Free Motion to Compel - District Court of Federal Claims - federal

Case 1:93-cv-00655-MMS

Document 179

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

ANAHEIM GARDENS, et al., Plaintiffs,

v. THE UNITED STATES, Defendant.

) ) ) ) ) ) ) ) ) )

No. 93-655C (Judge Margaret M. Sweeney)

ALGONQUIN HEIGHTS, et al., Plaintiffs,

v. THE UNITED STATES, Defendant.

) ) ) ) ) ) ) ) ) )

No. 97-582C (Judge Margaret M. Sweeney)

PLAINTIFFS' MOTION TO COMPEL DEFENDANT TO ANSWER QUESTIONS CONCERNING DOCUMENT RETENTION AND PRODUCTION MATTERS Pursuant to Rule 37(a)(2)(B) of the Rules of the Court of Federal Claims ("RCFC"), Plaintiffs move for an order compelling the Defendant to produce a witness or witnesses to fully testify regarding the document retention practices and policies of the U.S. Department of Housing and Urban Development. The witness proffered by the Government in response to Plaintiffs' Rule 30(b)(6) notices was unable to provide full and authoritative responses to even the most basic questions about the retention of documents that are relevant to this case. The Government has declined to provide any other witness to testify in response to the Plaintiffs'

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inquiries. Pursuant to Rule 37(a)(2)(B) of the RCFC, Plaintiffs certify that they have attempted in good faith to confer with Government counsel to resolve these matters prior to bringing the instant motion, but that those efforts were unsuccessful. BACKGROUND In October 2007, the Plaintiffs served Rule 30(b)(6) deposition notices upon the Government.1 In two of these notices, the Plaintiffs identified several areas of inquiry, including HUD's general document retention practices. The first notice sought a witness to testify about: 5. The document retention policies of HUD, including those of any relevant field offices, and the actual steps taken to produce documents for the Plaintiffs and subject Properties listed in Exhibits A and B. See Plaintiffs' Revised Rule 30(b)(6) Notice of Deposition (Exhibit A hereto, referred to as the "HUD Notice"). A similar request was made in a second Rule 30(b)(6) deposition notice but that notice focused on the document retention practices of a specific HUD office known as the Economic & Market Analysis Section ("EMAS"): 5. The document retention policies of EMAS, and the specific steps taken, if any, to produce documents in the above referenced matter in response to the Plaintiff's Request for Production of Documents. See Plaintiffs' Revised Rule 30(b)(6) Notice of Deposition (Exhibit B hereto referred to as the "EMAS Notice"). In response to these notices, on November 5, 2007, the Government produced a HUD employee, Carmelita Bridges. Ms. Bridges is employed as HUD's Branch Chief, Records and Directives. In the course of her testimony, it became clear that Ms. Bridges lacked knowledge sufficient to address the information requested by the Plaintiffs' deposition notices. Initially, she indicated that she would testify broadly about the subject matters contained in the HUD Notice
1

The deposition notices issued in October 2007 were revised versions of Rule 30(b)(6) deposition notices originally issued in August 2007.

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and the EMAS Notice. See Bridges Deposition Transcript of November 5, 2007 ("Bridges Deposition Transcript") at p. 7, line 20 through p. 8, line 2 and p. 8, line 20 through p. 9, line 1 (Exhibit C hereto). Eventually, however, she self-limited her testimony, admitting that she was actually only prepared to testify concerning the actual physical transfer of documents from HUD to the Federal Record Retention Center at the National Archives. Id. at 22, lines 6 through 9. She also admitted that, except for bringing a copy of HUD's record retention schedule and speaking with counsel, she had done nothing to prepare to provide testimony with respect to the other matters included in subject matter request No. 5. Bridges' Deposition transcript at p. 11, line 4 through p. 12, line 1. Additionally, Ms. Bridges was not prepared to testify regarding subject matter No. 5 in the EMAS Notice with respect to any EMAS documents in Field Offices. Bridges Deposition transcript at p. 9, lines 2-9. Moreover, another HUD employee, Pamela Sharpe, who was proffered to testify concerning all of the other subject matters contained in the EMAS Notice, could not testify regarding subject matter No. 5 in the EMAS notice. See, e.g., Deposition Transcript of Pamela Sharpe dated November 7, 2007 at p.16, line 7 through p. 17, line 10 (Exhibit D hereto). As a result, on November 8, 2007, counsel for the Plaintiffs wrote to the Government's counsel, alerting him to these deficiencies and requesting the Government to produce alternative witnesses. Exhibit E hereto. The Government's counsel responded on November 13, 2007, repeating prior objections to the scope of the Plaintiffs' deposition notices and reiterating its position that its testimony would be limited to "HUD document retention policies." Exhibit F hereto at 2 ("November 13 Letter"). With respect to the record retention policy of EMAS, the November 13 Letter repeated that "HUD has a single record retention policy" and that "there has never been a different policy that governs record retention by EMAS." Id. Nevertheless, citing a

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"miscommunication" when "Government counsel stated at the Bridges deposition that Mrs. Bridges would not be addressing the record retention policy of EMAS" (id.) and that Mrs. Bridges would be made available to testify "solely about . . . the record retention policy applicable to HUD's economic and market analysis section" on December 11, 2007. Despite the objections that the Government has raised as early as October about these subject matters, it never obtained a protective order imposing any limitations on the scope of Plaintiffs' notices. Moreover, the Government's offer in connection with its objections in October to produce a written summary of its collection with regard to documents in these litigations in lieu of testimony was plainly rejected by Plaintiffs as insufficient. See Letter to David A. Harrington from Harry J. Kelly dated October 16, 2007 (Exhibit G hereto). Thus, the Government's response to subject matters Nos. 5 in both the HUD Notice and EMAS Notice is incomplete. It has not provided any witness to describe (a) its actual retention practices (except with respect to its disposition of records to the FRRC), (b) record retention practices at relevant field offices; (c) its practices in producing documents in connection with this litigation; and (d) the document retention and production practices of EMAS at both the headquarter and field office levels. ARGUMENT 1) The Government Is Obliged To Produce A Rule 30(b)(6) Witness To Respond To Subject Matter Nos. 5 in both the HUD and EMAS Notices. Rule 30(b)(6) of the RCFC requires a party, including the Government, to provide a witness or witnesses to testify on its behalf in a deposition about matters identified with reasonable particularity. If a designated representative does not have personal knowledge of the subject matters to be covered, the entity producing the witness has an obligation to familiarize and prepare the witness so that he or she can testify fully. See e.g., Starlight Int'l v. Herlihy, 186

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F.R.D. 626, 638-40 (D. Kan. 1999). A representative who appears at a Rule 30(b)(6) deposition who provides evasive or incomplete answers does not satisfy the knowledgeable witness requirement. See RCFC 37(a)(3); see also Fox v. Morris Jupiter Assoc., 2007 U.S. Dist. LEXIS 70880, at *6-7 (S.D. Fla. 2007). Here, the Government has failed to produce a witness who could fully testify about subject matter Nos. 5 in the HUD and EMAS Notices. Essentially, Ms. Bridges testified only about the narrow scope of her personal responsibility ­ i.e., the disposition of documents from HUD to the FRRC at the National Archives. As the record makes clear, she was unable to substantively address any questions concerning how HUD managed the actual files of the Plaintiffs in this case, including what would be included in those files and where they would be kept.2 Indeed, the Government seems to believe that producing a HUD guidance document satisfies the Plaintiffs' legitimate discovery needs. The fact that HUD had a policy, however, does not explain how HUD followed ­ or did not follow ­ that policy in practice. For that, live testimony is needed. The Plaintiffs' need for this information is not hypothetical. Indeed, subsequent fact witnesses who testified after Ms. Bridges highlighted the importance of Plaintiffs' need to obtain information concerning HUD's document practices. For example, several witnesses responsible for various aspects of processing applications under ELIHPA and LIHPRHA in HUD offices testified that they either did not receive notices to preserve documents relevant to this litigation or ­ more alarmingly ­ only received those notices in recent months. Deposition Transcript of

2

The Government's counsel contended that any discussion of its document production practices in this case would infringe on attorney-client privilege. November 13 Letter at 2. The claim is without merit: a party cannot invoke attorney-client privilege to insulate inquiry into its document production practices, and in any event, as the Government's counsel has been advised before, claims of privilege are to be made during a deposition on the record, not in advance of a deposition as a tool to avoid producing a witness. ..

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Thomas Vitek dated November 15, 2007 ("Vitek Deposition Transcript") at p. 57, line13 through pg, 58, line 6 (Exhibit H hereto); Franca Hetue Deposition Transcript dated November 14, 2007 ("Hetue Deposition Transcript") at 57, line 19 to pg. 59, line 14 (Exhibit I hereto). It appears that significant amounts of potentially important and relevant documents may simply have been discarded by HUD. See, e.g., Vitek Transcript at pg. 190, line 19 through 194, line 20. Indeed, one fact witness, Franca Hetue, an employee at HUD's Indianapolis office, testified that critical files concerning the one identified property that allegedly prepaid its HUD insured mortgage ­ Parc Chateau West ­ were inexplicably missing from her office's records. Hetue Deposition Transcript at 59, line 20 to pg. 61, line 15. On the other hand, it is apparent from other statements that at least some records pertaining that to property are in existence, although they have not been provided to the Plaintiffs despite express discovery requests. Plaintiffs request for information concerning HUD's document retention and production practices is not meant to necessarily imply that misconduct has occurred. Nonetheless, it is entirely proper for the Plaintiffs to seek information from a knowledgeable HUD witness about how relevant records were maintained, what if any steps were taken to secure relevant documents in connection with this litigation, and why relevant records apparently do not exist. Certainly, in the absence of a protective order, the Government must do more than produce a witness whose only knowledge relates to the actual transfer of HUD files to the National Archives.3 What the Government plainly cannot do is make a unilateral determination of how much and what sort of testimony the Plaintiffs should receive about topics that are squarely relevant, and frankly commonplace in virtually every litigation.

3

The November 13th offer to produce Ms. Bridges once again to provide restricted testimony with respect to EMAS' document practices will not yield any more useful information than her original deposition, and will not fill in any of the information gaps that exist on the basis of her prior testimony.

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For the foregoing reasons, the Government should be ordered to produce a witness or witnesses who are capable and fully prepared to testify about the subject matter contained within subject matter Nos. 5 of both the HUD and EMAS Notices. Dated: December 7, 2007 NIXON PEABODY LLP

s/ Harry J. Kelly Harry J. Kelly 401 9th Street N.W., Suite 900 Washington, D.C. 20004 (202) 585-8712 Attorneys for Plaintiffs

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Bridges 30(b)(6), Carmelita

Washington, DC

November 5, 2007

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Page 1
IN THE UNITED STATES COURT OF FEDERAL CLAIMS

- - - - - - - - - - - - - x ANAHEIM GARDENS, et al., Plaintiffs, V. THE UNITED STATES, Defendant. : : : : : No. 93-655 C

- - - - - - - - - - - - - x ALGONQUIN HEIGHTS, et al.,: Plaintiffs, V. THE UNITED STATES, Defendant. : : : : No. 97-582 C

- - - - - - - - - - - - - x 30(b)(6) Deposition of CARMELITA BRIDGES Washington, D.C. Monday, November 5, 2007 10:31 a.m.

Reported by:

TRISTAN-JOSEPH, RPR

Henderson Legal Services 202-220-4158

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Document 179-4

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Bridges 30(b)(6), Carmelita

Washington, DC

November 5, 2007

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1 2 11:44:02 3 4 5 6 7 11:44:19 8 9 10 11 12 11:44:45 13 14 15 16 17 11:44:58 18 19 20 21 22
BY MS. ZIARNO: Q. If you could take a minute and look that Exhibit 1. (Bridges Deposition Exhibit No. 1 was marked for Identification.) I'm going to start out my showing you two deposition notices, and I'll ask you a couple of questions about that and then move into the substance of why you're here today. MS. ZIARNO: If we can mark this one as

over and tell me if you recognize that document. A. I think this is the document that I

received via e-mail. Q. A. Q. A. Q. Okay. And if you could look at the -Yeah.

Oh, wait a minute. Okay. It looks --

If you look at the second page, you'll

see that there are five subject matters listed. Could you please look those over and tell me which of those you're here to testify about today.

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Bridges 30(b)(6), Carmelita

Washington, DC

November 5, 2007

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BY MS. ZIARNO: Q. A. Do you recognize that document? They kind of look the same actually Exhibit 2. (Bridges Deposition Exhibit No. 2 was marked for Identification.) A. The document retention policies of

HUD Item No. 5. Q. A. Q. Item 5? Yeah. Okay. MS. ZIARNO: And if can you mark this as

except for the date that's on there. Q. If you focus on the second page and look

at the five-numbered paragraphs, if you focus on Paragraph No. 5, you'll see it's slightly different than in the Paragraph No. 5 that we showed you in Exhibit 1. A. Q. Okay. Could you tell me if you're prepared to

testify with respect to that subject matter listed in No. 5 of Exhibit 2?

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Bridges 30(b)(6), Carmelita

Washington, DC

November 5, 2007

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you. THE WITNESS: BY MS. ZIARNO: Q. Now, in the course of going through Thank you. A. Document retention policies of EMAS. MS. ELEY: I would like to state, for

the record, that Ms. Bridges is here to testify as the document retention -- she can testify as to the document retention policies of EMAS insofar as they're subsumed under the document policies of HUD; and, to the extent that they are specific document retention policies of EMAS field offices, it'll be addressed by our EMAS witness. MS. ZIARNO: Okay, great. Okay, thank

today's deposition, they'll be several terms that we're going to use. So I just want to quickly

define those for you so that we're all talking about the same thing. A. Q. Mm-hmm. And the first one is the Emergency

Low-Income House Preservation Act of 1987 which is commonly referred to as a ELIHPA or Title II.

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Bridges 30(b)(6), Carmelita

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A. Q. A. Q. A. Q. Okay. -- or LIHPRHA. Mm-hmm. In getting ready for your testimony here

today, what did you do to prepare? A. schedules. Q. And did you do anything else? Did you meet with the attorneys? I've been briefed by counsel. Were you given a background as to what I have with me the reference retention

these litigations were about involving ELIHPA and LIHPRHA at all? A. Q. Just briefly. Okay. Did you review any other

documents other than the record retention schedules? A. Q. No, I did not. Okay. Did you talk to any other

employees -A. Q. I did --- about --

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Bridges 30(b)(6), Carmelita

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A. Q. A. Q. position? A. Branch. Q. Is there a division or section that Branch Chief, Records and Directives -- not. Okay. All right. What's your current

you're part of specifically? A. It is part of the Document Management

Division, Office of Administration, U.S. Department of Housing and Urban Development. Q. That's a mouthful. How long have you held that position? Since 2003. And what are your responsibilities in

that position? A. I monitor and coordinate records

retention policies with the program areas of the organizational units within the Department of HUD. We also organize and coordinate directives, policies for the Program Offices as well. Q. A. Okay. Mm-hmm.

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Washington, DC

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A. Q. records. A. The Program Office is responsible for For? Compliance with retention of those

their own recordkeeping. Q. So your only role here today that you

can testify to is as to records that are being transferred from HUD to the archives? A. Q. Yes. Do you know anything about litigation

holds that are placed on records within HUD when there's a pending lawsuit or an actual lawsuit filed? A. We get a notice from our Office of

General Counsel when there is litigation and records need to be put on hold for the length of the litigation. Q. And that hold would apply to records

that are already sent to the retention center; is that correct? A. Q. They would specify which reference. But if it's addressed to you in your

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Document 179-5

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Sharpe 30(b)(6), Pamela

Washington, DC

November 7, 2007

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

- - - - - - - - - - - - - x ANAHEIM GARDENS, et al., Plaintiffs, V. THE UNITED STATES, Defendant. : : : : : No. 93-655 C

- - - - - - - - - - - - - x ALGONQUIN HEIGHTS, et al.,: Plaintiffs, V. THE UNITED STATES, Defendant. : : : : No. 97-582 C

- - - - - - - - - - - - - x Deposition of PAMELA SHARPE Washington, D.C. Wednesday, November 7, 2007 9:38 a.m.

Reported by:

TRISTAN-JOSEPH, RPR

Henderson Legal Services 202-220-4158

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Sharpe 30(b)(6), Pamela

Washington, DC

November 7, 2007

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 BY MS. ZIARNO: Q. A. Q. Have you seen this before? Yes. Okay. If you could focus on the second

page, and you'll see that there's five subject matters listed. Can you tell me which of those you're prepared to testify about here today. A. Q. A. Q. A. Q. A. One, two, three, four. Not five? No. All right. Well -Are you --- I should say we didn't have any

document retention policies that were -- we didn't have our separate document retention policies. They were the HUD -- we followed the HUD guidelines. Q. A. Okay. So that's why I'm not prepared to go

into further detail --

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Sharpe 30(b)(6), Pamela

Washington, DC

November 7, 2007

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 later. What did you do to prepare for your testimony here today? A. Q. A. I went -- I reviewed handbooks. Okay. Anything that was pertaining to the Q. A. Q. Okay. -- about that one. All right. If I wanted to know less

about the policy itself but the practice of how people kept documents would that be you or not? A. Q. A. Q. That wouldn't be me. That wouldn't be you? No. All right. We'll revisit that issue

Title II and Title VI, so handbooks, notices, because I couldn't remember it that far back, so I had to, kind of, reacquaint myself with -Q. A. Q. Okay. -- what was required of my division. And are you familiar with the substance

of the claims of the law that underline the

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Vitek, Thomas

Washington, DC

November 15, 2007

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

- - - - - - - - - - - - - x ANAHEIM GARDENS, et al., Plaintiffs, V. THE UNITED STATES, Defendant. : : : : : No. 93-655 C

- - - - - - - - - - - - - x ALGONQUIN HEIGHTS, et al.,: Plaintiffs, V. THE UNITED STATES, Defendant. : : : : No. 97-582 C

- - - - - - - - - - - - - x

Deposition of THOMAS VITEK Washington, D.C. Thursday, November 15, 2007 9:42 a.m.

Reported by:

TRISTAN-JOSEPH, RPR

Henderson Legal Services 202-220-4158

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Vitek, Thomas

Washington, DC

November 15, 2007

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 that. A. Q. A. Q. A. Q. We looked until we didn't find anything. Of the floppy disks, in other words? No. Okay. We looked for hard copies. Now what makes you believe that the Of the hard copies.

floppy disks were tossed away? A. They're obsolete. They have no utility

in the modern world. Q. database. A. Q. Unless you're trying get a copy of the Yes? Yes. Well, do you remember receiving any

notice or request to preserve documents or computer files or any other materials in connection with this litigation? A. Q. No, I received no notice. Did you have any occasion to produce any

materials from your files or from the San Francisco office files in connection with this litigation? A. No, I didn't have any opportunity to do

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Vitek, Thomas

Washington, DC

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Q. When you say an opportunity, can you be

more specific? Did you get a request to produce any materials from your files through any connection with this litigation? A. Q. No, I did not get a request. Do you have any other materials

pertaining to any of the specific properties that were listed in Exhibit A or Exhibit B to Exhibit 2 that would be in your personal files at this point? A. I have nothing in my personal files. If

there was, indeed, a prepayment at Napa Park Apartments and funding was provided in the Housing Choice Voucher Program, in the files that I maintained, as a part of the financial Management Center, I would be able to find a contract document that would provide some information about the voucher funding for that particular property. That

would be the only thing that I would have access to that involves these particular ownership entities on Exhibit B. Q. What about other records that would have

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Vitek, Thomas

Washington, DC

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 A. entity is. Q. That was one of Mr. I'm not even sure who that ownership

Spieker's apartments. A. Q. A. Oh, okay. But -I never had a conversation with

Mr. Spieker about prepaying his mortgage. Q. And again, 5234 Foothill Apartments, any

discussion with the owner of that entity or their representatives about prepaying? A. Q. No, I had no such discussion. Okay. Did you attend any meeting, any

internal HUD meeting or seminar at which the subject of an Owner who wanted to prepare its mortgage was discussed? A. Q. A. Yes. What was the nature of that meeting? There were a series of training seminars

that were held on the subject of Title II and Title VI processing. And at each one of these

seminars, there was a segment devoted to

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 prepayments. Q. Was that -- sorry. Was that a section actually devoted to the topic of an owner who wanted to prepay or to the general topic of preservation under Title II or Title VI? A. The subject matter of the week-long

seminar was processing under Title II and Title VI. Then one segment dealt with dealing with notices of intent to prepay, and Plans of Action to prepay. Q. Do you recall the specific date of this

meeting or the approximate date of this meeting? A. There were several. September of '93 in

Sherman Oaks, California; August of '94 in Alexandria, Virginia; summertime of '92 in Arlington, Virginia. Q. Okay. I think that's it.

Were these national meetings or

were these meetings for specific regional persons? A. They -- the '92 and '93 meetings were

head HUD staff from all around the country at them. The '94 meeting was the trainees were people from Regions 9 and 10.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Q. Okay. Did you make any presentation or

provide or make a speech at any of these sessions yourself? A. Q. A. Q. No, I did not. Were you one of the trainees? I was one of the trainees. Okay. Did you prepare any materials for

someone else in connection with these -A. Q. No, I did not. Okay. No, I did not.

Were there any written materials

prepared in connection with these seminars for the people who were attending them? A. Q. Yes, there were. In addition to the guidance and

handbooks and so forth that we've seen today were there other materials that were prepared by the staff? A. Q. Yes, there were. Okay. Did you keep copies of any of

these materials? A. Q. No, I did not. Do you know if any of those materials

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 are still available anywhere? A. Q. I have no idea. Okay. Did you -- well, did you bring

them back with you to your office at the conclusion of the seminar? A. Q. A. Q. materials? A. One of two things: Either I threw them Yes, I did. Do you know what happened to them? Excuse me? Do you know what happened to the

away or somebody else through them away. Q. What leads you to the conclusion of

those two options? A. When I was reassigned to the Office of

Public Housing, I threw away a lot of my own internal files that weren't specific to any particular project. And then I remember there were

a couple of points in time when filing space was needed, and people in the Asset Management Division asked me if it was okay to throw away materials that they didn't have any use for that they found

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 A. Q. in the space that I used to work in. Q. Approximately when would -- you said

that you threw away some materials when you went back to the office of -A. Q. Public Housing. Public Housing. That would have been in October of '95? That is correct. So that was the time that you purged

your own files -A. Q. Yes. -- is that correct? Okay. And was it subsequently that

other people asked about the right to -A. Q. Yes. Okay. And again, I thin you said never

received any notice or request to preserve any materials in connection with this litigation; is that right? A. Q. I never received a notice. Okay. Going back to these meetings, I

think you said that some portion of them dealt with

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Page 1
UNITED STATES COURT OF FEDERAL CLAIMS ANAHEIM GARDENS, et al., Plaintiffs, v. THE UNITED STATES, Defendant. ALGONQUIN HEIGHTS, et al., Plaintiffs, v. THE UNITED STATES, Defendant. ) ) ) No. 93-655C ) ) ) ) ) No. 97-582C ) )

- - - - - - - - - - -

DEPOSITION OF FRANCA GUIDA HETUE Wednesday, November 14, 2007 Washington, D.C.

Reported by:

Cheryl A. Lord, RPR, CRR

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A. A. The plans of action that were not approved, And the

I still have them all in a file cabinet.

files that were approved are in current bay with a regular processing of the other files, regular portfolios. Q. I'm sorry. You say they're in a bay. A file cabinet? Right. You got a room where all the file cabinets are because they're active files. Q. When you say the plans of action that were

approved and those that were not approved, there were some approved but not funded, would they all be in an approved plan of action file, or are they a third category of documents? A. They were approved but not funded, all in

one file cabinet. Q. So the documents relating to Park Chateau

West would be in there as well, for example? A. No. That one was approved, so it would have

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A. Q. A. Q. point? A. Q. Yes, and it's gone. When did you have occasion to look for been in the general file category. Q. I'm sorry. I thought you said that all the plans of action that were approved were kept in one set of files. A. Ones that are approved are still working

files, so they're in the general file cabinets that the servicers go in and pull out and work on. where Park Chateau West would have gone. Q. So it would be there presumably. To your knowledge is it still there? No, it's not there. What happened to it? I don't know. Did you have occasion to look for it at any That's

those documents? A. Q. those? Just recently. What was the cause for you to look at

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Q. A. We had a call-in for files, for all files,

preservation files. Q. Do you remember receiving any kind of a

notice at any point indicating that you were to preserve records relating to any properties because of pending litigation? A. Q. Just recently. When you say, just recently, are you saying

like in the last 3 months? A. Q. I think it was February, March time frame. Between the time you started as

preservation coordinator and now, did you receive any such notice? A. Q. I did not. And the notice that you were referring to

in February or March of 2007, was that also in connection with the Park Chateau West? A. No. That was Algonquin series case. So you were asked at some other point to

look for the Park Chateau West documents? A. When I was pulling documents for the

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lawyers, there were missing documents. So the lawyers

had asked me to provide -- asked me if I had any prepayments. Q. A. Q. A. Q. And I said yes.

And what time frame was that? June, July. Of this year? Yes. So that's when you went to look for the

Park Chateau West? A. Q. not there? A. Q. Right. Was there any indication of anybody having Yes. At that point you determined that they were

put a removal tag or checking out a document of any kind? A. Q. No. Do you keep a log as to who checks in and

checks out those kinds of files? A. Q. No, we don't. Okay. When was the last time you saw the

Park Chateau West documents?

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A. A. Q. Do you recall? No, I don't recall. Would it have been around the time of the

final approval or sometime later? Do you have knowledge? Probably around the time of the final

approval, because I was just the preservation coordinator. There was a project manager that

actually had that property in the portfolio. Q. of records? Are they in a locked room or secured place, or are they generally open to anybody who is in the office? A. Q. Anybody in the office has access. Bear with me a moment. Just take a moment Who else would have access to those kinds

to find a particular document. MR. KELLY: What number are we on?

(Discussion off the record.) (Exhibit Hetue 4 was marked for identification.) -

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