Defendants’ Discovery Responses Contradict Their Certifications That TheAdministrative Record Is Complete.
responding to the Bank’s discovery requests, both the Acting Director and theActing Comptroller of the Comptroller of the Currency (“OCC”) provided sworn certificationsthat the administrative record was complete.
Defs.’ Notice of Filing of Decls. of John E.Bowman and John G. Walsh, ECF No. 54. One would expect that, having been forced toacknowledge that almost 1,000 pages of material outside the originally proffered record weregiven to the Acting Director, Defendants would now at least concede that the proffered recordwas incomplete. They do not. Instead, Defendants again seek to obstruct meaningful review of the decision to close the Bank by (i) dismissing the excluded material as irrelevant or duplicative,and (ii) raising the argument (already rejected by the Court) that the Court is entitled to see onlythose selected documents that Defendants represent the Acting Director chose to rely upon.
Defs.’ Mem. of Points and Authorities in Opp. to Pl.’s Second Mot. to Compel 1, ECF No. 65(“Defs.’ Opp’n”). Both contentions fall short.First, as the Court has repeatedly advised, Defendants are wrong in their contention thatinformation is not a part of the administrative record if they have unilaterally determined that theotherwise-relevant documents “do not contain any new facts or information” or the relevantdocuments are not “pertinent.”
Defs.’ Opp’n 2-3. Defendants cite no authority in support of these purported exceptions to their obligation to comply with discovery because there is none.And as a factual matter, Defendants nevertheless produced information that was both pertinentand
included in the originally produced administrative record. For example, Defendants’produced numerous problem bank reports “prepared for the Acting Director” that described“significant events at the Bank and constitute a contemporaneous record of significantsupervisory issues[.]” Defs.’ Opp’n at 7.
Case 1:11-cv-00408-ABJ Document 66 Filed 11/23/11 Page 3 of 10