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Harvey Pitt's Refusal to Tesify Motion to Stike

Harvey Pitt's Refusal to Tesify Motion to Stike

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Published by: ny1david on Jan 22, 2013
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UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIAIn re Federal National Mortgage AssociationSecurities, Derivative, and “ERISA”LitigationMDL No. 1668In Re Fannie Mae Securities Litigation Consolidated Civil Action No. 1:04-cv-01639 RJLJudge Richard J. LeonFANNIE MAE’S MOTION TO STRIKE EXPERT REPORTAND AWARD FEES AND COSTS
Earlier today, Counsel for Lead Plaintiffs Ohio Public Employees Retirement System andState Teachers Retirement System of Ohio (“Lead Counsel”) unilaterally and, over objection,abruptly terminated the deposition of their own designated expert witness, Harvey L. Pitt. Thistransparent and unjustified move was due to the fact that Mr. Pitt was being asked questionsbased on evidence that was directly relevant to his opinions, but which Lead Counsel hadapparently failed to provide him. The disruption came at the very beginning of the second day of Mr. Pitt’s deposition. He noted on the record that just last night he “learned for the first time” of a relevant fact deposition testimony that had been taken in this litigation on November 19, 2009.Mr. Pitt then refused to continue to testify until he had an opportunity to review the testimonyand consider whether to “amend, supplement or otherwise take steps with respect to the expertreport that [he] filed.” (February 25, 2011 Tr. of Deposition of Harvey Pitt at 329:15-17.) LeadCounsel provided no advance notice of this issue, refused to allow Defendants to raise the issuewith the Court at the time, inappropriately instructed the witness not to answer any questions,and then walked the witness out of the room.
Case 1:04-cv-01639-RJL Document 891 Filed 02/25/11 Page 1 of 8
- 2 -Lead Counsel designated Mr. Pitt as an expert witness more than nine months ago, and ithas been nearly six months since Mr. Pitt submitted his expert report. Defendants have devotedsignificant resources analyzing and responding to Mr. Pitt’s report, including obtaining a numberof defense expert reports in response. In direct contravention of Case Management OrderNumber 8, Lead Counsel refused to permit Mr. Pitt to answer questions which tested – and foundwanting – the factual bases for his opinions. Lead Counsel prevented attempts to resolve thisissue promptly with a call to chambers. Instead, Lead Counsel escorted Mr. Pitt from thedeposition so that he could have more time to prepare his answers and amend his previoustestimony, requiring Defendants to seek redress through this motion.There is no legitimate justification for the waste of resources incurred by Fannie Mae as aresult of Lead Counsel’s conduct. For the reasons set forth below, Fannie Mae requests that theCourt: (1) strike the Expert Report of Harvey L. Pitt and preclude Lead Plaintiffs from callingMr. Pitt as an expert witness at trial and (2) order Lead Plaintiffs to reimburse Fannie Mae forthe attorneys’ fees and costs incurred in connection with defense counsel’s preparation for andattendance at the deposition of Mr. Pitt, and for the fees and expenses incurred in connectionwith this motion. Fed R. Civ. P. 30(d)(2).BACKGROUNDOn May 3, 2010, Lead Counsel designated Harvey L. Pitt as an expert witness. Thedesignation indicated that he would address, among other things “the role of the SEC’s Office of the Chief Accountant.” (Lead Plaintiffs’ Disclosure of Expert Witnesses, May 3, 2010 at 5).
The full text provides:The general subject matter of [Mr. Pitt’s] testimony is presently anticipated to bethe role, functions, authority, enforcement programs (including the Fair Fundprovisions of Section 308(a) of the Sarbanes-Oxley Act of 2002), and rules of theU.S. Securities Exchange Commission (“SEC”); the role of the SEC’s Office of the Chief Accountant, the anti-fraud and other provisions of the SecuritiesExchange Act of 1934, as amended; industry practices in applying the foregoing
Case 1:04-cv-01639-RJL Document 891 Filed 02/25/11 Page 2 of 8
- 3 -On September 15, 2010, Mr. Pitt submitted his expert report. His report contained a keyopinion about the December 15, 2004 public statement by former Securities and ExchangeCommission Chief Accountant Donald Nicolaisen’s to the effect that “Fannie Mae’s accountingpractices did not comply in material respects with the accounting principles set forth in FAS 91and 133,” (Expert Report of Harvey L. Pitt ¶ 29), “created binding obligations on the recipient[Fannie Mae].” (
 ¶ 30.) Defendants provided their own expert reports on November 15, 2010,many of which responded to the opinions expressed in Mr. Pitt’s report.On February 24, 2011, Mr. Pitt provided sworn deposition testimony under oath inconnection with his expert report and the opinions contained therein. Mr. Pitt repeatedly testifiedthat he did not believe Mr. Nicolaisen had provided deposition testimony in this litigation,(February 24, 2011 Tr. of Deposition of Harvey Pitt at 29:5-8; 30:5-11), and that his opinion wasbased, at least in part, on that fact. (
at 33: 4-16.) This belief was erroneous, as Lead Counselwas well-aware. Mr. Nicolaisen was deposed in this litigation on November 19, 2009. Indeed,his deposition only took place following extensive motions practice initiated by Lead Plaintiffsover the opposition of the Securities and Exchange Commission, and both of the attorneys forLead Plaintiffs who represented Mr. Pitt at his deposition attended at Mr. Nicolaisen’s November2009 deposition. Inexplicably, neither attorney saw fit to apprise Mr. Pitt of this fact during anyof the approximately five occasions on which they met in preparation for Mr. Pitt’s deposition.(February 25, 2011 Tr. of Deposition of Harvey Pitt at 338:9-16.)
laws and rules to the conduct of U.S. business enterprises; the purpose andimportance of internal controls generally and the obligations of public companieswith respect to internal controls in light of the Sarbanes-Oxley Act of 2002 andother applicable laws and regulations; and the operation, functions and efficiencyof the U.S. financial market system, including the importance of accurateinformation for investors. (Lead Plaintiffs’ Disclosure of Expert Witnesses, May3, 2010 at 5).
Case 1:04-cv-01639-RJL Document 891 Filed 02/25/11 Page 3 of 8

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