Replies to post #301677 on Fannie Mae-No Politics (FNMA)

[Dollars1]

It's 16 pages. Here's the last 2 pages just to give an idea. It's the plaintiff's response filed yesterday.

The Government’s perfunctory and cavalier dismissal of any notion that Plaintiffs suffer prejudice from being foreclosed from sharing Protected Information with their clients, Resp. at 8, is particularly striking. Fairholme, of course, is the party who has been directly affected by the Government actions at issue in this case, actions that it contends had the effect of expropriating its vested property interests. Fairholme therefore has an undeniable interest in the conduct of this action, including the Government’s efforts to withhold thousands of documents from scrutiny and to otherwise shroud its actions in secrecy. To be sure, Fairholme is represented by counsel, and, to be sure, it is often necessary in litigation for clients to be barred from having access to truly confidential information produced in discovery. But it is ludicrous for the Government to suggest that when relevant information that is not confidential is nevertheless designated as pro- tected, a client – the injured party – suffers no prejudice at all when it is not allowed to see that information and is thereby blinded to information relevant to its own action to protect its own property rights.
The Government’s suggestion is even more preposterous in the circumstances here, since Fairholme’s officials include sophisticated analysts and businessmen who would almost certainly be able to assist counsel in assessing the Government’s thousands of privilege assertions (includ- ing but not limited to, assisting in determining, from document descriptions and the identification of authors and recipients, which improperly withheld documents may be worth fighting about). And it is no answer to suggest that because Fairholme can hire and pay expensive experts to as- sist counsel, no prejudice can be shown. Resp. at 7. Unnecessarily increasing Fairholme’s liti- gation expenses, which is what would result if Fairholme were forced to ask paid experts to help
assess information that has been improperly designated as protected, does not relieve the preju- dice to Fairholme; it compounds such prejudice.9
CONCLUSION
For the reasons discussed above and in our initial brief, there is no question that the Gov- ernment’s designation of its March 20 Log and subsequent logs as Protected Information was im- proper. The motion, therefore, should be granted.
Date: May 27, 2015
Respectfully submitted,
Of counsel:
Vincent J. Colatriano
David H. Thompson
Peter A. Patterson
Brian W. Barnes
COOPER & KIRK, PLLC
1523 New Hampshire Avenue, N.W. Washington, D.C. 20036
[phone]
[phone] (fax)
s/ Charles J. Cooper
Charles J. Cooper
Counsel of Record
COOPER & KIRK, PLLC
1523 New Hampshire Avenue, N.W. Washington, D.C. 20036
[phone]
[phone] (fax) [e-mail]
9 We must comment briefly on the Government’s suggestion that the fact that Fairholme published a letter containing “verbatim excerpts” from the Government’s earlier non-designated privilege logs was somehow “improper.” Resp. at 9. The Government points to no law, rule, or- der, or other authority that foreclosed Fairholme from disclosing and commenting upon materials that had not been designated as protected in communications intended to keep Fairholme’s 170,000 mutual fund shareholders apprised of litigation that directly affects their interests. Nor does the Government otherwise explain how the disclosure of “verbatim excerpts” from the logs was inappropriate or prejudicial. The Government no doubt was not pleased to see its actions in this litigation disclosed to and discussed in the public, but it is the Government’s continuing at- tempts to shroud in secrecy information that does not qualify for such protection under this Court’s order that is improper.