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

Case 1:95-cv-00524-GWM

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ____________________________________ HOMER J. HOLLAND, ) HOWARD R. ROSS, and ) FIRST BANK, ) ) Case No. 95-524C Plaintiffs, ) ) (Judge George W. Miller) v. ) ) (Winstar-Related Case) THE UNITED STATES, ) ) Defendant. ) ____________________________________) DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION TO DEPOSE PHILIP GERBICK Pursuant to Rules 7(b), 7.2(a) of the Rules of the Court of Federal Claims ("RCFC"), Winstar Procedural Order No. 2, and this Court's order of October 31, 2007, defendant, the United States, respectfully submits this opposition to plaintiffs' motion for leave to take the deposition of Philip Gerbick. Fact discovery in this case began on August 23, 1999. On September 20, 1999, we filed our initial disclosures, pursuant to paragraph IV(A)(1) of the Winstar Discovery Plan. See Ex. 1. Within those disclosures we identified Mr. Gerbick as a witness who had "discoverable information relevant to allegations in plaintiffs' complaint." Id. at 1. Further, we indicated that Mr. Gerbick might testify regarding the acquisitions of Galva, Home, and Mutual, and the acquisition of Peoria. Id. at 5. Although fact discovery was scheduled to be completed within one year, the parties stipulated to extend the discovery period until until December 15, 2000, so that the parties could complete depositions of several witnesses. Order (Sep. 25, 2000); Joint Stipulation to Adjust Certain Discovery Deadlines (filed Sep. 20, 2000) at 1. Notwithstanding

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that they sought to extend discovery period to depose additional witnesses, plaintiffs expressed no desire to depose Mr. Gerbick. Now, after twelve years of litigation, and seven years after fact discovery, plaintiffs contend that they are entitled to depose Mr. Gerbick. Plaintiffs concede that paragraph 13 (b) of Appendix A of the Rules of this Court states that "any witness whose identity has not been previously disclosed shall be subject to discovery[,]" and assert, nonetheless, that "though Mr. Gerbick's identity was disclosed eight years ago, Plaintiffs had no reason to anticipate his involvement in the upcoming damages trial." Pl. Br. at 2. Thus, plaintiffs argue that even though Mr. Gerbick was expressly identified, more than eight years ago, as a witness who might testify for the Government in this litigation, plaintiffs somehow did not appreciate that he might testify for the Government in this litigation. Plaintiffs further contend that they were excused from deposing Mr. Gerbick because he did not submit a declaration in support of our summary judgment briefing, and therefore, they did not believe that he would testify at trial. Pl. Br. at 1-2. This argument strains credulity: Motions for summary judgment were submitted after the close of discovery. Plaintiffs' election not to depose Mr. Gerbick during the discovery period cannot possibly be tied to events that occurred after that time. However implausible, plaintiffs' proffered excuses for electing not to depose Mr. Gerbick are irrelevant. The Rules of this Court do not require a determination of whether or not a party has "a reason to anticipate [a witness's] involvement" in a trial." Pl. Br. at 2. Rather, paragraph 13(b) of Appendix A permits a deposition only where a witness's identity, "has not been previously disclosed[.]" We disclosed Mr. Gerbick's identity in 1999, and he will testify relating -2-

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to matters identified in that disclosure. Accordingly, the Rules of this Court do not permit plaintiffs an opportunity to depose him. As this Court held in Smith v. United States, No. 92-540 C (Fed. Cl.), "[p]laintiffs cannot now reopen the discovery period to conduct the depositions that could have been, and conceivably should have been, taken." Id. (Order of Dec. 8, 2000) (Exhibit 2) (denying plaintiffs' motions to reopen discovery and conduct the deposition of a witness where it was "obvious" that the witness was "conceivably a person with relevant information"). Plaintiffs' reliance upon an order in Globe Savings Bank, F.S.B. v. United States, 61 Fed. Cl. 91, 100-02 (2004), is misplaced. In that case, the Court denied plaintiffs' motion to preclude two Government witnesses from presenting trial testimony because plaintiffs were not prejudiced due to the fact that they could depose the witnesses prior to trial pursuant to RCFC Appendix A, paragraph 13(b). In Globe, unlike this case, the two witnesses were not disclosed in either party's initial disclosures, and did not come to the attention of the parties through the documents produced in discovery. Id. By contrast, in this case, Mr. Gerbick's identity was disclosed in the initial disclosures, and Mr. Gerbick's name appeared in numerous documents that were exchanged during fact discovery. In this case, unlike Globe, plaintiffs knowingly waived their opportunity to depose Mr. Gerbick. Finally, the equities favor holding plaintiffs accountable for their election not to depose Mr. Gerbick during the discovery period. Mr. Gerbick is currently an employee at the Chicago office of the Office of Thrift Supervision, and carries a full schedule of meetings, in and out of Chicago, in November and December. Plaintiffs' decision to wait until the eve of trial to seek to depose Mr. Gerbick would significantly disrupt his schedule. Further, we would be required to dedicate our resources to preparing Mr. Gerbick for deposition, and defending his deposition, on -3-

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the eve of trial, and would be bearing the cost for plaintiffs' election not to depose Mr. Gerbick. The Court should not permit plaintiffs to circumvent the Rules of this Court, and disrupt the schedules of both Mr. Gerbick and the Government's counsel, merely because they now realize that their strategic decision in 1999 was in error. CONCLUSION For the foregoing reasons, we respectfully request that this Court deny plaintiffs' motion for leave to reopen discovery to conduct out-of-time depositions of Mr. Gerbick. Respectfully submitted, MICHAEL F. HERTZ Deputy Assistant Attorney General JEANNE E. DAVIDSON Director /s/ Kenneth M. Dintzer KENNETH M. DINTZER Assistant Director

Of Counsel: SCOTT D. AUSTIN ELIZABETH A. HOLT WILLIAM G. KANELLIS AMANDA L. TANTUM JOHN J. TODOR SAMEER YERAWADEKAR

/s/ John H. Roberson JOHN H. ROBERSON Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor, 1100 L Street Washington, D.C. 20530 Tele: (202) 353-7972 Fax: (202) 514-8640 Attorneys for Defendant

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CERTIFICATE OF SERVICE I hereby certify that on this 8TH day of November, 2007, a copy of "DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION TO DEPOSE PHILIP GERBICK" was filed electronically. I understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's system.

/s/ John H. Roberson John H. Roberson

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Exh" t 1
b¯

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS HOMER J. HOWARD R. HOLLAND AND ROSS, ) )

)
Plaintiffs, v. )

) ) ) ) )
) )

No. 95-524C (Chief Judge Smith)

THE UNITED STATES, Defendant.

)
)

DEFENDANT'S INITIAL DISCLOSURE PURSUANT TO PARAGRAPH IV(A) (I) OF THE DISCOVERY PLAN Defendant, the United States (the "Government"), provides, pursuant to Paragraph IV(a) (I) of the Court's Procedural Order No. 2: Discovery Plan (filed August 7, 1997), the following initial disclosure to plaintiffs Homer J. Holland and Howard R. Ross ("plaintiffs"). INTRODUCTION AND RESERVATION OF RIGHTS This initial disclosure sets forth, to the extent known, the names and titles of current or former employees, agents, or representatives likely to have discoverable information relevant to the allegations in plaintiffs' complaint. This list is based upon the limited information currently available to us. More information may become known to us in the future. We reserve the right to supplement or modify this list, such as by adding or deleting individuals, or by amending the scope or subject of the individuals' likely areas of knowledge. We also reserve the right to assert privileges, if necessary, with respect to any

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information known to, or documents held by, these individuals. EX PARTE CONTACT WITH FORMER EMPLOYEES IS PROHIBITED Please take notice that plaintiff is prohibited by Court order from ex parte contact with any former employee, officer or agent of the Office of Thrift Supervision ("OTS"), the Federal Home Loan Bank Board (including, but not limited to, the Federal Home Loan Bank of Chicago) ("FHLBB" and "FHLB-Chicago") and the Federal Savings and Loan Insurance Corporation ("FSLIC"). Order, Plaintiffs in All Winstar-Related Cases at the Court, Nos. 90-8, e_!t al.., (filed Feb. 20, 1998). That Order specifically denied a request made on behalf of all private plaintiffs in the Winstar-related cases for permission to interview, outside the presence of Government counsel, former employees of the FHLBB (including the FSLIC) and expressly limited contact by any plaintiff with such employees to formal depositions or informal interviews approved by Government counsel. Id___=, citing 12 C.F.R. § 510.5 (1997).° Please further take notice that plaintiff also is prohibited by law from ex parte contact with any former officer, employee or agent of the Federal Deposit Insurance Corporation ("FDIC"). 12 C.F.R. Part 309~ (1999) .

i See Mot. by Pls' Coordinating Committee for Order Permitting Informal Interviews of Former FHLBB and OTS Employees at 3 (seeking informal interviews to determine "who might have been responsible for actions taken under the auspices of the FHLBB or FSLIC") (filed on or about Dec. 31, 1997).
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EX PARTE CONTACT WITH CURRENT EMPLOYEES IS

PROHIBITED

Please also take notice that plaintiff is barred from e__~_x parte contact concerning this action with any current OTS or FDIC employee, officer, or agent because, as such, they are represented by Government counsel in connection with this action. LIST OF NAMESa TITLES, ORGA!~IZATIONS, AND LIKELY SUBJECTS David Adkins Financial Analyst, MAD FSLIC Re: Acquisition of Galva, Home, and Mutual
o

Daniel Ro Bagus Applications Analyst FHLB-Chicago Re: Acquisition of Republic

3 °

Sarah Bever Financial Analyst, AED FHLBB Re: Acquisition of Peoria

Chester A. Biedron Supervisory Agent FHLB-Chicago Re: Acquisition of Peoria; Acquisition of Republic

Leo B o~w-~ . ~, Jr. Principal Supervisory Agent FHLB-Chicago

Acquisition of Galva, Home, and Mutual; Acqhisition of Peoria; Acquisition of Republic

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o

Kevin J. Blocker Examiner-in-Charge FHLBB Re: Reports of Examination for Galva

Patrick P. Bredlau Supervisory Agent FHLB-Chicago Re: Acquisition of Peoria

B.J. Brookings Director, MAD FSLIC Re:
o

Acquisition of Republic

John M. Buckley, Jr. Executive Secretary FHLBB Acquisition of Galva, Home, and Mutual; Acquisition of Republic

I0.

John J. Clarke, Jr. Assistant Director of Examinations FHLBB Re: Acquisition of Republic

ii.

Mary Creedon Associate Director FDIC Re: - Settlement Agreement with FDIC Steven Davidson Regional Director, AED FHLBB Re: Acquisition of Republic

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13.

Edward A. Eckert Supervisory Agent FHLB-Chicago Re: Acquisition of Peoria; Acquisition of Republic

14.

John Do Eilering Examiner-in-Charge FHLBB Re: Reports of Examination for Mutual

15.

Edward H. Erickson Appraisal and Loan Underwriting Specialist FHLBB Re: Acquisition of Republic

16.

Michael Gassert Examiner-in-Charge FHLBB Re: Reports of Examination for Peoria

Philip A. Gerbick Supervisory Agent FHLB-Chicago Re: Acquisition of Galva, Home, and Mutual; Acquisition of Peoria

18.

Bimal B. Goel Applications Analyst FHLB-Chicago Re:" Acquisition of Peoria

19.

Diane Heinz Financial Analyst, MAD FSLIC Re: Acquisition of Republic

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2O

Herbert J. Held Regional Director, MAD FSLIC Re: Acquisition of Peoria; Acquisition of Republic

21

Patrick J. Hunt Examiner-in-charge FHLBB Re: Reports of Examination for Republic

22

Diana Januska Financial Analyst FHLB-Chicago Re: Acquisition of Republic

23

Michael J. Jaski Financial Analyst FHLB-Chicago Re: Acquisition of Peoria; Acquisition of Republic

24

Randall M. Kiner Examiner-in-Charge FHLBB Re: Reports of Examination for Rock Falls

25

James H. Koulos Supervisory Analyst FHLB-Chicago Re: Acquisition of Peoria

26

Michelle LeClair Acting Regional Director, AED FHLBB Re: Acquisition of Peoria

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27.

Philip Mento Coordinator, Expedited Case Processing II FHLBB Re: Acquisition of Peoria

28.

Stephen Jo Mikesell Examiner-in-Charge FHLBB Re: Reports of Examination for Home

Helen K. Mirza Supervisory Agent FHLB-Chicago Re:
30.

Acquisition of Peoria; Acquisition of Republic

Susan Mooney Supervisory Agent OTS Re: Acquisition of Galva, Home, and Mutual

31.

Linda B. Plye Director, Corporate Activities, Office of Regulatory Policy and Supervision FSLIC Acquisition of Galva, Home, and Mutual; Acquisition of Peoria; Acquisition of Republic

32.

Janice Soergel Financial Analyst, Financial Assistance Division FSLIC Re: Assistance Agreement relating to Republic

33.

Gerald B. Stanton Director, Financial Assistance Division FSLIC Re: Acquisition of Galval Home, and Mutual; Acquisition of Republic

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34

Stephen E. Taylor Examiner-in-Charge FHLBB Re: Reports of Examination for Peoria

35

John P. Valek District Director of Examinations FHLBB Re: Acquisition of Peoria

36

Richard D. Weiss Financial Analyst, AED FHLBB Re: Acquisition of Galva, Home, and Mutual

37

Tracy Wiesen Assistant General Counsel FHLB-Chicago Re: Acquisition of Republic

38

Holly Wright Financial Analyst, AED FHLBB Re: Acquisition of Republic

39

Louis E. Wright Associate Director RTC Re: Settlement Agreement with FDIC

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DAVID W. OGDEN Acting Assistant Attorney General DAVID M. COHEN Director

JE~dqNE E. DAVIDSON Di r~i or/ / Dep~

PATRICIA A. SMITH Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor I!00 L Street, NW Washington, D.C. 20530 Tele: (202) 353-8841 Attorneys for Defendant
September 20, 1999

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CERTIFICATE OF SERVICE I certify under penalty o£ perjury that on th±s _~da¥ of September, 1999, I caused to be placed in the United States ma±l t£±rst class ma±l, postage prepaid) cop±es of "DEFENDANT'S INITIAL DISCLOSURE PURSUANT TO PARAGRAPH IV(A) (I) OF THE DISCOVERY PLAN" addressed as follows: Melvin C. GarboQ Arnold & Porter 555 Twelfth Street, N.Wo Washington, DC 20004-1202

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Exhibit 2

I Ill

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O. BRUTON SMITH and BILL SMITH, and

*
*

* , FEDERAL DEPOSIT INSURANCE * CORPORAT|ON, as Successor to the Rights of * North Carolina Federa~ Savings and Loan * * Association, , * Plaintiffs,
* V. * *

No. 92-540 C Filed:
".::!-~ ---

THE UNITED STATES, Defendant.

* *

ORDER

Both private plaintiffs and plaintiff FDIC have filed motions to strike the declaration of R.A. Southerland and references to it fiom defendant's motion for summary judgment and motion to dismiss. Alternatively, the plaintift?; request that discovery be reopened solely relating to Mr. Southerland and to permit the plaintiffs to supplement their responses to defendant's motion. The court denies the motions to strike, as well as the alternative motions to reopen discovery regarding Mr. Southerland. Critical to the cou~-t's decision is the following: it is obvious that Mr. Southeriand, as the President of Caroiina Federai, one of the merging institutions, was conceivably a person with relevant information; defendant's.responses to the discovery requests of both plaintiff FDIC and the private plaintiffs complied with the rules: plaintiff FDIC obviously recognized the possible importance of Mr. Southerland because it noticed him for deposition; and, plaintiffFDIC ultimately decided, [br whatever reason o~" reasons, not to depose him. Plaintiffs cannot now reopen the discovery period to conduct the depositions that could have been, and conceivably should have been, taken. In short, defendant complied with discovery procedures and plaintiffs knew that Mr. Southerland possessed potentially relevant information. For their own reasons they neglected to

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depose him. There has hence been no violation of the discovery rules and no grounds for the remedies sought by plaintiffs. Accordingly, the motions to strike, and alternative motions to reopen discovery, are denied.

A. SMITH SENIOR JUDGE