Atlantic Federal Savings & Loan Ass'n v. Blythe Eastman Paine Webber, Inc.

890 F.2d 371
CourtCourt of Appeals for the Eleventh Circuit
DecidedDecember 11, 1989
DocketNo. 89-5785
StatusPublished
Cited by216 cases

This text of 890 F.2d 371 (Atlantic Federal Savings & Loan Ass'n v. Blythe Eastman Paine Webber, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Atlantic Federal Savings & Loan Ass'n v. Blythe Eastman Paine Webber, Inc., 890 F.2d 371 (11th Cir. 1989).

Opinion

FAY, Circuit Judge:

Blythe Eastman Paine Webber Inc., n/k/a PaineWebber Inc. (“PaineWebber”), and Ruden, Barnett, McClosky, Smith, Schuster & Russell, P.A. (“Ruden Barnett”) appeal the imposition of sanctions under F.R.C.P. 37(b). Because we find their appeal of the district court’s interlocutory order to be premature, we DISMISS for lack of jurisdiction.

FACTS

BankAtlantic, f/k/a Atlantic Federal Savings and Loan Association of Fort Lauderdale (“BankAtlantic”), brought suit against PaineWebber in August 1987. In its complaint, BankAtlantic alleged that it had hired PaineWebber to be BankAtlantic’s financial advisor in 1984 and that PaineWebber had abused its position to derive benefits at BankAtlantic’s expense. In particular, BankAtlantic contended that PaineWebber had advised BankAtlantic to undertake transactions known as “interest rate swaps” as a hedge against interest rate risk. Relying on that advice, BankAt-lantic allowed PaineWebber to arrange two such swaps with Homestead Savings (“Homestead”), a financial institution in California.

BankAtlantic asserts that PaineWebber knew that the swap arrangements would not benefit BankAtlantic and that, further, Homestead was an inappropriate partner for a swap transaction. BankAtlantic believes PaineWebber advocated the arrangement because PaineWebber also serviced Homestead, unbeknownst to BankAtlantic, and Homestead was seeking partners with which to make interest rate swaps. Ban-kAtlantic alleged ongoing losses then total-ling $12,341,141.29.

The papers served on PaineWebber included a request for production. The two paragraphs which give rise to this appeal asked for:

8. All correspondence between you and Homestead Savings.
[373]*3739. All documents relating to your association with Homestead Savings, including, but not limited to any contracts or engagement letters and any written or typed drafts of those contracts or engagement letters between you and Homestead Savings, and any correspondence, internal correspondence, notes or memoranda relating to your association with Homestead Savings.1

Earlier in the request for production, the terms “you” and “your” were defined to mean

the party or parties to which this request is addressed, including its divisions, departments, subsidiaries, affiliates, predecessors, present or former officers, directors, owners, agents, attorneys, and all other persons acting or purporting to act on its behalf, as well as each partnership in which it is a partner.2

In response to the production request, PaineWebber made a blanket objection to producing any documents protected by the attorney-client privilege or that constituted work product. PaineWebber further objected to paragraphs 8 and 9, describing them as overbroad. Instead PaineWebber agreed to produce correspondence between itself and Homestead related to the interest swap agreements arranged by PaineWeb-ber. PaineWebber filed amended responses and objections to BankAtlantic’s request for production in late April 1988. Regarding paragraphs 8 and 9, PaineWebber reiterated its belief that those paragraphs were overbroad in demanding documents “neither relevant nor within the proper scope of discovery” and reasserted the attorney-client privilege and protection of work product. ROA 1-65, Exh. C at 4.

BankAtlantic thereupon moved the district court to compel PaineWebber to produce the documents requested. After reviewing the parties’ memoranda and holding a hearing on the issue of document production, the district court ordered that PaineWebber produce all the documents within its3 possession and control sought under paragraphs 8 and 9 from 1983 until the present time. However, the court denied BankAtlantic’s motion to compel production of documents from PaineWebber’s affiliates and instead recommended that BankAtlantic subpoena those documents directly from the affiliate corporations.

After the hearing, discovery and other pre-trial activities ran smoothly until a few weeks before the date set for the trial. At that point, when BankAtlantic had concluded all of its discovery and considered itself ready for trial, one of its paralegals doing a routine NEXIS® 4 search happened upon a journal article describing an acrimonious litigation battle between Homestead and various PaineWebber Group5 affiliates, including PaineWebber, involving three separate lawsuits which had taken place from 1985 through 1987 in the Northern District of California. Not even a hint of this litigation had ever been mentioned by Paine-Webber to BankAtlantic. Upon further research into the court file in California, Ban-kAtlantic uncovered information regarding Homestead’s financial state and the association between Homestead and PaineWeb-ber directly relevant to facts at issue in BankAtlantic’s suit against PaineWebber. However, much of the file was unavailable to BankAtlantic, as the case had settled, the court had placed a lot of the file under seal, and the trial and deposition exhibits had been removed. BankAtlantic moved the court to strike PaineWebber’s pleadings and enter a default judgment in favor of BankAtlantic as a sanction for what BankAtlantic viewed as contumacious abuses of discovery.

[374]*374PaineWebber countered that it had fully-obeyed the trial court’s discovery order of July 25, 1988, in which it was required to produce all documents within its control regarding its relationship with Homestead, but not documents regarding the relationship of other PaineWebber affiliates with Homestead. PaineWebber stated that the main body of the California litigation and the bulk of the documents complained of by BankAtlantic concerned the relationship between Homestead and PaineWebber Real Estate Securities (“PWRES”), a completely separate corporate entity from which Paine-Webber had no duty to produce documents. According to PaineWebber, PaineWebber and other affiliates were only drawn into the suit two years after it had been because Homestead hoped to recover from them as alter egos for PWRES. PaineWebber accused BankAtlantic of intentionally misleading the court that the California documents were responsive to the request to produce and the grant of the motion to compel in order to cover up Ban-kAtlantic’s failure to subpoena the documents from PWRES. Finally, PaineWeb-ber questioned the relevance of the information contained in the California files, asserting that the problems which PWRES had with Homestead were entirely unrelated to the propriety of matching Homestead with BankAtlantic as an interest rate swap partner.

BankAtlantic replied that at the very least, PaineWebber had an obligation to provide the documents from the California suit in which it was a named party,6 the complaint in which alleges that PWRES was a mere shell corporation, controlled and operated by PaineWebber, PaineWeb-ber Group, and other PaineWebber affiliates and through which they conducted their business and commingled their assets.

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Cite This Page — Counsel Stack

Bluebook (online)
890 F.2d 371, Counsel Stack Legal Research, https://law.counselstack.com/opinion/atlantic-federal-savings-loan-assn-v-blythe-eastman-paine-webber-inc-ca11-1989.