Federal Deposit Insurance Corporation v. Galan-Alvarez et al

MOTION Submitting Joint Proposed Discovery Plan Pursuant to Rule 26

D.P.R.June 4, 2012

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO FEDERAL DEPOSIT INSURANCE CORPORATION AS RECEIVER OF R-G PREMIER BANK OF PUERTO RICO Plaintiff, v. VICTOR J. GALÁN-ALVAREZ, et al. Defendants Civil No. 12-1029 JOINT PROPOSED DISCOVERY PLAN PURSUANT TO RULE 26(f) In accordance with Federal Rule of Civil Procedure 26(f), counsel for all the parties to the above-captioned matter conferred on April 9, 2012 and on April 16, 2012, and agreed to the following Proposed Discovery Plan, which they hereby submit for this Court’s consideration: A. INITIAL DISCLOSURE The parties agree that all normal provisions of Rule 26(a) should govern initial disclosures in this case. Accordingly, the parties have agreed to make all initial disclosures on or before June 29, 2012. B. SCOPE OF DISCOVERY AND PROPOSED SCHEDULE The parties have agreed that discovery, which may include discovery to third parties not named in this matter, pursuant to the Federal Rules of Civil Procedure, will include the following subjects: 1. The alleged actions and/or omissions by any Defendant, in his or her capacity as a director and/or officer, or as an independent contractor, of R-G Premier Bank of Puerto Rico, that occurred between May 31, 1999, and April 30, 2010. Case 3:12-cv-01029-PAD Document 83 Filed 06/04/12 Page 1 of 9 2 2. The origination, approval, underwriting, and/or administration of any loan during the period from 2003 – 2010, including the seventy-seven (77) transactions referenced by Plaintiff in its Complaint, and the review, classification or audit of these loans by any regulatory authority or third party, and including credit policies, guidelines, and authorities of the bank during that time period. 3. The alleged damages suffered by Plaintiff, including but not limited to any evidence relating to mitigation (or failure to mitigate) losses, rates and performance of loans, loss/share agreements associated with any outstanding loans at the time of the bank’s closing, including the seventy-seven (77) loans referenced by Plaintiff in its Complaint, and actual losses suffered on the seventy- seven (77) loans referenced by the Plaintiff in its Complaint. 4. Information about the individuals or entities who were the borrowers in the seventy-seven (77) transactions referenced by Plaintiff in its Complaint. 5. The regulatory oversight of R-G Premier Bank of Puerto Rico between May 31, 1999 and April 30, 2010, including but not limited to any internal and external reviews or reports which may relate to any of the all g tions of the Complaint or any defenses raised by Defendants. 6. The factual allegations and legal contentions made by Plaintiff in the Complaint and any defenses thereto. 7. The structure, operation and function of R-G Premier Bank of Puerto Rico from 1999 -2010, including the departments or responsible for loans and oversight for such departments. 8. Any event that may have been an intervening cause of loss to R-G Premier Bank of Puerto Rico, including but not limited to the effect of the financial crisis on R- G Premier Bank of Puerto Rico, and any other events that related to the failure of borrowers to repay loans. 9. The industry standard or accepted practice relating to structure of banks during the relevant period, underwriting and loan administration standards, including any policies or guidelines for the hiring or contracting of independent contractors. 10. The application of the statute of limitations, e toppel, waiver, mitigation of damages, ratification and any other affirmative defense to Plaintiff’s claims. 11. Other issues as may be identified as the case proc eds. The parties have further agreed that discovery should proceed in three stages according to the following schedule: Case 3:12-cv-01029-PAD Document 83 Filed 06/04/12 Page 2 of 9 3 Close of Document Discovery: December 6, 2012 Close of All Fact Discovery: May 15, 2013 Close of All (Including Expert) Discovery: July 12, 2013 C. ELECTRONICALLY STORED INFORMATION The parties anticipate that discovery of electronically stored information (“ESI”) will comprise the bulk of document discovery in this case. The parties also expect that ESI discovery will primarily consist of production by Plaintiff to the Defendants. The parties have agreed that Plaintiff shall produce ESI to the Defendants according to the following procedure: CATEGORY A PRODUCTION Phase I: No later than June 13, 2012, Plaintiff shall provide to Defendants an inventory describing approximately 160,000 items of ESI (“Category A ESI”), which consists of electronic scans of hard copies of documents collected by Plaintiff as Receiver of R-G. Phase II: No later than June 22, 2012, each Defendant sh ll identify to Plaintiff all Category A ESI that such Defendants requests to be produced. Phase III: No later than July 20, 2012, Plaintiff shall produce to the Defendants all Category A ESI that any Defendant identified for production, subject to Plaintiff’s privilege review and claw back in Phase IV below. Phase IV: No later than August 17, 2012, Plaintiff shall identify any Category A ESI that has been produced and which Plaintiff believes in good faith is privileged and, on that basis, subject to withholding from production to Defendants. CATEGORY B PRODUCTION Phase A: No later than June 13, 2012, Defendants shall serve on Plaintiff requests for production of documents (“RFP”s) pursuant to Rule 34 of the Federal Rules of Civil Procedure. Phase B: No later than June 22, 2012, Plaintiff shall propose search terms and search strings that are intended to comprehensively id ntify all electronic documents in its possession, custody or control that are potentially responsive to Defendants’ RFPs, which documents may include Category A ESI (“Category B ESI”). No later than July 6, 2012, Defendants shall Case 3:12-cv-01029-PAD Document 83 Filed 06/04/12 Page 3 of 9 4 identify any additional search terms or search strings to identify Category B ESI (collectively, “Category B ESI Search Terms”). It is understood by the parties that nothing in this agreement shall constitute a concession by Defendants that the use of search terms or other mechanisms to identify Category B ESI exhausts the obligations imposed by Plaintiff by the Federal Rules of Civil Procedure, or any other law, rule, or regulation governing discovery. Phase C: No later than July 23, 2012, Plaintiff shall provide each Defendant with the means to remotely access and review all Category B ESI. Defendants will not be provided with the means to obtain and/or c py ESI at this stage. It is nevertheless understood that Plaintiff shall make all Category B ESI available via an electronic document review platform that will permit Defendants to make annotations, apply tagging schemes, and otherwise administer their review, and that such annotations, tagging schemes, and review shall be kept segregated from Plaintiff’s view and access to the document review platform via an ethical wall or otherwise. Phase D: No later than August 31, 2012, each Defendant shall identify to Plaintiff all Category B ESI that such Defendant requests for pr duction. Each Defendant shall have the right to identify specific ESI by a unique document number. If during the review in this Phase D, any Defendant concludes in good faith that additional terms should be included in Category B ESI Search Terms the Defendant shall prom tly notify Plaintiff thereof and the parties shall confer in good faith as soon as possible thereafter regarding conducting additional se rches inclusive of these terms. Phase E: No later than September 24, 2012, Plaintiff shall produce and deliver to each Defendant electronic copies of all Category B ESI that any Defendant identified for production in Phase D, subject to Plaintiff’s privilege review as contemplated under Phase F. Phase F: No later than November 6, 2012, Plaintiff shall identify any Category B ESI that has been produced and which Plaintiff believ s in good faith is privileged and, on that basis, subject to withholding from production to Defendants. The parties agree that if they are unable to amicably resolve any disagreement that may arise during the implementation of the discovery procedures contemplated herein with respect to ESI, including but not limited to any claim by Plaintiff that a document may be withheld under any applicable privilege, or any claim by Plaintiff that a document is not Case 3:12-cv-01029-PAD Document 83 Filed 06/04/12 Page 4 of 9 5 otherwise discoverable, the close of document discovery shall be extended for as much time as is necessary for the parties to resolve the disputed issue before the Court, but solely for the purpose of resolving any remaining disputed issues. Document discovery with respect to all other matters shall close on December 6, 2012. Nothing in this agreement shall waive, limit or modify any of the parties’ rights and obligations with respect to the discovery under the Federal Rules of Civil Procedures and all other applicable laws or regulations concerning discovery. D. PRIVILEGE CLAIMS The parties have agreed that assertions of and/or disputes over privilege shall be governed by the Stipulated Protective Order entered by this Court on April 4, 2012 (ECF No. 49). The parties have also agreed to comply with the provisions of Federal Rule of Civil Procedure 26(b)(5) when withholding documents for privilege. The parties anticipate that the following privileges are likely to be at issue in this action: 1. Attorney-client privilege 2. Work product privilege 3. Bank examination privilege 4. Deliberative process privilege E. LIMITATIONS ON DISCOVERY The parties agree that there is no need to limit or restrict discovery beyond the normal limits already imposed by the Federal Rules of Civil Procedure or this Court’s local rules. F. OTHER ORDERS PER RULES 26(c), 16(b) AND 16(c) The parties recognize that the scope of reasonable discovery in this case is likely to include the production of certain information of hig ly confidential and sensitive nature. Case 3:12-cv-01029-PAD Document 83 Filed 06/04/12 Page 5 of 9 6 Accordingly, the parties have agreed to a Stipulated Protective Order, which this Court entered on April 4, 2012. The parties do not presently anticipate any need for this Court to issue additional orders pursuant to Rules 26(c), 16(b), or 16(c) of the Federal Rules of Civil Procedure. AGREED AND APPROVED: __________________________________ s/Dennis S. Klein Attorney for FDIC-R Hughes Hubbard & Reed LLP 201 S Biscayne Blvd. Suite 2500 Miami, FL 33131-4305 Tel: 305-379-5574 Fax: 305-371-8759 klein@hugheshubbard.com _______________________________ s/Jairo A. Mellado-Villareal Attorney for FDIC-R Mellado & Mellado Villareal 165 Ponce de Leon Ave. Suite 202 San Juan, PR 00917-1233 Tel: 787-767-2600 Fax: 787-767-2645 jmellado@mellado.com _______________________________ s/Mary C. Gill Attorney for Victor J. Galan-Alvarez, Nelida Fundora, Conjugal Partnership Galan-Fundora, Victor L. Galan-Fundora, and Magdalena Martinez, and Conjugal Partnership Galan- Martinez Alston & Bird LLP 1201 West Peachthree Street Atlanta, GA 30309 Tel: 404-881-7276 Fax: 404-253-8192 mary.gill@alston.com _______________________________ s/Gustavo A. Gelpi Francisco G. Bruno-Rovira Attorney for Victor J. Galan-Alvarez, Nelida Fundora, Conjugal Partnership Galan-Fundora, Victor L. Galan-Fundora, and Magdalena Martinez, and Conjugal Partnership Galan- Martinez McConnell Valdes P.O. Box 364225 San Juan, PR 00936-4225 Tel: 787-250-5605 Fax: 787-759-2797 gag@mcvpr.com fgb@mcvpr.com Case 3:12-cv-01029-PAD Document 83 Filed 06/04/12 Page 6 of 9 7 _______________________________ s/Breon S. Peace Attorney for Juan Agosto Alicea, Daphne Bouet Grana, Conjugal Partnership Agosto- Bouet, Laureano Carus, Nilda Gonzalez, Conjugal Partnership Carus-Gonzalez, Ileana Colon-Carlo, Jose Gonzalez, Conjugal Partnership Colon-Gonzalez, Benigno Fernandez, Jacqueline McNee, Conjugal Partnership Fernandez-McNee, Melba Figueroa-Padilla, Roberto Gorbea-Frontera, Nellie Diaz-Pabon, Conjugal Partnership Gorbea-Diaz, Eduardo McCormack, Ivan Mendez, Raquel Miro Cordero, Conjugal Partnership Mendez-Miro, Rafael Nin- Torregrosa, Doris Price, Conjugal Partnership Nin-Price, Gilberto Rivera-Arreaga, Grisel Fuentes, Conjugal Partnership Rivera-Fuentes, Rolando Rodriguez Mancebo, Maria Vina, Conjugal Partnership Rodriguez-Vina, and Enrique Umpierre-Suarez Cleary Gottlieb Steen & Hamilton LLP One Liberty Plaza New York, NY 10006 Tel: 212-225-2059 Fax: 212-225-3999 bpeace@cgsh.com _______________________________ s/Heriberto J. Burgos-Perez Attorney for Juan Agosto Alicea, Daphne Bouet Grana, Conjugal Partnership Agosto- Bouet, Laureano Carus, Nilda Gonzalez, Conjugal Partnership Carus-Gonzalez, Ileana Colon-Carlo, Jose Gonzalez, Conjugal Partnership Colon-Gonzalez, Benigno Fernandez, Jacqueline McNee, Conjugal Partnership Fernandez-McNee, Melba Figueroa-Padilla, Roberto Gorbea-Frontera, Nellie Diaz-Pabon, Conjugal Partnership Gorbea-Diaz, Eduardo McCormack, Marina Valentin, Conjugal Partnership McCormack- Valentin, Ivan Mendez, Raquel Miro Cordero, Conjugal Partnership Mendez-Miro, Rafael Nin-Torregrosa, Doris Price, Conjugal Partnership Nin-Price, Gilberto Rivera- Arreaga, Grisel Fuentes, Conjugal Partnership Rivera-Fuentes, Rolando Rodriguez Mancebo, Maria Vina, Conjugal Partnership Rodriguez- Vina, and Enrique Umpierre-Suarez Casellas, Alcover & Burgos PSC PO Box 364924 San Juan, PR 00936-4924 Tel: 787-756-1400 x225 Fax: 787-756-1401 hburgos@cabprlaw.com _______________________________ s/David H. Topol Attorney for XL Specialty Insurance Company Wiley Rein LLP 1776 K Street NW Washington, DC 20006 Tel: 202-719-7000 Fax: 202-719-7049 dtopol@wileyrein.com _______________________________ s/Harold D. Vicente-Colon Attorney for XL Specialty Insurance Company Vicente & Cuebas P. O. BOX 11609 San Juan, PR 00910-1609 Tel: 787-751-8000 Fax: 787-756-5250 hdvc@vc-law.net Case 3:12-cv-01029-PAD Document 83 Filed 06/04/12 Page 7 of 9 8 _______________________________ s/Ramon A. Cestero-Jr. racestero@hotmail.com Juan R. Rivera-Font juan@riverafont.com Attorneys for Joseph L. Abrahamson, Margarita Colon, and Conjugal Partnership Abrahamson-Colon Ramon A. Cestero - Law Office Juan R Rivera Font LLC Tres Rios Building, Suite 300 27 Gonzalez Giusti San Patricio Guaynabo, PR 00968 Tel: 787-250-8040 Tel: 787-751-5290 Fax: 787-759-6768 _______________________________ s/Ignacio Rivera-Cordero Attorney for Luis Berrios Rivera, Barreto & Torres Manzano Law Office PO Box 9023880 San Juan, PR 00902-3880 Tel: 787-724-6398 Fax: 787-725-1974 riveracorderoi@microjuris.com _______________________________ s/Maria Cristina Mullan-Davila Attorney for James Lynn, Sylvia Diaz- Rodriguez, and Conjugal Partnership Lynn- Diaz Rios Gautier & Cestero, PSC 27 Gonzalez Giusti Ave. Suite 300 Guaynabo, PR 00968 Tel: 787-753-7750 Fax: 787-759-6768 cmullan@riosgautierlaw.com _______________________________ s/Osvaldo Carlo Linares, Esq. Attorney for Victor Irizarry-Ortiz, Adriana Roig-Lopez, and Conjugal Partnership Irizarry- Roig Carlo Law Offices, P.S.C. American Airlines Building 1509 Lopez Landron 10th San Juan, PR 00911 Tel: 787-721-6010 Fax: 787-721-3972 ocarlo@carlolaw.com Case 3:12-cv-01029-PAD Document 83 Filed 06/04/12 Page 8 of 9 9 _______________________________ Harry Anduze Montano Attorney for Ramon Prats, Teresita Noble, and Conjugal Partnership Prats-Noble Harry Anduze Montano Law Offices 1454 Fernandez Juncos Avenue San Juan, PR 00909 Tel: 787-723-7171 Fax: 787-723-7278 splaud@handuze.com Case 3:12-cv-01029-PAD Document 83 Filed 06/04/12 Page 9 of 9