Datatreasury Corporation v. Wells Fargo & Company et al

Filing 585

RESPONSE to Motion re #522 MOTION to Compel Certain Documents Relating to Defendant First Citizens Bancshares, Inc.'s Jurisdictional Challenge filed by First Citizens Bancshares, Inc., First Citizens Bank & Trust Company. (Attachments: #1 Exhibit Exhibit A BancShares' Objections and Responses to Requests for Admissions#2 Exhibit Exhibit B BancShares' Objections and Responses to Interrogatories#3 Exhibit Exhibit C Cover letters showing the bates ranges of the production#4 Exhibit Exhibit D Excerpts to John Gray's deposition#5 Text of Proposed Order Proposed Order)(Carlson, Larry)

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Exhibit B

Dockets.Justia.co

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IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS MARSHALL DIVISION

DATATREASURY CORPORATION
Plaintiff
Civil Action No. : 2:06-CV-

WELLS FARGO & COMPANY, et aI
Defendants

FIRST CITIZENS BANCSHARES, INC. S OBJECTIONS AND RESPONSES TO PLAINTIFF DATATREASURY CORPORATION' S FIRST SET OF INTERROGATORIES REGARDING JURISDICTIONAL DISCOVERY
Pursuant to Federal Rule of Civil Procedure 33 , First Citizens BancShares , Inc.

BancShares ) submits its objections and responses to Plaintiff Datatreasury Corporation s First
Set of

Interrogatories Regarding Jurisdictional Discovery

to Defendants First Citizens

BancShares , Inc. (Nos. 1- 18).

GENERAL OBJECTIONS TO DEFINITIONS AND INSTRUCTIONS
BancShares objects to Definitions 6 , 7, 9, and 10 as overly broad and as rendering

the interrogatories unduly burdensome , harassing, and as seeking information neither relevant
nor reasonably calculated to lead to the discovery of admissible evidence.

BancShares objects to Instructions 2 , 3 , and 5 as seeking to impose obligations on

BancShares beyond those within the Federal Rules of Civil Procedure, the Cour' s Local Rules
and Patent Rules, and the Cour' s order dated December 8 , 2006 (Docket Entry 394).

INTERROGATORIES
INTERROGATORY NO.

Please identify each and every person who assisted in preparng the answers to these
discovery requests.

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ANSWER:
BancShares incorporates its General Objections. BancShares also objects to ths
inquiry

as seeking information protected by the attorney-client privilege , attorney work product doctrine,
joint defense

privilege or any other

applicable privilege or immunity from

discovery.

BancShares also objects to this interrogatory as vague and ambiguous in that " these discovery
requests" is undefined and subject to multiple interpretations.

Subject to and without waiving these objections , BancShares responds that John Gray
assisted in preparing these responses to DataTreasur s interrogatories.

INTERROGATORY NO.
Please identify each and every person who assisted in preparing and drafting the affdavit

of John Gray titled Declaration of John Gray in Support of Defendant First Citizens Bancshares,
Inc. Motion to Dismiss for Lack of Personal Jurisdiction relating to this matter.

ANSWER:
BancShares incorporates its General Objections. BancShares also objects to this inquiry
as seeking information protected by the attorney- client privilege, attorney work product doctrine

joint defense privilege or any other applicable privilege or imunity from discovery.
Subject to and without waiving these objections , BancShares responds: John Gray,
Kathleen Perkinson,

Jan Jeffey, Peg Powers, Mark Johnson, Ruth Clark, and Charles Dail.

INTERROGATORY NO.
Please identify (by paries, docket number and cour) all lawsuits in which First Citizens
Bancshares Inc. has been a pary to a lawsuit in the State of Texas.

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ANSWER:

BancShares incorporates its General Objections.

BancShares also objects to this

Interrogatory as overly broad, unduly burdensome, and as seeking information beyond the scope

of permissible discovery available under Federal Rule of Civil Procedure 26 , the Cour' s order
dated December 8, 2006 (Docket Entry 394), and the Cour' s Local Rules and Patent Rules.

Subject to and without waiving these objections, BancShares responds that other than the

curent lawsuit fied by DataTreasur against BancShares, it has not been a part
in Texas.

to any lawsuit

INTERROGATORY NO.

Please identify all instances in which First Citizens Bancshares Inc. has defended or
assumed responsibHity for a liabilty claim against any of its baning subsidiaries, including but
not limited to all

instances where First Citizens

Bancshares Inc. has paid any

form of

consideration on behalf of First Citizens Ban and Trust Company.

ANSWER:

BancShares incorporates its General Objections.

BancShares also objects to this

Interrogatory as vague and ambiguous with respect to the phrase "assumed responsibilty for a
liabilty claim.

BancShares also

objects to this Interrogatory as overly broad, unduly

burdensome , and as seeking information beyond the scope of permissible discovery available
under Federal Rule of Civil Procedure 26,

the Court' s order dated December 8, 2006 (Docket

Entry 394), and the Court' s Local Rules and Patent Rules. BancShares

also objects to this

inquiry as seeking information protected by the attorney-client privilege, attorney work product
doctrine , joint defense privilege or any other applicable privilege or immunity from discovery.

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Subject to and without waiving these objections, BancShares responds that it has not

defended or assumed responsibilty for any of its baning subsidiaries in Texas in any legal
dispute.

INTERROGATORY NO.
For the period of time between January 1 , 1999 and the

present, please describe all

business activities between First Citizens Bancshares, Inc. and First Citizens Bank and Trust
Company (including but not limited to activities in Texas).

ANSWER:

BancShares incorporates its General Objections.
Interrogatory as vague and ambiguous with

BancShares also

objects to this
activities.

respect to the phrase " business

BancShares also objects to this Interrogatory as overly broad ,

unduly burdensome, and as

seeking information beyond the scope of permissible discovery available under Federal Rule of

Civil Procedure 26,

the Court' s

order dated December 8 , 2006 (Docket Entry 394),

and the

Cour' s

Local Rules and Patent Rules.

BancShares also objects to the specified time frame for

this interrogatory as rendering the inquiry overly broad and as seeking information beyond the

scope of permissible discovery. BancShares also objects to this inquiry as seeking information
protected by the attorney-client privilege, attrney work product doctrine, joint defense privilege

or any other applicable privilege or immunity from discovery.

Subject to and without waiving these objections, BancShares responds that pursuant to

Federal Rule of Civil Procedure 33(d), BancShares has produced business records from which
the relationship between BancShares and First-Citizens Ban & Trust Company may be derived
or ascertained. Without limitation, the business records are bates labeled FCBSOOOOI - 1216.

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INTERROGATORY NO.

For the period of time between

Januar 1 , 1999 and the present, please describe all

business activities between First Citizens Bancshares, Inc. and Small Value Payments Company,

LLC and/or The Clearng House Payments Company LLC (including but not limited to activities
in Texas).

ANSWER:

BancShares incorporates its General Objections.
Interrogatory as vague and ambiguous

BancShars also objects to this
phrase "business activities.
and as

with respect to the

BancShares also objects to this Interrogatory as overly broad, unduly burdensome ,

seeking information beyond the scope of permissible discovery available under Federal Rule of

Civil Procedure 26, the Cour' s

order dated

December 8, 2006 (Docket Entr

394), and the

Cour' s

Local Rules and Patent Rules.

BancShares also objects to the specified time trame for

this interrogatory as rendering the inquiry overly broad and as seeking information beyond the

scope of permissible discovery. BancShares also objects to this inquiry as seeking information
protected by the attorney-client privilege, attorney work product doctrine , joint defense privilege

or any other applicable privilege or immunty from discovery.

Subject to and without waiving these objections, BancShares responds that it is aware of
no activity responsive to this Interrogatory.

INTERROGATORY NO.

For the period of time between Januay 1 ,

1999 and the

present, please describe all

business activities between First Citizens Bancshares, Inc. and Viewpointe Archive Services
LLC (including but not limited to activities in Texas).

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ANSWER:

BancShares incorporates its General Objections.
Interrogatory as vague and ambiguous with respect

BancShares also objects to this
activities.

to the phrase "business

BancShares also objects to this Interrogatory as overly broad,

unduly burdensome, and as

seeking information beyond the scope of permissible discovery available under Federal Rule of

Civil Procedure 26, the Cour' s

order dated

December 8, 2006 (Docket Entr

394), and the

Cour' s

Local Rules and Patent Rules.

BancShares also objects to the specified time frame for

this interrogatory as rendering the inquiry overly broad and as seeking information beyond the

scope of permissible discovery. BancShares also objects to this inquiry as seeking information
protected by the attorney-client privilege, attorney work product doctrine, joint defense privilege

or any other applicable privilege or immunity from discovery.

Subject to and without waiving these objections, BancShares responds that it is aware of
no activity responsive to this Interrogatory.

INTERROGATORY NO.
From Januar I, 1999 to present, please identify all revenues that have been provided to
First Citizens Bancshares, Inc. from First Citizens Ban and Trust Company, including but not
limited to all revenues originating from business activity in Texas.

ANSWER:

BancShares incorporates its General Objections.

BancShares also objects to this

Interrogatory as vague and ambiguous with respect to the phrase "revenues that have been

provided. "

BancShares also objects to this Interrogatory as overly broad,

unduly burdensome

and as seeking information beyond the scope of permissible discovery available under Federal

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Rule of Civil Procedure 26, the Cour' s order dated December 8 , 2006 (Docket Entr 394), and

the Cour' s

Local Rules and Patent Rules.

BancShares also objects to the specified time frame

for this interrogatory as rendering the inquiry overly broad and as seeking information beyond
the scope of permissible discovery.
Subject to and without waiving

these objections, BancShares

responds that as

shareholder, it receives dividends from First-Citizens Bank & Trust Company, which does not
have any offces or branches in Texas and

does not conduct baning operations in Texas.

INTERROGATORY NO.
Please identify the address of each location in Texas which First Citizens Bancshares
Inc. owns, leases or has any interest in real estate.

ANSWER:

BancShares incorporates its General Objections.

BancShares also objects to this

Interrogatory as overly broad, unduly burdensome, and as seeking information beyond the scope

of permissible discovery available under Federal Rule of Civil Procedure 26, the Cour' s order
dated December 8 , 2006 (Docket Entr 394), and the Cour' s Local Rules and Patent Rules.

Subject to and without waiving these objections, BancShares responds: None. .

INTERROGATORY NO. 10:
Please identify all land-

line telephone numbers in Texas used by First Citizens
1,

Bancshares , Inc. to conduct business from Januar

1999 to present.

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ANSWER:

BancShares incorporates its General Objections.

BancShares also objects to this

interrogatory as vague and ambiguous. BancShares also objects to this Interrogatory as overly
broad , unduly burdensome, and as seeking information beyond the scope
of

permissible

discovery available under Federal Rule of Civil Procedure 26, the Court' s order dated December

, 2006 (Docket Entry 394), and the Cour' s

Local Rules and Patent Rules. BancShares also
rendering the inquiry overly broad

objects to the specified time frame for this interrogatory as

and as seeking information beyond the scope of permissible discovery.
Subject to and without waiving these objections , BancShares responds: None.

INTERROGATORY NO. 11:
From January 1 ,
1999 to present,

please identify (by name and address) all members of
Inc. , and describe in detail any business

the board of directors of First Citizens Bancshares ,

activities conducted by those persons for First Citizens Bancshares,
Texas.

Inc. while physically in

ANSWER:

BancShares incorporates its General Objections.
Interrogatory as vague and ambiguous with respect

BancShares also

objects to this
activities.

to the phrase "business

BancShares also objects to this Interrogatory as overly broad ,

unduly burdensome, and as

seeking information beyond the scope of permissible discovery available under Federal Rule of

Civil Procedure 26, the Court' s
Court' s

order dated

December 8, 2006 (Docket Entry 394), and the

Local Rules and Patent Rules.

BancShares also objects to the specified time frame for

this interrogatory as rendering the inquiry overly broad and as seeking information beyond the

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scope of permissible discovery. BancShares also objects to this inquiry as seeking information
protected by the attorney-client privilege, attorney work product doctrne, joint defense privilege
or any other applicable privilege or immunity from discovery.

Subject to and without waiving these objections, BancShares responds that pursuant to

Federal Rule of Civil Procedure 33(d), BancShares has produced business records from which

the identity of members of the board of directors may be derived or ascertained. Without
limitation , the business records are bates labeled FCBS00700 - FCBS00795. BancShares also
responds that to its knowledge, none of its directors have conducted business for BancShares

while in Texas.

INTERROGATORY

NO. 12:

Prom January 1 , 1999 to present, please identify all charitable or financial contributions
or payments made to any and all organizations ,

including but not limited

to, charitable

organizations , businesses , affiiates, subsidiaries, or otherwse in the state of Texas.

ANSWER:

BancShares incorporates its General Objections.

BancShares also objects to this

Interrogatory as overly broad, unduly burdensome, and as seeking information beyond the scope

of permissible discovery available under Federal Rule of Civil Procedure 26, the Cour' s order
dated December 8 , 2006 (Docket Entry 394), and the Cour' s Local Rules and Patent Rules.

BancShares also objects to the specified time frame for this interrogatory as rendering the inquiry overly broad and as seeking information beyond the scope of permissible discovery.

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Subject to and without waiving

these objections, BancShares responds that to its

knowledge , the only payments responsive to this request relate to the documents bates labeled
FCBS01217- 1227.

INTERROGATORY NO. 13:
Please describe in detal the manner(s) in which First Citizens Bancshares , Inc. exercises

ownership and control of its baning subsidiaries as represented in First Citizens Bancshares
Inc.'s 2005 Form 10- K filing with the Securities and Exchange Commission.

ANSWER:

BancShares incorporates its General Objections.

BancShares also objects to this

Interrogatory as vague and ambiguous with respect to the phrase "exercises ownership and

control." BancShares also objects to this Interrogatory as overly broad , unduly burdensome, and
as seeking information beyond the scope of permissible discovery available under Federal Rule

of Civil Procedure 26 , the Cour' s order dated December 8 , 2006 (Docket Entr

394), and the

Cour' s

Local Rules and

Patent Rules. BancShares also objects to this inquiry

as seeking

information protected by the attorney-client privilege , attorney work product doctrine ,

joint

defense privilege or any other applicable privilege or immunity from discovery.

Subject to and without waiving these objections , BancShares responds that its 2005 Form
lO- K accurately describes the relationship between BancShares and its subsidiares.

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INTERROGATORY NO. 14:
Please identify the person(s) within First Citizens Bancshares, Inc. that is(are) responsible

for complying with the requirements of the Sarbanes-Oxley Act for all Securities & Exchange
Commission filings made by First Citizens Bancshares, Inc.

ANSWER:

BancShares incorporates its General Objections.

BancShares also objects to

this

Interrogatory as overly broad, unduly burdensome, and as seeking information beyond the scope

of permissible discovery available under Federal Rule of Civil Procedure 26 , the Cour' s order
dated December 8, 2006 (Docket Entry 394), and the Cour' s Local Rules and Patent Rules.

BancShares also objects to this inquiry as seeking information protected by the attorney-client
privilege ,
attorney

work product doctrine ,

joint defense privilege or

any other applicable

privilege or immunity from discovery.

INTERROGATORY NO. 15:

Please identify all offcers, directors, and employees of First Citizens Bancshares ,
that also serve as offcers, directors, or employees of First Citizens Ban and Trust Company.

Inc.

ANSWER:

BancShares incorporates its General Objections.

BancShares also objects to this

Interrogatory as overly broad, unduly burdensome , and as seeking information beyond the scope

of permissible discovery available under Federal Rule of Civil Procedure 26, the Cour' s
dated December 8, 2006 (Docket Entry 394), and the Court' s Local Rules and Patent Rules.

order

Subject to and without waiving these objections , BancShares responds that pursuant to

Federal Rule of Civil Procedure 33(d), BancShares has produced business records from which

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the requested information may be derived or ascertaied. Without limitation,
records are bates labeled FCBS00700 - FCBS00795.

the business

INTERROGATORY NO. 16:

Please list all instances

where First Citizens Bancshares

, Inc. has provided financial

assistace in any way for First Citizens Ban

and Trust Company to operate in Texas.

ANSWER:

BancShares incorporates its General Objections.

BancShares also objects to this

Interrogatory as vague and ambiguous with respect to the phrase "has provided financial
assistance. "
BancShares

also objects to this Interrogatory as overly broad, unduly burdensome,

and as seeking information beyond the scope of permissible discovery available under the

Federal Rule of Civil Procedure 26, the Cour' s order dated December 8, 2006 (Docket Entry
394), and the Cour' s Local Rules and Patent Rules.
Subject to and without waiving these objections, BancShares responds: None.

INTERROGATORY NO. 17:
Please list and describe in detail all instances where First Citizens Bancshares, Inc. has made a representation that it operates Of controls any subsidiar company that does business in
Texas.

ANSWER:

BancShares incorpofates its General Objections.
Interrogatory as vague and ambiguous

BancShares also objects to this
phrase "operates or controls.
and as

with respect to the

BancShares also objects to this Interrogatory as overly broad, unduly burdensome,

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seeking information beyond the scope of permissible discovery available under Federal Rule of

Civil Procedure 26, the Cour' s order dated December 8, 2006 (Docket Entry 394), and the
Cour' s Local Rules and Patent Rules.
BancShares also objects to this inquiry as seeking

information protected by the attorney-client privilege,

attorney work product doctrine, joint

defense privilege or any other applicable privilege or immunity from discovery.

Subject to and without waiving these objections, First Citizens BancShares responds:
None.

INTERROGATORY NO. 18:
List and describe all contacts between First Citizens Bancshares , Inc. and the State of
Texas.

ANSWER:

BancShares incorporates its General Objections.

BancShares also objects to this
BancShares also

Interrogatory as vague and ambiguous with respect to the term "contacts.

objects to this Interrogatory as overly broad, unduly burdensome, and as seeking information

beyond the scope of permissible discovery available under Federal Rule of Civil Procedure 26
the Court' s order dated December 8, 2006 (Docket Entr 394), and the Court' s Local Rules and
Patent Rules.

Subject to and without waiving these objections, BancShares responds that pursuant to

Federal Rule of Civil Procedure 33(d), BancShares has produced business records from which

the requested information may be derived

or

ascertained. Without limitation ,

the business

records are bates labeled FCBS01217 - FCBS01227.

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Dated: January 22

2007.

Respectfuly submitted

Isl

Lary D. Carlson

Attorney-in-Charge Texas State Bar No. 03814500 Mail: lar.carlson bakerbotts. com Fernando Rodriguez, Jr. Texas State Bar No. 24005048 Mail: fernando.rodriguez bakerbotts. com David O. Taylor Texas State Bar No. 24042010 Mail: david.taylor bakerbotts. com BAKER BOTTS L.L.P. 2001 Ross Avenue, Suite 600 Dallas , Texas 75201 Telephone: [phone] Facsimile: (214) 953- 6503
Larr D. Carlson,

Donalt J. Eglinton Mail: dje wardandsmith. com WARD AND SMITH , P. Post Offce Box 867 New Bern, North Carolina 28563 Telephone: [phone] Facsimile: (252) 672- 5477
ATTORNEYS FOR DEFENDANTS FIRSTCITIZENS BANK & TRUST COMPANY AND FIRST CITIZENS BANCSHARES , INC.

CERTIFICATE OF SERVICE

I certify that on Januar 22 , 2007, all counsel who are deemed to have consented to electronic service are being served with a copy of this document via electronic transmission.

Isl

Lar D. Carlson

Lary D. Carlson

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