Microsoft Corporation v. Internal Revenue Service

Filing 43

ORDER re Defendant's 42 Unopposed Motion for Extension of Time. The deadline for filing a motion for summary judgment is extended up to and including 1/28/2022. Signed by Judge Ricardo S. Martinez. (SB)

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-01605 RSM

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Plaintiff,
vs.
INTERNAL REVENUE SERVICE,

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Defendant.

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FOURTH CONSENT MOTION AND ORDER
REGARDING CASE SCHEDULE

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:
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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.

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FOURTH CONSENT MOTION TO EXTEND TIME AND ORDER
REGARDING CASE SCHEDULE
(Case Nos. 2:15-cv-1605)

U.S. Department of Justice, Tax Division
Ben Franklin Station , P.O. Box 227
Washington, D.C. 20044
202-616-8994 (Phone)
202-524-6866 (Fax)

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2.

Counsel for the IRS and Microsoft have had regular discussions over the past

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months to identify and attempt to narrow the issues for which summary judgment briefing would

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be necessary. By letters dated September 22, 2021 and November 10, 2021, Microsoft

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acknowledged that the IRS had addressed some of its concerns, and summarized a variety of

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outstanding issues it had raised previously regarding the IRS’s productions, draft declarations,

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and draft Vaughn indices, including certain exemption claims. The IRS responded to certain of

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the issues raised by Microsoft by letter dated November 23, 2021, and in the process, discovered

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that its previously provided draft Vaughn index was incomplete and missing approximately

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3,400 records. The IRS therefore needs additional time to supplement and revise its previously

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provided draft Vaughn index. The IRS is also in the process of responding to Microsoft’s

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remaining concerns, and the parties are still engaging in good faith negotiations to narrow the

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issues that may be addressed in summary judgment proceedings.

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3.

The IRS accordingly requests, and Microsoft consents, to extend the remaining

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deadline for the filing of the IRS’s motion for summary judgment. The IRS thus requests that the

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Court adopt a case schedule extending the deadline for filing a motion for summary judgment up

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to and including January 28, 2022 for the above-captioned case.

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4.

Recognizing that the parties continue to engage in good faith negotiations, the

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parties agree that evidence of the IRS’s efforts to address Microsoft’s concerns, including any

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revisions to previously exchanged declarations or exemption claims, is not admissible to prove

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that the IRS’s search was unreasonable or that the IRS’s exemption claims were improper.

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5.

The parties jointly request that this action remain open and that the Court enter an

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order adopting the case schedule proposed in paragraph 3.

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//

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//

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//
FOURTH CONSENT MOTION TO EXTEND TIME AND ORDER
REGARDING CASE SCHEDULE
(Case Nos. 2:15-cv-1605)

U.S. Department of Justice, Tax Division
Ben Franklin Station , P.O. Box 227
Washington, D.C. 20044
202-616-8994 (Phone)
202-524-6866 (Fax)

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Respectfully submitted this 2nd day of December, 2021.
BAKER & McKENZIE 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]

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Attorney for Plaintiff Microsoft Corporation

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U.S. DEPARTMENT OF JUSTICE

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By:

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s/ Stephen S. Ho
Stephen S. Ho
Trial Attorney, Tax Division
U.S. Department of Justice
Post Office Box 227
Washington, DC 20044
Tel: [phone]
Fax: [phone]
Email: [e-mail]

Attorney for Defendant Internal Revenue Service

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FOURTH CONSENT MOTION TO EXTEND TIME AND ORDER
REGARDING CASE SCHEDULE
(Case Nos. 2:15-cv-1605)

U.S. Department of Justice, Tax Division
Ben Franklin Station , P.O. Box 227
Washington, D.C. 20044
202-616-8994 (Phone)
202-524-6866 (Fax)

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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.

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/s Stephen S. Ho
STEPHEN S. HO

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FOURTH CONSENT MOTION TO EXTEND TIME AND ORDER
REGARDING CASE SCHEDULE
(Case Nos. 2:15-cv-1605)

U.S. Department of Justice, Tax Division
Ben Franklin Station , P.O. Box 227
Washington, D.C. 20044
202-616-8994 (Phone)
202-524-6866 (Fax)

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ORDER

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It is SO ORDERED this 6th day of December, 2021.

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A

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RICARDO S. MARTINEZ
CHIEF UNITED STATES DISTRICT JUDGE

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Presented by:

BAKER & McKENZIE 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]

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Attorney for Plaintiff Microsoft Corporation

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U.S. DEPARTMENT OF JUSTICE
By:

s/ Stephen S. Ho
Stephen S. Ho
Trial Attorney, Tax Division
U.S. Department of Justice
Post Office Box 227
Washington, DC 20044
Tel: [phone]
Fax: [phone]
Email: [e-mail]

Attorney for Defendant Internal Revenue Service
FOURTH CONSENT MOTION TO EXTEND TIME AND ORDER
REGARDING CASE SCHEDULE
(Case Nos. 2:15-cv-1605)

U.S. Department of Justice, Tax Division
Ben Franklin Station , P.O. Box 227
Washington, D.C. 20044
202-616-8994 (Phone)
202-524-6866 (Fax)