Here’s the transcript again too.
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Fairholme Funds, Inc., et al. v. USA 3/31/2015
PROCEEDINGS
—–
(Proceedings called to order at 11:03 a.m.)
MR. COOPER: — Fairholme and others. With me this
morning, Your Honor, are Mr. Colatriano —
MR. COLATRIANO: Good morning, Your Honor.
MR. COOPER: — well known to the Court, and Mr.
Thompson —
MR. THOMPSON: Good morning, Your Honor.
MR. COOPER: — also well known to the Court. On
the phone today is our client, the general counsel of Fairholme, Christine Cubias.
THE COURT: And for the United States?
MR. DINTZER: Good morning, Your Honor. Kenneth Dintzer for the Department of Justice, representing the United States. And with me at counsel table today, Your Honor, is Gregg Schwind, Elizabeth Hosford, Renee Gerber, and Anthony Schiavetti.
THE COURT: Very good. Thank you so much.
MR. DINTZER: Thank you, Your Honor.
THE COURT: Well, before we begin this morning, I advise the parties of some troubling activity that
wanted to
has occurred that in no way involves your clients. It’s troubling to the Court because there is the specter that’s — that may have been raised that there may be some unscrupulous
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1 people that might be trying to prey on investors. I don’t
2 know if that’s, in fact, the case or not, but I will just let
3 you know what happened yesterday.
4 Faxed to our Court, to nearly every judge on this
5 Court and special master, was a 38-page document. It’s
6 rambling, largely incoherent. It references today’s status
7 conference, the case number, the conservatorship, FHFA, the
8 Department of Treasury, the network sweep, the housing —
9 well, HERA. The document also references King James I, as
10 well as the First Charter of Virginia from 1606, quotes from
11 the Holy Bible, Franklin and Eleanor Roosevelt, and double-
12 entry bookkeeping. The individual who sent these — this —
13 responsible for the mass faxing refers to herself as the
14 “revocable living trust.” I’ve seen that in a number of tax
15 cases with sovereign citizen cases. I don’t know if she’s
16 part of that or not. I have no idea.
17 But, one, it was troubling to have this mass fax
18 nonsense going on, but upon further investigation, I’ll just
19 say, by my law clerk, as it turns out there is — now, I
20 don’t know whether these articles are accurate or whether
21 they’re — just something appears in cyberspace doesn’t mean
22 it’s accurate, but there are articles that appear online that
23 claim that the individual with the identical name to the
24 person who sent the fax was involved in a number of
25 confidence schemes and one Ponzi scheme. And I don’t know
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1 whether it originated out of Canada, but it targeted U.S. and
2 Canadian investors.
3 Apparently, they were able to bilk, I believe, over
4 600 investors out of their hard-earned money and I would hate
5 to think that any of the stockholders, the shareholders in
6 Fannie and Freddie, are being targeted by unscrupulous
7 people. AllIcansayisif–I’mnotsureifthisisthe
8 public service announcement portion, something that I don’t
9 usually — I’ve never engaged in before, if an investor would
10 be contacted by someone who claims that they represent the
11 Court, that those people should know that no one has been
12 retained by this Court to engage in asset recovery.
13 Apparently, part of these other Ponzi schemes, if,
14 in fact, what I read online is accurate, that the individual,
15 again with the same name as the person who sent the fax —
16 I’m not saying it’s the same person; I’m not even saying any
17 of these articles I read are even accurate — but someone
18 with the same name apparently claimed to be an expert in
19 asset recovery.
20 So, just people should be cautious about with whom
21 they deal, and we all heard about the Nigerian prince who’s
22 in need of assistance. We’ve all heard about the scams from
23 — in theory, cold calls from the IRS telling the individual
24 that their — that they owe the Government X number of
25 dollars and would they please provide their bank account
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1 information or they’d even be willing to take a credit card
2 over the phone.
3 So, you have to know who you’re dealing with. You
4 need to be careful, and I just mention that today, just in
5 case there are some citizens here in the courtroom today who
6 may have received either a phone call or otherwise be
7 contacted by this individual. I have alerted the U.S.
8 Marshals. They’re involved; they are investigating this.
9 The phone calls to various chambers yesterday from this
10 individual indicated that it was from a federal office, it
11 had WITS on the caller ID; therefore, a number of the
12 chambers thought it really was someone from the Federal
13 Government contacting them.
14 It was a spoofed caller ID. And, you know, there
15 are ways that people can alter the phone numbers that they’re
16 using so it appears that it’s coming from the IRS or the
17 Federal Government. So, just please be careful with whom you
18 deal.
19 So, I apologize for taking counsel’s time this
20 morning with that, but it was of concern to me. So, I thank 21 you.
MR. DINTZER: Thank you, Your Honor.
MR. COOPER: Thank you.
THE COURT: I’m ready to begin.
MR. COOPER: I think we’re here, Your Honor, this
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1 morning on Mr. Schwind’s request, and so perhaps it would be
2 more appropriate for him to open the proceedings.
3 MR. SCHWIND: Thank you, Your Honor, and good
4 morning. What we would like to do is provide the Court today
5 first a general update — a status update of where we are
6 with discovery and then turn to the issue identified by the
7 parties in the joint status report, having to do with the
8 depositions of government witnesses.
9 As to the status of discovery, the Court extended
10 the period of discovery in this case until the end of June.
11 Since the last status conference on February 25th, document
12 review has continued, and since then, there have been further
13 productions of Treasury and FHFA documents, again, the two
14 agencies that are the focus of document discovery in this
15 case.
16 We have also produced a revised privilege log. In
17 total, just to give the Court an idea of the volume of
18 documents we’re talking about, we have now produced in this
19 case, in this litigation, over 400,000 pages of documents.
20 That’s from FHFA and Treasury combined. We hope to complete
21 our document production in April, and that, of course, will
22 be pending final resolution of the privilege logs. We’ve
23 agreed with Plaintiffs to produce revised privilege logs
24 every two weeks. We’re going to continue to do that, and
25 we’re making our best efforts to complete those logs by
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1 sometime in May.
2 In addition, we have met with Plaintiffs. Your
3 Honor will recall at the last status conference that the
4 Court asked the parties to meet and try to —
5 THE COURT: You kindly agreed.
6 MR. SCHWIND: — talk about whether there were any
7 privilege issues that were categorical in nature, that didn’t
8 require a document-by-document review or anything like that
9 or any type of categorical privilege issues that could be
10 briefed while document discovery is ongoing. We’ve done
11 that. The parties have exchanged some ideas on some
12 categorical privilege issues that they believe, again, do not
13 require the type of document-by-document review that would be
14 incredibly time-consuming at this time.
15 That said, we are concerned that a number of what
16 we’ll call sideshow issues raised by Plaintiffs will delay
17 our completion of document discovery and our completion of
18 the privilege logs in this case. And I want to talk about
19 those in conjunction with the second issue, again, the one
20 identified in our joint status report having to do with the
21 depositions of government witnesses.
22 We want to make the Court aware of some potential
23 problems out there, and I think we’ve all been involved in
24 cases where judges have looked askance at us and said why
25 didn’t you tell me about this earlier. So, we’re merely just
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1 doing — we’re trying to make the Court aware so if this does
2 come up later on, we’ve at least tried to solve it up front.
3 First of all, the depositions that Plaintiffs have
4 proposed, and we agreed on dates with them, but these
5 depositions have several elements to them that make them —
6 that make them premature and potentially disruptive. First,
7 we have not completed our document productions of either FHFA
8 or Treasury documents. Moreover, Fairholme has stated that
9 it intends to challenge many assertions of government
10 privilege in this case. And, of course, if the Court
11 sustains any of those challenges, it may result in the
12 production of additional documents.
13 Now, what this means is that Fairholme intends to
14 depose government witnesses before documents have been
15 produced in this case, and we’ve told Plaintiffs this, point
16 blank. And we’ve told them that we believe these depositions
17 are premature. And, again, we’ve agreed on dates with
18 Plaintiffs, because the Court did allow depositions in its
19 February 26th, 2014, discovery order, and we understand that.
20 We’re not trying to fight that.
21 But what we do have a problem with, and this is why
22 we wanted to bring this to the Court’s attention today, is
23 that assuming these depositions go forward, we’re not going
24 to agree to further depositions of these witnesses should
25 Plaintiffs say, well, oh, now, we have these new documents.
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1 2 3 4 5 6 7 8 9
THE COURT: Understood.
MR. SCHWIND: And — and Plaintiffs have not agreed with that. We’ve told them we’re not going to agree, we’re going to move to quash, and Plaintiffs’ response has been, well, we’ll deal with that problem when it happens.
THE COURT: No. I agree with you. I’m going to wait to hear what Plaintiffs’ counsel has to say, but it’s — what’s always been fair is you don’t have to have this kind of piecemeal approach to a deposition, that if a counsel wants to engage in a deposition without having all of the documents, they do so at their peril. It’s one bite at the
10
11
12 apple.
13 It’s one thing if you’re talking about, well,
14 30(b)(6) deponent, you’re trying to find out who is a
15 repository of the — of documents, if you’re trying to
16 identify additional witnesses down the chain, and that’s a
17 purpose of the deposition, but if the purpose of the
18 deposition is to depose individuals to find out how they’re
19 tied to the specific documents and to get further insights
20 into what transpired, then they get one bite at the apple.
21 They get to take one deposition.
22 MR. SCHWIND: Thank you, Your Honor. And just
23 to — I won’t dwell on that aspect anymore.
24 THE COURT: Can you explain a little more to me,
25 though, what is — with these witnesses, what is — are they
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taking a deposition to determine whether or not there are other repositories of information? Is that the purpose of the deposition? Or is it to depose and I’ll hear — obviously I’ll hear — get the Plaintiffs’ world view — but what is your understanding of these depositions?
MR. SCHWIND: Well, none of the depositions is a
Rule 30(b)(6) deposition.
THE COURT: Right. No, I understand that.
MR. SCHWIND: First of all, Your Honor.
THE COURT: But, I mean, is it —
MR. SCHWIND: Second — and, secondly, of course,
Plaintiffs haven’t disclosed, nor do they necessarily have an obligation to tell us —
THE COURT: Right.
MR. SCHWIND: — all the matters that they want to question the witness on. But the parameters of the depositions, as we understand it, are the Court’s — are the subjects in the Court’s discovery order.
THE COURT: Okay.
MR. SCHWIND: That said, our expectation, and we expect this to be accurate, is that this is not, you know, Plaintiffs trying to find out where documents are. One of the witnesses, for example, is one of the signatories to the third amendment. Okay, it’s the former director of the FHFA. There are two other FHFA witnesses, again, whose names are on
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1 a number of documents that we’ve produced in this case and
2 that were — at least one of them was involved with the third
3 amendment; another one was involved in the conservatorship
4 decision back in 2008. So, we expect these to be substantive
5 depositions, not merely depositions of the type Your Honor
6 referred to.
7 THE COURT: The only exception that I would find to
8 what I said would be if at the deposition of another witness
9 if something — if there would be something unforeseen that
10 would come up, the Plaintiffs could not have anticipated,
11 despite having all the documents they need, that there might
12 be — there can be grounds for reopening a deposition, but to
13 take multiple depositions of the same individual is — it’s
14 not fair and it’s not efficient. So, you know, I’ll wait to
15 hear what the Plaintiff has to say. They may have a good
16 explanation as to why they want to go down the road that they
17 do, but I’m just indicating to you what I — how I would —
18 how I intend to rule if Plaintiffs cannot give me a good
19 reason as to why they want to engage in this piecemeal
20 approach to deposing a particular witness.
21 MR. SCHWIND: Right. Thank you, Your Honor. And I
22 just want to point out briefly that everything we do is
23 essentially a distraction from our main focus right now,
24 which is document production, which is getting the privilege
25 logs done. And this would be a major interference with our
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1 ability to do that.
2 Again, we are trying to work with Plaintiffs, but
3 if they could merely, again, push these out until after we
4 finish those things, again, it would greatly assist our
5 ability — excuse me — to complete document production on
6 the schedule that the Court has set out, which is our intent.
7 Thank you, Your Honor.
8 THE COURT: Understood. Thank you.
9 Sorry to be the wet blanket before you even start,
10 Mr. Cooper.
11 MR. COOPER: Well, Your Honor, I think there is
12 some confusion at work here, and I hope I can clear it up.
13 If counsel for the Government is saying that his only concern
14 is that we wait to take any deposition until he completes his
15 document production, which he has said he will complete, and
16 I’ve not heard even today or before today any suggestion that
17 he’s off track here, but that he will complete document
18 production by the end of April.
19 If that — and that — and that after that time he
20 will have no concerns about our going forward with
21 depositions in May and in June, because, remember, we have an
22 end-of-June discovery cutoff. Then I — then I don’t think
23 we’re going to have any disagreement. We’ll be willing to
24 put the depositions that we have scheduled with counsel by
25 agreement, which — one of which takes place on April 17th,
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the other one takes place on April 29th. We’ll be happy to put those over for two weeks or so.
THE COURT: Well, let me —
MR. COOPER: But —
THE COURT: Well, let me just ask. Mr. Schwind,
will you be able to complete the production of documents as Mr. Cooper has outlined?
MR. SCHWIND: The production of documents, Your Honor, but not the — not the completion of the privilege logs in this case. We still have the issues out there, and, again, if it’s Plaintiffs’ intent to challenge privilege, and if Plaintiffs hope to discover more documents as a result of that privilege challenge process, we think that — assume we can do that. But the answer to your questions are yes, we do, but we don’t think that solves the problem.
THE COURT: Then I understand —
MR. COOPER: There’s the rub.
THE COURT: — and that’s — well, that’s why I’m
going back and forth. And when do you think the privilege log completion — when do you anticipate completing the privilege logs? I know you said you’re supplementing every two weeks. Was that correct?
MR. SCHWIND: Yes, Your Honor.
THE COURT: Okay.
MR. SCHWIND: We are targeting May. We’ll say end
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1 of May. I don’t want to commit to any earlier than that.
2 THE COURT: Okay. Okay, the end of May. All
3 right. And I will — and I know the last thing you want me
4 to do is to reset the deadline, but rather than have the
5 Plaintiff be penalized by having the clock run out on them, I
6 will enlarge the discovery schedule so that you have the
7 entire universe of documents that you need, that you will
8 have all the privilege logs that you need before you conduct
9 your depositions. I mean, fair is fair.
10 MR. COOPER: Your Honor —
11 THE COURT: But, again, I know you don’t want to
12 keep pushing out the time.
13 MR. COOPER: There is the further issue that
14 counsel for the Government has raised with us, but which has
15 not come forward clearly yet, and that is, after the document
16 production is complete at the end of April and after we get a
17 nonprovisional final privilege log, which we have been
18 assured is going to contain thousands of documents, after we
19 get that by the end of May, I have little doubt, frankly,
20 that the parties — that the Plaintiffs are going to dispute
21 some of the claims of privilege. And at that stage, we will
22 have a document-by-document arm wrestle with the Government
23 over that.
24 Our concern is this, Your Honor, and it has been
25 what we, at least, have understood to be the Government’s
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1 explicit position, that our depositions should not take
2 place, not only until the end of May and beginning presumably
3 in June with an end of June deadline, which you’ve just said
4 you will relax, but rather that the depositions, as far as
5 the Government is concerned, should not take place until all
6 privilege issues have been resolved.
7 And it is their position, as at least we understand
8 it, that if a deposition takes place before all privilege
9 issues are resolved and the Government feels it necessary to
10 instruct a witness not to answer because of a claim of
11 privilege and we contest that claim and the Court ultimately
12 agrees with us, that we will not have an occasion after that
13 because the Government will preclude our ability to possibly
14 re-empanel that witness and ask that witness about a document
15 that has just now come into our possession that we never had
16 before.
17 Now, the Court opened the hearing by noting that if
18 our purpose in these depositions is to question a witness
19 about a document or about documents and there’s substantive
20 knowledge of the case, on the topics and only the topics that
21 this Court has authorized us to inquire into, we understand
22 that, we accept those restrictions in deposition discovery,
23 no less than in document discovery. But if our purpose is to
24 do that and we don’t have a document because we’ve not waited
25 until the end of document discovery, well, then we’re taking
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1 that risk. We understand that. We understand that. We
2 won’t get a second bite at that witness with respect to a
3 document that is produced to us as responsive.
4 But what we can’t accept, Your Honor, and we can
5 find no authority that suggests we ought to accept, the
6 notion that if a deposition is taken before all privilege
7 issues have been resolved, as they almost always are, in my
8 experience anyway, it’s not at all infrequent that claims of
9 privilege come up in depositions.
10 THE COURT: You’re absolutely right.
11 MR. COOPER: Not at all infrequent. And those
12 claims get either resolved by the parties or they get brought
13 to you and you resolve it, and once it’s resolved, then with
14 — if the party disputing the claim of privilege prevails,
15 some new information comes forward. And then maybe it
16 warrants asking that witness more questions and bringing them
17 back together for that narrow purpose.
18 And, Your Honor, we’re just — we just want to make
19 sure — because we understand the Government to take a
20 position contrary to this, we want to make sure that we will
21 not be foreclosed here and now from coming back possibly if
22 nonprivileged information comes into our possession after
23 what we expect to be a lengthy period of disputing on
24 privilege issues. The Government expects and has said in its
25 papers here that it expects that to take months.
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1
2 privilege log that we have received, the provisional
3 privilege log, as the Court will recall from our last
4 conference, not even final, we haven’t got a single document
5 or final claim of privilege yet that we could bring to this
6 Court and get this process started, if we disputed it. And
7 maybe we won’t dispute these thousands of documents, but the
8 truth is we know we will because we’ve got 900 provisional
9 claims of privilege, and if they remain, there’s going to be
10 some disputes.
11 But after we get in the end of May thousands of
12 assertions of privilege over documents, we believe we’re
13 going to have meritorious objections to those claims to bring
14 to the Court. And, Your Honor, we do not think it is
15 feasible to delay depositions until all that is done. I know
16 of no precedent for doing that. And if the disputes over
17 privilege yield additional information and it warrants an
18 additional deposition, at least to the Plaintiffs’ mind, and
19 the Government resists, we’ll bring our complaint to you and
20 you’ll either agree with us or you’ll agree with them. But
21 that’s how these things work.
22 THE COURT: Well, just — well, let me just ask you
23 this. I mean, Mr. Schwind has represented to me that over
24 approximately 400,000 pieces of paper — I don’t think it’s
25 just been documents.
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We don’t doubt that it will if, in fact, the
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1 MR. SCHWIND: Pages.
2 THE COURT: Pages have been produced. Thank you.
3 Now, I could have a dedicated phone line for the time that
4 you’re going through depositions and you all can have me on
5 speed dial and I can just sit at my desk all day and do
6 nothing but rule on privilege, whether a document is
7 privileged. That doesn’t seem to be terribly — I understand
8 why the Plaintiff would be anxious to move forward with
9 taking the deposition, but isn’t it cleaner to have all the
10 documents produced and then determine what’s privileged and
11 what’s not by whether you were going seriatim and just taking
12 each document and making that determination where the parties
13 can agree as to what’s privileged and what’s not.
14 The general case, at least in my experience as a
15 litigator, was when a — it was not unusual to have a
16 document challenged at a deposition as being privileged, but
17 it was more the unusual case — and it wasn’t that there
18 would be a banker’s box full of documents that were going to
19 be challenged. It might have been one or two, three or four
20 at the most. Maybe that’s just my unique experience. But I
21 never — it was a rare occurrence that someone would go into
22 a deposition knowing that 45 documents were going to be
23 challenged and they would have to bring it to the judge that
24 day for a ruling.
25 MR. COOPER: And, Your Honor, I — forgive me,
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1 because I didn’t mean to suggest that scenario. The scenario
2 I expect is one in which we will not have those documents,
3 those 45 documents. We will not have them.
4 THE COURT: Right.
5 MR. COOPER: We’ll be taking a deposition, but we
6 will be — you know, again, the deposition discovery will be
7 delayed a period of months, according to the Government
8 itself, as the parties dispute over the validity of the
9 claimed assertion of privilege, assertions that we can’t
10 bring to you on a categorical basis —
11 THE COURT: Right.
12 MR. COOPER: — because the Government and we, you
13 know, can’t — we’ve only identified — the Government’s only
14 agreed to one categorical issue that could be resolved by the
15 Court in advance, and that simply isn’t going to narrow the
16 privilege issue. So, that’s off the table. We are — the
17 parties and the Court, unfortunately, are going to be going
18 through document-by-document assertions of privilege and
19 disputes.
20 And, so, we’d like to take depositions now or
21 promptly anyway, at least after the close of document
22 discovery, when they have said — they have produced all
23 responsive, nonprivileged documents to us. We have them all.
24 The only thing they’re not producing to us are the privileged
25 ones, the thousands of privileged ones. We’d like to begin
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1 depositions because if, again, deposition discovery is
2 delayed until all the disputes are resolved, that would delay
3 depositions months from now. And, Your Honor, that has very
4 real costs to the interests, we believe, in our professional
5 judgment, to our — to our — the interest that we’re here to
6 advance, our client’s interest.
7 So, the scenario, Your Honor, will be that there
8 will be documents that we don’t have to question a witness
9 about, but that months later, after a dispute has been
10 resolved and the Court perhaps resolves it favorably to the
11 Plaintiffs, we’ll come into the possession of a document or
12 documents that will then warrant a supplemental deposition to
13 ask the witness about those particular documents, a narrow,
14 focused deposition at that time. But this is not at all
15 unusual.
16 What we are — you know, we’re hopeful that the
17 Court will not suggest here or advise us, that it’s the
18 Court’s judgment, that if we take a deposition even after
19 document production is complete, but before the drawn-out
20 process of resolving privilege claims has been completed,
21 that any victories we may win in that process will — will do
22 us no good, at least in the sense that we won’t be able to
23 then potentially seek the Court’s permission to take a
24 supplemental deposition of a witness that we’ve already
25 deposed.
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1 THE COURT: What would you be gaining, Mr. Cooper,
2 by — rather than having the entire universe of documents
3 that you need to depose a witness, what good does it do to
4 move forward with that deposition?
5 MR. COOPER: Your Honor, we are very concerned
6 about the period of time that it has taken — that’s
7 discovery taken already. We’re at the one-year anniversary
8 of the discovery. We’ve had — now, we’re on our third
9 extension of time with respect to discovery. It may well be,
10 Your Honor, that the depositions we contemplate taking now,
11 we won’t — you know, what we can’t know is whether we will
12 find it necessary to come back to the Court and ask for a
13 supplemental deposition because of newly released and
14 disclosed information.
15 And, Your Honor, witnesses’ memories fade and these
16 events, particularly the events with respect to the third
17 amendment
18 witnesses
19 to — you
20 about the period of time that has taken place.
21 THE COURT: How much —
are — with every passing day, they’re fading and become unavailable and they become more difficult know, to schedule and we’re becoming very nervous
22 MR. COOPER: One thing I should say, that the
23 depositions that we have now agreed to schedule, the
24 Government has agreed to schedule with us, are depositions
25 that are limited to some FHFA personnel, three FHFA
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1 personnel. We identified them after the January 28th, I
2 think, status conference when the Government represented to
3 the Court and to us that FHFA document discovery was very
4 nearly complete, that there would be only one more document
5 production relating to FHFA documents.
6 And, Your Honor, we got a substantial document
7 production with respect to FHFA documents last week, late
8 last week. We assumed that FHFA document production was
9 done. We were informed this morning that that’s not
10 and, in fact, there are going to be more than one —
11 additional one that, on January 28th, the Government
12 represented was left. And, so, we focused on FHFA personnel
13 because we assumed that we would have the complete document
14 production with respect to FHFA personnel. And the only
15 thing left would be documents that they withheld on a claim
16 of privilege that may or may not come into our possession
17 down the road.
18 So, Your Honor, we — that sensible process is
19 exactly what occurred to us as well. But we — again, we are
20 very, very reluctant to delay deposition discovery. I’m put
21 in mind of an exchange — I’m sure you don’t remember this,
22 but an exchange that you and I had in — back in July of
23 2014, when we were arguing about the Government’s motion for
24 a protective order and when the Court put in place the order
25 — the confidentiality requirements that have governed
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1 discovery ever since. But the Court urged me to start taking
2 — just take depositions.
3 “THE COURT: Well, let me ask you this, with the
4 documents, what about just taking depositions of
5 conservators?”
6 And then I respond, “Well, we’re looking forward to
7 doing that.
8 “THE COURT: Wouldn’t that just resolve it? You
9 wouldn’t have to then ask for any internal documents. I
10 mean, do you get what you need to meet the ripeness
11 argument?” One of the jurisdiction arguments. “And take one
12 at a time, your choice.”
13 I responded, “Yes, but, Your Honor, we do
14 anticipate taking depositions and we’ve identified and the
15 Government has identified individuals to us who have the
16 relevant information in their possession. Before we take a
17 deposition, we believe that the discovery that the Court has
18 authorized is a necessary element of that.”
19 Then the Court responded, “Well, discovery —
20 obviously, it includes depositions.”
21 So, Your Honor, it’s — we’ve — now, it’s nine
22 months after that exchange and, yes, we’ve been anxious to
23 take depositions throughout those nine months. We believe
24 that our interests are being prejudiced now by not taking
25 depositions. And, so, we would like to move forward and we
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1 would plan to move forward unless the Court has an objection
2 to it. But, again, we — we are — we urge the Court not to
3 foreclose now, in advance, the possibility that the Court
4 might agree down the road that newly produced information
5 would warrant a supplemental deposition.
6 THE COURT: Well, no one has requested that I quash
7 a deposition. It sounds like what you all are looking for is
8 an advisory ruling, which judges don’t provide. But I
9 certainly — I don’t want to see witnesses inconvenienced.
10 MR. COOPER: Of course not.
11 THE COURT: However, if Plaintiffs can make an
12 argument at a later time as to why they need to — why it was
13 prudent to take the deposition, because I don’t know whether
14 someone is — no one has said that any of the witnesses are
15 gravely ill, but if to make sure that memories don’t fade any
16 more than they generally do. I don’t know whether or not you
17 would be able to wrap up the dispute with discovery within
18 just a few months. If you could, it would make sense to
19 perhaps wait on the depositions. If you can’t and it’s going
20 to be an extended time period, then I can understand why you
21 might want to move forward.
22 But since there’s only one of Mr. Schwind and his
23 other colleagues, then I don’t know, given the limited
24 resources they have, whether they can both be conducting
25 depositions and conducting document reviews and producing
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1 privilege logs. So, I don’t know. I guess you just have to
2 weigh what you think is best for your client and make the
3 prudent decision.
4 MR. COOPER: Your Honor — yes, Your Honor, I
5 appreciate that, and that is what we have been — obviously,
6 our guiding standard from the beginning and today. And,
7 again, if the only thing at work here is postponing the
8 depositions until the end of April when the Government has
9 represented it will have completed document production, then
10 that’s something we can live with. Postponing the
11 depositions until after, you know — you know, who knows how
12 long of litigating privilege disputes with the Court, that’s
13 something that is going to be very, very hard for us to live
14 with. But, you know, I hear the Court and I really don’t
15 have anything to add to those points.
16 THE COURT: Very good, thank you.
17 MR. SCHWIND: Thank you, again, Your Honor. I just
18 want to respond briefly to Plaintiffs’ assertion that we have
19 stated that the privilege challenge process was going to
20 involve months. We have never said that. In fact, the only
21 thing delaying discovery after May, after we hopefully
22 complete our privilege logs, is Plaintiffs’ challenge to
23 documents. So, it’s not our expectation that the privilege
24 challenge document will take months. It’s really up to
25 Plaintiffs what they choose to make of that process.
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1
2 proposing is the norm. We have time in this case to do
3 things in the right order. They haven’t put on any even hint
4 of prejudice, any demonstrated prejudice. We have time to do
5 things in the right order in this case and, again, I think,
6 as Your Honor has suggested, the right order is that
7 Plaintiffs have documents, then they do their depositions,
8 and we go forward after that. So, I just want to make that
9 point again, that how long this process takes, the privilege
10 challenge process is up to Plaintiffs. So, for Plaintiffs to
11 say it’s not fair to make them put off depositions until this
12 process is complete, well, they have control of that process.
13 THE COURT: Well, certainly, what you and Ms.
14 Hosford and Mr. Dintzer, going forward in the privilege logs,
15 I mean, it’s certainly — it’s not as though Plaintiffs are
16 in the driver’s seat. I mean, they have to review the
17 privilege logs that you provide and then determine what they
18 will challenge or what makes sense to them.
19 So — but what seems to me, at this stage, is that
20 it makes sense to wait until documents — the entire universe
21 of documents have been produced and then they can examine the
22 privilege logs and then make a determination of whether or
23 not it’s prudent to move forward. In the ideal world, they
24 would wait and review the privilege logs with you, determine
25 if perhaps you might have been overly conservative in
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So, we don’t think that what Plaintiffs are
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1 documents you’ve designated to be privileged, work out what
2 issues you can, then bring the remaining ones to me. I have
3 confidence that you all can resolve that on your own, but if
4 you need me to become involved, I’m happy to do so.
5 But that’s the ideal world. I don’t know
6 whether — but, again, I can understand from Mr. Cooper’s
7 perspective that if the process would take another eight
8 months or so, that that’s so far removed from the original
9 time line that the Plaintiffs will be concerned about
10 memories fading. But, you know, again, that’s a decision
11 that each counsel will make on behalf of their client as to
12 what is in their best interest. But I appreciate everything
13 that you and your colleagues have done in moving the case
14 forward and staying on top of the discovery issue.
15 MR. SCHWIND: Thank you, Your Honor. We’ll
16 continue to do so.
17 THE COURT: Thank you.
18 Mr. Cooper?
19 MR. COOPER: Thank you, Your Honor, as will we.
20 Thank you.
21 THE COURT: Okay, very good. Well, thank you very
22 much. I’m delighted that the two sides, while having very
23 differing views of the case certainly, seem to work very well
24 together despite, again, having different world views. But
25 if there’s something else that you think I can assist the
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1 parties in doing with regard to resolving any of the
2 privilege disputes, please bring that to me sooner than
3 later. It’s up to Plaintiffs as to how they want to conduct
4 the depositions, you know, what time line. You all are very
5 able counsel.
6 So, I — and I’m sure you will do what is in your
7 clients’ best interest, and then if the Government has a
8 different world view in terms of whether or not depositions
9 should have been taken at the time they were originally
10 taken, well then, I’ll deal with that when it comes.
11 Hopefully, we won’t go down that road, but whatever you need
12 to do on behalf of your client, I know you will. And
13 whatever you give me to resolve, I will resolve. So, thank
14 you very much and good morning.
18 a.m.)
MR. COOPER: Thank you, Your Honor.
MR. SCHWIND: Thank you, Your Honor.
(Whereupon, the hearing was adjourned at 11:46
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CERTIFICATE OF TRANSCRIBER
I, Sara J. Vance, court-approved transcriber, certify that the foregoing is a correct transcript from the official electronic sound recording of the proceedings in the above-titled matter.
DATE: 3/31/2015
s/Sara J. Vance
SARA J. VANCE, CERT
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