You are on page 1of 4

Case 1:11-cv-00408-ABJ Document 60

Filed 11/02/11 Page 1 of 4

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _______________________________________ ) ) ) Plaintiffs, ) ) v. ) ) OFFICE OF THE COMPTROLLER OF THE ) CURRENCY, et al., ) ) Defendants. ) _______________________________________) UNITED WESTERN BANK, et al.,

1:11-cv-00408 The Honorable Amy Berman Jackson

PLAINTIFFS RENEWED SECOND MOTION TO COMPEL PRODUCTION OF THE COMPLETE ADMINISTRATIVE RECORD Plaintiff United Western Bank, shortly after filing this challenge to its seizure by the Office of Thrift Supervision (OTS), sought the immediate production of the administrative record that the OCC claims justified the seizure. See Pls. Mot. Compel Production of the Admin. R., Mar. 1, 2011, ECF 10. During the ensuing eight months Defendants have, in declarations, its court filings, and in oral argument, repeatedly represented to the Court that it has in fact produced the entirety of the administrative record. After Plaintiffs established to this Courts satisfaction that significant questions still existed about the completeness of the administrative record, the Court issued an Order requiring Defendants to respond to Interrogatories and Requests for Production of Documents designed to establish the adequacy of that record. The Court did not give Plaintiffs a discovery blank check and edited the discovery requests and their instructions after a careful review. The response to the discovery requests by the OCC demonstrates that the sworn declarations filed with this Court that the administrative record produced on June 15, 2011, was an accurate and complete record of all information that

Case 1:11-cv-00408-ABJ Document 60

Filed 11/02/11 Page 2 of 4

[the former Acting Director] considered, directly or indirectly, and upon which [he] relied in making the January 21, 2011 decision to appoint a receiver for United Western Bank, were false. Defendants in their discovery responses have identified over 1,000 pages of documents provided to, considered by, or relied upon by the former Acting Director that were not included in the incomplete record they presented to the Court as the only information it should consider in passing on the appropriateness of the seizure of the Bank. Moreover, even with this courtordered supplementation of record, it remains demonstrably incomplete. Therefore, Plaintiff respectfully requests that this Court order Defendants Office of the Comptroller of the Currency and Acting Comptroller John G. Walsh immediately comply with the Courts September 9, 2011 discovery order. In view of Defendants continued refusal to identify or produce a complete administrative record and the inaccuracy of their prior certifications of its completeness, Plaintiff respectfully requests that the Court also order (i) Defendants to provide a declaration detailing the efforts made to comply with the September 9 order and make the declarant available for a deposition or questioning before the Court and (ii) that Defendants make available former Acting Director John E. Bowman for a limited deposition or questioning before the Court to reconcile his conflicting representations regarding what information he considered, directly or indirectly, or relied upon in making the January 21, 2011 decision to seize the Bank. Plaintiffs counsel and Defendants counsel attempted to reach a resolution of this issue as required by LCvR 7(m), but were unable to do so and the Defendants oppose this motion.

Case 1:11-cv-00408-ABJ Document 60

Filed 11/02/11 Page 3 of 4

Respectfully submitted,

_/s/ Andrew L. Sandler ______________ Andrew L. Sandler (DC Bar No. 387825) Samuel J. Buffone (DC Bar No. 161828) Liana R. Prieto (DC Bar No. 987287) BUCKLEYSANDLER LLP 1250 24th St., NW, Suite 700 Washington, DC 20037 (202) 349-8001 (Telephone) (202) 349-8080 (Facsimile) Attorneys for Plaintiff United Western Bank

_____________ _/s/ Kirby D. Behre Kirby D. Behre (DC Bar No. 398461) Lawrence D. Kaplan (DC Bar No. 415186) PAUL HASTINGS LLP 875 15th Street NW Washington, DC 20005 (202) 551-1719 (Telephone) (202) 551-0119 (Facsimile) Attorneys for Plaintiff United Western Bank

_/s/ Theodore J. Abariotes____________ Theodore J. Abariotes Deputy General Counsel United Western Bancorp, Inc. 700 17th Street, Suite 2100 Denver, Colorado 80202 (720) 932-4216 (Telephone) (720) 946-1218 (Facsimile) Attorney for Plaintiff United Western Bank

Dated: November 2, 2011

Case 1:11-cv-00408-ABJ Document 60

Filed 11/02/11 Page 4 of 4

CERTIFICATE OF SERVICE I hereby certify that on this 2nd day of November, 2011, a true copy of the foregoing Renewed Second Motion to Compel Production of the Complete Administrative Record was filed electronically. Notice of this filing will be sent by email to all parties by operation of the Courts electronic filing system. Parties may also access this filing through the Courts electronic filing system.

_/s/ Andrew L. Sandler Andrew L. Sandler