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

Filing 186

ORDER OVERRULING re 185 Objection filed by Commercial Law Corporation, P.C. Signed by District Judge Sean F. Cox. (JMcC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Commercial Law Corporation, P.C.,
Plaintiff,

Case No. 10-13275

v.

Hon. Sean F. Cox

Federal Deposit Insurance Corporation,
as Receiver for Home Federal Savings
Bank,
Defendants.
________________________________/
ORDER OVERRULING PLAINTIFF’S OBJECTIONS TO MAGISTRATE JUDGE
WHALEN’S SEPTEMBER 27, 2013 ORDER
Plaintiff Commercial Law Corporation, P.C. (“Plaintiff”) brought this action against
Defendant Federal Deposit Insurance Corporation (“FDIC”), as Receiver for Home Federal
Saving Bank. Plaintiff seeks to recover attorney fees for services allegedly rendered as Home
Federal Savings Bank’s general counsel prior to the appointment of the FDIC as Receiver for the
bank.
In an Order issued on September 17, 2012, this Court allowed the FDIC to issue a
subpoena to Plaintiff’s internet service provider in order to obtain e-mails sent to or received by
Mr. Erwin and/or Plaintiff for the time period from October 6, 2009, through February 6, 2012.
(Docket Entry No. 164). This Court further ordered that: 1) all e-mails produced in response to
the subpoena “shall be submitted to the Court, before any review by Defense Counsel, so that the
Court and/or Magistrate Judge Whalen can review the documents for privilege and relevance”;
and 2) “Plaintiff’s Counsel shall be provided a copy of all e-mails produced” in response to the

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subpoena. (Id.).
On November 13, 2012, the Court and Plaintiff’s Counsel received a disc containing
approximately 600 e-mails that were produced in response to the subpoena.
Thereafter, in an order issued on November 16, 2012 (Docket Entry No. 171), this Court
ordered as follows:
1)

If Plaintiff objects to any of the e-mails being produced to Defendant on
the basis of either relevance or privilege, then no later than November 30,
2012, Plaintiff shall file a brief identifying each e-mail by date, time, and
title, and stating the nature of the objection to each e-mail;

2)

If Plaintiff files a timely brief objecting to the production of e-mails to
Defendant, then Magistrate Judge Steven Whalen shall conduct an in
camera review of the e-mails produced and shall issue an order making a
determination as to each e-mail objected to by Plaintiff; and

3)

If Plaintiff does not file a brief by November 30, 2012, the Court shall Order that
all e-mails produced in response to the subpoena be provided to Defendant.

IT IS SO ORDERED.
(Docket Entry No. 171 at 2).
On September 27, 2013, Magistrate Judge Whalen issued an “Order Following In
Camera Review” (Docket Entry No. 183), wherein he ruled that Plaintiff’s objections to 33
specifically enumerated emails “are overruled” and “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.” (Id. at 3). Magistrate Judge Whalen sustained Plaintiff’s objections to the remaining
emails. (Id.). With respect to certain enumerated e-mails involving Home Federal Savings Bank
that he ordered produced, Magistrate Judge Whalen overruled Plaintiff’s objections on the basis
of attorney-client privilege, concluding that once the FDIC was appointed as receiver to Home
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Federal Savings Bank, it held the privilege. (Id. at 3).
This matter is now before this Court on Plaintiff’s Objections1 to Magistrate Judge
Whalen’s September 27, 2013 Order.
A district court judge may designate a magistrate judge to hear and determine pretrial
matters pursuant to 28 U.S.C. §636(b)(1). When a magistrate judge hears and determines a nondispositive motion (i.e., one that is not enumerated in §636(b)(1)(A)), the district judge to whom
the case is assigned may reconsider the order addressing that motion “where it has been shown
that the magistrate judge’s order is clearly erroneous or contrary to law.” Id.; see also FED. R.
CIV. P. 72.
In light of the age of this case, this Court has given expedited consideration to Plaintiff’s
objections. Having reviewed Plaintiff’s objections to the September 27, 2013 Order, the Court
finds them without merit.
In objecting to Magistrate Judge Whalen’s order, Plaintiff asserts that the magistrate
judge “improperly classified” Plaintiff’s objections to the e-mails produced because he stated
that Plaintiff objected to “every” e-mail at issue. Plaintiff asserts that he only objected to 597 of
the 615 e-mails produced and therefore he did not object to “every” e-mail. The Court finds this
objection “much ado about nothing,” especially considering that the magistrate judge sustained
Plaintiff’s objections on the vast majority of e-mails produced.
The Court also finds Plaintiff’s assertion that Magistrate Judge Whalen has a personal
bias against Plaintiff and/or its counsel entirely without merit.

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The FDIC has not filed any objections to the September 27, 2013 Order and time for
doing so has passed.
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Finally, Plaintiff objects to the magistrate judge having overruled Plaintiff’s objections
on the basis of attorney-client privilege, with respect to certain e-mails involving Federal Home
Savings Bank. Plaintiff asserts that it “did not have the opportunity to present argument and
proof that the attorney/client privilege may not belong to the Defendant has [sic] decided.” (Pl.’s
Objs. at 9). Plaintiff then directs the Court to In re American Continental Corp., 741 F.Supp.
1368 (D. Ariz. 1990) and Federal Deposit Ins. Corp. v. McAtee, 124 F.R.D. 662 (D. Kan. 1988).
The Court finds this objection without merit because, considering the issue de novo, and
having considered the authority that Plaintiff now relies on, the Court agrees with Magistrate
Judge Whalen’s ruling that once the FDIC was appointed as receiver of Federal Home Savings
Bank, it held the privilege.
Accordingly, the Court OVERRULES Plaintiff’s objections and AFFIRMS the
September 27, 2013 Order.
IT IS SO ORDERED.
S/Sean F. Cox
Sean F. Cox
United States District Judge
Dated: October 15, 2013
I hereby certify that a copy of the foregoing document was served upon counsel of record on
October 15, 2013, by electronic and/or ordinary mail.
S/Jennifer McCoy
Case Manager

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