Case 1:11-cv-00408-ABJ Document 93

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

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

PLAINTIFFS OPPOSITION TO INTERVENOR FDIC-CORPORATES AMENDED MOTION FOR RECONSIDERATION [W]here litigants have once battled for the courts decision, they should neither be required, nor without good reason permitted, to battle for it again. Singh v. George Washington Univ., 383 F. Supp. 2d 99, 101 (D.D.C. 2005).1 Yet, for the third time, the FDIC is asking this Court to allow it to withhold relevant documents from United Western Bank (the Bank). Initially, the FDIC ordered Defendants to assert privilege claims on its behalf. See ECF No. 65 at 11-13. The Court rejected those claims. The FDIC then intervened and pressed its privilege arguments again. See ECF No. 75. The Court rejected them again. See ECF No. 81. Undeterred, the FDIC now asks the Court to revisit the issue of whether the Cost Test Summary is privileged for a third time. As another judge of this Court has put it: enough is enough. Plotzker v. Am. Bd. of Urology, No. 1:99-cv-00327-RCL, slip op. at 1 (D.D.C. Sept. 30, 2005). The FDIC has had a full and fair opportunity to be heard on [its] claims. [It] lost. Id. Federal Rule of Civil Procedure 54(b) governs motions for reconsideration like the one at

Internal marks and citations are omitted throughout this opposition.

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issue here.2 In re Pabst Licensing GmbH & Co. KG Litig., 791 F. Supp. 2d 175, 181 (D.D.C. 2011). Under Rule 54(b), the Court should not grant the FDICs motion unless it can demonstrate (1) an intervening change in the law; (2) the discovery of new evidence not previously available; or (3) a clear error in the first order. Singletary v. District of Columbia, 800 F. Supp. 2d 58, 74 (D.D.C. 2011) (Jackson, J.). In other words, the FDIC must show extraordinary circumstances justifying reliefnot just its own disagreement. Pueschel v. Natl Air Traffic Controllers Assn, 606 F. Supp. 2d 82, 85 (D.D.C. 2009). Instead of meeting this standard, the FDIC rehashes old arguments and insists the Court must have misunderstood. There was no clear error, as the Court has carefully considered this issue twice and ordered the documents disclosure on two separate grounds. Nevertheless, the FDIC repeats its contention that the Cost Test Summary is privileged under the bank examination or deliberative process privileges. The crux of the motion seems to be that the Court did not understand what it was reading when it reviewed the Cost Test Summary in camera. Having seen the document, the Court is in the best position to say whether that is true. Still, the Cost Test Summary would not appear to be privileged. Calculation results of the type describedwhether couched as estimates, model outputs, or otherwiseare not deliberative, as they do not reveal the process by which any decision relevant to this case was made.3 Cf. Assembly of State of Cal. v. U.S. Dept of Commerce, 968 F.2d 916, 922 (9th Cir.

Courts treat certain discovery orders addressed to disinterested non-parties as appealable final orders. United States v. Williams Cos., Inc., 562 F.3d 387, 392 (D.C. Cir. 2009). Thus, one might argue that Federal Rule of Civil Procedure 60(b), which covers motions to alter or amend final orders, applies here instead of Rule 54(b). The Rule 60(b) standard, however, is even less accommodating than the Rule 54(b). And, of course, Rule 60(b) does not allow a defeated litigant a second [or third] chance to rule in his or her favor by presenting new explanations, legal theories, or proof. SEC v. Bilzerian, No. 89-1854 (RCL), 2011 WL 4537891, at *3 (D.D.C. Oct. 3, 2011). The FDIC tries to cobble together support for its contrary position from a variety of inapposite cases. In one of the FDICs cited cases, for instance, the party seeking privileged documents actually conceded that the information he [sought] concern[ed] the deliberations of the [relevant agency]. Hinckley v. United States, 140 F.3d 277, 284 (D.C. Cir. 1998). In another, the relevant documents involved a substantial amount of agency assessment, opinion, and comparison; there is no indication that the Cost Test Summary at issue here had this level of deep
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1992) ( [T]he adjusted data would not reveal anything about the decision the Secretary had to make. The bare numbers reveal nothing about the process informing that judgment.); see also McGrady v. Mabus, 635 F. Supp. 2d 6, 19 (D.D.C. 2010) (finding documents were not privileged even if they collaterally involved agency decision-making). Genuinely deliberative documents reflect the give-and-take of the consultive process. Ascom Hasler Mailing Sys., Inc. v. U.S. Postal Serv., 267 F.R.D. 1, 3-4 (D.D.C. 2010). In contrast, data reports such as the Cost Test Summary simply state information. Mere math like this simply provide[s] the raw data upon which decisions can be made. Vaughn v. Rosen, 523 F.2d 1136, 1145 (D.C. Cir. 1975). And as even the FDIC acknowledges, raw data is not part of the decisional process.4 Id. That said, the FDIC would not be justified in withholding the Cost Test Summary, even if the Court does determine it is a privileged documentbecause any purported privilege is overcome by other factors here. A five-factor balancing test dictates whether the privileges should be overridden. See In re Subpoena Served Upon Comptroller of the Currency, 967 F.2d 630, 634 (D.C. Cir. 1992). The Bank addressed these factors once before, see ECF No. 78 at 28, and a full explication of them again is unnecessaryespecially given the Courts own determination that the privileges should be overridden.5

analysis. Mead Data Cent., Inc. v. U.S. Dept of Air Force, 575 F.2d 932, 934-35 & n.1 (D.C. Cir. 1978). None of the cited cases establishes that the Banks financial data or results from certain fixed models would be privileged. The fact that the Cost Test Summary was purportedly prepared to aid the Boards decision does not render it deliberative either. See, e.g., McClelland v. Andrus, 606 F.2d 1278, 1289 (D.C. Cir. 1979) (Mangers bald assertion that the evaluations were prepared to aid the Director of the Park Service in making his decisionmaking process is insufficient to demonstrate that they were, in fact, part of the deliberative process.). Four of the five factors so clearly favor disclosure that they require no discussion at all: this document is only available from the FDIC, this litigation is exceptionally important, the government plays a central role in the case, and the FDIC does not contend that disclosure of this document would chill agency communications. In addition, the FDIC has itself made public disclosures concerning Cost Test Summaries in other contexts. See, e.g., Office of the [FDIC] Inspector General, The FDICs Franchise Marketing of AmTrust Bank I-19 (Mar. 2011) (providing descriptions of particular items in a Cost Test Summary of another receivership case); available at http://www.fdicoig.gov/reports11/11-005AUD.pdf; Office of the [FDIC] Inspector General, Least Cost Decision of Superior Bank and Liquidation of Remaining Receivership Assets 9-11, 32 (Feb. 8, 2002), available at http://www.fdicoig.gov/reports02/02-002.pdf (discussing development of Cost Test Summary in another
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The only factor the FDIC cares to address is relevance, deeming the document irrelevant because it was not in the package of materials the Acting Director of the Office of Thrift Supervision reviewed the day he decided to seize the Bank. See ECF No. 85 at 3 & n.2. This package of materials rule elevates form over substance.6 The administrative record must include all materials that might have influenced the agencys decision. Sara Lee Corp. v. Am. Bakers Assn Ret. Plan, 512 F. Supp. 2d 32, 38-39 (D.D.C. 2007). Documents that were not necessarily placed in the Acting Directors hands on the afternoon of January 21, 2011 still influenced his decision to seize the Bank. As evidenced by the documents produced by Defendants, the Acting Directors decision was not instantaneous. Rather, it was informed by information provided to him over many months, including the Cost Test Summary and the FDIC Case Memorandum. Thus, the document is relevant and any privilege should be overridden. On February 9, after the FDIC first raised grumblings over the Courts decisions, the Court flatly declared: FDIC did not seek to intervene to be heard on this motion, and the Court has ruled. ECF No. 74 at 1. Unfortunately, a month has now passed, the second Court-ordered discovery deadline has come and gone, and the FDIC continues to press its cause. That intransigence should not be rewarded; these privilege issues have been resolved. For the reasons stated above, the Court should deny the FDICs motion for reconsideration.

receivership case). The FDIC even disclosed the estimated loss to the Deposit Insurance Fund caused by the Banks receivership. Press Release, FDIC, First-Citizens Bank & Trust Company, Raleigh, North Carolina, Assumes All of the Deposits of United Western Bank, Denver, Colorado (Jan. 21, 2011), available at http://www.fdic.gov/news/news/press/2011/pr11013.html. Given these other disclosures, any chilling effect would likely have already set in. Cf. Dairyland Power Co-op v. United States, 77 Fed. Cl. 330, 344 (Fed. Cl. 2007) (finding redisclosure of information already disclosed would be unlikely to further chill agency discussion). In support of its proposed rule, the FDIC observes that [t]he director is not required to review every document arguably related to the troubled institution in question, nor is the reviewing court. Franklin Sav. Assn v. OTS, 934 F.2d 1127, 1139-40 (10th Cir. 1991). The Corporation misses the point. Although the Acting Director has discretion to determine what documents to consider, once he does consider a particular document, it must go in the record. See, e.g., Fund for Animals v. Williams, 391 F. Supp. 2d 191, 197 (D.D.C. 2005) ([T]he record must include all documents that the agency directly or indirectly considered. (internal marks omitted)).
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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) Attorneys for Plaintiff United Western Bank Dated: March 13, 2012

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CERTIFICATE OF SERVICE I hereby certify that on this 13th day of March, 2012, a true copy of the foregoing was filed electronically. Notice of this filing will be sent by email to all parties by operation of the Courts electronic filing system. Parties may also access this filing through the Courts electronic filing system.

. /s/ Liana Prieto Liana R. Prieto