. The parties jointly request that these actions remain open. The

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JOINT STATUS REPORT AND ORDER REGARDING CASE
SCHEDULE- 1
(Case No. 2:15-cv-00369 RSM)

LAW OFFICES

CALFO EAKES & OSTROVSKY LLP
1301 SECOND AVENUE, SUITE 2800
SEATTLE, WASHINGTON 98101
TEL [phone] FAX [phone]

Case 2:15-cv-00369-RSM Document 45 Filed 03/18/20 Page 2 of 5

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parties agree to adopt the following procedures to resolve their outstanding disputes in these

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actions:

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1.

The parties agree that the Defendant shall complete a Vaughn index for all records

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that had been withheld in full based on the 5 U.S.C. § 552(b)(5) exemption. See Vaughn v.

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Rosen, 484 F.2d 820 (D.C. Cir. 1973). To the extent that the Defendant previously asserted an

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alternative basis (other than the 5 U.S.C. § 552(b)(5) exemption) for withholding the record in

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full, the Defendant need not include the record on the Vaughn index. To the extent that the

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Defendant takes the position that the record is exempt from disclosure based on an exemption

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(other than the 5 U.S.C. § 552(b)(5) exemption) that the Defendant did not previously assert, the

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Defendant will include an entry in the Vaughn index for such record.
2.

The parties propose adoption of the following schedule for both FOIA cases:

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SCHEDULE

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Event
Defendant to provide declaration(s)
concerning the adequacy of its search to the
Plaintiff by:

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Date
August 31, 2020

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Defendant to complete Vaughn index and
provide to the Plaintiff by:

November 30, 2020

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Plaintiff to complete list of challenges to
Defendant’s exemption claims on records
withheld in part and provide to Defendant by:

November 30, 2020

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
by:

March 31, 2021

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3.

Without prejudice to the Plaintiff’s right to raise additional issues pursuant to the

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schedule set forth in paragraph 2, the parties presently anticipate that any dispute requiring

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briefing may be limited to the following issues:

JOINT STATUS REPORT AND ORDER REGARDING CASE
SCHEDULE- 2
(Case No. 2:15-cv-00369 RSM)

LAW OFFICES

CALFO EAKES & OSTROVSKY LLP
1301 SECOND AVENUE, SUITE 2800
SEATTLE, WASHINGTON 98101
TEL [phone] FAX [phone]

Case 2:15-cv-00369-RSM Document 45 Filed 03/18/20 Page 3 of 5

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a.

Whether records created and/or assembled by the law firm Quinn Emanuel

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Urquhart & Sullivan, LLP, pursuant to its contract with the Defendant for the provision

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of services, constitute agency records under FOIA.

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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. §

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552(b)(5).

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The parties jointly request that these actions remain open and that the Court enter an

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order adopting the case schedule proposed in paragraph 2.
Respectfully submitted this 17th day of March, 2020.

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BAKER & McKENZIE LLP

CALFO EAKES & OSTROVSKY LLP

By: s/ Daniel A. Rosen
Daniel A. Rosen, NYBA #2790442
Pro Hac Vice
452 Fifth Avenue
New York, NY 10018
Tel: [phone]
Fax: [phone]
Email: [e-mail]

By: s/ Patricia A. Eakes
By: s/ Andrea D. Ostrovsky
Patricia A. Eakes, WSBA #18888
Andrea D. Ostrovsky, WSBA #37749
1301 Second Avenue, Suite 2800
Seattle, WA 98101
Tel: [phone]
Fax: [phone]
Email: [e-mail]
[e-mail]

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Attorneys for Plaintiff Microsoft Corporation

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JOINT STATUS REPORT AND ORDER REGARDING CASE
SCHEDULE- 3
(Case No. 2:15-cv-00369 RSM)

LAW OFFICES

CALFO EAKES & OSTROVSKY LLP
1301 SECOND AVENUE, SUITE 2800
SEATTLE, WASHINGTON 98101
TEL [phone] FAX [phone]

Case 2:15-cv-00369-RSM Document 45 Filed 03/18/20 Page 4 of 5

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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: [phone]
Fax: [phone]
Email: [e-mail]

Attorneys for Defendant Internal Revenue Service

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JOINT STATUS REPORT AND ORDER REGARDING CASE
SCHEDULE- 4
(Case No. 2:15-cv-00369 RSM)

LAW OFFICES

CALFO EAKES & OSTROVSKY LLP
1301 SECOND AVENUE, SUITE 2800
SEATTLE, WASHINGTON 98101
TEL [phone] FAX [phone]

Case 2:15-cv-00369-RSM Document 45 Filed 03/18/20 Page 5 of 5

ORDER

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It is SO ORDERED this 18 day of March, 2020.

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A

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RICARDO S. MARTINEZ
CHIEF UNITED STATES DISTRICT JUDGE

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Presented by:

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BAKER & McKENZIE LLP

CALFO EAKES & OSTROVSKY LLP

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By: s/ Daniel A. Rosen
Daniel A. Rosen, NYBA #2790442
Pro Hac Vice
452 Fifth Avenue
New York, NY 10018
Tel: [phone]
Fax: [phone]
Email: [e-mail]

By: s/ Patricia A. Eakes
By: s/ Andrea D. Ostrovsky
Patricia A. Eakes, WSBA #18888
Andrea D. Ostrovsky, WSBA #37749
1301 Second Avenue, Suite 2800
Seattle, WA 98101
Tel: [phone]
Fax: [phone]
Email: [e-mail]
[e-mail]

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Attorneys for Plaintiff Microsoft Corporation

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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: [phone]
Fax: [phone]
Email: [e-mail]

Attorneys for Defendant Internal Revenue Service

JOINT STATUS REPORT AND ORDER REGARDING CASE
SCHEDULE- 5
(Case No. 2:15-cv-00369 RSM)

LAW OFFICES

CALFO EAKES & OSTROVSKY LLP
1301 SECOND AVENUE, SUITE 2800
SEATTLE, WASHINGTON 98101
TEL [phone] FAX [phone]