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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _______________________________________ ) UNITED WESTERN BANK, et al., ) ) Plaintiffs, ) ) v. ) ) OFFICE OF THE COMPTROLLER OF ) THE CURRENCY, et al., ) ) Defendants. ) _______________________________________)

1:11-cv-00408 The Honorable Amy Berman Jackson

NOTICE OF FILING OF PLAINTIFFS DISCOVERY PROPOSAL In response to the Courts August 11, 2011 order requiring Plaintiff United Western Bank (United Western or the Bank) to submit a proposal detailing the scope of the limited discovery it seeks to conduct, Plaintiff files this Notice and proposed interrogatories and document requests, attached hereto as Appendix A. On February 18, 2011, Plaintiff brought this case pursuant to 12 U.S.C. 1464(d)(2)(B) (2006) for an order requiring Defendants, the Office of Thrift Supervision (OTS) and OTS Acting Director John E. Bowman (the Acting Director) (now the Office of the Comptroller of the Currency (OCC) and Acting Comptroller John G. Walsh), to remove the Federal Deposit Insurance Corporation (FDIC) as receiver of the Bank. The same day, counsel for Defendants indicated that the complete administrative record would be produced within ten days. On March 1, 2011, after Defendants failed to produce the administrative record, Plaintiff filed a Motion to Compel Production of the Complete Administrative Record (First Motion to Compel). Defendants opposed the motion and refused to produce any

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administrative record asserting that the Court lacked subject matter jurisdiction. On June 8, 2011, the Court granted the First Motion to Compel and ordered production of the complete administrative record. On June 15, 2011, Defendants produced a sanitized record of 4,254 pages consisting primarily of two memos containing recommendations to appoint a receiver and selected attachments. The documents had obviously been carefully selected with the goal of presenting the Court with only that evidence that, when viewed in isolation, appeared to provide a rational basis for Defendants unlawful seizure of the Bank. On July 11, 2011, Plaintiff filed a Second Motion to Compel Production of the Complete Administrative Record. On August 1, 2011, Defendants opposed the Second Motion to Compel, and rather than address the substance of the motion instead argued that Defendants have absolute discretion to determine what materials the Court should have available to it, thereby directly undermining the presumption that the record as presented is complete. On August 11, 2011, after hearing oral argument on the Second Motion to Compel, the Court ordered that the Acting Comptroller certify that the proffered administrative record, or the record as supplemented, is the accurate and complete record of all the information the Acting Director considered, directly or indirectly, or upon which he relied in making the decision to seize the Bank. The Court also ordered that the Bank submit to the Court a proposal detailing the scope of limited discovery it seeks to conduct to enable it to uncover evidence of documents that Defendants had excluded from the proffered administrative record. Plaintiffs have drafted narrowly tailored proposed interrogatories and document

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requests based on Plaintiffs recollection of the facts and events surrounding the seizure and information referenced in or alluded to in, but excluded from, the administrative record. Based on two well-established, narrowly-construed exceptions that allow for supplementation of the administrative record in this Circuit - (i) where the agency may have deliberately or negligently excluded documents that may have been adverse to the determination, and (ii) where there is a strong showing of bad faith or improper behavior Plaintiff is entitled to the discovery it seeks. The proposed interrogatories and document requests are carefully drafted so as to uncover information the Acting Director considered, directly or indirectly, or upon which he relied in making the decision to seize the Bank which was improperly excluded from the record. See Natl Wilderness Inst. v. U. S. Army Corps of Engrs, 2002 U.S. Dist. LEXIS 27743 (D.D.C. 2002) (denying agencies motion for a protective order and allowing limited discovery where requests were tied to information referenced in, but not included in, the proffered administrative record). All but one of the 16 requests are limited to information and documents provided to, directly or indirectly considered by, or relied upon by the Acting Director.1 One additional request, Interrogatory No. 15, is directly tied to the agencys improper behavior related to the misrepresentation in the administrative record regarding the delivery of the January 2010 Report of Examination to the Bank. Plaintiff respectfully request that the Court grant Plaintiff leave to serve the

Defendants must produce a privilege log if they withhold any responsive documents as privileged. See, e.g., Colo. Wild Horse & Burro Coal., Inc. v. Kempthorne, 571 F. Supp. 2d 71 (D.D.C. 2008) (defendant produced privilege log); Eugene Burger Mgmt. Corp. v. U. S. Dept of Hous. and Urban Dev., 192 F.R.D. 1 (D.D.C. 1999) (same); Am. Bankers Ins. Group v. Bd. of Governors of the Fed. Reserve Sys., 3 F. Supp. 2d 37 (D.D.C. 1998)(same).

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attached discovery requests on Defendants immediately and require a complete response within 30 days of service. Respectfully submitted, _/s/ Andrew L. Sandler ______________ Andrew L. Sandler (DC Bar No. 387825) Samuel J. Buffone (DC Bar No. 161828) Liana R. Prieto (DC Bar No. 987287) BUCKLEYSANDLER LLP 1250 24th St., NW, Suite 700 Washington, DC 20037 (202) 349-8001 (Telephone) (202) 349-8080 (Facsimile) Attorneys for Plaintiff United Western Bank

_/s/ Kirby D. Behre__________________ Kirby D. Behre (DC Bar No. 398461) Lawrence D. Kaplan (DC Bar No. 415186) PAUL HASTINGS LLP 875 15th Street NW Washington, DC 20005 (202) 551-1719 (Telephone) (202) 551-0119 (Facsimile) Attorneys for Plaintiff United Western Bank

_/s/ Theodore J. Abariotes____________ Theodore J. Abariotes Deputy General Counsel United Western Bancorp, Inc. 700 17th Street, Suite 2100 Denver, Colorado 80202 (720) 932-4216 (Telephone) (720) 946-1218 (Facsimile) Attorney for Plaintiff United Western Bank

Dated: September 1, 2011

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CERTIFICATE OF SERVICE I hereby certify that on this 1st day of September 2011, a true copy of the foregoing Notice was filed electronically. Notice of this filing will be sent by e-mail to all parties by operation of the Courts electronic filing system. Parties may also access this filing through the Courts electronic filing system.

_/s/ Andrew L. Sandler _______ Andrew L. Sandler

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _______________________________________ ) UNITED WESTERN BANK, et al., ) ) Plaintiffs, ) ) v. ) ) OFFICE OF THE COMPTROLLER OF ) THE CURRENCY, et al., ) ) Defendants. ) _______________________________________)

1:11-cv-00408 The Honorable Amy Berman Jackson

INTERROGATORIES AND REQUESTS FOR PRODUCTION OF DOCUMENTS Plaintiff United Western Bank (United Western or the Bank), hereby requests that Defendants Office of the Comptroller of the Currency (OCC) and Acting Comptroller John G. Walsh (collectively, the Defendants) respond to the following Interrogatories and Requests for Production of Documents within 30 days after service hereof. The Defendants responses to these discovery requests are to be served upon counsel for United Western, BuckleySandler LLP, at 1250 24th St NW, Suite 700, Washington, DC 20024. DEFINITIONS 1. The term Defendant, Office of Thrift Supervision (OTS), OTS Acting

Director, OCC, Acting Comptroller, you, your, or any variation thereof means the particular Defendant that is responding, and any of his, her or its employees, agents, representatives, attorneys and any and all other persons or entities acting for, or on behalf of, or in affiliation with the Defendants.

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2.

Administrative Record means the Administrative Record provided by

Defendants to Plaintiff on June 15, 2011. Seizure Order means the January 21, 2011 OTS Order included at Tab A of the Administrative Record. L-Memo means the January 20, 2011 memorandum to the Acting Director included at Tab B of the Administrative Record. SMemo means the January 18, 2011 memorandum included at Tab C of the Administrative Record. 3. Seizure Decision means the Acting Directors January 21, 2011 decision to

seize the Bank. 4. Document or documents is used in the broadest sense permissible, and means

any writing, recording, or photograph as defined in Federal Rule of Evidence 1001 and Federal Rule of Civil Procedure 34, inclusively, that is in your possession, custody or control, or which no longer is in your possession but of which you have knowledge, including drafts, revisions, and computer readable materials. The term document(s) shall include each and every form in which information is kept, however produced, reproduced or stored, in each defendants actual or constructive possession, custody or control, or which each defendant has knowledge of its existence, and whether prepared, published or released by each defendant or by any other person or entity, including, but not limited to, letters, reports, agreements, correspondence, telegrams, reports or summaries of investigations, expressions or statements of policy, opinions or reports of consultants, lists, drafts, revisions, invoices, receipts, original and preliminary notes, preliminary sketches, records, ledgers, contracts, bills of lading, bills, inventories, financial data, memoranda, accounting and financial records, diaries, journals, calendars, statements, work papers, video tapes, photographs, pamphlets, brochures, summaries of conversations, computer information, tapes, disks and other means of electronically or magnetically maintained information and printouts. 2

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To the extent not clarified above, a request for documents specifically includes electronically stored information (ESI) as that term is defined and used in the Federal Rules of Civil Procedure, and includes, but is not limited to electronic mail messages (e-mail), short message service or text messages, postings on internet forum, blogs or websites and other electronic communications and data which may or may not be reduced to hard copy in the normal course of business and which may be stored or archived on file servers, hard drives, hard or floppy disks or diskettes, back-up tapes, or other storage media. Document(s) includes, without limitations, all originals and non-identical copies. Document(s) includes a copy of the original when the original is not in the possession, custody or control of each defendant, and every non-identical copy of the original. 5. Person or entity shall include, without limitation, any natural person,

individual, corporation, partnership, limited liability company, joint venture, association, jointstock company, trust, unincorporated organization, government or any agency or political subdivision thereof, or any other business, legal or governmental entity, association, or proprietorship. References to any person or entity shall include that person or entity and its officers, directors, employees, partners, agents, representatives, predecessors, successors, subsidiaries, and affiliates. 6. Answer means Defendants Answer to the instant complaint [Docket # 37] filed

on July 8, 2011. 7. The term Brokered Deposit Determination means the May 24, 2010

determination by the Federal Deposit Insurance Corporation (FDIC) included in the Administrative Record at 2257-2268 and/or November 5, 2010 letter from the FDIC included in the Administrative Record at 1098-1104. RULES OF CONSTRUCTION 3

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1.

The terms relate, relates, related to, relating to, and concerning mean,

in whole or in part, directly or indirectly, analyzing, constituting, connected with, commenting on, describing, disclosing, discussing, defining, indicating, mentioning, responding to, referring to, reflecting, showing, stating, relying upon, supporting, or in any other way bearing upon or illuminating the subject matter into which inquiry is made. 2. And/or shall be construed conjunctively or disjunctively, whichever makes the

request for production more inclusive. 3. All shall be construed to include any, every, and each; any shall be

construed to include all, every, and each; each shall be construed to include all, every, and any; and every shall be construed to include all, each, and any in each case as is necessary to bring within the scope of these requests documents that might otherwise be construed as outside their scope. 4. limitation. 5. The term identify as used herein with respect to written or oral communications Include, includes, and including means including by reference without

means provide the (i) the substance of said written or oral communication and the place and date when it was made; (ii) the identities of the persons that made said written or oral communication and each recipient thereof; and, (iii) the identity of all documents which relate to or reflect said written or oral communication. 6. The term identify as used herein with respect to documents means the title,

name and/or subject matter of such document, and its author, recipient, addressee and date. 7. The use of the singular includes the plural, and the use of the plural includes the

singular, so as to be inclusive of any information which otherwise may be excluded.

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8.

The use of the present tense includes the past tense and the use of the past tense

includes the present , so as to be inclusive of any information which otherwise may be excluded. 9. The use of the masculine includes the feminine, and the use of the feminine

includes the masculine, as to be inclusive of any information which otherwise may be excluded. INSTRUCTIONS 1. These interrogatories and requests for production are limited to information,

communications and documents not included in the Administrative Record. 2. If you object to furnishing any information or document requested by these

requests on the grounds of privilege, work product or otherwise, you should furnish a privilege log at the time your answers are provided which states the existence of the information, document, or communication, identifies the specific ground(s) upon which your objection is based, and identifies the information objected to by furnishing its date, participants, and a general description of the nature, rather than the substance, of the purportedly privileged information. If the objected-to information contains relevant non-objectionable matter, you should disclose it. 3. If you cannot furnish exact data, such as dates, periods, or amounts, supply

estimated data to the extent possible, and indicate that the data is estimated. 4. If a document once existed and has subsequently been lost, destroyed, or is

otherwise missing, identify the document and describe the circumstances under which it was lost or destroyed. 5. Your answers shall include all information available to you directly or through

your agents, representatives, and attorneys.

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6.

If, in responding to these requests, you encounter any ambiguities construing a

question, an instruction, or a definition, then set forth the matter deemed ambiguous and the construction used in answering. 7. Pursuant to Rule 26(d) of the Uniform Local Rules, a specific Interrogatory and

its reasonably related subparts are to be counted as one Interrogatory. 8. If you do not have the information to respond to any of these requests, but you

know the name of the person or entity that may have such information, then disclose the name and address of that person or entity and the nature of the information in your answers. If the facts sought by way of any of these Interrogatories are known to you, but you object to revealing such facts in your answer, identify the person or entity having knowledge of the facts in question, and state the basis for your objection in your answer. 9. If the answer to any Interrogatory is that you lack knowledge of the requested

information, describe all efforts you made to obtain the information. 10. To the extent that you object to any of the following Interrogatories, you should

respond to the portion of the Interrogatory that is not objectionable, and state separately the portion of the Interrogatory to which you object, including the grounds for the objection. 11. Each document requested should be produced in its entirety and without deletion

or excisions, regardless of whether you consider the entire document to be relevant or responsive to these requests. If you have redacted any portion of a document, stamp the word redacted on each page of the document which you have redacted. Redactions should be included on the privilege log. 12. With respect to documents that are stored electronically, they should be produced

in the electronic format in which they are maintained, provided that if such format is unreadable

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due to incompatibility of computer systems or software, such documents shall be provided in a reasonably usable electronic form or forms. 13. With respect to non-electronically stored documents, each document should be

produced in the manner in which you have kept it. 14. Court. 15. Any documents attached to a document responsive to these requests should be Documents should be produced without alteration except pursuant to order of the

produced together with such document. 16. Pursuant to Fed. R. Civ. P. 26(e), these Interrogatories and Requests for

Production of Documents are continuing in character so as to require you to promptly amend and supplement your answers if you obtain further relevant information. 17. If, pursuant to Fed. R. Civ. P. 33(d), you elect to specify and produce business

records in your answer to any Interrogatory, then in accordance with that Rule you must specify the records that must be reviewed, in sufficient detail to permit the interrogating party to locate and to identify [the records], as readily as the responding party could[.]

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INTERROGATORIES Interrogatory No. 1: In the Seizure Order, S-Memo and L-Memo, Defendants state that United Western Bank will not be able to raise sufficient additional capital in the near term to become adequately capitalized for PCA purposes. Administrative Record (AR) 4, 16, 28. a. Describe any analysis or summary of the letters of intent and increased investment commitments provided to the OTS on January 21, 2011, (AR Tabs F and G) which was provided to, directly or indirectly considered by, or relied upon by the Acting Director in making the Seizure Decision. b. Describe any analysis or summary of the $200 million recapitalization transaction that was provided to, directly or indirectly considered by, or relied upon by the Acting Director in making the Seizure Decision. c. Identify each written or oral communication containing such analysis or summary. Interrogatory No. 2: In the Seizure Order, S-Memo and L-Memo, Defendants list three condition precedent to the consummation of the $200 million recapitalization and states that [n]one of these three conditions precedent to consummation of the transaction contemplated by the Investment Agreement will be met. AR 4, 15, 27. a. Describe any analysis or summary relating to the anchor investors willingness to waive certain conditions in the investment agreement that was provided to, directly or indirectly considered by, or relied upon by the Acting Director in making the Seizure Decision. b. Identify each written or oral communication containing such analysis or summary. Interrogatory No. 3: The L-Memo and the S-Memo reference supervisory concerns relating to the Banks portfolio of non-agency mortgage-backed securities (MBS). AR 23; Answer 73. a. Describe any analysis or summary relating to the removal of the Banks non-agency MBS portfolio from the Banks balance sheet as a result of the consummation of the 8

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$200 million recapitalization that was provided to, directly or indirectly considered by, or relied upon by the Acting Director in making the Seizure Decision. b. Identify each written or oral communication containing such analysis or summary. Interrogatory No. 4: In the Seizure Order, S-Memo and L-Memo, the OTS acknowledges that the Banks deposits have been concentrated in a small number of institutional depositors for several years and the the OTS did not object to the concentration. AR 6, 12, 31. In the SMemo, the OTS concludes that [b]y relying on only four large depositors to fund most of its operations, the viability of the institution rests on the decisions of the institutional depositors, and the institution is therefore in an unsafe or unsound condition. AR 17. a. Describe all information relating to the conclusion that the Banks long-standing concentration of deposits suddenly constituted an unsafe or unsound practice that was provided to, directly or indirectly considered by, or relied upon by the Acting Director in making the Seizure Decision. b. Identify each written or oral communication, including communications with the FDIC, related to the above conclusion which was provided to, directly or indirectly considered by, or relied upon by the Acting Director in making the Seizure Decision. Interrogatory No. 5: In the Seizure Order, S-Memo and L-Memo, Defendants state that there is an unacceptable risk that the institutional depositors will withdraw their deposits in the near term, causing a liquidity event. AR 7, 18, 30. a. Describe all information relating to the conclusion stated above that was provided to, directly or indirectly considered by, or relied upon by the Acting Director in making the Seizure Decision.

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b. Describe any analysis or summary relating to the institutional depositors intent to maintain funds on deposit at the Bank, which was provided to, directly or indirectly considered by, or relied upon by the Acting Director in making the Seizure Decision. c. Identify each written or oral communication containing such analysis or summary, including each analysis or summary created by the FDIC and provided to the OTS. Interrogatory No. 6: The S-Memo states that [r]ecent communications from several of [the institutional] depositors suggest that, in the immediate future, the institution is likely to experience substantial deposit withdrawals. AR 24. a. Identify each written or oral communication between or among the institutional depositors and Defendants and/or the FDIC which was provided to, directly or indirectly considered by, or relied upon by the Acting Director in making the Seizure Decision. Interrogatory No. 7: The S-Memo states that the Bank has engaged in extended discussions with the FDIC to resolve the brokered deposit questions and with the OTS to address the resulting unsafe or unsound condition and possible precipitous liquidity failure of the institution. AR 37. a. Identify each communication, including communications with the FDIC, relating to the Brokered Deposit Determination and/or Defendants resulting concerns regarding unsafe or unsound conditions or a potential liquidity crisis which was provided to, directly or indirectly considered by, or relied upon by the Acting Director in making the Seizure Decision. Interrogatory No. 8: The S-Memo references the Banks January 4, 2011 appeal of the FDICs Brokered Deposit Determination. AR 37-38.

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a. Describe any analysis or summary of the January 4, 2011 appeal that was provided to, directly or indirectly considered by, or relied upon by the Acting Director in making the Seizure Decision. b. Identify each written or oral communication, including each communication with the FDIC, which relates to the Banks appeal of the Brokered Deposit Determination which was provided to, directly or indirectly considered by, or relied upon by the Acting Director in making the Seizure Decision. Interrogatory No. 9: A November 17, 2010 meeting was held at OTS headquarters attended by the Bank and FDIC and OTS staff, including the OTS Deputy Director. AR 25; Answer 36. a. Describe any analysis or summary of the November 17, 2010 meeting or any information communicated in that meeting, including the OTS stated bias for community banking and resulting disapproval of the Banks long-standing business model, which was provided to, directly or indirectly considered by, or relied upon by the Acting Director in making the Seizure Decision. b. Identify each written or oral communication, including each communication Defendants had with the FDIC, relating to the November 17, 2010 meeting which was provided to, directly or indirectly considered by, or relied upon by the Acting Director in making the Seizure Decision. Interrogatory No. 10: A June 30, 2010 meeting was held at FDIC headquarters and attended by the Bank and FDIC and OTS staff. Answer 58. a. Describe any analysis or summary of the June 30, 2010 meeting or any information communicated in that meeting provided to, directly or indirectly considered by, or relied upon by the Acting Director in making the Seizure Decision.

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b. Identify each written or oral communication, including each communication Defendants had with the FDIC, relating to the June 30, 2010 meeting which was provided to, directly or indirectly considered by, or relied upon by the Acting Director in making the Seizure Decision. Interrogatory No. 11: The Seizure Order references FDICs cooperation in the seizure. AR 2. a. Identify each written or oral communication between Defendants and FDIC relating to the alleged grounds for seizure which was provided to, directly or indirectly considered by, or relied upon by the Acting Director in making the Seizure Decision. Interrogatory No. 12: On October 25, 2010 the OTS informed the Bank that the OTS it believed that the Banks other-than-temporary-impairment (OTTI) methodology was inadequate and that additional OTTI write-downs were required. On October 26, 2010 the Bank provided the OTS with a response detailing how its OTTI methodology was compliant with the GAAP. On December 3, 2010 the OTS issued a directive requiring the Bank to take additional OTTI write-downs based on its conclusion that the Banks OTTI methodology was not compliant with regulatory reporting requirements. a. Describe any analysis or summary relating to the whether the Banks OTTI methodology complied with GAAP that was provided to, directly or indirectly considered by, or relied upon by the Acting Director in making the Seizure Decision. b. Identify each written or oral communication containing such analysis or summary. c. Identify each document evidencing the regulatory reporting requirements with which the Bank allegedly failed to comply. Interrogatory No. 13: In the Seizure Order, S-Memo and L-Memo, Defendants state that on December 13, 2010, the OTS issued a directive requiring the Bank to submit a capital restoration plan no later than December 20, 2010. AR 4, 18, 28. 12

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a. Identify each document evidencing Defendants evaluation of whether seven calendar days was a reasonable time, as required by 12 U.S.C. 1831o(e)(2), in which to require the Bank to submit a capital restoration plan which was provided to, directly or indirectly considered by, or relied upon by the Acting Director in making the Seizure Decision. b. State whether Defendants have ever accepted a capital restoration plan submitted pursuant to 12 U.S.C. 1831o(e)(2). Interrogatory No. 14: For each and every oral or written communication relating to the OTS supervision of the Bank provided to the Acting Director prior to the presentation to him of the SMemo on January 19, 2011 that was provided to, directly or indirectly considered by, or relied upon by the Acting Director in making the Seizure Decision, please state the following: (i) the substance of said written or oral communication and the place and date when it was made; (ii) the identities of the persons that made said written or oral communication and each recipient thereof; and, (iii) the identity of all documents which relate to or reflect said written or oral communication. Interrogatory No. 15: The S-Memo states that the January 2010 Report of Examination (ROE) was mailed to the Bank on April 28, 2010. AR 23. a. State whether the January 2010 ROE was mailed to the Bank on April 28, 2010. b. Describe any analysis or summary of the Banks alleged non-compliance with the January 2010 ROE provided to, directly or indirectly considered by, or relied upon by the Acting Director in making the Seizure Decision. c. Identify each written or oral communication relating to the creation, the delivery or transmission to the Plaintiff, or failure thereof, of the January 2010 ROE.

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Interrogatory No. 16: To the extent not identified in response to Interrogatories Nos. 1 through 15, identify all information provided to, directly or indirectly considered by, or relied upon by the Acting Director in making the Seizure Decision, including oral communications.

REQUESTS 1. All documents identified in response to Interrogatories Nos. 1 through 16. 2. To the extent not identified in response to Interrogatories Nos. 1 through 16, produce all documents provided to, directly or indirectly considered by, or relied upon by the Acting Director in making the Seizure Decision. 3. The Banks complete January 4, 2011 appeal of the FDICs Brokered Deposit Determination with attachments. 4. The October 28, 2010 Investment Agreement.

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