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

Filing 282

ENTRY supporting 270 Marginal Entry Granting, In Part, Plaintiff's Motion for Protective Order - For reasons stated in this Entry, the Motion for Protective Order is GRANTED, as previously specified at Docket No. 270 . Signed by Magistrate Judge William G. Hussmann, Jr., on 11/18/2013.(NRN)

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

3:11-cv-19-RLY-WGH

ENTRY SUPPORTING THE MAGISTRATE JUDGE’S
MARGINAL ORDER AT DOCKET NO. 270 GRANTING, IN PART,
PLAINTIFF’S MOTION FOR PROTECTIVE ORDER
On August 14, 2013, the Federal Deposit Insurance Corporation, as
Receiver for Integra Bank, N.A. (“the FDIC-Receiver”), filed a Motion for a
Protective Order Precluding the Noticed Rule 30(b)(6) Deposition of the FDICReceiver. (Docket No. 236). The amended Rule 30(b)(6) deposition notice
required the FDIC-Receiver to designate one or more persons to testify on its
behalf regarding certain matters of examination listed as Exhibit A to the
notice. “Exhibit A” contained 35 separate “matters of examination,” which
contained an additional 22 subtopics. The “matters of examination” largely
began by asking the FDIC-Receiver to produce a witness(es) who could testify
to “the factual basis for . . . .” Other “matters of examination” required the

FDIC-Receiver to testify to “[w]hen Integra first learned . . .” (#22), or “[t]he
identity of the person at Integra who first learned . . . .” (#23).
The FDIC-Receiver’s Motion for a Protective Order agreed to allow the
deposition to be taken as to the “matters of examination” 2, 19-20, 26-27, and
35, but otherwise requested the court to enter the Protective Order quashing all
other topics within the notice.
After a review of the Response in opposition to the Motion for a Protective
Order (Docket No. 252 filed September 17, 2013) and Reply (Docket No. 268
filed October 11, 2013), the Magistrate Judge issued an order granting the
FDIC-Receiver’s Motion for a Protective Order on all topics which they
requested relief, except for topic 10. (Docket No. 270). The FDIC-Receiver was
required to make a person available to address topic 10, as well as those topics
previously agreed to by the FDIC-Receiver.
This entry is to establish the rationale for the order entered at Docket No.
270.
The Magistrate Judge agrees with the FDIC-Receiver that topics 1, 3-9,
11-16, 22-25, and 28-34 of the notice improperly seek testimony regarding prereceivership activities by Integra. Integra originally filed this lawsuit in
February 2011, many months before the bank was closed and the FDIC was
appointed Receiver. The Magistrate Judge agrees that when the FDIC is
appointed as receiver of a failed bank under federal law, it does not “become”
the bank, either factually or legally. See 12 U.S.C. § 1821(d). Under these
circumstances, it would be unduly burdensome to require the FDIC to
2

educate its own employees for purposes of a deposition in the extreme detail
required by the amended notice. The information which falls within these
numbered topics is equally available to the FDIC-Receiver and F&D through
their examination of bank representatives who are witnesses themselves. The
FDIC-Receiver need not respond to those topics for that reason.
As to topics 17 and 18, the topics are overbroad in that they seek factual
bases for the answer of all interrogatories and all requests for admission.
While contention interrogatories are recognized as a method of explaining a
party’s position prior to trial, the Magistrate Judge concludes that requiring the
FDIC-Receiver to prepare persons to testify as to the bases of those answers
would be unduly burdensome.
“Matter of examination” 21 seeks a person to testify to the factual basis
for 22 separate subtopics encompassing virtually every allegation in the
amended Supplemental Complaint. The Magistrate Judge concludes that this
is unduly burdensome and not required. See, for example, Smithkline Beecham
Corp. v. Apotex Corp., 2000 WL 116082 at *9 (N.D. Ill., January 24, 2000).
Given that the FDIC is the Receiver for Integra, requiring the FDIC itself to
provide a witness as to each and every allegation in the amended Supplemental
Complaint would require its counsel to provide the witnesses and evidence
necessary to try its case. In this complex case involving allegations of fraud
which occurred well before the FDIC took over the bank, requiring the FDIC to
tender a witness as to each of these “matters” simply requires the FDIC’s
counsel to present its case in chief. The information which is necessary to
3

support the allegations of the amended Supplemental Complaint is equally
available to both parties in this case, and is not within the exclusive control of
the FDIC-Receiver. It is unduly burdensome to require the FDIC-Receiver’s
counsel to prepare all witnesses necessary to establish its case in the scope of
a 30(b)(6) deposition.
Therefore, the Motion for Protective Order is GRANTED, as previously
specified at Docket No. 270.
SO ORDERED the 18th day of November, 2013.

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

Served electronically on all ECF-registered counsel of record.

4