Commercial Law Corporation, P.C. v. Federal Deposit Insurance Corporation

Filing 183

ORDER FOLLOWING IN CAMERA REVIEW re: 171 Order Referring Other Matters to Magistrate Judge. Signed by Magistrate Judge R. Steven Whalen. (MWil)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
COMMERCIAL LAW CORPORATION,
P.C.,

No. 10-13275

Plaintiff,

District Judge Sean F. Cox

v.

Magistrate Judge R. Steven Whalen

FEDERAL DEPOSIT INSURANCE
CORPORATION,
Defendant.
/
ORDER FOLLOWING IN CAMERA REVIEW
Pursuant to the Court’s Order of November 16, 2012 [Doc. #171], as amended on
November 21, 2012 [Doc. #175], I have conducted an in camera review of 597 emails
from the time period of October 6, 2009 through February 6, 2012, sent to the Court by
Plaintiff’s internet service provider. On December 10, 2012, the Plaintiff filed objections
to every one of these emails [Doc. #176]. The Plaintiff’s objections fall into three
categories: “Not relevant,” “Attorney/Client Privilege,” and “Trial Prep Privilege.” While
many of Plaintiff’s relevance objections are well-taken, a number of emails (33),
especially those referencing Home Federal Savings and its Board, and the FDIC, are
clearly pertinent to this litigation, and Plaintiff’s blanket objection to every email suggests
a troubling inclination to improperly conceal relevant evidence.
The emails that were sent by Yahoo! were placed on a CD in “mbox” format. The
written instructions sent with the CD described “mbox” as follows: “This is the format in
which the mailbox is stored on the server. The messages in the mailbox are placed into a
single text file (mbox format). The snapshot may have been supplied to you on a CD or
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DVD.” The numbered emails specified on Plaintiff’s log sometimes include email
chains, that is, messages and responses, rather than discrete individual emails. Moreover,
while the dates and subject lines in Plaintiff’s log correspond to the emails in the text file,
the times do not. Fortunately, a word-search function enabled me to match each email or
email chain with the corresponding objection.1
Based on my in camera review, I find that the following emails, listed in Exhibit A
of Plaintiff’s objections [Doc. #176-1], and objected to on the basis of relevance, are
indeed relevant to this litigation under the broad standard of relevance contemplated by
Fed.R.Civ.P. 26:
No.
2
3
12
13
14
16
19
22
25
26
27
38
72
82
86
90
91
93
141
146
154
179
180
213

Date
10-6-09
10-6-09
10-6-09
10-6-09
10-6-09
10-7-09
10-8-09
10-9-09
10-9-09
10-9-09
10-9-09
10-13-09
10-17-09
10-19-09
10-19-09
10-20-09
10-20-09
10-20-09
10-23-09
10-24-09
10-26-09
10-28-09
10-28-09
11-6-09

Title
Home Federal Savings
Board Meeting
Home Federal
Home Federal
Home Federal Savings
Home Federal Savings
Home Federal Savings
Home Federal
Draft Presentation for Board Meeting
Draft Presentation for Board Meeting
Draft Presentation for Board Meeting
Home Federal
Board Members
Home Federal
Home Federal
Home Federal
Home Federal
Home Federal Savings
Home Federal Savings
Home Federal
Home Federal
Home Federal
Home Federal
Home Federal Savings

1

I wish to acknowledge the invaluable assistance of the Court’s IT Department in
retrieving the text of these emails.
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In addition, Plaintiff has objected to certain emails involving Home Federal
Savings and the FDIC on the basis of attorney-client privilege. However, as the FDIC
correctly notes, once it was appointed receiver to Home Federal Savings, it held the
privilege. 12 U.S.C. § 1821(d)(as successor, FDIC succeeds to “all right, titles, powers,
and privileges of the insured depository institution”); see also O'Melveny & Myers v.
FDIC, 512 U.S. 79, 86–87, 114 S.Ct. 2048, 129 L.Ed.2d 67 (1994) (“the FDIC as receiver
‘steps into the shoes' of the [pre-existing institution], obtaining the rights ‘of th[e]
institution’ that existed prior to receivership”); Odmark v. Westside Bancorporation, Inc.,
636 F.Supp. 552m 554 (W.D. Wash. 1986)(as receiver, the attorney-client privilege
previously held by the financial institution is transferred to the FDIC). Therefore, the
following emails are discoverable2:
No.
3
4
22
146
178
199
217
227
228

Date
10-6-09
10-6-09
10-9-09
10-24-09
10-27-09
11-3-09
11-8-09
11-10-09
11-11-09

Title
Special Board Meeting
Special Board Meeting
Home Federal
Home Federal
FDIC
Home Federal
Home Federal Savings/FDIC (½)
Home Federal
Former Home Federal

Accordingly, Plaintiff’s objections to the 33 above-enumerated emails are
overruled. Plaintiff shall, within 14 days of the date of this Order, produce to Defendant’s
counsel copies of all of the 33 above-enumerated emails. If a particular numbered email
is comprised of an email chain, Plaintiff shall produce the entire email chain.
As to the remaining emails that are not specifically enumerated herein, Plaintiff’s
objections are sustained.
2

There are, of course, a number of emails, not involving Home Federal Savings, to
which the privilege is properly asserted.
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#10-13275
Commercial Law Corp., v.
Federal Deposit Ins.
Corp.

IT IS SO ORDERED.
Dated: September 27, 2013

s/R. Steven Whalen
R. STEVEN WHALEN
UNITED STATES MAGISTRATE JUDGE

I hereby certify that a copy of the foregoing document was sent to parties of record on
September 27, 2013, electronically and/or by U.S. Mail.
s/Michael Williams
Case Manager to the
Honorable R. Steven Whalen

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