Free Notice (Other) - District Court of Federal Claims - federal

Case 1:95-cv-00468-TCW

Document 215

Filed 06/29/2007

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ____________________________________ ASTORIA FEDERAL SAVINGS & LOAN ASSOCIATION, Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) )

No. 95-468C (Judge Thomas C. Wheeler)

DEFENDANT'S NOTICE OF THE STATUS OF ITS SEARCH FOR EVIDENCE Pursuant to the Court's directive issued during the hearing held on June 6, 2007, defendant, the United States, respectfully provides notice of the status of its search for evidence relating to any potential "TAPA" analysis performed by the Federal Deposit Insurance Corporation ("FDIC") with respect to Fidelity New York, FSB ("Fidelity"). In short, we have obtained no evidence, in either documentary form or through discussions with persons who might have known of such analysis if it existed, indicating that a "TAPA" analysis was ever performed with respect to Fidelity. During the hearing on June 6, 2007, we reported to the Court the steps that we had taken to locate evidence relating to any potential "TAPA" analysis for Fidelity. Hearing Tr. (June 6, 2007) at 5866-70. Since that time, the OTS has reported to us that they have reviewed all boxes of documents in their custody that they believe might have held an FDIC "TAPA" analysis for Fidelity if it existed, and they did not locate any such analysis. We contacted Angelo Vigna, and he has no recollection of any "TAPA" analysis for Fidelity. Similarly the FDIC has reported to us that they have located no "TAPA" analysis in the boxes of documents that they have reviewed

Case 1:95-cv-00468-TCW

Document 215

Filed 06/29/2007

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that they believe might have held such an analysis if one existed. The FDIC has also reported that they have had discussions with Thomas Beshara, Simon Levy, Steven Fritts, and Daniel Dionne, and none of them is aware of any "TAPA" analysis performed by the FDIC for Fidelity. In conclusion, we have not obtained or reviewed any evidence indicating that a "TAPA" analysis was in fact performed by the FDIC with respect to Fidelity. Given that an attempt "to prove a negative" inherently provides the potential for unlimited effort, we believe that any further searches of documents (e.g., a review of the more than 400 boxes of FDIC documents previously made available to plaintiff during the discovery period) would likely not be fruitful, and certainly would not be an appropriate obligation of the Government to pursue at this time.

Respectfully submitted, MICHAEL HERTZ Deputy Assistant Attorney General

JEANNE E. DAVIDSON Director

/s/ Kenneth M. Dintzer KENNETH M. DINTZER Assistant Director

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Case 1:95-cv-00468-TCW

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

OF COUNSEL: ARLENE PIANKO GRONER ELIZABETH M. HOSFORD BRIAN A. MIZOGUCHI JOHN J. TODOR SAMEER YERAWADEKAR

June 29, 2007

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Case 1:95-cv-00468-TCW

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CERTIFICATE OF SERVICE

I hereby certify that on this 29th day of June 2007, a copy of the foregoing "DEFENDANT'S NOTICE OF THE STATUS OF ITS SEARCH FOR EVIDENCE" 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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