Resolution Trust Corp. v. Heiserman

151 F.R.D. 367, 1993 U.S. Dist. LEXIS 13198, 1993 WL 383600
CourtDistrict Court, D. Colorado
DecidedSeptember 14, 1993
DocketCiv. A. No. 93-B-944
StatusPublished
Cited by10 cases

This text of 151 F.R.D. 367 (Resolution Trust Corp. v. Heiserman) is published on Counsel Stack Legal Research, covering District Court, D. Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Resolution Trust Corp. v. Heiserman, 151 F.R.D. 367, 1993 U.S. Dist. LEXIS 13198, 1993 WL 383600 (D. Colo. 1993).

Opinion

MEMORANDUM OPINION AND ORDER

BABCOCK, District Judge.

Before me are the following motions:

1) Officer and director defendants move to require early RTC disclosure pursuant to Fed.R.Civ.P. 16;
2) Defendants Barry S. Engel, Ronald L. Rudman and Engel & Rudman, P.C. (collectively Engel & Rudman) move for a separate trial and to stay the proceedings;
3) Defendants Shearon, as a general and limited partner in JCS Family Partners, Ltd. and as a Grantor, Trustee and Beneficiary of JCS Family Trust; Carol M. Shearon, as a general and limited partner of JCS Family Partners, Ltd.; JCS Family Partners, Ltd.; JCS Family Trust; and John Does 13,14, 15, and 16 (collectively as Shearon Asset Defendants) move for a separate trial and to stay the proceedings.

These motions are now adequately briefed and were heard September 3, 1993. For the reasons set forth below, the officer and director defendants’ motion will be granted, Engel & Rudman’s motion will be denied without prejudice and Shearon Asset Defendants’ motion will be denied without prejudice.

II. BACKGROUND:

Capitol Federal Savings and Loan Association (Capitol Federal) was a federally-chartered savings and loan association which had its principal place of business in Aurora, Colorado. On May 4, 1990, the Office of Thrift Supervision declared Capitol Federal insolvent and appointed Resolution Trust Corporation (RTC) as its Conservator. On June 15, 1990, RTC was appointed as Capitol Federal’s Receiver.

RTC, in its corporate capacity, asserts claims against Capitol Federal’s former officers and directors for negligence, negligence per se, gross, willful and wanton negligence, and breach of fiduciary duty of due care. These claims relate to Capitol Federal’s un[371]*371derwriting, approval and subsequent administration of its commercial banking and real estate lending program.

RTC also asserts claims against certain Capitol Federal officers and directors for breach of fiduciary duty of loyalty and negligence. RTC contends that these officers and directors diverted Capitol Federal funds to pay personal legal fees to establish trusts and partnerships designed to protect certain directors’ assets from creditors. According to RTC, four officers and directors (Richard D. Heiserman, Chester A. Latham, Jr., William T. McCallum, and James C. Shearon) made fraudulent conveyances via this asset planning service. RTC seeks to void these allegedly fraudulent conveyances or, in the event the property cannot be returned or its value has dissipated, RTC seeks the value of the property transferred.

RTC also asserts claims under 12 U.S.C. § 1821(d)(17) and the Colorado Fraudulent Conveyances Act against the Shearon Asset Defendants for their participation in the alleged fraudulent conveyances.

From 1983 to 1990, Engel & Rudman provided legal services to Capitol Federal. En-gel & Rudman also provided the asset planning services to Capitol Federal’s officers and directors. RTC contends that Capitol Federal was “probably” insolvent when this asset planning service was approved by Capitol Federal’s board of directors and when the asset transfers occurred. The claims against Engel & Rudman include breach of fiduciary duty, aiding and abetting breach of fiduciary duty, professional negligence, and negligent misrepresentation.

On July 23, 1993, a Fed.R.Civ.P. 16 scheduling conference was held. One of the issues raised at this conference was whether RTC should be required to disclose their discovery to the defendants early in the proceedings. To allow adequate briefing of this issue, I continued the hearing on this question to September 3, 1993.

II. LEGAL ANALYSIS

1) Officer and director defendants’ motion to require early RTC disclosure pursuant to Fed.R.Civ.P. 16.

The defendants ask me to require RTC to disclose, on or before October 1, 1993, the following information and documents for each loan transaction:

a) The specific defendants who are alleged to be liable for that loan;
b) The specific acts which were taken by each defendant which are alleged to be negligent, insufficient, negligent per se, or a breach of fiduciary duty;
c) The specific acts which RTC contends should have been taken by each defendant to comply with their responsibilities. RTC shall not simply reallege the complaint or state generally that, e.g., defendant Smith should have prudently reviewed the loan. RTC shall state specifically, and in concrete terms, those actions which should have been taken, e.g., defendant Smith should have read appraisal x, noticed red flag y, understood y’s significance, called a second appraiser, moved to reject the application, voted against the loan, etc.,;
d) The identity and a copy of any document which proves the commission of the alleged act of negligence and/or which supports RTC’s claim that certain actions should have been taken, but were not. To comply with this requirement, RTC shall not simply designate boxes, files, or categories of documents. It will identify the specific exhibit which proves or tends to prove its allegations;
e) Excepts, identified by page number, from depositions taken by RTC which support RTC’s allegations of negligent acts or omissions;
f) The identity of any witness for which no deposition exists, but who will or may support or refute RTC’s contentions;
g) A resume and detailed opinions from any expert RTC intends to call;
h) The original loan amount;
i) The date of default on the loan;
j) All payments from any source on the loan and dates of payment;
k) The disposition of all claims against borrowers, guarantors, and collateral [372]*372(e.g., released, suit pending, franchised, sold for $_, and the date of disposition);
l) The damages caused by each defendant;
m) Other information requested in pending interrogatories.

Defendants argue that their motion for early disclosure should be granted because the court would benefit, RTC would not be prejudiced, defendants would incur substantial financial hardship without such early disclosure, and their request furthers the purposes of Fed.R.Civ.P. 16. They point out that the bulk of this information has been obtained by the RTC during its three-year investigation into its claims.

RTC objects to defendants’ motion on the basis that such disclosure violates the attorney-work product privilege, the disclosure request goes beyond the scope of Fed.R.Civ.P.

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Bluebook (online)
151 F.R.D. 367, 1993 U.S. Dist. LEXIS 13198, 1993 WL 383600, Counsel Stack Legal Research, https://law.counselstack.com/opinion/resolution-trust-corp-v-heiserman-cod-1993.