United States of America v. Wells Fargo Bank, N.A.
| United States of America |
| Wells Fargo Bank, N.A. |
| 1:2012cv07527 |
| October 9, 2012 |
| US District Court for the Southern District of New York |
| Foley Square Office |
| New York |
| Jesse M. Furman |
| Fraud or Truth-In-Lending |
| 31 U.S.C. ยง 3729 False Claims Act |
| Plaintiff |
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Filing
335
MEMORANDUM OPINION AND ORDER re: 327 LETTER MOTION for Discovery Permitting the Department of Justice to Make a Disclosure Under the Protective Order addressed to Judge Jesse M. Furman from AUSA Jeffrey Oestericher dated 01/13/2022. filed by United States of America. Upon review of the parties' submissions, see ECF Nos. 327, 333, 334, the Court denies the Government's motion. The Court agrees with Wells Fargo that the documents at issue are "Discovery Materia ls" within the broad definition of that term set forth in Paragraph 1 of the Protective Order. Protective Order ¶ 1. Pursuant to Paragraph 32 of the Protective Order, therefore, DOJ was under an obligation to destroy the documents over fi ve years ago and it repeatedly certified that it had done so. Protective Order ¶ 32; ECF No. 333 at 1-2; ECF No. 333-2. To allow DOJ to share documents that it should have destroyed and claimed to have destroyed would do violence to the pla in terms of the Protective Order and the reasonable expectations of Wells Fargo and reward DOJ for its noncompliance. As a legal matter, therefore, the documents are not available to DOJ for any purpose; they effectively do not exist. See, e.g., Be nedict v. McMahon, 315 F.R.D. 447, 451-52 (E.D. Pa. 2016). It follows that the documents are not available to DOJ "for any purpose," including disclosure pursuant to Paragraph 22 of the Protective Order. Moreover, the plain language of P aragraph 22 does not permit DOJ to disclose the documents to the IRS. By its terms, Paragraph 22 permits DOJ to "disclose" otherwise confidential documents "for purposes of reporting any potential violation of law or regulation." ; Protective Order ¶ 22. Here, however, DOJ is merely seeking to comply with a request from the IRS; DOJ does not seek to "report[]" anything within the plain meaning of that term. In short, by its "plain language," the Prot ective Order in this case prohibits DOJ from disclosing the documents at issue to the IRS. SEC v. Merrill Scott & Assocs., Ltd., 600 F.3d 1262, 1271-72 (10th Cir. 2010) (citing City of Hartford v. Chase, 942 F.2d 130, 134-35 (2d Cir. 1991)). Indeed , to permit DOJ to share documents that it was required by the Protective Order to destroy, whether actually or constructively, "would encourage similar improper conduct in the future and would discourage future civil litigants from relying on the governments promises." Id. at 1271. The Clerk of Court is directed to terminate ECF No. 327. SO ORDERED. (Signed by Judge Jesse M. Furman on 2/8/22) (yv)
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Filing
306
MEMORANDUM OPINION AND ORDER re: 296 MOTION for Certificate of Appealability /Notice of Defendant Kurt Lofrano's Motion to Amend and Certify Order for Interlocutory Appeal, dated October 7, 2015, re 295 filed by Kurt Lofrano: that, Lofrano's motion is denied, as further set forth in this order. The Clerk of Court is directed to terminate Docket No. 296. (Signed by Judge Jesse M. Furman on 11/2/2015) (tn)
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Filing
302
OPINION AND ORDER re: 276 MOTION to Compel the production of documents withheld by Plaintiff filed by Wells Fargo Bank, N.A.: For the foregoing reasons, Wells Fargo's motion to compel is granted in part and denied in pa rt. Specifically, it is denied as to all documents except for Log Entries 1,307-1,310; 1,353-1,354; and 4,412, which must be disclosed to Wells Fargo. Log Entry 18,658, the final version of the letter contained in Log Entry 41,369, and portions of Log Entries 41,369; 41,376; and 41,377 may also have to be disclosed, pending further clarification from the Government. The Government is hereby directed to submit a copy of all the materials that were submitted to the Court for its in camera rev iew to the Sealed Records Department so that they may be made part of the record in this matter. Additionally, the Government shall promptly file on ECF a copy of its letter dated September 14, 2015, accompanying some of the documents submitted to the Court, as the Court sees no basis for the letter itself (which was copied to defense counsel) to be kept under seal. The Clerk of Court is directed to terminate Docket No. 276. (Signed by Judge Jesse M. Furman on 10/21/2015) (tn)
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Filing
295
OPINION AND ORDER re: 274 MOTION for Protective Order - WELLS FARGO BANK, N.A.S NOTICE OF MOTION FOR A PROTECTIVE ORDER filed by Wells Fargo Bank, N.A.: The Second Circuit has acknowledged that commitment to the policies a nd values underlying the attorney-client privilege can result in injustice in individual cases. "Recognition of the privilege," the Court has explained, "reflects a judgment that impairment of the search for truth in some instanc es is outweighed by the social and moral values of confidential consultations. The law accepts the risks of factual error and injustice in individual cases in deference to the values that the privilege vindicates." In re Grand Jury Inves tigation, 399 F.3d 527, 531 (2d Cir. 2005) (internal quotation marks and alterations omitted)). No doubt, that is cold comfort to Lofrano - who may well have taken actions on Wells Fargo's behalf in the good-faith belief that he was acting in compliance with the law, and cannot make that argument at trial in light of Wells Fargo's refusal to waive its attorney-client privilege. But the reality is that the privilege at issue here does not belong to Lofrano - it belongs to We lls Fargo, and only Wells Fargo can elect to waive it. Wells Fargo has refused to do so, and Lofrano is ultimately asking the Court to disregard - or do an end run around - that refusal. For the reasons stated above, the Court cannot do so. Accordingly, Wells Fargo's motion for a protective order is granted. The Clerk of Court is directed to terminate Docket No. 274. (Signed by Judge Jesse M. Furman on 9/22/2015) (tn)
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Filing
294
MEMORANDUM OPINION AND ORDER re: 235 MOTION to Compel plaintiff to re-produce "clawed-back" documents, and produce an adequate and complete privilege log filed by Wells Fargo Bank, N.A.: For the reasons stated abov e, the Bank's motion is GRANTED with respect to the documents used during depositions, but DENIED with respect to all other documents. The Clerk of Court is directed to terminate Docket No. 235. (Signed by Judge Jesse M. Furman on 8/26/2015) (tn)
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Filing
243
MEMORANDUM OPINION AND ORDER: The Government's motion to reopen discovery and compel the production of documents is DENIED, but without prejudice to renewal based on further developments. No later than July 10, 2015, the parties shall meet and confer, and submit a joint letter to the Court proposing both a procedure and a scheduling for resolving the issues identified in the Court's Memorandum Opinion and Order. (Signed by Judge Jesse M. Furman on 6/30/2015) (ab)
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Filing
45
OPINION AND ORDER re: 14 MOTION to Dismiss. filed by Wells Fargo Bank, N.A., 26 MOTION to Dismiss the First Amended Complaint filed by Wells Fargo Bank, N.A. For the reasons stated above, there is no basis to dismiss any of the Government 's federal statutory claims. Wells Fargo's motion to dismiss is therefore DENIED as to these claims. Any tort claims arising before June 25, 2009, however, are untimely and therefore dismissed. In addition, the Government's mistake of fact and unjust enrichment claims are dismissed in their entirety. Wells Fargo's motion is therefore GRANTED as to these claims. The Clerk of Court is directed to terminate the motion (Docket No. 26). In addition, the Clerk of Court is directed to terminate Wells Fargos previous motion to dismiss (Docket No. 14) as moot. (Signed by Judge Jesse M. Furman on 9/24/2013) (tro)
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