Opinion
02 CV 2321 Ma/P
November 26, 2003
Before the court are the defendants' Joint Motion to Allow Use of Document Under Protective Order or, in the Alternative, to Strike Elsa Martinez as Expert Witness for Union Planters Bank, N.A., filed on July 30, 2003 (docket entry 84), and the plaintiff's Motion for Return of Privileged Document, filed on August 13, 2003 (docket entry 91). In the defendants' motion, they seek the court's permission to use information contained in a four-page document titled "Union Planters Mortgage Warehouse Lending OCC Update Pre-Exit Meeting April 10, 2001" (the "Pre-Exit Meeting document"), which had been produced by plaintiff Union Planters during discovery. In response to the defendants' motion, Union Planters filed a motion opposing the defendants' use of the information in the Pre-Exit Meeting document and asking that the document be returned.
The matter was referred to the United States Magistrate Judge for determination pursuant to 28 U.S.C. § 636 (b)(1)(A). On October 30, 2003, the court held a hearing on the motions. Counsel for all interested parties were present, as was Ernest C. Barrett, III, the Assistant Director of the Litigation Division for the Office of the Comptroller of the Currency ("OCC") in Washington, D.C. For the reasons below, the defendants' joint motion and plaintiff's motion are denied without prejudice at this time.
I. BACKGROUND
Union Planters is a national bank, and as such, is required to submit to mandatory on-site examinations by OCC bank examiners. Sometime around April of 2001, OCC bank examiners conducted an examination of Union Planters, which included conducting interviews of Union Planters' employees and reviewing bank records. Near the end of the examination, the OCC examiners held a "pre-exit meeting" with Union Planters employees to discuss the examiners' recommendations. The Pre-Exit Meeting document was prepared by the OCC examiners and copies were given to Union Planters employees at the pre-exit meeting.
During discovery in this case, Union Planters produced the Pre-Exit Meeting document to the defendants. Union Planters also gave the document to its own expert, Elsa Martinez, who referenced the document in her expert report. When the OCC learned from Union Planters that the defendants had a copy of the Pre-Exit Meeting document, the OCC instructed Union Planters to request its return. The defendants denied Union Planters' request. The OCC reiterated its objection to any unauthorized use of the document in its August 12, 2003 letter to Thomas R. Dyer, counsel for Union Planters. See Interpretive Letter from Raymond Natter, OCC Deputy Chief Counsel, to Thomas R. Dyer, attorney for Union Planters, August 12, 2003, (available on Westlaw at 2003 WL 22251441).
The parties disagree on the date of the initial production and the number of times that Union Planters produced the Pre-Exit Meeting document. The parties also disagree on whether the document was "inadvertently" produced. The court need not address these arguments at this time.
II. DISCUSSION
Subpart C of Title 12 of the Code of Federal Regulations provides that "[w]ithout OCC approval, no person, national bank, or other entity, . . . may disclose [non-public OCC information] . . .
in any manner, except: (A) After the requester has sought the information from the OCC pursuant to the procedures set forth in this subpart; and (B) As ordered by a Federal court in a judicial proceeding in which the OCC has had the opportunity to appear and oppose discovery." 12 C.F.R. § 4.37(b)(1) (emphasis added). The Code further provides that the OCC "may require any person in possession of OCC records to return the records to the OCC," and "[t]he possession by any of the entities or individuals described in . . . this section of non-public OCC information does not constitute a waiver by the OCC of its right to control, or impose limitations on, the subsequent use and dissemination of the information." 12 C.F.R. § 4.37(b)(5) (d).
The court concludes that the Pre-Exit Meeting document falls within the definition of "non-public OCC information," and therefore is subject to the disclosure restrictions described in 12 C.F.R. § 4.31 et seq. Specifically, the document is not one that the OCC is required to release under the FOIA, see 12 C.F.R. § 4.12(b)(8) 4.32(b)(1), and is "[a] record created . . . by the OCC in connection with the OCC's performance of its responsibilities, such as a record concerning . . . examination of a national bank. . . ." 12 C.F.R. § 4.32(b)(1)(i).
The OCC's position — as stated in its August 12, 2003 Interpretive Letter and as Mr. Barrett argued at the October 30, 2002 hearing — is that the parties must first seek the OCC's approval under 12 C.F.R. § 4.31 to use the information in the document. If the OCC denies the request, the requesting party at that time can seek a remedy from the court. In support of its position, the OCC relies onRaffa v. Wachovia Corp., 242 F. Supp.2d 1223 (M.D. Fla. 2002). In Raffa, the plaintiffs obtained OCC documents from Wachovia's auditors, and used information contained in the documents in their complaint and attached some of the documents as exhibits to their complaint. Id. at 1224-25. Wachovia filed a motion opposing the plaintiff's use of the information and requesting return of the documents. Wachovia attached a copy of a letter from the OCC suggesting that the plaintiff return the documents and then apply to the OCC for access to the documents. Id. at 1225. The court concluded "[a] determination of discoverability is premature pending a determination by the OCC whether they will release the information through the established administrative process." Id. at 1225. The court denied the defendant's motion and ordered the plaintiff to submit a formal request to the OCC. Id.
Mr. Barrett informed the court that the OCC could provide the defendants with a response within thirty to forty-five days from the time the OCC receives the request.
This court agrees with the analysis in Raffa, and likewise concludes that the parties must first submit a formal request to the OCC to use the information in the Pre-Exit Meeting document, as required by 12 C.F.R. § 4.33. If the OCC refuses to allow the requesting party to use the information in the document, that party can renew its motion at that time.
III. CONCLUSION
Accordingly, the defendants' joint motion and the plaintiff's motion are DENIED without prejudice at this time. The court further orders as follows:
1. If any party intends to use the information in the Pre-Exit Meeting document during this litigation, that party must submit a request to the OCC as described in 12 C.F.R. § 4.33, within fifteen (15) days from the date of this order.
2. Since the trial is set to begin on February 17, 2004, the requesting party shall seek an expedited request from the OCC, pursuant to 12 C.F.R. § 4.33(a)(2).
3. The requesting party shall attach a copy of this order to the request, pursuant to 12 C.F.R. § 4.33 (a)(3) (ii) (D).
4. If none of the parties submit a request to the OCC within fifteen (15) days from the date of this order, the parties shall promptly notify this court. If a party submits a request to the OCC, that party shall notify the court and all parties in this action of the OCC's decision within two (2) days after the requesting party is informed of the OCC's decision. In either case, the parties may renew their motions without resubmitting their memoranda of law, and the court will enter an order based upon the current set of pleadings.
IT IS SO ORDERED.