INTEGRA BANK CORPORATION et al v. FIDELITY AND DEPOSIT COMPANY OF MARYLAND

Filing 189

ORDER granting in part and denying in part 142 Motion to Compel. FDIC may supplement its privilege log to enable the court to determine in which documents Devine was acting in a legal capacity. Parties are ordered to submit briefings within 30 days on whether additional communications prior to June 29, 2010, should be protected. Signed by Magistrate Judge William G. Hussmann, Jr., on 6/3/2013. (NRN)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
EVANSVILLE DIVISION
FEDERAL DEPOSIT INSURANCE
CORPORATION as Receiver for Integra
Bank, N.A.,
Plaintiffs,
v.
FIDELITY AND DEPOSIT COMPANY
OF MARYLAND,
Defendant.

)
)
)
)
)
)
)
)
)
)
)
)

3:11-cv-19-RLY-WGH

ENTRY ON DEFENDANT’S MOTION TO COMPEL
Plaintiff, Federal Deposit Insurance Corporation, as receiver for Integra
Bank, N.A. (“FDIC”), seeks to recover on a financial institution bond issued to
Integra by Defendant, Fidelity and Deposit Company of Maryland (“F&D”).
F&D moved to compel communications between Jeffrey Devine, Integra inhouse counsel, and Integra officials. (Docket No. 142). For the reasons set
forth below, F&D’s motion is GRANTED in part and DENIED in part.
I.

Factual Background
Integra, purportedly relying on the advice of Integra loan officer Stuart

Harrington, issued eight loans to Louis Pearlman and/or companies owned by
Pearlman, totaling approximately $29 million. (Supplemental Complaint ¶ 39).
Pearlman, in collaboration with Harrington, filed false financial reports with
Integra in the loan application process, and in fact there was no valid collateral
1

for the loans. (Id. ¶¶ 34, 126). Pearlman defaulted on the loans, exposing
Integra to losses of nearly $23 million. (Id. ¶¶ 36, 41; Defendant’s Ex. C at 1).
F&D issued a financial institution bond to Integra, in which it agreed to
indemnify Integra from “[l]oss resulting directly from dishonest or fraudulent
acts committed by an [Integra] employee acting alone or in collusion with
others.” (Id. ¶ 17). The bond also mandated that F&D indemnify Integra for
“[l]oss resulting directly from [Integra] having . . . (1) acquired, sold or
delivered, or given value, extended credit or assumed liability, on the faith of
any original (a) certificated security which (i) bears a signature . . . which is a
forgery.” (Id. ¶ 21). The financial institutions bond covered the time period
July 1, 2007, until June 30, 2010. Integra filed a proof of loss form with F&D,
in which Devine claimed he discovered the loss due to Harrington and
Pearlman’s fraud on June 29, 2010. (Defendant’s Ex. C at 1). Integra sought
to recover on the bond on the theory that Pearlman colluded with former
Integra Vice President Stuart Harrington to ensure Integra would extend the
fraudulent loans to Pearlman. (Supplemental Complaint ¶¶ 26-27, 34).
To collect on the bond, Integra would have to show proof of dishonesty by
Harrington, and that dishonesty was discovered within the bond coverage
period. (Defendant’s Ex. B at 24). F&D denied coverage, claiming Integra
could not prove Pearlman colluded with Harrington while Harrington was
employed with Integra. (Defendant’s Ex. A ¶¶ 4-13). Integra filed suit to
enforce the bond on February 11, 2011. (Docket No. 1). On July 29, 2011, the
Office of the Comptroller of the Currency closed Integra and appointed FDIC as
2

Integra’s receiver. FDIC was substituted as Plaintiff and filed a supplemental
complaint. (Supplemental Complaint ¶¶ 5-6). During discovery, FDIC
produced an extensive privilege log, claiming attorney-client and work-product
privilege on the grounds that Devine was acting as Integra’s in-house counsel
in those communications. (Defendant’s Ex. E; Plaintiff’s Response at 4).
II.

Legal Standard
Federal Rule of Civil Procedure 26 requires parties to engage in broad,

open discovery, as “[p]arties may obtain discovery regarding any nonprivileged
matter that is relevant to any party’s claim or defense.” FED. R. CIV. P. 26(b)(1).
However, materials may be shielded from discovery by attorney-client privilege,
work-product privilege, or common interest doctrine. The attorney-client
privilege “protects communications made in confidence by a client and client’s
employees to an attorney, acting as an attorney, for the purpose of obtaining
legal advice. . . . The privilege belongs to the client, although an attorney may
assert the privilege on the client’s behalf.” Sandra T.E. v. S. Berwyn Sch. Dist.
100, 600 F.3d 612, 618 (7th Cir. 2010)(citations omitted).
For materials to be covered by attorney-client privilege, the court must
determine: (1) whether legal advice was sought from an attorney in her
capacity as an attorney; and (2) whether any communications between the
client and her attorney or attorney’s agent were germane to that purpose and
made confidentially. Id. (citing U.S. v. Evans, 113 F.3d 1457, 1461 (7th Cir.
1997)). The party invoking attorney-client privilege must make a prima facie
showing of these elements. Rockies Express Pipeline LLC v. 58.6 Acres, 2009
3

WL 5219025, at *3 (S.D. Ind. Dec. 31, 2009). Once the seeking party has
established those elements, the burden shifts to the party seeking discovery to
show that the communications are not protected due to confidentiality either
being waived or nullified. Id.; see Bassett v. State, 895 N.E.2d 1201, 1206 (Ind.
2008); Corll v. Edward D. Jones & Co., 646 N.E.2d 721, 725 (Ind. Ct. App.
1995).
Work-product privilege protects “(1) documents and tangible things that
are (2) prepared in anticipation of litigation or for trial (3) by or for another
party or its representative.” FED. R. CIV. P. 26(b)(3)(A)(emphasis and
numbering added). The purpose is to protect attorney’s thought processes and
mental processes and to avoid allowing a less diligent attorney to piggyback on
the adverse attorney’s trial preparation. Sandra T.E., 600 F.3d at 622.
Nonetheless, these materials may be discovered if they fall within Rule
26(b)(1)’s scope, the party has substantial need for the documents, and the
party cannot otherwise obtain their substantial equivalents without undue
hardship. FED. R. CIV. P. 26(b)(3)(A)(i-ii). If disclosure is mandated, any
attorney mental impressions must be redacted from the materials before they
are given to the adverse party. Id. at 26(b)(3)(B). Like with attorney-client
privilege, the party seeking to shield work product from discovery bears the
burden of proof. See, e.g., Mullins v. Dep’t of Labor of Puerto Rico, 269 F.R.D.
172, 175-76 (D. P.R. 2010).
The common interest doctrine is “an exception to the rule that no
privilege attaches to communications between a client and an attorney in the
4

presence of a third person.” U.S. v. BDO Seidman LLP, 492 F.3d 806, 815 (7th
Cir. 2007). The common interest doctrine applies “where the parties undertake
a joint effort to a common legal interest, and the doctrine is limited strictly to
those communications to further an ongoing enterprise.” Id. at 816. However,
“communications need not be made in anticipation of litigation.” Id. As is
discussed more fully in the court’s companion Entry on Plaintiff’s Motion for
Protective Order (Docket No. 190), certain communications between Integra
employees, the Trustee in bankruptcy, and fellow creditors committee members
in the Pearlman/Trans Continental Airlines Bankruptcy are protected under
the common interest doctrine.
III.

Discussion
F&D seeks to compel production of Devine’s communications with

Integra on four grounds. We categorize them as follows: (A) that FDIC has not
provided an appropriate privilege log, thereby failing to meet their burden of
establishing privilege; (B) that Devine was acting in a business, not legal,
capacity, for the communications sought, and that these communications are
not “in his capacity as an attorney” and therefore are not protected by privilege;
(C) that Integra and FDIC waived the privilege by placing Devine’s knowledge at
issue; and (D) that by disclosing some of their communications with Devine,
Integra and FDIC waived privilege over the rest of the documents.
A.

Was Devine acting in his capacity as an attorney in his role
with Integra?

The court must clearly define Devine’s employment with Integra to
determine whether communications to and from Devine are privileged. It is
5

undisputed that Devine was employed in a business, non-legal capacity by
Integra, in addition to his role as in-house counsel. Courts have consistently
held that, when in-house counsel conducts both business and legal functions,
only those communications made when the attorney is wearing his “legal
advisor hat” are protected. Upjohn Co. v. United States, 449 U.S. 383, 390,
394, 101 S. Ct. 677, 67 L. Ed. 2d 584 (1981); Burden-Meeks v. Welch, 319 F.3d
897, 899 (7th Cir. 2003). In Indiana, privilege is applied narrowly, especially to
communications with in-house counsel. See Welch v. Eli Lilly Co., 2009 WL
700199, at *12 (S.D. Ind. Mar. 16, 2009). FDIC bears the burden of showing
the communications sought by F&D were between Integra principals seeking
legal advice from Devine, and that Devine conveyed legal advice acting in his
capacity as an attorney, and thus his communications should be protected
under the attorney-client privilege. Rehling v. City of Chicago, 207 F.3d 1009,
1019 (7th Cir. 2000).
Preliminarily, F&D accuses FDIC of asserting a “blanket privilege”
covering all communications to and from Devine. In doing so, F&D claims,
FDIC is withholding communications made by Devine pertaining to business
decisions, including communications about Pearlman’s arrest and Integra’s
approval of the loans to Pearlman. (Defendant’s Brief at 11). FDIC’s current
litigation counsel, Jacob Kahn, rejoins that FDIC and Integra have produced
the business-related, unprivileged communications, and those sought to be
withheld are those containing Devine’s legal advice or communication between
Devine or others and Integra’s outside counsel. (Affidavit of Jacob Kahn ¶¶ 9,
6

13). FDIC argues that this production of documents undercuts F&D’s
argument that they have sought a blanket privilege over Devine’s
communications. (Plaintiff’s Response at 14).
F&D claims that Kahn’s affidavit is insufficient, because Kahn has no
personal knowledge of the documents and the privilege log did not differentiate
between Devine’s legal and non-legal communications. F&D further argues
that the exemplar documents all appear to be sent to or from Devine in his
business capacity. (Defendant’s Reply at 15 (citing Defendant’s Ex. E)).
The court agrees with F&D. Examining FDIC’s privilege log, the court
notes several non-legal descriptors—e.g., “loan default rates,” “calculations for
default letters,” and “default letters for TCA and Pearlman” (Defendant’s Ex. E
at 8, 11)—in addition to legal descriptors. Moreover, many of the descriptions
are simply too vague to allow F&D or the court to determine that these
communications were made to or from Devine while he acted in his legal
advisor role. The court therefore cannot find that attorney-client privilege
exists for most of the communications.1
FDIC’s claim of work-product privilege also fails for most documents. To
qualify as work product, the communications must have been made in
anticipation of litigation against the party seeking production—F&D. FED. R.
CIV. P. 26(b)(3)(A). Since the bond coverage period did not start until July 1,
2007, no communications made before that date could reasonably have been
Attorney-client privilege does, however, apply to communications between Devine, as
an Integra executive, and Integra’s outside counsel (see, e.g., Defendant’s Ex. E at 6
(communication with Lawrence Rifken)), provided that the outside counsel was
functioning in a legal capacity.

1

7

made in anticipation of litigation against F&D. Any communications made by
Devine after June 29, 2010, when Integra purportedly discovered the loss
under the bond (Defendant’s Ex. C at 1), would clearly be in anticipation of
litigation and protected under the work-product doctrine. However, it is
unclear on what date before June 29, 2010, that Integra began preparing its
Discovery of Loss and Notice of Loss. The court therefore asks the parties to
submit briefing on the issue of what date it became reasonable to anticipate
litigation against F&D.
For attorney-client privilege, only communications where Devine was
transmitting legal advice “as an attorney” are protected. All communications in
which Devine was not wearing his “legal advisor hat” are not protected.
B.

Did FDIC waive attorney-client privilege by placing Devine’s
knowledge at issue?

F&D argues that the remaining communications should not be privileged
because Integra relied upon Devine’s knowledge to establish the discovery of
Harrington’s dishonesty during the bond coverage period—an essential element
of its claim against F&D. Thus, FDIC attempting to withhold Devine’s
communications in the time leading up to the discovery of loss is improper.
F&D claims that Indiana law does not allow a party to use an actor’s knowledge
as a shield and as a sword, see, e.g., Brown v. Katz, 868 N.E.2d 1159, 1166-67
(Ind. Ct. App. 2007)(emphasis added), and instead holds that waiver of
attorney-client privilege occurs when a party: (1) affirmatively places
information at issue; (2) the information is relevant to the dispute; and (3)
upholding privilege would be unfair, since it would deny the other side vital
8

information. Pippenger v. Gruppe, 883 F. Supp. 1201, 1204 (S.D. Ind.
1994)(citing Hearn v. Rhay, 68 F.R.D. 574, 581 (E.D. Wash. 1975)).
FDIC advances two main counterarguments. First, it argues that since
neither Integra nor FDIC’s complaints referenced Devine’s knowledge in
establishing that it discovered the loss during the bond coverage period, FDIC
never put Devine’s knowledge at issue. (Plaintiff’s Response at 5-6). The proof
of loss form—filed with F&D, but never with the court—is not a judicial
admission. Rather, FDIC claims, it was F&D that placed Devine’s knowledge at
issue by raising compliance with the discovery and notice provisions as
affirmative defenses. Therefore, F&D must prove why Devine’s communication
is not privileged. Cent. Nat’l Life Ins. Co. v. Fidelity & Dep. Co. of Md., 626 F.2d
537, 543 (7th Cir. 1980).
Second, FDIC argues that the relevance of privileged material is not a
sufficient basis to find waiver. FDIC notes that Indiana has not been
hospitable to finding waiver of attorney-client privilege simply when a client’s
state of mind is at issue and the privileged communication is vital to the
opposing party. Rather, only when a party takes advantage of the
communication should waiver be found. Harter v. Univ. of Indianapolis, 5 F.
Supp. 2d 657, 664 n.2 (S.D. Ind. 1998)(citations omitted). FDIC argues that
neither FDIC nor Integra relied on Devine’s knowledge, since many other
Integra officials had knowledge that Integra had not discovered the loss under
the bonds until June 2010. (Deposition of Michael Carroll (“Carroll Dep.”) at
151, 154-55, 158-60).
9

The court finds that Integra and FDIC placed Devine’s knowledge at
issue. Regardless of whether other employees had knowledge of when the loss
was discovered, Devine not only signed the proof of loss form, he also signed a
narrative explanation of loss, which detailed his factual investigation and legal
opinion. (Defendant’s Ex. P at 19). Michael Carroll, Chief Financial Officer for
Integra, admitted that Devine was in charge of the “supplemental proofs of
loss.” (Carroll Dep. at 200). Moreover, FDIC has the burden of proof on
discovery of loss, since discovery within the coverage period and notice to the
insurer are elements of its claim.2 See Miller v. Dilts, 463 N.E.2d 257, 263 (Ind.
1984). Therefore, attorney-client privilege would not cover those e-mails in
which Devine was acting as Integra’s in-house counsel. Harter, 5 F. Supp. 2d
at 664.
However, the court agrees with FDIC that putting Devine’s knowledge at
issue is insufficient to waive privilege on all communications. As discussed
above, some of his communications with other Integra employees prior to the
notification of loss appear to be Devine’s preparation in anticipation of litigation
against F&D. They therefore would qualify as work-product. F&D has not
demonstrated why the underlying communications provide essential
information not otherwise detailed in Devine’s narrative report, which has

2 Central National was a diversity case applying Illinois law, and the Court did not
explicitly address issues of discovery and loss during a bond period. Cent. Nat’l Life
Ins. Co., 626 F.2d at 543. This court therefore declines to extend the Central National
holding to this case.

10

already been disclosed. Therefore, F&D has not shown substantial need, and
its motion to compel those communications connected to Integra’s Discovery
and Notice of Loss under the bond coverage must be denied.
C.

Subject Matter Waiver

F&D argues that when FDIC produced selected communications it had
with Devine (Defendants’ Exs. F-J) pertaining to Integra’s discovery of loss
under Coverage A of the bond, FDIC waived privilege on those subject matters,
and all related communications must be produced. (Defendant’s Brief at 9
(citing Fort James Corp. v. Solo Cup Co., 412 F.3d 1340, 1349 (Fed. Cir. 2005);
Eli Lilly & Co. v. Zenith Goldline Pharma., Inc., 149 F. Supp. 2d 659, 661 (S.D.
Ind. 2001))). FDIC rejoins that the selected communications were produced
before FDIC was appointed as a receiver. The court granted a “claw-back”
protective order, by which the parties could produce documents to each other
and then reclaim any privileged material. (Docket No. 92 ¶ 24). Therefore, any
production of privileged material was inadvertent, and no waiver occurred.
The automatic subject-matter waiver was abolished by Congress before
the start of this litigation, see Appleton Papers, Inc. v. EPA, 702 F.3d 1018,
1026 (7th Cir. 2012), so the disclosure of privileged material does not
necessarily waive privilege for documents of the same subject matter. Federal
Rule of Evidence 502 governs these waivers, and states that when otherwise
privileged material is disclosed in discovery, attorney-client or work-product
privilege is waived for undisclosed communications “only if: (1) the waiver is

11

intentional; (2) the disclosed and undisclosed communications or information
concern the same subject matter; and (3) they ought in fairness to be
considered together.” FED. R. EVID. 502(a)(emphasis added).
Even assuming arguendo that the disclosed materials were privileged,
F&D cannot meet the Rule 502 elements. The court agrees that since FDIC
lacked awareness that Integra’s counsel had produced the documents prior to
this motion, and FDIC never cited or planned to use these documents in
litigation, waiver was not intentional. (Kahn Aff. ¶ 6). F&D cites no case law
supporting its proposition that FDIC’s failure to object to the documents’
introduction at Martin Zorn’s deposition makes production intentional.
Moreover, while F&D claims that the disclosed materials pertain to Devine’s
discovery of loss—an element in asserting coverage under the bond—none of
the exemplar documents relate to Harrington’s participation in Pearlman’s
fraud, the basis for FDIC’s claim. Therefore, F&D cannot meet the “same
subject matter” requirement, FED. R. EVID. 502(a)(2), and no subject-matter
waiver has occurred. The court thus must assess on a document-by-document
or category-by-category basis which communications are protected.
D.

Adequacy of Privilege Log

If a party seeks to protect materials from discovery under either attorneyclient or work-product privilege, that party must produce a privilege log with
enough information for the opposing party and court to determine whether
privilege should apply. FED. R. CIV. P. 26(b)(5)(A)(ii); see Jones v. Hamilton Co.

12

Sheriff’s Dep’t, 2003 WL 21383332, at *4 (S.D. Ind. 2003). The log must
generally contain:
(1) the name and job title or capacity of the author(s)/originator(s);
(2) names of person(s) receiving document or copy, and their
affiliation with the producing party;
(3) general description of the document by type;
(4) the date and subject matter of the communication; and
(5) on what grounds the party believes it to be privileged.
Jones, 2003 WL 21383332, at *4 (citations omitted).
The privilege log provided in this case can be divided into two parts. One
portion of the privilege log, consisting of pages 1-67 of Exhibit E, addresses on
a document-by-document basis FDIC’s claim of privilege. A second part of the
privilege log, found at pages 70-78 of Exhibit E, addresses certain electronic
document protection in which the assertion of privilege is directed towards
certain “groups” of communications. FDIC indicates that to deal with the
documents that are electronically produced other than by these categories
would require an unduly burdensome task of listing individually some 12,000
documents. (Kahn Aff. ¶¶ 9-10).
1.

The Individualized Privilege Log

At issue in this motion is whether the FDIC has provided a sufficient
“general description of the document by type” to allow the court and the
opposing party to determine whether attorney-client and/or work-product
privilege can be found to exist. The court is mindful of the difficulty in
constructing such a description. While not being critical of the effort put forth
in this case, the court finds that, in the main, the FDIC’s “description” is not

13

sufficient to assert the attorney-client privilege. The descriptions used by the
FDIC in this case adequately describe “what” the document is, but do not
educate the court as to “why” the document is privileged. For example, “Letter
Regarding Integra Bank N.A. – Transcontinental Airlines Loan Review”
(Defendant’s Ex. E at 1); “Redacted email chain regarding information needed
for closing” (id. at 4); “Redacted email chain regarding TCA” (id. at 5); “Redacted
email regarding web search on Pearlman” (id. at 6); “Redacted email regarding
Mandy Newland, Executive Assistant to Pearlman” (id. at 7); and many others,
adequately describe what the document is, but do not allow the court or
opposing party to determine why the attorney-client privilege might apply to
that particular document. For the vast bulk of the documents for which
attorney client privilege is claimed, the descriptions are not sufficient to
establish “why” the documents are privileged. None of the descriptions say, for
example, “the email contains the opinion of counsel on whether to file the
Complaint.” There are also a number of items which are “undated” and do not
contain identifiers as to who produced the items at issue. (See, e.g., id. at 5456).
IV.

Conclusion
Based upon the analysis above, and having reviewed the descriptions

provided, the court concludes that only the following Bates Number
documents, which were either sent to or from Devine, or on which he was
copied, are adequately described to invoke the attorney-client privilege:

14

(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(12)
(13)
(14)
(15)
(16)
(17)
(18)
(19)
(20)
(21)
(22)
(23)
(24)
(25)
(26)
(27)
(28)
(29)
(30)
(31)
(32)
(33)
(34)
(35)
(36)
(37)
(38)
(39)
(40)
(41)
(42)
(43)
(44)
(45)
(46)

(47)
(48)
(49)
(50)
(51)
(52)
(53)
(54)
(55)
(56)
(57)
(58)
(59)
(60)
(61)
(62)
(63)
(64)
(65)
(66)
(67)
(68)
(69)
(70)
(71)
(72)
(73)
(74)
(75)
(76)
(77)
(78)
(79)
(80)
(81)
(82)
(83)
(84)
(85)
(86)
(87)
(88)
(89)

003433-003440
003442
003546-003547
006865
007072-007088
007092
007131-007134
007153-007155
007162-007175
007734-007741
007744
007745
007989-007990;
008042
008060
008079-008080
008088-008090
008091-008092
008124-008126
008127-008128
008237-008239
008524-008532
008533-008540
008565
008639
008642
010493
011709
011817
012021-012022
012151
012269-012285
012286-012298
012299-012304
012305
012373-012381
012427
012467
012588
012596-012604
012605-012607
012608
012626
012755-012759
012881
013260-013261
15

013270
013271-013272
013309
013684
013709
013710
013842
014209–014214
014346
014347
017121
017304–017305
017348-017349
017350-017351
017352-017353
017354-017355
017356-017357
017358
017359
017360
017363-017364
017365
017366-017367
017368
017369
017379-017380
027888
028639-029641
028709-028715
028849
028912
028999
030814
040785-040794
042765-042766
043065-043066
043384-043385
043447
044960
044963-044965
044986
045162
045163-045174

None of the other Bates Number entries in the privilege log is sufficiently
described to allow the court to conclude that the documents are protected by
the attorney-client privilege. The court also concludes that none of the other
Bates Number entries is adequately described to invoke the work-product
privilege3 or common interest doctrine.
2.

Categorical Privilege Log

The court is mindful that when privilege is asserted, privilege logs must
be itemized so that the privilege claim may be evaluated on a document-bydocument basis. See Howard v. Dravet, 813 N.E.2d 1217, 1222 (Ind. Ct. App.
2004). Nonetheless, it agrees with FDIC that individually logging and listing the
12,000 electronic documents is unduly burdensome and unlikely to yield
additional information as to whether the documents are protected. (Kahn Aff. ¶
9). Since FDIC has the burden to establish privilege, the court construes any
ambiguities and draws all inferences in favor of disclosure.

For documents allegedly protected as work product, those documents dated before
the bond coverage period started on July 1, 2007, are not protected because no
litigation against F&D can be anticipated before the bond came into existence. Those
documents dated after the discovery of loss, June 29, 2010, are protected. As to
documents dated between July 1, 2007, and June 29, 2010, if the parties are unable
to agree when Integra reasonably began anticipating litigation against F&D, the parties
may submit further briefing for the court to determine what date the work-product
privilege began.

3

16

Having reviewed the categorical descriptions, the court finds only these
categories to be protected by attorney-client privilege: 7-13 and 15-18.4 The
court finds these categories to be protected by the common interest doctrine:
14, 19-24. The court finds these categories contain documents protected by the
work-product doctrine: 6, 29, 31-32, and 36. However, as stated supra, only
those documents prepared in anticipation of litigation against F&D are
protected as work product.
V.

Conclusion
For the foregoing reasons, F&D’s Motion to Compel (Docket No. 142) is

GRANTED in part and DENIED in part. FDIC may supplement its privilege
log to enable the court to determine in which documents Devine was acting in a
legal capacity. Parties are ordered to submit briefings within 30 days on
whether additional communications prior to June 29, 2010, should be
protected.
IT IS SO ORDERED the 3rd day of June, 2013.

__________________________
William G. Hussmann, Jr.
United States Magistrate Judge
Southern District of Indiana

Distribution via email to all ECF-registered counsel of record.

The court notes that these categories protect any communications between Devine
and other Integra employees and Integra’s outside counsel—that is, where Devine was
the client, not the attorney.

4

17