nealsnewmanssaid
My rough notes from today’s joint status conference. Not exactly verbatim unless quotation marks used.
SWEENEY: let me start with a public service announcement. The court was troubled to learn that an unscrupulous individual may be preying on investors. A 38 page document has been distributed which references today’s status conference, as well as King James, the 1606 Virginia Charter, the Holy Bible, and other references. Upon further investigation by this court, the person whose name is associated with sending this document has a history of trouble, if indeed the name of this person is actually accurate. It appears that (she?) was involved in a previous Ponzi scheme that bilked ~600 US and Canadian investors. I hope no Fannie or Freddy stockholders have been targeted. If investors are contacted by someone who claims to represent this court on the subject of asset recovery, please know that it is false. The US Marshals Office has been notified and is investigating. The person in question called Chambers yesterday. Caller ID suggested the caller was calling from a federal office (VITS number), but apparently it was a spoof caller ID.
DINTZER (or Schwind – not sure which was which): I want to update the court on the status of discovery and also talk about an issue related to deposition of witnesses. Since the Feb status conference and decision to extend discovery until the end of June, documents continue to be produced from both FHFA and Treasury. We are also working on revised privilege logs. 400,000 pages of documents from FHFA and Treasury have been produced. We’ve met with plaintiffs and discussed ideas on categorizing privilege logs to avoid a document by document review, but we remain concerned about “sideshows” that risk delaying the discovery schedule. We have not yet completed document production, yet plaintiffs say they plan to challenge the government’s assertions and intends to depose witnesses before document production is completed. We are not fighting the schedule…
SWEENEY (interrupting): “I understand. I agree with you. It is not fair to have a piece meal approach.” “They get one bite at the apple.” If their intent on early depositions is to get further insight, that is risky for them. Do they intend to depose just to see if other repositories exist? DINTZER: I don’t know – plaintiffs have not disclosed their intent. One witness is a signatory to the 3rd amendment – a former FHFA director. Another witness was involved in the establishment of the conservatorship in 2008.
SWEENEY: There is one exception: if deposition reveals something unforeseen that they could not have anticipated – there may be grounds (for a second bite). Otherwise, it is not fair and it is not efficient.
DINTZER: Thank you. Everything we do is a distraction from our primary job which is production of documents. We are trying to work with plaintiff, but they are threatening the schedule.
SWEENEY: ok Mr. Cooper – “sorry for that wet blanket” you may proceed!
COOPER: I believe there is some confusion. If counsel is saying their only concern is that we wait for document production – which they say they can complete by the end of April – then we agree. We have two dates set for deposition – April 17 and April 29. I am happy to reschedule.
SWEENEY – (to government), can you complete doc production by end of April?
DINTZER: yes, but we can’t finish privilege logs by then, particularly if they challenge those. I can’t agree on a date earlier than end of May. SWEENEY: OK, I will enlarge the discovery schedule so that we have all the docs and all privilege logs produced.
COOPER: there is a further issue. After document production is complete and after a non-provisional, final privilege log is complete, which will have thousands of documents, I have little doubt that we will need to debate the government on their claims of privilege, and a document by document arm wrestling will be required. Our depositions should not have to wait until all privilege log issues are resolved. This is always the case.
SWEENEY: “You are absolutely correct.”
COOPER: the Gov says it will take months for privilege logs to be resolved. Already at 900 pages. If we get to thousands of pages at the end of May, we will have an issue.
SWEENEY: Wouldn’t it be cleaner to wait until all docs are produced and then decide which are privileged and which are not? My experience is that it is not unusual to have documents challenged, but there is usually no “banker’s box” full of challenged docs, just one or two. It would be a rare occasion, for example, to have 45 documents challenged.
COOPER: I did not mean to suggest otherwise, but I do not want months of delays while we resolve these issues. I’m afraid we and the court will be going thru these, document by document. I feel a multi month delay is a very real possibility which would have real costs to our client. (note to self – Cooper goes on and on and on – he needs to learn to accept “you are correct.”)
SWEENEY: What would you gain by moving forward with depositions early?
COOPER: We are very concerned about schedule. We are now at the one year anniversary of discovery, and on the 3rd extension. Over time, witness’ memories fade. A witness may become unavailable. The witnesses that we want to depose were identified after the Jan. 28 status conference when the government said that their document production for FHFA was almost complete. Because of that, we identified three FHFA personnel to depose. Then, we learn last week that more FHFA docs are coming. The judge may recall our July 2014 conference where the court encouraged us to consider starting depositions early – perhaps starting with the conservator. That is what we are trying to do.
SWEENEY: If someone is looking for an advisory ruling here, the court will not do that (interpretation: Sweeney will not pre-determine if plaintiff gets one or two bites). I do not want witnesses inconvenienced, but the plaintiff can always make an argument (for a second bite). I do understand that witness’ memories fade. It would be best to wait a few more months but otherwise I understand why you want to proceed. “I guess you just need to weigh what is best for your client.”
COOPER: I am happy to wait until the end of April. Postponing until who knows how long until privilege logs are resolved is very hard for us. I hear the court.
DINTZER: point of clarification. We’ve never promised that privilege logs would be agreed to by the end of May. That is up to the plaintiff. “We have time to do the right thing in the right order.”
SWEENEY: “it is not fair to say that the plaintiff is in the driver’s seat.” They will look at the universe of privilege logs and if they decide the govt was too conservative, they will bring that to me, but I have confidence you can resolve this yourselves. If in the end it takes 8 more months to resolve, that would be “so far removed from the original timeline.” Memories do fade. But it seems you are working well together.
END