Discussion on Motions to Compel SEC Witness
Transcript of Discussion on Motions to Compel SEC Witness
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UNITED STATES DISTRICT COURT
DISTRICT OF COLUMBIA
In re Federal National Mortgage
Association Securities, Derivative, andERISA Litigation
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MDL No. 1668
In Re Fannie Mae Securities Litigation
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Consolidated Civil Action No.: 1:04-CV-01639
Judge Richard J. Leon
LEAD PLAINTIFFS REPLY MEMORANDUM TO KPMGS OPPOSITION TO LEAD
PLAINTIFFS MOTION TO COMPEL TESTIMONY FROM DONALD NICOLAISEN
OR, ALTERNATIVELY, TO QUASH ANY FUTURE DEPOSITION DISCOVERY OFOFHEO BY DEFENDANTS
Lead Plaintiffs, the Ohio Public Employees Retirement System and the State Teachers
Retirement System of Ohio (collectively, Lead Plaintiffs), through counsel, respectfully submit
this reply memorandum to KPMG LLPs (KPMGs) Opposition to Lead Plaintiffs Motion for
an Order Compelling Compliance with Lead Plaintiffs Subpoena Duces Tucem for the
testimony of Donald Nicolaisen. As described below, KPMGs contentions that Lead Plaintiffs
motion to compel is untimely and unwarranted are baseless and should be rejected.
I. LEAD PLAINTIFFS HAVE NOT DELAYED PURSUIT OF MR. NICOLAISENSTESTIMONY
Donald Nicolaisen has been on Lead Plaintiffs witness list since the first such list was
provided to the parties on March 23, 2007. See Ex. A. Furthermore, contrary to KPMGs
contention that Lead Plaintiffs did not attempt to subpoena Mr. Nicolasien until June 2008, Lead
Plaintiffs twice attempted to effect service of the subpoena on Mr. Nicolaisen in December 2007
and March 2008, notice of which was provided to all Defendants. See Exs. B and C.1
1Unable to directly serve Mr. Nicolaisen, Lead Plaintiffs were forced to serve him via the United States
Securities and Exchange Commission (SEC).
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Moreover, Mr. Nicolaisen has been on KPMGs own witness listsince April 9, 2007 (see Ex. D),
and on the Individual Defendants witness list since September 12, 2007 (see Ex. E). Indeed, the
Individual Defendants listed Mr. Nicolaisen as a key witness requiring a multi-day
deposition. See Id.
Additionally, the deposition schedule in this case (particularly as influenced by KPMGs
own requests) has also contributed to the timing of Mr. Nicolaisens deposition. KPMG argued
that no depositions should occur before Fannie Maes and KPMGs document production was
complete. See Ex. G at 64-66. When asked by Lead Plaintiffs if any depositions could proceed
that were not affected by the Fannie Mae and KPMG document production, KPMG responded
that Mr. Nicolaisen was a witness whose testimony needed to wait until that production was
complete. KPMG subsequently sought (and the Court granted) a stay of depositions until July
15, 2008 so that Fannie Mae and KPMG could complete their production. See Case
Management Order No 5, entered May 7, 2008 (Docket No. 640). Soon thereafter, two
additional stays were granted, from September 8, 2008 until January 6, 2009, following Fannie
Maes entry into conservatorship.2 Pursuant to the last stay, depositions were not permitted to
resume until January 21, 2009.
However, Individual Defendants objected to the taking of Mr. Nicolaisens deposition
until all OFHEO documents had been produced. See Exhibit E. OFHEO has produced a
substantial number of additional documents since January 21, 2009,3 and there have been
2See Order Granting Stay of All Proceedings Pursuant to 12 U.S.C. 4617 entered September 22, 2008
(Docket No. 673) and Minute Order dated October 20, 2008, stating depositions could not resume until
January 21, 2008.
3 According to the Xerox document database being shared by all parties, OFHEO has made the following
productions:
5/20/09 - 74,992 pages
5/22/09 - 37,150 pages
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numerous motions to compel OFHEO filed by Defendants and in-chambers conferences to try to
resolve these OFHEO document issues since January 21, 2009.4
Finally, OFHEO document production issues are still not fully resolved. KPMG filed
another motion to compel OFHEO on July 24, 2009 (Dkt. 763) and Defendant Spencer just filed
another motion to compel against FHFA/OFHEO on September 15, 2009 (Docket No. 781)
these motions have yet to be ruled upon. Moreover, KPMG recently issued an additional
document subpoena on OFHEO. See Ex. F.
Accordingly, KPMGs claim that Lead Plaintiffs have waited four years to pursue Mr.
Nicolaisens testimony is simply not true. It is the Defendants, not Lead Plaintiffs, that have
refused to let Mr. Nicoliasens deposition be taken before now.
5/29/09 - 30,654 pages
6/10/09 - 35,908 pages
6/23/09 - 7 pages
7/7/09 - 56,595 pages
7/8/09 - 39,554 pages
7/16/09 - 140,339 pages
7/24/09 - 75 pages
7/28/09 - 93 pages7/30/09 - 205 pages
8/7/09 - 215 pages
8/10/09 - 17,638 pages
8/24/09 - 610 pages
9/8/09 - 16 pages
4 An in-chambers conference was held to discuss OFHEO document disputes on February 4, 2009 and,
based upon statements made on the record during public status conferences, several more were held
thereafter; Defendant Raines filed a motion to compel against OFHEO on February 26, 2009 (Dkt. No.
700); KPMG joined in that motion on March 4, 2009 (Dkt. No. 703); the Appellate Court affirmed the
District Courts sanction order on March 5, 2009 (Dkt. 705); a hearing on the motion to compel OFHEO
was held March 6, 2009; KPMG filed another motion to compel OFHEO on April 17, 2009 (Dkt. 717 and
Dkt. 722); Individual Defendants filed a joint motion to compel OFHEO on April 17, 2009 (Dkt. 720);Individual Defendants filed a motion for leave to file reply brief in support of their motion to compel
OFHEO on May 1, 2009 (Dkt. No. 726); KPMG filed a motion for leave to file a reply brief in support of
its motion to compel OFHEO on May 4, 2009 (Dkt. 730); OFHEO filed a motion re: Sneak Peek of
exempt documents on May 15, 2009 (Dkt. 735); a hearing on the motions to compel was held on May 27,
2009; a Joint Motion for an order concerning documents withheld as exempt was filed by Individual
Defendants and OFHEO on June 8, 2009 (Dkt. 739); the Court granted the Individual Defendants motion
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II. MR. NICOLAISEN IS A FACT WITNESS WHOSE TESTIMONY IS AT LEASTAS RELEVANT AS THAT OF THE OFHEO WITNESSES WHO HAVE
TESTIFIED
KPMG is wrong that Lead Plaintiffs seek to use Mr. Nicolaisen as an expert. The
evidence adduced to date has shown that Mr. Nicolaisen or representatives from the Office of
Chief Accountant participated in numerous meetings and other communications with Fannie
Mae, Fannie Maes consultants and KPMG where Fannie Maes accounting practices were
discussed. Mr. Nicolaisens participation in these meetings and that of his colleagues at the SEC
involve factual evidence not expert opinion and do not implicate pure opinion testimony.
See, e.g., St. Paul Mercury Ins. Co. v. Capitol Sprinkler Inspection, Inc., C.A. No. 05-2115
(CKK), 2007 U.S. Dist. LEXIS 39606, at *40-43 (D.D.C. June 1, 2007) (permitting a witness to
testify as a fact witness even though such witness might be an expert in his field regarding
information he learned from his pre-litigation inquiries and receipt of information and
materials). That Mr. Nicolaisen is a highly relevant fact witness concerning what occurred at
those meetings cannot be disputed his testimony regarding such facts is therefore wholly
appropriate and further compelled by the strong public interest in resolving the issues in this
case.
Moreover, given that KPMG itself listed Mr. Nicolaisen as a witness to be deposed, it
rings particularly hollow that it now contends that his testimony is irrelevant. Importantly,
Individual Defendants also listed Mr. Nicolisen on their witness list and indicated he was in fact
a key and multi-day witness. Indeed, KPMG does not claim that the nature of Mr.
Nicolaisens testimony is any different than the testimony of OFHEO (which KPMG and
Individual Defendants have vigorously sought and obtained). The testimony of Mr. Nicolaisen
to compel OFHEO on June 9, 2009 (Dkt. 740); and KPMG and OFHEO filed a joint motion regarding
documents withheld as exempt on June 11, 2009 (Dkt. 743).
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and the OFHEO testimony relate, in large part, to Defendants knowledge of, and discussions
with, the SEC and OFHEO regarding Fannie Maes accounting policies and practices in effect
during the class period that are at issue in this case, the documents and other information
considered by the SEC and OFHEO during their respective investigations, and whether Fannie
Maes financial statements were compliant with Generally Accepted Accounting Principles.
Defendants have spent enormous amounts of the Courts and parties time and resources
conducting discovery of OFHEO with respect to the nature and scope of its review and its
findings. Defendants have deposed at least eight OFHEO personnel to date. Since discovery
relating to the review and findings of one of Fannie Maes regulators OFHEO has been
permitted, then so should discovery relating to the review and findings of Fannie Maes other
regulator the SEC.
III. CONCLUSIONFor the reasons described above and in Lead Plaintiffs opening brief, Lead Plaintiffs
respectfully request an order compelling the deposition testimony of Mr. Nicolaisen.
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Dated: September 16, 2009 Respectfully submitted,
ATTORNEY GENERAL FOR
THE STATE OF OHIO RICHARD CORDRAYWAITE, SCHNEIDER, BAYLESS& CHESLEY CO., L.P.A.
/s/ Stanley M. Chesley
Stanley M. ChesleyJames R. Cummins (D.C. Bar #OH0010)
Melanie S. Corwin
1513 Fourth & Vine TowerOne West Fourth Street
Cincinnati, Ohio 45202
Telephone: (513) 621-0267
Facsimile: (513) 621-0262E-mail: [email protected]
E-mail: [email protected]
Special Counsel for the Attorney General of Ohio and Lead
Counsel for Lead Plaintiffs
BERNSTEIN LIEBHARD LLP
Jeffrey D. Lerner
10 East 40th Street
New York, New York 10016Telephone: (212) 779-1414
Facsimile: (212) 779-3218E-mail: [email protected]
Special Counsel for the Attorney General of Ohio and Co-
Lead Counsel for Lead Plaintiffs
COHEN MILSTEIN SELLERS & TOLL P.L.L.C.
/s/ Matthew K. HandleyDaniel S. Sommers (DC Bar #416549)
Matthew K. Handley (DC Bar #489946)1100 New York Avenue, N.W.
Washington, D.C. 20005
Telephone: (202) 408-4600Facsimile: (202) 408-4699E-mail: [email protected]
Local Counsel for Lead Plaintiffs
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CERTIFICATE OF SERVICE
I certify that on September 16, 2009, I electronically filed the foregoing with the Clerk of
Court using the CM/ECF system, which will send notification of such filing to all counsel of
record in this matter who are registered on the CM/ECF, and service was accomplished on any of
the counsel of record not registered through the CM/ECF system via regular U.S. mail.
/s/ Matthew K. Handley
Matthew K. Handley (DC Bar #489946)
33975
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Exhibit A
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Exhibit B
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Exhibit C
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Exhibit D
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Exhibit E
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
IN RE FANNIE MAE SECURITIES
LITIGATION No. 1:04-cv-01639 (RJL)
FRANKLIN MANAGED TRUST et al.,
Plaintiffs,
v.No. 1:06-cv-00139 (RJL)
FEDERAL NATIONAL MORTGAGE
ASSOCIATION et al.,
Defendants.
NOTICE OF SUBPOENA
PLEASE TAKE NOTICE that pursuant to Rule 45 of the Federal Rules of Civil
Procedure, KPMG LLP, by and through its undersigned counsel, has served the attached
subpoena upon the Federal Housing Finance Agency, requesting them to produce for inspection
and copying the following documents identified in the schedules to the attached subpoena.
Dated: August 26, 2009
Respectfully submitted,
/s/ David DeboldF. Joseph Warin (D.C. Bar No. 235978)
Scott A. Fink (admittedpro hac vice)
Michael F. Flanagan (D.C. Bar No. 435942)Andrew S. Tulumello (D.C. Bar No. 468351)
David Debold (D.C. Bar No. 484791)GIBSON, DUNN & CRUTCHER LLP1050 Connecticut Avenue, N.W.
Washington, D.C. 20036
Telephone: (202) 955-8500Facsimile: (202) 467-0539
Counsel for Defendant KPMG LLP
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CERTIFICATE OF SERVICE
I hereby certify that I caused copies of the foregoing to be transmitted via electronic mail
to the following counsel:
James R. CumminsMelanie S. Corwin
Jean Marie Geoppinger
Waite, Schneider, Bayless & Chesley Co.,L.P.A.
1513 Fourth & Vine Tower
One West Fourth StreetCincinnati, OH 45202
Counsel for Lead Plaintiffs
Daniel S. SommersCohen, Milstein, Hausfeld & Toll P.L.L.C
West Tower, Suite 500
1100 New York Ave., N.W.Washington, D.C. 20005
Counsel for Plaintiffs Vincent Vinci; State
Teachers Retirement System of Ohio;Anne
E. Flynn; Robert L. Garber
Frank J. Johnson
Johnson Bottini, LLP655 W. Broadway, Suite 1400
San Diego, CA 92101
Counsel for Plaintiff Sassan Shahrokhinia
Robert W. LilesLiles Parker, PLLC
4400 MacArthur Blvd., N.W.Suite 203
Washington, DC 20007
Counsel for Plaintiff Sassan Shahrokhinia
Jeffrey W. KilduffMichael J. Walsh, Jr.
OMelveny & Myers LLP
1625 Eye Street, N.W.Washington, D.C. 20006
Counsel for Defendants Fannie Mae,
Thomas P. Gerrity, Taylor C. Segue, III,William R. Harvey, Joe Pickett,Kenneth M.
Duberstein, Manuel Justiz,H. Patrick
Swygert, and Leslie Rahl
Steven M. SalkyEric R. Delinsky
Ellen D. Marcus
Caroline E. ReidZuckerman Spaeder LLP
1800 M Street, N.W., Suite 1000Washington, D.C. 20036-2638
Counsel for Defendant Timothy J. Howard
Kevin M. Downey
Alex G. RomainJoseph M. Terry, Jr.
John E. Clabby
Williams & Connolly LLP725 Twelfth Street, N.W.
Washington, D.C. 20005-5091
Counsel for Defendant Franklin D. Raines
David S. Krakoff
Christopher F. ReganAdam B. Miller
Heather H. Martin
Mayer Brown LLP1909 K Street, N.W.
Washington, D.C. 20006-1101
Counsel for Defendant Leanne G. Spencer
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William H. JeffressJulia E. Guttman
Nicholas A. Brady
Baker Botts LLP
The Warner1299 Pennsylvania Ave., N.W.
Washington, D.C. 20004-2400
Counsel for Defendant Jamie S. Gorelick
Rhonda D. OrinAnderson Kill & Olick, P.C.
2100 M Street, N.W. Suite 650
Washington, D.C. 20037
Counsel for Defendant Leslie Rahl
John H. Doyle, III
Reed Smith LLP599 Lexington Ave.
New York, NY 10022-7650
Counsel for Defendant Leslie Rahl
James D. Wareham
Paul, Hastings, Janofsky & Walker LLP875 15th Street, N.W., Suite 12
Washington, D.C. 20005
Counsel for Defendant Daniel H. Mudd
Shannon RatliffRatliff Law Firm, PLLC
600 Congress AvenueSuite 3100
Austin, TX 78701
Counsel for Manuel Justiz
Barbara Van GelderMorgan, Lewis & Bockius LLP
111 Pennsylvania Ave., NWWashington, DC 20004
Counsel for Defendants Anne M. Mulcahy
and Frederic V. Malek
Cristen Sikes Rose
Edward S. Scheideman IIIJohn J. Clarke, Jr.
DLA Piper US LLP1200 19th Street, N.W.
Washington, D.C. 20036
Counsel for Defendants Stephen B. Ashley,
Donald B. Marron, and Ann Korologos
David I. Ackerman
James HamiltonBingham McCutchen LLP
2020 K Street, N.W.Washington, D.C. 20006
Counsel for Defendant Joe Pickett
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Seth Aronson
OMelveny & Myers LLP400 South Hope Street, 15th Floor
Los Angeles, Ca. 90071
Counsel for Defendant Fannie Mae,
Thomas P. Gerrity, Taylor C. Segue, III,William R. Harvey, Joe Pickett,Kenneth M.
Duberstein, Manuel Justiz,H. Patrick
Swygert, and Leslie Rahl
Ian H. Gershengorn
Jerome L. EpsteinJenner & Block
601 13th Street, NW
Suite 1200S
Washington, DC 20005
Counsel for Fannie Mae
William K. Dodds
Neil A. SteinerDechert LLP
30 Rockefeller Plaza
New York, NY 10112
Counsel for Defendant Thomas P. Gerrity
/s/ David DeboldDavid Debold
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2AO88 (Rev. 12/07) Subpoena in a Civil Case
Issued by the
UNITED STATES DISTRICT COURT__________ District of __________
SUBPOENA IN A CIVIL CASE
V.
Case Number:1
TO:
G YOU ARE COMMANDED to appear in the United States District court at the place, date, and time specified below to
testify in the above case.
PLACE OF TESTIMONY COURTROOM
DATE AND TIME
G YOU ARE COMMANDED to appear at the place, date, and time specified below to testify at the taking of a deposition
in the above case.
PLACE OF DEPOSITION DATE AND TIME
G YOU ARE COMMANDED to produce and permit inspection and copying of the following documents or objects at the
place, date, and time specified below (list documents or objects):
PLACE DATE AND TIME
G YOU ARE COMMANDED to permit inspection of the following premises at the date and time specified below.
PREMISES DATE AND TIME
Any organization not a party to this suit that is subpoenaed for the taking of a deposition shall designate one or more officers,
directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the
matters on which the person will testify. Federal Rule of Civil Procedure 30(b)(6).
ISSUING OFFICERS SIGNATURE AND TITLE (INDICATE IF ATTORNEY FOR PLAINTIFF OR DEFENDANT) DATE
ISSUING OFFICERS NAME, ADDRESS AND PHONE NUMBER
(See Federal Rule of Civil Procedure 45 (c), (d), and (e), on next page)
1 If action is pending in district other than district of issuance, state district under case number.
District of Columbia
In re Fannie Mae Securities Litigation;Fannie Mae
KPMG LLP
1:04cv016391:06cv02111
Federal Housing Finance Agency1700 G Street, N.W.Washington, DC 20552
Please see Attachment A
Gibson, Dunn & Crutcher LLP, 1050 Connecticut Ave., NW; Washington, DC 200369/9/2009 10:00 am
/s/ David Debold, attorney for KPMG 8/26/2009
David Debold c/o Gibson, Dunn & Crutcher LLP; 1050 Connecticut Ave., NW; Washington, DC 20036; phone: (202)955-8551
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AO88 (Rev. 12/07) Subpoena in a Civil Case (Page 2)
PROOF OF SERVICE
DATE PLACE
SERVED
SERVED ON (PRINT NAME) MANNER OF SERVICE
SERVED BY (PRINT NAME) TITLE
DECLARATION OF SERVER
I declare under penalty of perjury under the laws of the United States of America that the foregoing information contained
in the Proof of Service is true and correct.
Executed onDATE SIGNATURE OF SERVER
ADDRESS OF SERVER
Federal Rule of Civil Procedure 45 (c), (d), and (e), as amended on December 1, 2007:
(c) PROTECTING A PERSON SUBJECT TO A SUBPOENA.
(1) Avoiding Undue Burden or Expense; Sanctions. A party or attorney responsible for
issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or
expense on a person subject to the subpoena. The issuing court must enforce this duty and
impose an appropriate sanction which may include lost earnings and reasonable attorney's
fees on a party or attorney who fails to comply.
(2) Command to Produce Materials or Permit Inspection.
(A) Appearance Not Required. A person commanded to produce documents,
electronically stored information, or tangible things, or to permit the inspection of premises, need
not appear in person at the place of production or inspection unless also commanded to appear
for a deposition, hearing, or trial.(B) Objections. A person commanded to produce documents or tangible things or to
permit inspection may serve on the party or attorney designated in the subpoena a written
objection to inspecting, copying, testing or sampling any or all of the materials or to inspecting
the premises or to producing electronically stored information in the form or forms requested.
The objection must be served before the earlier of the time specified for compliance or 14 days
after the subpoena is served. If an objection is made, the following rules apply:
(i) At any time, on notice to the commanded person, the serving party may move
the issuing court for an order compelling production or inspection.
(ii) These acts may be required only as directed in the order, and the order must
protect a person who is neither a party nor a party's officer from significant expense resulting
from compliance.
(3) Quashing or Modifying a Subpoena.
(A) When Required. On timely motion, the issuing court must quash or modify a
subpoena that:
(i) fails to allow a reasonable time to comply;
(ii) requires a person who is neither a party nor a party's officer to travel more
than 100 miles from where that person resides, is employed, or regularly transacts business in
person except that, subject to Rule 45(c)(3)(B)(iii), the person may be commanded to attend
a trial by traveling from any such place within the state where the trial is held;(iii) requires disclosure of privileged or other protected matter, if no exception
or waiver applies; or
(iv) subjects a person to undue burden.
(B) When Permitted. To protect a person subject to or affected by a subpoena, the
issuing court may, on motion, quash or modify the subpoena if it requires:
(i) disclosing a trade secret or other confidential research, development, or
commercial information;
(ii) disclosing an unretained expert's opinion or information that does not
describe specific occurrences in dispute and results from the expert's study that was not
requested by a party; or
(iii) a person who is neither a party nor a party's officer to incur substantial
expense to travel more than 100 miles to attend trial
(C) Specifying Conditions as an Alternative. In the circumstances described in Rule
45(c)(3)(B), the court may, instead of quashing or modifying a subpoena, order appearance or
production under specified conditions if the serving party:
(i) shows a substantial need for the testimony or material that cannot be otherwise
met without undue hardship; and
(ii) ensures that the subpoenaed person will be reasonably compensated.
(d) DUTIES IN RESPONDING TO A SUBPOENA.
(1) Producing Documents or Electronically Stored Information. These procedures apply
to producing documents or electronically stored information:
(A) Documents. A person responding to a subpoena to produce documents must
produce them as they are kept in the ordinary course of business or must organize and label them
to correspond to the categories in the demand.
(B) Form for Producing Electronically Stored Information Not Specified. If asubpoena does not specify a form for producing electronically stored information, the person
responding must produce it in a form or forms in which it is ordinarily maintained or in a
reasonably usable form or forms.
(C) Electronically Stored Information Produced in Only One Form. The person
responding need not produce the same electronically stored information in more than one form.
(D) Inaccessible Electronically Stored Information. The person responding need not
provide discovery of electronically stored information from sources that the person identifies as
not reasonably accessible because of undue burden or cost. On motion to compel discovery or
for a protective order, the person responding must show that the information is not reasonably
accessible because of undue burden or cost. If that showing is made, the court may nonetheless
order discovery from such sources if the requesting party shows good cause, considering the
limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery.
(2) Claiming Privilege or Protection.
(A) Information Withheld. A person withholding subpoenaed information under a
claim that it is privileged or subject to protection as trial-preparation material must:
(i) expressly make the claim; and
(ii) describe the nature of the withheld documents, communications, or
tangible things in a manner that, without revealing information itself privileged or protected, will
enable the parties to assess the claim.(B) Information Produced. If information produced in response to a subpoena is
subject to a claim of privilege or of protection as trial-preparation material, the person making
the claim may notify any party that received the information of the claim and the basis for it.
After being notified, a party must promptly return, sequester, or destroy the specified
information and any copies it has; must not use or disclose the information until the claim is
resolved; must take reasonable steps to retrieve the information if the party disclosed it before
being notified; and may promptly present the information to the court under seal for a
determination of the claim. The person who produced the information must preserve the
information until the claim is resolved.
(e) CONTEMPT.
The issuing court may hold in contempt a person who, having been served, fails without
adequate excuse to obey the subpoena. A nonparty's failure to obey must be excused if the
subpoena purports to require the nonparty to attend or produce at a place outside the limits of
Rule 45(c)(3)(A)(ii).
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ATTACHMENT A
TO SUBPOENA DUCES TECUM
TO THE FEDERAL HOUSING FINANCE AGENCY
INSTRUCTIONS
1. If you object to producing any document (in whole or in part) based on anyprivilege, you should state the nature of the privilege claimed and the basis thereof; identify anddescribe the document and the reason for which it was created; identify the creator of the
document and all persons named on it, to whom the document was sent, for whose use it was
prepared, and state the date of the document. This information should be set forth separately on
a privilege log.
2. If you claim that any request is beyond the scope of permissible discovery,specify each and every ground on which such claim rests.
3. If you find any document request or term used in a request to be vague,ambiguous, subject to varying interpretations, or unclear, state what portion of the request orterm you find to be vague, ambiguous, subject to varying interpretations, or unclear, state your
understanding of the request or term, and respond in accordance with that understanding.
4. Draft or non-identical copies are to be considered separate documents forpurposes of these requests.
5. If any responsive document is no longer in existence, cannot be located or is notin your possession, custody or control, identify it, describe its subject matter and describe its
disposition (including without limitation identifying the person or persons (a) having knowledge
of the contents of the document and/or its destruction, deletion or disposition and (b) responsiblefor its destruction, deletion or other disposition.
6. To the extent you believe that any responsive document is not within yourpossession, custody, or control, but rather, is within the possession, custody, or control of another
individual or entity, identify the individual or entity that may possess the responsive documentand identify the responsive document that you believe that individual or entity may possess.
DEFINITIONS
1. All includes the term each or any, and vice versa. The singular shallinclude the plural, and the disjunctive shall include the conjunctive, and vice versa.
2. Commendation includes any plaque, certificate, ornament, document, reward,or award representing official recognition by the Office of Federal Housing Enterprise Oversight
(OFHEO) or the Federal Housing Finance Agency (FHFA) for contributions an employee ofOFHEO or FHFA has made to either of those agencies.
3. Communication is used in the comprehensive sense and means everyconceivable manner or means of disclosure, transfer, or exchange of oral, electronic, digital or
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2
written information between or among one or more persons or entities, including but not limited
to, writings, correspondence, meetings, conferences, conversations, dialogues, discussions,interviews, consultations, agreements, inquiries, and any other expressions or understandings,
whether made face-to-face, by telephone, mail, facsimile, computer or otherwise.
4. Concerning means, in whole or in part with respect to, in connection with,referring to, relating to, describing, evidencing, constituting, substantiating, purporting,
embodying, establishing, identifying, mentioning, reflecting, listing, stating, comprising,connected with, memorializing, recording, commenting on or upon, responding to, showing,
demonstrating, analyzing, reflecting, representing, supporting, explaining, consisting of,
regarding, discussing, containing, setting forth, disclosing, explaining, summarizing, pertainingto, or otherwise having any logical or factual connection to the subject matter, of the document
request.
5. Document is synonymous with the usage of that term in Rule 34 of the FederalRules of Civil Procedure, and includes, without limitation, writings, e-mails, reports, papers,
notes, accounts, memoranda, correspondence, communications, worksheets, workpapers,analyses, contracts, charts, schedules, agreements, working papers, corporate records, minutes of
meetings, books of account, ledger books, notebooks, calendars, photographs, films, slides,
audiotape, videotape, appointment books, diaries, drafts, memoranda of meetings orconversations, graphs, telephone records, computer tapes, computer discs, optical discs, laser
discs, computer cards and computer printouts and other data compilations from which
information can be obtained or translated all electronic, mechanical, magnetic, optical or electricdata, records or representations of any kind (including computer data, computer files, computer
programs, hard drives, floppy disks, compact disks, tapes and cards existing on desktop
computers, laptop computers, notebook computers, personal digital assistant computers, servers,
backup tapes or any other medium), and any other form of physical media.
6. The terms relate or relating mean constitute, comprise, reflect, record,memorialize, embody, discuss, describe, evaluate, consider, review or report on the subject
matter of the document request and also refers to documents reviewed in conjunction with, orcreated, generated or maintained as a result of the subject matter of the request.
7. The terms you, your, or FHFA mean the Federal Housing Finance Agencyand any of its present or former officers, employees, attorneys, accountants, advisers,
consultants, agents or any other person or entity acting form, at the direction of, or on behalf of
FHFA. This definition includes, but is not limited to the Office of Federal Housing EnterpriseOversight (OFHEO) and its present or former officers, employees, attorneys, accountants,
advisers, consultants, agents or any other person or entity acting for, at the direction of, or on
behalf of OFHEO.
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RELEVANT PERIOD
Unless otherwise specifically indicated, these requests seek documents created, dated,
prepared, generated, sent, received or otherwise used during the time period from January 1,
1998 to December 31, 2003 (the Relevant Period) or that refer or relate to all or any portion ofthe Relevant Period, or to events or circumstances during the Relevant Period, even though
created, dated, prepared, generated, sent, received or otherwise used prior to or after the Relevant
Period.
DOCUMENTS TO BE PRODUCED
Please produce the following documents or things in your possession, custody or control:
1. All commendations received by Deirdre Kvartunas for work she didconcerning, in whole or in part, FAS 133 for the Office of Federal Housing Enterprise Oversight,
including but not limited to, the commendation Ms. Kvartunas received from Scott Calhoun onMay 15, 2001 referenced in Exhibit A.
2. All documents relating to any commendations received by Ms. Kvartunas forwork she did concerning, in whole or in part, FAS 133 for the Office of Federal Housing
Enterprise Oversight, including but not limited to, the text of any communication made at the
time the commendation was announced or delivered (and drafts of such communications).
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Exhibit A
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