Case 1:11-cv-00408-ABJ Document 94

Filed 03/14/12 Page 1 of 3

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

CIVIL ACTION

Case No. 11-408 (ABJ)

FDIC-CORPORATES REPLY IN SUPPORT OF AMENDED MOTION FOR RECONSIDERATION Plaintiffs opposition to the motion for reconsideration (Opp.) filed by the Federal Deposit Insurance Corporation in its corporate capacity (FDIC-C) speculates, incorrectly, that the document in question, the Cost Test Summary, is simply a data report. Opp. at 3. As the Court can see, the document contains the FDICs evaluation and analysis of the estimated costs of resolving United Western in a liquidation proceeding; it is not a mere compilation of data. Equally incorrect is Plaintiffs assertion that numerical analyses cannot qualify as deliberative, Opp. at 2. The D.C. Circuit, in Mead Data Central v. United States Dept of Air Force, 575 F.2d 932 (D.C. Cir. 1978), found that cost comparisons created by the Air Force in its evaluation of competing bids are protected by the deliberative process privilege. Id. at 934-35. The Cost Test Summarys evaluation and analysis of United Westerns assets and the likely losses thereon is no less evaluative than the cost comparisons at issue in Mead Data; both types of documents are privileged.

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Nor does Plaintiff show that the privileges should be overridden. There is no question that the Cost Test Summary was not considered or relied upon in the decision to appoint a receiver for United Western, see Docket No. 82, and thus it has little if any relevance in this case. Plaintiff asserts that any documents that might have influenced the agencys decision must be produced, Opp. at 4, but there is no evidence other than Plaintiffs groundless conjecture that the Cost Test Summary might have influenced the OTS Directors decision. Furthermore, as every single document at the agency, including general treatises about bank regulation, falls within the literal ambit of material that might have influenced an appointment decision, Plaintiffs preferred approach is a manual for turning Administrative Procedures Act cases into endless fishing expeditions. Furthermore, even assuming arguendo that might have influenced is the proper standard, Plaintiffs own authority acknowledges that privileged materials that could have influenced an agencys decision need not be produced: deliberative intra-agency memoranda and other such records are ordinarily privileged, and need not be included in the record. Amfac Resorts, L.L.C. v. Department of the Interior, 143 F. Supp. 2d 7, 1213 (D.D.C. 2001) (citations omitted) (cited in Sara Lee Corp. v. American Bakers Assn Ret. Plan, 512 F. Supp. 2d 32, 38-39 (D.D.C. 2007)). Speculation about indirect influence, the Court thus held, does not justify overriding privileges.1 For these reasons, the FDIC-C respectfully submits that the Cost Test Summary is

As for the documents that, Plaintiff contends, constitute public disclosures concerning Cost Test Summaries, Opp. at 3 n.5, they do not contain the summaries themselves or reveal the confidential analytic models employed by the FDIC in creating the summaries; rather, they simply reflect the Inspector Generals concerns about the sufficiency of documented support for the figures in summaries for two depository institutions unrelated to United Western. The IG reports, and the IGs findings, do not even waive the deliberative process privilege for those summaries, let alone for summaries prepared in connection with a wholly unrelated bank. Nor does the press release issued upon failure of United Western, which includes an estimate of the cost of that failure to the Deposit Insurance Fund, waive the privilege, as it does not contain or even refer to the methodology by which the estimate was prepared.

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privilege, and requests that the Court reconsider the portion of its February 24, 2012 order directing that the document be produced. Respectfully submitted, COLLEEN J. BOLES Assistant General Counsel BARBARA SARSHIK Senior Counsel _____/s/__________________________ DUNCAN N. STEVENS D.C. Bar No. 473550 Counsel Federal Deposit Insurance Corporation 3501 N. Fairfax Drive, D-7028 Arlington, VA 22226 dstevens@fdic.gov (703) 562-2402 (phone) (703) 562-2477 (fax) dstevens@fdic.gov Attorney for Federal Deposit Insurance Corporation in its corporate capacity March 14, 2012