In Re: RFC and RESCAP Liquidating Trust Litigation
Filing
2629
ORDER re #2612 Letter to District Judge filed by ResCap Liquidating Trust, Residential Funding Company, LLC concerning Plaintiffs' Reasonableness Report and Defendants' Depositions of Ally Financial, Inc. and Timothy Devine (Written Opinion). Signed by Judge Susan Richard Nelson on 06/05/17. (MJC)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
In Re: RFC and RESCAP Liquidating
Trust Actions
Civil File No. 13-3451 (SRN/HB)
ORDER
Order Regarding Plaintiffs’ Reasonableness Report and Defendants’ Depositions of
Ally Financial, Inc. and Timothy Devine
________________________________________________________________________
SUSAN RICHARD NELSON
Before the Court is a letter request from Plaintiffs regarding the disclosure of their
opening expert report concerning the reasonableness of the ResCap bankruptcy settlement
(the “Reasonableness Report”) and Defendants’ possible use of information in the
Reasonableness Report at the depositions of Ally Financial, Inc. and Timothy Devine
(collectively, “Ally”). (Pls.’ Letter of 5/25/17 [Doc. No. 2612].) Plaintiffs ask the Court
to enter an order precluding the defense attorneys who will be preparing for or taking the
Ally depositions from using the Report in the depositions. (Id. at 1.) Plaintiffs contend
that permitting Defendants such access in advance of the Ally depositions would be
inconsistent with the agreed-upon sequence of fact and expert discovery, and would give
Defendants an unfair advantage “if Defendants use the Reasonableness Report as an
outline for the depositions of Ally and Mr. Devine, or indeed examine or impeach Ally or
Mr. Devine using the expert opinions in the Report.” (Id.) Additionally, Plaintiffs note
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that the Court previously utilized a temporary screening approach with respect to an
unrelated dispute between Plaintiffs and Defendant First Guaranty Mortgage Corporation
(“FGMC”). (Id.) (citing Text Only Order of 5/11/17 [Doc. No. 2588].) Plaintiffs therefore
request that the attorneys assigned to depose the Ally deponents, and the attorneys
assisting them, be screened from the Reasonableness Report until after the depositions.
(Id.)
Defendants oppose Plaintiffs’ request for several reasons. They first argue that
Plaintiffs fail to explain how the Ally fact witnesses could be “impeached” with Plaintiffs’
expert opinion. (Defs.’ Letter of 5/30/17 at 1-2 [Doc. No. 2613].) They assert that the
better course is to follow the standard discovery practice of permitting all counsel to
review and use the materials once they have been produced. (Id. at 2.) Moreover, they
assert that it would be unfair for their examining deposition attorneys to be screened from
the Reasonableness Report, while Plaintiffs’ attorneys would have access to the Report
and be able to ask the Ally deponents questions based on that knowledge. (Id.) Finally,
Defendants distinguish the context of the earlier ruling concerning FGMC. (Id. at 3.)
The Court denies Plaintiffs’ request. Following the standard procedure of
providing the Report to all counsel will enable counsel to prepare for, take, and defend the
Ally depositions. However, given Plaintiffs’ valid concerns about timing and fairness,
after the depositions, and without disrupting the current schedule, Plaintiffs’
reasonableness expert may file a supplemental report limited to addressing any issues
arising from the Ally depositions.
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Dated: June 5, 2017
s/Susan Richard Nelson
SUSAN RICHARD NELSON
United States District Judge
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