Rbs Man Damus

No.
In The United States Court of Appeals

for the
Tenth Circuit
________________________________________
IN RE RBS SECURITIES INC.,
RBS ACCEPTANCE INC., AND
FINANCIAL ASSET SECURITIES CORP.
Defendants-Petitioners
__________________________________________

PETITION FOR WRIT OF MANDAMUS RELATING TO ORDERS
OF THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS NO. 11 CIV. 2340

PETITION FOR WRIT OF MANDAMUS
ORAL ARGUMENT REQUESTED

R. Alexander Pilmer
David I. Horowitz
Tammy A. Tsoumas
Derek M. Milosavljevic
Gavin C.P. Campbell
KIRKLAND & ELLIS LLP
333 South Hope Street
Los Angeles, California 90071
Tel: (213) 680-8400
Fax: (213) 680-8500

Counsel for Defendants-Petitioners
RBS Securities Inc., RBS Acceptance Inc.,
and Financial Asset Securities Corp.
Appellate Case: 14-3151 Document: 01019285138 Date Filed: 07/24/2014 Page: 1

RULE 26.1 CORPORATE DISCLOSURE STATEMENT
RBS Securities Inc. is a wholly-owned subsidiary of RBS Holdings USA
Inc., and an indirect wholly-owned subsidiary of the Royal Bank of Scotland
Group plc, a public company whose stock is traded on the London Stock
Exchange. No other publicly-held entities own more than 10 percent of the stock
of RBS Securities Inc.
RBS Acceptance Inc. is a wholly-owned subsidiary of RBS Holdings USA
Inc., and an indirect wholly-owned subsidiary of the Royal Bank of Scotland
Group plc, a public company whose stock is traded on the London Stock
of RBS Acceptance Inc.
Financial Asset Securities Corp. is a wholly-owned subsidiary of RBS
Holdings USA Inc., and an indirect wholly-owned subsidiary of the Royal Bank of
Scotland Group plc, a public company whose stock is traded on the London Stock
of Financial Asset Securities Corp.


i

TABLE OF CONTENTS
Page
I. INTRODUCTION ......................................................................................... 1
II. STATEMENT OF ISSUES PRESENTED .................................................. 2
III. STATEMENT OF RELIEF REQUESTED ................................................ 2
IV. STATEMENT OF NECESSARY FACTS .................................................. 3
V. ARGUMENT ................................................................................................ 10
A. The District Courts Order Disregards the Congressionally-
Established Structure of the Federal District Courts and
Represents an Abdication of the Courts Obligation to Decide
the Disputes in the Case Before It. ...................................................... 12
1. No Statutory Authority Permits The District Court to
Designate Judge Cote for Service in This Case. ....................... 12
2. The District Court Cannot Abstain from Deciding
Disputes In This Case and Cede Its Authority to a Court
Outside This Circuit. ................................................................. 19
3. The District Courts Order Does Not Comply With the
Procedure for Assigning District Judges Under the
Central Districts Local Rules. .................................................. 22
B. Interference With This Courts Appellate Jurisdiction and
Prejudice From Unauthorized Rulings Are Not Correctable On
Appeal.................................................................................................. 23
C. The District Courts Order Raises Novel and Important
Questions Regarding District Courts Authority to Transfer
Cases Outside of the Congressionally-Mandated System of
Transfer and Judicial Designation. ...................................................... 27
D. Because The Challenged Order Is a Discovery Order, RBS
Lacks an Adequate Alternative to Mandamus Relief. ........................ 28
VI. CONCLUSION ............................................................................................ 29


ii

TABLE OF AUTHORITIES
Page No(s).
Cases
Armster v. U.S. Dist. Court,
806 F.2d 1347 (9th Cir. 1986) .............................................................................. 11
Borja v. U.S. Dist. Court,
919 F.2d 100 (9th Cir. 1990) ................................................................................ 25
Cessna Aircraft Co. v. Brown,
348 F.2d 689 (10th Cir. 1965) ....................................................................... 17, 28
Cheney v. U.S. Dist. Court,
542 U.S. 367 (2004) .............................................................................................. 11
CitiFinancial Corp. v. Harrison,
453 F.3d 245 (5th Cir. 2006) ................................................................................ 20
Clyma v. Sunoco,
594 F.3d 777 (10th Cir. 2010) ................................................................. 12, 21, 27
Dhalluin v. McKibben,
682 F. Supp. 1096 (D. Nev. 1988) ........................................................................ 20
FTC v. MacArthur,
532 F.2d 1135 (7th Cir. 1976) .............................................................................. 18
Hollingsworth v. Perry,
558 U.S. 183 (2010) ....................................................................................... 22, 23
Holmes v. Grubman,
315 F. Supp. 2d 1376 (M.D. Ga. 2004) ................................................................ 15
Hustler Magazine, Inc. v. U.S. Dist. Court,
790 F.2d 69 (10th Cir. 1986) ................................................................................ 21
In re Cement Antitrust Litig. (MDL No. 296),
688 F.2d 1297 (9th Cir. 1982) .............................................................................. 24
In re Cooper Tire & Rubber Co.,
568 F.3d 1180 (10th Cir. 2009) ............................................................... 11, 12, 19

iii

In re Corrugated Container Antitrust Litig.,
662 F.2d 875 (D.C. Cir. 1981) .............................................................................. 13
In re Fibreboard Corp.,
893 F.2d 706 (5th Cir. 1990) ................................................................................ 29
In re Flight Transp. Corp. Sec. Litig.,
764 F.2d 515 (8th Cir. 1985) ................................................................................ 17
In re Korean Air Lines Disaster of Sept. 1, 1983,
829 F.2d 1171 (D.C. Cir. 1987) ............................................................................ 20
In re McBryde,
117 F.3d 208 (5th Cir. 1997) ................................................................................ 23
In re Motor Fuel Temperature Sales Practices Litig.,
711 F.3d 1050 (9th Cir. 2013) ........................................................... 14, 23, 25, 26
In re Plumbing Fixture Cases,
298 F. Supp. 484 (J.P.M.L. 1968) .................................................................. 15, 17
In re Repetitive Stress Injury Litig.,
11 F.3d 368 (2d Cir. 1993) ............................................................................ 18, 29
In re Sony BMG Music Enter.,
564 F.3d 1 (1st Cir. 2009) ..................................................................................... 23
In re United States,
10 F.3d 931 (2d Cir. 1993) ................................................................................... 29
Kerr-McGee Corp. v. Ritter,
461 F.2d 1104 (10th Cir. 1972) ............................................................................ 23
La Buy v. Howes Leather Co.,
352 U.S. 249 (1957) ....................................................................................... 11, 29
Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach,
523 U.S. 26 (1998) ................................................................................................ 16
Ligon v. City of N.Y.,
736 F.3d 118 (2d Cir. 2013) ................................................................................. 23

iv

Mallard v. U.S. Dist. Court,
490 U.S. 296 (1989) .............................................................................................. 19
McDowell v. United States,
159 U.S. 596 (1895) .............................................................................................. 13
Nguyen v. United States,
539 U.S. 69 (2003) ......................................................................................... 14, 15
Perry v. Schwarzenegger,
591 F.3d 1147 (9th Cir. 2009) .............................................................................. 27
Roche v. Evaporated Milk Assn,
319 U.S. 21 (1943) ............................................................................. 10, 11, 19, 24
Schlagenhauf v. Holder,
379 U.S. 104 (1964) .............................................................................................. 11
SG Cowen Sec. Corp. v. U.S. Dist. Court,
189 F.3d 909 (9th Cir. 1999) ................................................................................ 27
Sprint Commcns, Inc. v. Jacobs,
571 U.S. __, 134 S. Ct. 584 (2013) ....................................................................... 19
Stein v. KPMG, LLP,
486 F.3d 761 (2d Cir. 2007) ................................................................................. 26
United States v. Coppa,
267 F.3d 132 (2d Cir. 2001) ................................................................................. 28
United States v. Microsoft Corp.,
147 F.3d 935 (D.C. Cir. 1998) .............................................................................. 26
United States v. Roberts,
618 F.2d 530 (9th Cir. 1980) ................................................................................ 13
United States v. West,
672 F.2d 796 (10th Cir. 1982) .............................................................................. 26
Utah-Idaho Sugar Co. v. Ritter,
461 F.2d 1100 (10th Cir. 1972) ............................................................................ 23

v

Valenzuela-Gonzalez v. U.S. Dist. Court,
915 F.2d 1276 (9th Cir. 1990) .............................................................................. 28
Woods Constr. Co. v. Atlas Chem. Indus., Inc.,
337 F.2d 888 (10th Cir. 1964) .............................................................................. 22
Statutes
28 U.S.C. 292 ........................................................................................... 13, 14, 15
28 U.S.C. 294 ........................................................................................................ 14
28 U.S.C. 1294 ...................................................................................................... 24
28 U.S.C. 1404 ......................................................................................... 13, 16, 17
28 U.S.C. 1406 ............................................................................................... 13, 16
28 U.S.C. 1407 .............................................................................................. passim
28 U.S.C. 1651 ............................................................................................... 11, 28
Other Authorities
Wright & Miller, 15 Fed. Prac. & Proc. Juris. 3846 (4th ed.) .............................. 16
Rules
D. Kan. L.R. 40.1 ..................................................................................................... 26
Fed. R. Civ. P. 77(b) ................................................................................................ 30


vi

STATEMENT OF RELATED CASES
RBS is concurrently filing mandamus petitions to the Courts of Appeals for
the Ninth and Second Circuits: In re RBS Securities Inc., et al. v. United States
Dist. Court, No. 14-___ (9th Cir.); In re RBS Securities Inc., et al., No. 14-___ (2d
Cir.). An appeal from a motion to dismiss ruling in the case below is pending
before this Court: Nomura Home Equity Loan, et al. v. NCUA Bd., Nos. 12-3295 &
12-3298 (10th Cir.). An appeal of another motion to dismiss ruling involving
plaintiff-respondent NCUA and issues related to those in the case below is also
before this Court: NCUA Bd. v. Barclays Capital Inc., et al., No. 13-3183 (10th
Cir.). NCUA is also involved in appeals regarding issues related to those in the
case below in the Ninth Circuit, one of which also involves RBS: NCUA Bd. v.
RBS Securities Inc., et al., Nos. 13-56620 & 13-56621 (9th Cir.); NCUA Bd. v.
Goldman, Sachs & Co., et al., Nos. 13-56851, 13-56852, 13-80165, 13-80230, 14-
55309 (9th Cir.).

vii

GLOSSARY

Add. Addendum to this petition

FHFA Federal Housing Finance Agency

NCUA National Credit Union Administration Board

PA Petitioners Appendix in Support of Petition

Protocol Master Discovery Protocol (entered in this case)

RBS RBS Securities Inc., RBS Acceptance Inc., &
Financial Asset Securities Corp.

RMBS Residential mortgage-backed securities


1
I. INTRODUCTION
This is one of three actions brought by the National Credit Union
Administration Board (NCUA) against Petitioners RBS Securities Inc. and RBS
Acceptance Inc. (RBS)
1
in three different districts in three different circuits.
After the Judicial Panel on Multidistrict Litigation denied a motion to consolidate
these actions, the District Court for the District of Kansas entered an order
purporting to enable a district judge from the Southern District of New York to
decide discovery disputes in this case under the guise of a Coordination Judge,
even though there is no authority for such a procedure.
2
The extraordinary nature
of mandamus relief is appropriate to correct this error for numerous reasons.
First, the District Courts order was clearly erroneous because: (i) there is no
statutory authority for out-of-circuit judges to issue rulings in this case; (ii) the
order represents an improper ceding of the District Courts obligation to decide the
cases before it; and (iii) the order does not comply with the Local Rules for the
District of Kansas.

1
Petitioner Financial Asset Securities Corp. (also referred to in this petition as
RBS) is only involved in this action.
2
The key Coordination Judge provision is Section 2 of the Master Discovery
Protocol entered by the District Court. (Add. 4.) (All references to Add. are to
the addendum to this petition.) As described below, this order was also entered in
cases pending in the Central District of California and the Southern District of New
York. (PA 632, 720.) (All references to PA are to RBSs concurrently-filed
Petitioners Appendix.) RBS is simultaneously seeking writs of mandamus in the
Ninth and Second Circuits.

2
Second, the District Courts order threatens the appellate jurisdiction of this
Court, and the harm from being subject to the decisions of a court with no
authority to issue them cannot be corrected on appeal.
Third, the District Courts order presents novel questions about the ability of
judges to create new procedures for consolidating cases in different circuits when
the Judicial Panel on Multidistrict Litigation has rejected consolidation. Indeed,
neither NCUA nor the District Court has identified any precedent for the
Coordination Judge provisions of the Master Discovery Protocol.
For all these reasons, RBS requests that this Court issue a writ of mandamus
directing the District Court to strike the Coordination Judge provisions of the
Master Discovery Protocol and vacate the orders entered pursuant to those
provisions.
II. STATEMENT OF ISSUES PRESENTED
Whether a writ of mandamus is warranted to correct the District Courts
clear error in entering an order that purports to allow an out-of circuit district court
to make or be involved in making decisions in this case.
III. STATEMENT OF RELIEF REQUESTED
RBS respectfully petitions this Court for a writ of mandamus directing the
District Court to strike Section 2 of the Master Discovery Protocol and vacate all
discovery orders entered in this case pursuant to Section 2.

3
IV. STATEMENT OF NECESSARY FACTS
On March 20, 2009, NCUA placed U.S. Central FCU and WesCorp FCU,
the two largest corporate credit unions in the country, into conservatorship; in
September 2010, NCUA placed two other corporate credit unions, Southwest
Corporate FCU and Members United Corporate FCU, into conservatorship. (PA
68, 57172, 67273.)
On June 20, 2011, on behalf of U.S. Central, NCUA sued RBS in the
District of Kansas (U.S. Central was headquartered in Lenexa, Kansas), alleging
violations of Sections 11 and 12 of the Securities Act of 1933 and state Blue Sky
laws regarding the sale of approximately $1.7 billion of residential mortgage-
backed securities (RMBS). (See PA 5794.) That casenow before this
Courtis pending before the Honorable John W. Lungstrum.
3
Soon after, on July
18, 2011, NCUA sued RBS on behalf of WesCorp in the Central District of
California (WesCorp was headquartered in San Dimas, California) alleging the
same federal claims (and California Blue Sky claims) regarding approximately
$1.6 billion in RMBS purchases. (See PA 66492.) That case is pending before
the Honorable George H. Wu.

3
The Honorable James P. OHara, Chief Magistrate Judge for the District of
Kansas, is also actively involved in the case.

4
On September 2, 2011, after NCUA filed its Kansas and California cases
against RBS, the Federal Housing Finance Agency (FHFA) a different federal
agency assigned as conservator for Fannie Mae and Freddie Mac filed several
RMBS lawsuits in New York. Ultimately, the New York FHFA cases were
assigned to the Honorable Denise L. Cote, of the Southern District of New York.
RBS was named as a co-defendant in some of the New York FHFA cases, and
FHFA also sued RBS in the District of Connecticut. (See Complaint, FHFA v.
Royal Bank of Scotland Grp. PLC, No. 11-cv-01383 (D. Conn. Sept. 2, 2011), ECF
No. 1.)
After observing several plaintiff-favorable rulings by Judge Cote in the New
York FHFA cases, on September 23, 2013 (over two years after filing suit in
Kansas), NCUA sued RBS (located in Stamford, Connecticut) in the Southern
District of New York on behalf of Southwest (based in Plano, Texas) and Members
(based in Warrenville, Illinois). (See PA 56384.)
4
NCUAs New York case
against RBS involves roughly $300 million in RMBS purchasesless than ten
percent of the amount at issue in the cases pending in California and Kansas.
In New York, NCUA filed an explanation of related case claiming that its
suit against RBS was related to the New York FHFA cases, even though: (1)

4
On the same day NCUA sued RBS in New York, NCUA filed separate lawsuits
(again on behalf of Southwest and Members) against Morgan Stanley, Goldman
Sachs, Credit Suisse, UBS, and Wachovia.

5
FHFAs main case against RBS was in Connecticut, not New York; (2) the cases
involved different governmental entities acting as conservators for different types
of entities (government-sponsored Fannie and Freddie versus privately-owned
credit unions); and (3) out of the dozens of offerings at issue in these related
cases, only four actually overlapped. (See PA 55962.)
5
Over RBS objection,
Judge Cote accepted the cases as related. (See PA 58589.)
On October 11, 2013, RBS joined a request to the Judicial Panel on
Multidistrict Litigation (JPML) to transfer all of the New York NCUA lawsuits
to the District of Kansas pursuant to 28 U.S.C. 1407,
6
based on both the factual
overlap between the cases and on several factors specific to the District of Kansas,
including Judge Lungstrums familiarity with the issues in the cases, and the fact
that the Kansas actions were the first-filed actions (by two years).
7
(PA 73168.)
NCUA opposed the MDL petition, arguing that discovery is not common
across these cases and must be undertaken separately for the distinct Credit

5
NCUA claimed that the FHFA cases involve similar allegations and that
NCUA is similarly a governmental entity (PA 562), but the relevant Southern
District rule states that [c]ivil cases shall not be deemed related merely because
they involve common legal issues or the same parties. S.D.N.Y. Rule for the
Division of Business Among District Judges, Rule 13(a)(2)(A).
6
RBS filed a notice with the JPML that the California NCUA case was a potential
tag-along action. (PA 76972.)
7
Before NCUA even submitted its response to the MDL petition, Judge Cote sua
sponte stated that she would be fully capable of handling such an MDL in her
courtstating that [i]f the NCUA cases are litigated in this district before this
Court they will be addressed promptly and efficiently. (PA 595.)

6
Union(s) that purchased the distinct RMBS at issue in a specific case and that
NCUA will seek discovery specific to each RMBS offering. (PA 785, 787.)
8

NCUA also noted that NCUA as liquidating agent represents different Credit
Unions, a key fact entirely ignored by Defendants. . . . Each of those Credit Unions
had different employees, documents, processes, relationship with the Defendants,
and transaction histories. (PA 785.)
9
Instead, NCUA urged that all the cases be
transferred to Judge Cote in the Southern District of New York. (PA 79596.)
10

On February 12, 2014, the JPML denied the request for a transfer, accepting
NCUAs argument that the cases did not share sufficient common questions to
warrant consolidation under 28 U.S.C. 1407, and noting that different
representations made to different purchasers of RMBS will be at issue, involving
different discovery and motion practice. (PA 834.) Upon receiving the order

8
Unless otherwise noted, all emphasis in the Petitioners Appendix is added by
RBS.
9
The same critiques NCUA raised with respect to an MDL involving NCUAs
lawsuits would have applied a fortiori to its previous claim that cases a different
plaintiff (FHFA) brought were somehow related to the NCUA cases. Comparing
those cases, they also involved completely different employees, documents,
processes, relationship with the Defendants, and transaction histories.
Additionally, the types of entities involved (credit unions versus Fannie and
Freddie) and the actual plaintiff (FHFA versus NCUA) were also completely
different.
10
This position mirrors FHFAs in the Connecticut case against RBS. There, the
court noted that FHFAs counsel frequently conveys the impression that . . . they
want the court to simply adopt, without critically evaluating, decisions made in the
SDNY Actions. (Order at 2, FHFA v. Royal Bank of Scotland Grp. PLC, No. 11-
cv-01383 (D. Conn. Mar. 31, 2014), ECF No. 334.)

7
rejecting consolidation, Judge Cote immediately . . . reached out to Judges
Lungstrum and Wu and introduced [her]self, and . . . began a conversation with
them about working to coordinate our litigation. (PA 602.) Although the JPML
rejected the idea of an MDL in one district before one judge, Judge Cote stated
that: It seems to me that we should certainly manage [this] litigation . . . as if all
the litigations were managed in one district before one judge. (PA 603.)
Furthering her apparent goal of assuming the role of Coordination Judge,
Judge Cote required RBS and the other parties in the New York NCUA actions to
submit letters regarding whether they agreed that a master discovery protocol
should be entered across all three sets of actions. (PA 622.) But before the parties
filed their submissions, Judge Cote entered an order noting that this Court
conferred with Judges Lungstrum, Wu, and OHara, and purporting to limit
RBSand all other partiesarguments regarding any discovery dispute in the
New York, Kansas, or California actions to a two-page submission to Judge Cote
and the other judges. (PA 62526.) Later that day, the parties submitted a joint
letter, noting that they agreed, in the abstract, to the entry of some form of . . . a
master discovery protocol, but noting that the defendants have issues, to varying
degrees, with the scope and content of the proposals made by plaintiff. (PA 627.)
NCUAin contrast to the positions it took before the JPMLargued that
it would be most efficient to present pre-trial disputes to a single judge, and

8
therefore proposed that all three judges designate a coordination judge to decide
all pre-trial disputes in the first instance, with all judges taking appropriate steps to
ensure that any rulings are binding in all Courts. (PA 416.) NCUA provided no
authority for a procedure whereby one judge would make rulings that other Article
III judges would effectively enter as clerks of the Coordination Judge.
Over RBS objection,
11
on April 2, 2014, at a joint hearing across all three
cases, Judge Cote announced that the judges had tentatively agreed to a
Coordination Judge, and that she was pleased to be serving in that role for you.
(PA 430.) A formal Master Discovery Protocol (the Protocol) was entered in the
New York case on April 9, in this case on April 10, and in the California case on
June 12. (Add. 111; PA 62939, 717730.) Section 2 of the Protocol purports to
impose a Procedure for Presenting Discovery Dispute[s] whereby:
Judge Cote is designated as the Coordination Judge for all Actions.
All discovery applications and disputes shall be brought to the
Coordination Judge in the form of a two-page letter, with copies
simultaneously provided to the other three Judges. Following
consultation with Judges Lungstrum and/or OHara, and Judge Wu,
the Coordination Judge will endeavor to respond promptly.
All applications and disputes regarding discovery in any Action will
be filed in the lead case pending in the Southern District of New York
. . . . If the application or dispute applies to fewer than all Actions,
then the submission should be filed as well in the Action or Actions to
which it applies. The discovery parameters and limitations set forth in
the ruling by the Coordination Judge on the application or dispute

11
(PA 35562; see also PA 373.)

9
will be given effect in all Actions, unless the ruling indicates
otherwise.

(Add. 4.)
12
Judge Cote confirmed that discovery disputes, even those arising solely
in the California or Kansas actions, would be submitted to her, and she would
make the ruling:
I plan to consult with my fellow judges before ruling on any matter of
substance so that the parties can be assured that any ruling I make is
supported by all of us . . . . Therefore, we would want all submissions,
even though I am the coordination judge, to be served simultaneously
on each of my colleagues . . . . I would be the coordination judge. I
would give you the ruling, but it would be after I have consulted with
my colleagues.
(PA 430, 432.)

12
This is not the first time RBS has faced attempts to substitute Judge Cote in the
place of an assigned judge. In the FHFA cases, discovery was coordinated across
the 17 New York cases and the single Connecticut case brought against RBS.
(Joint Order, FHFA v. Royal Bank of Scotland Grp. PLC, No. 11-cv-01383 (D.
Conn. Nov. 1, 2012), ECF No. 91.) The coordination order in that case did not
allow Judge Cote to resolve discovery disputes in the Connecticut case, but in late
January 2014, FHFA urged further coordination of the casesnamely, to have
Judge Cote oversee the remaining discovery and trial in the Connecticut case. (See
FHFA Mot. for Further Coordination, FHFA v. Royal Bank of Scotland Grp. PLC,
No. 11-cv-01383 (D. Conn. Jan. 29, 2014), ECF Nos. 288 & 288-1.) RBS noted in
opposition that there was no authority for such a transfer of substantive rulings to
take place, and that FHFA was attempting to judge-shop to ensure that Judge
Cotes favorable rulings in the New York FHFA cases were imposed in the
Connecticut case. (See RBS Oppn to FHFA Mot. for Further Coordination at 10
13, FHFA v. Royal Bank of Scotland Grp. PLC, No. 11-cv-01383 (D. Conn. Feb. 7,
2014, ECF No. 293.) Judge Thompson denied FHFAs request for further
coordination based on substantially the reasons set forth by the defendants in their
opposition memoranda. (Order at 2, FHFA v. Royal Bank of Scotland Grp. PLC,
No. 11-cv-01383 (D. Conn. Mar. 31, 2014), ECF No. 334.)

10
Since April 9, 2014, Judge Cote has issued several orders as Coordination
Judge pertaining to RBS in this case, sometimes just one or two business days
after the parties in the actions submitted dozens of pages of briefing, without any
indication of how the judges consulted or their views on the dispute. (See PA 530
49, 55258.)
13
Up until May 27, 2014 (after RBS brought this issue to the District
Courts attention), none of these orders bore Judge Lungstrums signature. (Id.)
On April 23, 2014, RBS moved to have the Coordination Judge provisions
stricken; on May 27, 2014, Judge Lungstrum denied the motion. (Add. 1217.)
Judge Lungstrums opinion provided no authority for the provisions, but he
nonetheless refused to strike the provisions of the Protocol requiring (1) disputes in
this case to be submitted to Judge Cote and (2) that rulings in this case are to be
made by Judge Cote. (Id.) Judge Wu also denied RBS similar motion in
California, despite agreeing that there is no applicable, binding law that
specifically provides for a Coordination Judge. (PA 716.)
V. ARGUMENT
This Court has jurisdiction over this petition pursuant to the All Writs Act,
which authorizes the Courts of Appeals to issue extraordinary writs in aid of their
respective jurisdictions. 28 U.S.C. 1651(a); Roche v. Evaporated Milk Assn,

13
Judge Cote also issued a more substantive order to show cause regarding joinder
of parties on June 2, which Judge OHara entered in this case without modification
on June 6. (PA 55051.)

11
319 U.S. 21, 25 (1943). The traditional use of the extraordinary writs is to
confine an inferior court to a lawful exercise of its prescribed jurisdiction or to
compel it to exercise its authority when it is its duty to do so, and to remove
obstacles to appeal. Roche, 319 U.S. at 26. The Supreme Court has endorsed the
broader exercise of mandamus powerssometimes termed supervisory and
advisory powersto correct established practices of the district court or to
review important and novel questions. Armster v. U.S. Dist. Court, 806 F.2d
1347, 1352 (9th Cir. 1986); see Schlagenhauf v. Holder, 379 U.S. 104 (1964); La
Buy v. Howes Leather Co., 352 U.S. 249 (1957).
For a writ to issue, (1) the petitioner must have no other adequate means to
attain the relief it desires; (2) the petitioner must demonstrate that the right to
issuance of the writ is clear and indisputable, and (3) the issuing court must be
satisfied that the writ is appropriate under the circumstances. In re Cooper Tire &
Rubber Co., 568 F.3d 1180, 1187 (10th Cir. 2009) (quoting Cheney v. U.S. Dist.
Court, 542 U.S. 367, 38081 (2004)). In considering a petition for an
extraordinary writ, this Court considers whether (1) the petitioner has alternative
means to secure relief, (2) the petitioner will be damaged in a way not correctable
on appeal, (3) the district courts order constitutes an abuse of discretion, (4) the
district courts order represents an oft-repeated error and manifests a persistent
disregard of applicable law, and (5) the courts order raises new and important

12
problems of law or issues of first impression. Id. at 1187; Clyma v. Sunoco, 594
F.3d 777, 782 (10th Cir. 2010). Here, each of these factors is present.
A. The District Courts Order Disregards the Congressionally-
Established Structure of the Federal District Courts and
Represents an Abdication of the Courts Obligation to Decide the
Disputes in the Case Before It.
When the district court errs in deciding a legal issue, it necessarily abuses
its discretion. In re Cooper Tire, 568 F.3d at 1186 (citation and internal quotation
marks omitted). The District Courts order was clearly erroneous (i) by
designating, without authority, an out-of-circuit judge to decide, or share in
deciding, issues in this case, (ii) by ceding some or all of its authority and
obligation to decide issues in this case, and (iii) by enabling violations of the
District Courts local rules on judicial assignments.
1. No Statutory Authority Permits The District Court to
Designate Judge Cote for Service in This Case.
The Protocols requirement that discovery disputes be submitted to Judge
Cote is clearly erroneous and without authority.
14
Congress has established a
comprehensive system for transferring judges and cases between federal district

14
Judge Lungstrum cited no authority when he denied RBS motion to modify the
Protocol. (Add. 1217.) And NCUA has never cited any authority, other than the
Manual for Complex Litigation (which is not authority) and the JPMLs Order
denying the one-judge-in-one-district approach the Protocol requires. (PA 500
01.)

13
courts.
15
In our federal judicial system, judges of a particular district court may
exercise their authority only within that district except under specific limited
designations permitted by statute. In re Corrugated Container Antitrust Litig.,
662 F.2d 875, 879 (D.C. Cir. 1981).
16
28 U.S.C. 292 governs the designation of
district judges for service in other courts, and 28 U.S.C. 1404, 1406, and 1407
govern the transfer of cases. None of these statutes have been followed here;
instead, the Protocol is an unrecognizable variant of any Congressionally-
authorized means of coordinating cases.
a. The Protocol Does Not Comply With 28 U.S.C.
292(d).
For an out-of-circuit district judge like Judge Cote to serve on a district court
within this Circuit, under 292(d), she must be designated to do so by the Chief
Justice of the United States. Before such a designation is made, the Chief Judge of
this Circuit must present a certificate of necessity to the Chief Justice certifying
the need for an out-of-circuit judge to serve within this Circuit. 28 U.S.C.

15
28 U.S.C 291297 (Chapter 13, Assignment of Judges to Other Courts); id.
13901413 (Chapter 87, District Courts; Venue).
16
See also United States v. Roberts, 618 F.2d 530, 546 (9th Cir. 1980) (Wyatt,
D.J., dissenting) (That district courts may act only within their respective districts
seems self-evident and has been assumed since the Judiciary Act of 1789.
Congress, however, has not hesitated to make it emphatic. . . . The Supreme Court
has said: District Courts are solely the creation of statute, and the place in which a
judge thereof may exercise jurisdiction is subject absolutely to the control of
Congress. (quoting McDowell v. United States, 159 U.S. 596, 59899 (1895))).

14
292(d).
17
The Chief Justices authority to designate a judge for such service is
exclusive. See generally In re Motor Fuel Temperature Sales Practices Litig., 711
F.3d 1050, 105254 (9th Cir. 2013). Ninth Circuit Chief Judge Kozinski has
explained that a necessity will be certified only where there is severe or
unexpected over-burdening, as happens when a judge dies or retires, when the
district is experiencing a judicial emergency or when all the judges are recused
because of a conflict, and even then, the first option is to find a judge from
within the circuit. Id. at 1053. In fact, in In re Motor Fuel, Chief Judge Kozinski
refused to certify a necessity where an out-of-circuit judge graciously
volunteered to serve in a caseas Judge Cote has done herebut where there was
no need for such service. Id. at 105254.
At bottom, the District Court had no authority to sua sponte designate Judge
Cote for service, Chief Judge Briscoe never issued a certificate of necessity, and
Chief Justice Roberts never designated Judge Cote for service in this case. The
Protocol is therefore a clearly erroneous attempt to avoid the normal restrictions on
judicial designation.
18

17
Because Judge Cote is a senior judge, she may be subject instead to 294(d),
which still requires that the Chief Judge of this Circuit present the same certificate
of necessity to the Chief Justice of the United States. 28 U.S.C. 294(d).
18
The Supreme Court has reversed designations not authorized by Title 28. In
Nguyen v. United States, 539 U.S. 69 (2003), the Court held that an improper
designation under 292(a) required vacating the judgments of a panel of the Ninth

15
b. The Protocol Is Not Authorized By 28 U.S.C. 1407.
Consolidation under 1407 allows for the transfer of pretrial proceedings
from multiple districts to a single district if the JPML determines that the cases
share common questions of fact sufficient to warrant such consolidation. Multi-
district consolidation, however, never involves the contemporaneous exercise of
authority by multiple district courtsduring pretrial proceedings in an MDL, the
jurisdiction of the transferor court ceases. In re Plumbing Fixture Cases, 298 F.
Supp. 484, 496 (J.P.M.L. 1968). In any event, the JPML, which has the exclusive
authority to order such consolidation, refused to do so.
19

c. The Protocol Is Not Authorized By Any Other
Transfer Mechanism.
For this case to have been transferred to Judge Cote outside of the multi-
district litigation process, a transfer could have been made under 1404(a) if

Circuit, and noted that the statute embodies weighty congressional policy
concerning the proper organization of the federal courts. Id. at 7476, 7980.
While Nguyen involved an Article IV judge, the case was not based on structural
constitutional guarantees embodied in Article III. Id. at 76 n.9. Instead, the Court
found it unnecessary to discuss the constitutional questions because the statutory
violation is clear. Id. The statutory violation is also clear here, and the fact that
Judge Cote is an Article III judge is of no import.
19
District courts have no power to consolidate proceedings themselves. See 28
U.S.C. 1407(a)(c) (transfer for coordinated or consolidated proceedings shall
be made by the [JPML], such proceedings shall be conducted by a judge or
judges to whom such actions are assigned by the [JPML], and only a party or the
JPML may initiate transfer); Holmes v. Grubman, 315 F. Supp. 2d 1376, 1380
(M.D. Ga. 2004) ([T]he Court notes its inability and lack of authority to transfer
this action to the Southern District of New York [pursuant to 28 U.S.C. 1407].).

16
deemed necessary [f]or the convenience of the parties and witnesses, in the
interest of justice, or under 1406 if venue was improper. Along with MDL
consolidation under 1407, these are the exclusive procedures for transferring
cases between different district courts; district courts may not create new
procedures for transferring or consolidating cases outside of those authorized by
Congress. See Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S.
26, 4041 (1998) (district courts cannot self-assign MDL cases).
The hybrid proceedings created by the Protocol have no foundation in these
statutes. Nor do the proposed proceedings before a Coordination Judge resemble
what would have happened had a proper transfer occurred. If the case had been
transferred under either 1404 or 1406, it would have ended the jurisdiction of
the transferor court and Judge Lungstrum would no longer have the case on his
docket. See Wright & Miller, 15 Fed. Prac. & Proc. Juris. 3846 (4th ed.) (When
a motion for transfer . . . is granted . . . the transferor court and the appellate court
for the circuit in which that court sits lose jurisdiction over the case and may not
proceed further with regard to it.). And if transfer had taken place pursuant to
1407, then all pretrial proceedings would be consolidated in a single district court
with exclusive jurisdiction, not distributed across three districts in three circuits.

17
This Court has held that mandamus may be used to challenge improper
transfer orders,
20
but the Protocol is not even a recognizable transfer orderit
creates a novel type of partial transfer, whereby RBS in this case must bring its
disputes to Judge Cote, who will issue rulings that Judge Lungstrum will then enter
in this case. Other partial transfer orders have been the subject of successful
mandamus petitions in other Courts of Appeals. For example, in In re Flight
Transportation Corporation Securities Litigation, 764 F.2d 515 (8th Cir. 1985),
the district court had received numerous cases as part of MDL proceedings, but
required the parties to continue filing all documents before it, despite ordering the
trials transferred to another district (just as RBS must file all documents before
Judge Cote). Id. at 516. The Eighth Circuit granted a petition for mandamus,
holding that [s]ince the District Courts order attempts both to transfer the cases . .
. and to retain jurisdiction . . . it exceeds the transfer power conferred under
1404(a) and noted that no case has ever interpreted [ 1404(a)] to authorize the
sort of transfer at issue here. Id. at 51617. The JPML has also stated [t]wo
courts of exclusive different jurisdictions, or venues, cannot exercise control over
the same single claim for relief at the same time. In re Plumbing Fixture Cases,

20
Cessna Aircraft Co. v. Brown, 348 F.2d 689, 691 (10th Cir. 1965) (Mandamus
is an appropriate remedy to test the validity of the transfer order.).

18
298 F. Supp. at 495; see also FTC v. MacArthur, 532 F.2d 1135, 1143 (7th Cir.
1976) ([A]n action should not be split between two districts.).
Mandamus has also been used where judges have improperly consolidated
cases. In In re Repetitive Stress Injury Litigation, 11 F.3d 368 (2d Cir. 1993),
rehg denied in part, 35 F.3d 637 (2d Cir. 1994), rehg denied 35 F.3d 640 (2d
Cir.), a district court consolidated forty-four cases before it under Rule 42, despite
recognizing that the factual or legal issues of the various cases were not
identical. Id. at 371. The plaintiffs separately moved to consolidate all similar
proceedings nationwide under 1407, but the request was denied because the
JPML did not find sufficient common questions of fact. Id. at 372. The Second
Circuit held that substitut[ing] a discussion of so-called mass torts for precise
findings as to what are the common question[s] of law or fact justifying
consolidation was clearly erroneous and warranted the issuance of a writ. Id. at
373. The court noted that [w]ith regard to issues of law, the plaintiffs come from
a variety of jurisdictions and rely for their claims on the law of different states. An
order that merges all discovery and court proceedings and requires the participation
of all counsel simply has no basis in Rule 42. Id. Repetitive Stress involved
consolidation within one districtunder an identifiable Federal Rule of Civil
Procedureand never conceived of the kind of impromptu consolidation of power

19
in a Coordination Judge across multiple districts without statutory authority that
is at issue in this case. Mandamus is even more necessary here.
2. The District Court Cannot Abstain from Deciding Disputes
In This Case and Cede Its Authority to a Court Outside
This Circuit.
The Protocol also represents a clearly erroneous ceding of the District
Courts obligation to decide the cases before it. And a writ of mandamus is the
appropriate vehicle to seek relief.
The traditional use of the writ in aid of appellate jurisdiction both at
common law and in the federal courts has been to confine an inferior
court to a lawful exercise of its prescribed jurisdiction or to compel it
to exercise its authority when it is its duty to do so.
Mallard v. U.S. Dist. Court, 490 U.S. 296, 308 (1989) (quoting Roche, 319 U.S. at
26) (emphasis added); see In re Cooper Tire, 568 F.3d at 1186 (same). Likewise,
federal courts have no more right to decline the exercise of jurisdiction which is
given, than to usurp that which is not given, and a federal courts obligation to
hear and decide a case is virtually unflagging. Sprint Commcns, Inc. v. Jacobs,
571 U.S. __, 134 S. Ct. 584, 59091 (2013) (internal quotation marks and citations
omitted).
The District Court here has no ability to cedein whole or in partits
authority to decide discovery disputes in this case.
21
This is merely the flipside of

21
None of the accepted methods for delegating pre-trial discovery disputes, such
as designating a special master under Federal Rule of Civil Procedure 53 or

20
Judge Cotes erroneous seizure of power in this case: Judge Cote has no authority
to be involved in rendering decisions in a case outside her district, and Judge
Lungstrum cannot allow Judge Cote to take any role in rendering such decisions.
Judge Lungstrum attempted to assuage RBSs concerns in his May 27 ruling
by stating that [t]he [Protocol] expressly requires Judge Cote to consult with a
judge from this district on any discovery dispute. (PA 526.) But there is simply
no authority for Judge Cote to play any roleeither with or without consulting
Judge Lungstrumin this case. Judge Lungstrum must decide all the disputes in
this case independently. Cf. In re Korean Air Lines Disaster of Sept. 1, 1983, 829
F.2d 1171, 1176 (D.C. Cir. 1987) (R.B. Ginsburg, J.) (The federal courts spread
across the country owe respect to each others efforts and should strive to avoid
conflicts, but each has an obligation to engage independently in reasoned
analysis.). Signing an order drafted by another judge does not demonstrate that a

assigning a magistrate judge under 28 U.S.C. 636, were followed here (nor do
they contemplate using a district judge in a different circuit). With a special master
or a magistrate judge, ultimate authority remains with a single Article III judge, see
Fed. R. Civ. P. 53(f), 72, whereas the Protocol calls for some undefined
consultation among Article III judges. This is contrary to the principle that
[t]he structure of the federal courts does not allow one judge of a district court to
rule directly on the legality of another district judge's judicial acts or to deny
another district judge his or her lawful jurisdiction. Dhalluin v. McKibben, 682 F.
Supp. 1096, 1097 (D. Nev. 1988); see also CitiFinancial Corp. v. Harrison, 453
F.3d 245, 251 (5th Cir. 2006) ([A] district court judge, whether as a matter of
respect and institutional orderliness, if not jurisdiction, should shy from
involvement in a case proceeding before another Article III judge.).

21
court has engaged in reasoned analysis, rather than rubber-stamping the order, and
mandamus may be used where courts effectively refuse to exercise their
discretion.
22

Nor would it make sense for Judge Cote to be involved in rendering
decisions in this case, when there are significant differences between this case and
the ones over which Judge Cote presides. For example, in New York, NCUA has
no federal securities claims remaining, and Judge Cote has ruled that NCUAs
remaining state law claims are not subject to a loss causation defense. (PA 646
57.) But here, in contrast, NCUA has federal securities claims that are subject to a
loss causation defense. There is no reason why Judge Cote should participate in
deciding what discovery is needed to support loss causation defenses that only
apply in cases not pending before her. Nor should Judge Cote have any say in the
scope of discovery RBS may seek in this case against NCUA, on behalf of U.S.
Central, when the case pending before Judge Cote does not relate to U.S. Central.
23

RBS cannot be forced to submit to the Coordination Judge a dispute that is not at

22
See, e.g., Clyma, 594 F.3d at 783 (granting mandamus where entry of a minute
order without any substantive explanation made it impossible for court of appeals
to say the district court exercised any meaningful discretion); Hustler Magazine,
Inc. v. U.S. Dist. Court, 790 F.2d 69, 71 (10th Cir. 1986) (granting mandamus
where district court refused to hear petitioners arguments for transfer).
23
As NCUAs counsel put it to the JPML at oral argument, [t]here is not a single
claim in New York that pertains to securities purchased by [U.S. Central or
WesCorp]. (PA 825.)

22
issue in the New York case. Any twisting of the principles of federal jurisdiction
to involve a different court in those decisions further crystallizes the impropriety of
the challenged provisions.
3. The District Courts Order Does Not Comply With the
Procedure for Assigning District Judges Under the Central
Districts Local Rules.
The District Courts coordination order will also result in violations of the
District Courts local rules. Rules of practice adopted by the United States
District Courts . . . have the force and effect of law, and are binding upon the
parties and court which promulgated them . . . . Woods Constr. Co. v. Atlas
Chem. Indus., Inc., 337 F.2d 888, 890 (10th Cir. 1964) (reversing award of
attorneys fees where appellee failed to submit bill of costs within time limit
prescribed by local rule); see also Hollingsworth v. Perry, 558 U.S. 183, 191
(2010) ([Local] rules have the force of law.) (internal quotation marks omitted).
The Supreme Court has recognized that mandamus may be used to prevent
violations of local rules by district judges.
24
Here, the District Courts order
eviscerates the local rules guarantee of an assignment to a district judge in the

24
Hollingsworth, 558 U.S. 183 (finding fair prospect that a majority of the
Supreme Court would vote to grant mandamus or certiorari based on a violation of
local rules and noting that [i]f courts are to require that others follow regular
procedures, courts must do so as well); see also In re Sony BMG Music Enter.,
564 F.3d 1, 910 (1st Cir. 2009) (granting mandamus to prevent violation of local
rules and noting that this is a society dedicated to the rule of law . . . we are bound
to enforce that [local] rule. In the last analysis, this boils down to a case about the
governance of the federal courts.).

23
District of Kansas.
25
If any transfer is to occur under the local rules, it is to occur
by returning the case to the clerk, or seeking approval of the Chief Judge.
26

Mandamus has been used in situations involving the improper assignment of
cases,
27
and the failure to follow the local rules here should also be corrected by
issuing a writ of mandamus.
B. Interference With This Courts Appellate Jurisdiction and
Prejudice From Unauthorized Rulings Are Not Correctable On
Appeal.
To determine if a petitioners harm is correctable on appeal, courts analyze
the effect of the challenged order on the operation of the courtsand in cases
with a significant impact on the operation of the courts, the degree of injury to
petitioners is a less critical factor. In re Cement Antitrust Litig. (MDL No. 296),
688 F.2d 1297, 1303 (9th Cir. 1982) (analyzing Ninth Circuit factors similar to

25
Local Rule 40.1 provides that the chief judge is responsible for . . . the
assignment of cases to the judges. D. Kan. L.R. 40.1.
26
D. Kan. L.R. 40.1. The detailed discovery dispute procedures set forth under
District of Kansas Local Rules 7.1, 37.1 and 37.2 have also been abandoned under
the Protocol and replaced with a 2-page letter to an out-of-district judge.
27
See, e.g., In re McBryde, 117 F.3d 208, 22225, 22931 (5th Cir. 1997); Utah-
Idaho Sugar Co. v. Ritter, 461 F.2d 1100, 110204 (10th Cir. 1972) (granting
mandamus petition ordering judge to transfer case); Kerr-McGee Corp. v. Ritter,
461 F.2d 1104, 1105 (10th Cir. 1972) (same); cf. Ligon v. City of N.Y., 736 F.3d
118, 12526 & n.17, 130 (2d Cir. 2013) (noting concern with manipulation of
related-case assignments); In re Motor Fuel, 711 F.3d at 105254 (expressing
concern with interfer[ing] with the random assignment of cases, or removing
the judges to whom the cases were originally assigned and transferring them to an
out-of-circuit judge).

24
Tenth Circuit factors). Here, the Protocol significantly impacts the operation of the
courtsand prejudices RBSbecause it: (i) interferes with this Courts ability to
hear appeals from a District Court within this Circuit; (ii) interferes with the
Courts authority to manage the judges serving within the Circuit; and (iii)
deprives them of the right to have their cases heard exclusively by a judge with the
authority to rule on thema harm that is not correctable on appeal.
First, the District Courts order muddies the water of any appeal in this case
and thereby threatens this Courts appellate jurisdiction. This Courts mandamus
power extends to those cases which are within its appellate jurisdiction although
no appeal has been perfected, and a function of mandamus . . . is to remove
obstacles to appeal. Roche, 319 U.S. at 2526. Appeals are to be heard [f]rom a
district court of the United States to the court of appeals for the circuit embracing
the district. 28 U.S.C. 1294. But if rulings in this case are made by Judge Cote,
are appeals from those orders to be heard before this Court or the Second Circuit?
May the same order be appealable in all three involved Courts of Appeals, thus
exposing every discovery order to appeal in the Second, Ninth, and Tenth Circuits,
and creating the possibility of a circuit split on the same discovery ruling? If the
Courts of Appeals involved were to split on the validity of a discovery ruling, yet
that ruling purports to apply across all cases, how would the parties comply?
These questions are avoided if this Court strikes the improper provisions of the

25
Protocol, but even if not, mandamus relief would remain appropriate to clarify the
avenues of appeal from orders made pursuant to the challenged provisions of the
Protocolmandamus is especially appropriate where it will quickly settle a
jurisdictional dispute between two courts. Borja v. U.S. Dist. Court, 919 F.2d
100, 101 (9th Cir. 1990).
Second, the District Courts order interferes with the Congressionally-
established system for having the Courts of Appeals manage which judges serve
within the circuit, and having the Chief Justice of the United States control the
transfer of judges between circuits. See supra at 1314. As Ninth Circuit Chief
Judge Kozinski noted in In re Motor Fuel, even where an out-of-circuit judge
graciously volunteers for service in this Circuit, that judge may only serve with
the approval of the Chief Justice of the United States, 711 F.3d at 1052, whose
own Guidelines for the Intercircuit Assignment of Article III Judges stress that
no judge should take any official action in a case in another circuit in the absence
of a completed intercircuit assignment. Id. at 1057 (guideline 13). The
assignment of Judge Cote here circumvents the certificate of necessity
requirement.
Third, RBS will suffer direct prejudice in every decision made pursuant to
the Coordination Judge provisions. Being subject to the rulings of a judge
without any authority to enter them is a harm not correctable on appeal. The

26
Second Circuit, for example, has held that appeal from a final judgment is not an
adequate alternative to mandamus relief whereas herethe district court creates
an entirely sui generis proceeding with an ad hoc mix of procedural rules that
is governed by no express statutory authority. Stein v. KPMG, LLP, 486 F.3d
76162 (2d Cir. 2007); see also United States v. Microsoft Corp., 147 F.3d 935,
954 (D.C. Cir. 1998) ([A]t least at some point, even the temporary subjection of a
party to a Potemkin jurisdiction so mocks the partys rights as to render end-of-the-
line correction inadequate.). Whenever an order in this case is issued by a judge
in a different court, RBS has been harmed.
28
And if the Protocol is not challenged
now, RBS objections may be mooted by compliance with Judge Cotes orders.
See United States v. West, 672 F.2d 796, 799 (10th Cir. 1982) (Any subsequent
review . . . would be for naught, because the damage would already be
accomplished.); SG Cowen Sec. Corp. v. U.S. Dist. Court, 189 F.3d 909, 914 (9th
Cir. 1999) (Compliance with a discovery order moots an appeal of that order.).

28
Federal Rules of Civil Procedure 77(b) also prohibits the District Court from
conducting a hearing outside the district unless all the affected parties consent,
but any time a judge in New York holds a hearing on issues in the District of
Kansas, that rule is violated.

27
C. The District Courts Order Raises Novel and Important Questions
Regarding District Courts Authority to Transfer Cases Outside
of the Congressionally-Mandated System of Transfer and Judicial
Designation.
This petition raises new and important issues of first impressionto RBS
knowledge, this petition (along with the petitions simultaneously filed in the
Second and Ninth Circuits) is the first test of such an order in this Court (or in any
federal court), which weighs in favor of mandamus review. See Clyma, 594 F.3d
at 782 (substantive question was one of first impression where there was only
one related appellate decision). NCUA and the District Court have provided no
authority to support the entry of the Coordination Judge provisions, and while
RBS has demonstrated that the District Courts order is clearly erroneous, none of
those cited authorities addresses the specific kind of proceeding that has been
created here.
29
This petition raises novel questions concerning this Courts ability
to control which judges serve within the Circuit, the ability of district courts to
engage in ad hoc partial transfer proceedings, and the ability of Article III judges
to cede their jurisdiction to courts in other circuits. All of these issues warrant
granting mandamus relief, as [m]andamus is particularly appropriate . . . to
determine the construction of a federal procedural rule in a new context.
Valenzuela-Gonzalez v. U.S. Dist. Court, 915 F.2d 1276, 1279 (9th Cir. 1990).

29
Cf. Perry v. Schwarzenegger, 591 F.3d 1147, 1159 (9th Cir. 2009) ([T]he
necessary clear error factor does not require that the issue be one as to which
there is established precedent.).

28
Here, the question is whether a court may make a new procedure out of whole
clothissuing a writ would be particularly appropriate here.
30

D. Because The Challenged Order Is a Discovery Order, RBS Lacks
an Adequate Alternative to Mandamus Relief.
The Protocol is a discovery order because it relates solely to the procedures
for resolving discovery disputes. This Court has held that [i]nasmuch as
discovery orders are interlocutory orders not subject to review by appeal,
jurisdiction to review discovery orders must rest upon the All Writs Act, 28
U.S.C. 1651(a). West, 672 F.2d at 798. The Protocol here is similarly
interlocutory and non-appealable. In fact, this Court and other Courts of Appeals
have treated mandamus as a proper method of challenging orders analogous to the
Protocol, including scheduling orders,
31
orders to transfer,
32
orders consolidating
cases within a district,
33
and orders referring disputes to special masters or
magistrate judges.
34

30
The Protocol may also meet the fourth factorin that it reflects an oft-repeated
errorif, as NCUA claims, the kind of coordination present here has been
recommended for years by authorities such as the JPML and the [Manual for
Complex Litigation], and that the JPML, specifically, has been making similar
recommendations for decades. (PA 501.) But tellingly, NCUA has been unable
to point to a single order containing anything like the Coordination Judge
provisions.
31
See, e.g., United States v. Coppa, 267 F.3d 132, 13839 (2d Cir. 2001).
32
See, e.g., Cessna, 348 F.2d at 691.
33
See, e.g., In re Repetitive Stress Injury Litig., 11 F.3d at 37374; In re
Fibreboard Corp., 893 F.2d 706, 711 (5th Cir. 1990) (The core problem is that

29
VI. CONCLUSION
The Coordination Judge provisions have no basis in federal law and
contradict principles of jurisdiction. A writ should issue to strike these provisions
of the Protocol and vacate all orders entered pursuant to those provisions.

DATED: July 24, 2014 Respectfully Submitted,
/s/ R. Alexander Pilmer
R. Alexander Pilmer
David I. Horowitz
Tammy A. Tsoumas
Derek M. Milosavljevic
Gavin C.P. Campbell
KIRKLAND & ELLIS LLP
333 South Hope Street
Los Angeles, CA 90071
Telephone: (213) 680-8400
Facsimile: (213) 680-8500
alexander.pilmer@kirkland.com
david.horowitz@kirkland.com
tammy.tsoumas@kirkland.com
derek.milosavljevic@kirkland.com
gavin.campbell@kirkland.com
Counsel for Defendants-Petitioners
RBS Securities Inc., RBS Acceptance Inc.
and Financial Asset Securities Corp.

[the order], while offering an innovative answer to an admitted crisis in the judicial
system, is . . . beyond the scope of federal judicial authority.).
34
See, e.g., La Buy v. Howes Leather Co., 352 U.S. 249 (1957) (special master);
In re United States, 10 F.3d 931, 93334 (2d Cir. 1993) (magistrate judge).

STATEMENT REGARDING ORAL ARGUMENT
Oral argument is requested. This petition involves an unprecedented
procedural order that affects cases against RBS in three different circuits where
billions of dollars are at issue. Multiple other cases not involving RBS are
currently subject to the same order. Given the novel and important questions
raised by this petition, RBS would appreciate the opportunity to address any
questions from the Court.


CERTIFICATE OF COMPLIANCE
I certify that this petition complies with the page limitations of Fed. R. App.
21(d), and that this petition complies with the typeface requirements of Fed. R.
App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6)
because it has been prepared in a proportionally spaced typeface using Microsoft
Word in 14-point Times New Roman style.

R. Alexander Pilmer


CERTIFICATE OF DIGITAL SUBMISSION AND PRIVACY REDACTIONS
I certify (1) that all required privacy redactions have been made; (2) that the
hard copies of any pleading to be submitted to the clerks office are exact copies of
this ECF filing; and (3) that this digital submission has been scanned for viruses
with the most recent version of a commercial virus scanning program, Microsoft
Forefront Endpoint Protection, and according to the program is free of viruses.

R. Alexander Pilmer


CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing petition with the
Clerk of the Court for the United States Court of Appeals for the Tenth Circuit by
using the appellate CM/ECF system on July 24, 2014.
I hereby certify that on July 24, 2014, I served the foregoing document on
the counsel listed below as indicated:
Stephen M. Tillery
Michael E. Klenov
Greg G. Gutzler
Steven M. Berezney
Tamara M. Spicer
KOREIN TILLERY LLC
505 North Seventh Street,
Suite 3600
St Louis, MO 63101-1625
Email: stillery@koreintillery.com
mklenov@koreintillery.com
ggutzler@koreintillery.com
sberenzney@koreintillery.com
tspicer@koreintillery.com
[via email]
David C. Frederick
Mark C. Hansen
Joseph S. Hall
Wan J. Kim
Scott K. Attaway
KELLOGG, HUBER, HANSEN,
TODD,
EVANS & FIGEL P.L.L.C.
Sumner Square
1615 M Street, N.W., Suite 400
Washington, D.C. 20036-3209
Email: dfrederick@khhte.com
mhansen@khhte.com
jhall@khhte.com
wkim@khhte.com
sattaway@khhte.com
[via email and U.S. Mail]

Norman E. Siegel
Rachel E. Schwartz
STUEVE SIEGEL HANSON LLP
460 Nichols Road, Suite 200
Kansas City, MO 64112
Email: siegel@stuevesiegel.com
schwartz@stuevesiegel.com
[via email]

George A. Zelcs
KOREIN TILLERY LLC
205 N. Michigan Ave., Suite 1950
Chicago, IL 60601
Email: gzelcs@koreintillery.com
[via email]
Counsel for Plaintiff National Credit Union Administration Board

COUNSEL FOR DEFENDANT:

Nomura Home Equity Loan, I nc.
Barbara S. Steiner
Matthew J. Thomas
Casey T. Grabenstein
JENNER & BLOCK LLP
353 North Clark Street
Chicago, IL 60654-3456
Email : bsteiner@jenner.com
mthomas@jenner.com
cgrabenstein@jenner.com\

Michael Thompson
Faiza Berquist
HUSCH BLACKWELL LLP
4801 Main Street, Suite 1000
Email:
michael.thompson@huschblackwell.com
faiza.berquist@huschblackwell.com
[via email]
Novastar Mortgage Funding Corp.
Michael Thompson
Faiza Berquist
HUSCH BLACKWELL LLP
Email:
michael.thompson@huschblackwell.com
faiza.berquist@huschblackwell.com
[via email]

William F. Alderman
ORRICK, HERRINGTON &
SUTCLIFFE LLP
The Orrick Building
405 Howard Street
San Francisco, CA 94105
Email : walderman@orrick.com
Wachovia Mortgage Loan And Trust
LLC; Wachovia Capital Markets, LLC
Jeffrey J. Kalinowski
Richard H. Kuhlman
BRYAN CAVE LLP
One Metropolitan Square
211 North Broadway Suite 3600
St. Louis, MO 63102
Email: jeff.kalinowski@bryancave.com
rick.kuhlman@bryancave.com
[via email]
William Perry Brandt
BRYAN CAVE LLP
One Kansas City Place
Kansas City, MO 64105-2100
Email: perry.brandt@bryancave.com
[via email]

David Halleck Fry
Hannah E. Shearer
MUNGER, TOLLES & OLSEN LLP
560 Mission Street, 27th Floor
San Francisco, CA 94105
Email: david.fry@mto.com
Hannah.shearer@mto.com
[via email]
Christian Kendrick Wrede
MUNGER, TOLLES & OLSEN LLP
355 South Grand Avenue, 35th Floor
Los Angeles, CA 90071-1560
Email: christian.wrede@mto.com

I further certify that on July 24, 2014, a copy of the foregoing document was
served on the following by U.S. Mail:
The Honorable John W. Lungstrum
United States District Court Judge
United States District Court for the District of Kansas
500 State Ave,
Kansas City, KS 66101

RBS was unable to obtain contact information for the following
unrepresented party: Lares Asset Securitization Inc.

On this 24th day of July 2014,

R. Alexander Pilmer


TABLE OF CONTENTS FOR ADDENDUM

April 10, 2014 - Master Discovery Protocol
(11-cv-2340, ECF No. 314)
Add. 1 - 11

May 27, 2014 - Memorandum & Order
(11-cv-2340, ECF No. 356)
Add. 12 - 17

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

NATIONAL CREDIT UNION
ADMINISTRATION BOARD, etc.,

Plaintiff,

v.

MORGAN STANLEY & CO., et al.,

Defendants.

And other NCUA Actions.

Case No. 13-cv-6705 (DLC)

DISTRICT OF KANSAS


Plaintiff,

v.

RBS SECURITIES, INC., f/k/a GREENWICH
CAPITAL MARKETS, INC., et al.,

Defendants.

And other NCUA Actions.
Case No. 11-cv-2340 & 2649 (JWL)
Case No. 12-cv-2591 (JWL)

Case 2:11-cv-02340-JWL-JPO Document 314 Filed 04/10/14 Page 1 of 11
Add.1
- 2 -
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION


Plaintiff,

v.

RBS SECURITIES, INC., f/k/a GREENWICH
CAPITAL MARKETS, INC. et al.,

Defendants.

And other NCUA Action.
Case No. 11-cv-5887 (GW)
Case No. 11-cv-6521 (GW)

MASTER DISCOVERY PROTOCOL

HON. DENISE COTE, HON. JOHN W. LUNGSTRUM, and HON. GEORGE H. WU, District
Judges; and HON. JAMES P. OHARA, Magistrate Judge:
WHEREAS, Plaintiff the National Credit Union Administration Board, as liquidating agent
for four failed corporate credit unions
1
(the credit unions) (NCUA), is pursuing the above-
captioned actions in the Southern District of New York (the SDNY Actions), the District of
Kansas (the Kansas Actions), and the Central District of California (the California Actions and,
collectively with the SDNY Actions and Kansas Actions, the Actions), pertaining to the purchase
by the credit unions of residential mortgage-backed securities (RMBS);
WHEREAS, the S.D.N.Y. Actions are assigned to and are being coordinated by the
Honorable Denise Cote;

1
The four failed corporate credit unions are: Western Corporate Federal Credit Union; U.S.
Central Corporate Credit Union; Southwest Corporate Federal Credit Union; and Members United
Corporate Federal Credit Union.

Add.2
- 3 -
WHEREAS, the Kansas Actions are assigned to and are being coordinated by the
Honorable John W. Lungstrum and the Honorable James P. OHara;
WHEREAS, the California Actions are assigned to and are being coordinated by the
Honorable George H. Wu;
WHEREAS, discovery orders have been entered in some of the Actions but discovery
remains in its initial stages;
WHEREAS, the parties conferred but did not reach agreement on a proposed coordination
order among the Actions, and on March 28 and on April 4, 2014 made written submissions;
WHEREAS, the question of coordination was discussed at an April 2, 2014 videoconference
in the Actions;
WHEREAS, it appearing that the Actions share common issues and overlapping parties and
will involve common discovery, and that pretrial proceedings in all Actions should be coordinated to
avoid unnecessary conflicts and expense, conserve judicial resources, and secure the just, speedy, and
inexpensive disposition of all Actions;
WHEREAS, it is necessary and expected that all parties will confer in good faith with each
other whenever required by the Court to do so, and where it will promote the efficient management
of the Actions;
WHEREAS, it is necessary and expected that all of the Defendants will confer in good faith
with each other and make an effort to agree upon a joint course of action whenever required by the
Court to do so, and where it will promote the efficient management of the Actions;
IT IS HEREBY ORDERED, for all Actions, as follows:
1. Superseding Effect of this Master Discovery Protocol Order
This Master Discovery Protocol Order shall serve as the discovery protocol in all Actions,
and thereby shall supersede any previous discovery order entered in any Action. Any party may seek
Add.3
- 4 -
permission to deviate from the provisions in this Order upon a showing of good cause by following
the procedure set forth in Section 2 below. This Order does not affect any stay of discovery entered
in any Action. E.g., NCUA v. RBS Securities Inc., et al., 11-cv-2340 & 2649 (JWL)(JPO) (D. Kan.
Oct. 24, 2013); NCUA v. Goldman Sachs & Co., et al., 11-cv-6521 (GW) (C.D. Cal. Sept. 5, 2013).
To the extent that any discovery is proceeding in an Action, however, it shall proceed under the
protocol set forth here.
2. Procedure for Presenting Discovery Dispute
To avoid unnecessary conflicts and inconsistencies in the rulings in the Actions, Judge Cote
is designated as the Coordination Judge for all Actions. All discovery applications and disputes
shall be brought to the Coordination Judge in the form of a two-page letter, with copies
simultaneously provided to the other three Judges. Following consultation with Judges Lungstrum
and/or OHara, and Judge Wu, the Coordination Judge will endeavor to respond promptly.
All applications and disputes regarding discovery in any Action will be filed in the lead case
pending in the Southern District of New York (currently 13 Civ. 6705). If the application or dispute
applies to fewer than all Actions, then the submission should be filed as well in the Action or
Actions to which it applies. The discovery parameters and limitations set forth in the ruling by the
Coordination Judge on the application or dispute will be given effect in all Actions, unless the ruling
indicates otherwise.
3. Protective Order
A Master Protective Order, which has been separately entered into and approved, will
govern these Actions.
4. Electronic Discovery
Add.4
- 5 -
The parties shall produce and exchange documents in the Actions pursuant to the Protocol
for the Production of Data and the Protocol for the Production Format of Loan Files, which have
been separately entered into and approved.
5. Procedures for Loan File Reunderwriting
The parties shall cooperate in the production and reunderwriting of the loan files, as set
forth in the Loan File Reunderwriting Protocol, which has been separately entered into and
approved.
6. Document Production and Written Discovery
a) Documents produced in any Action will be treated as though produced in all Actions.
b) Written discovery (e.g., interrogatory responses and responses to requests for admission)
produced in any Action will be treated as though produced in all Actions.
c) Notwithstanding the above, the use of such discovery in the prosecution or defense of
any Action is subject to a decision by the judge presiding over the Action.
7. Interrogatories
2

a) NCUA may serve up to 25 interrogatories on each Defendant Group across the
Actions involving that Defendant Group.

2
Defendant Group refers to any of the following groups of defendants: Barclays Defendant
(Barclays Capital Inc.); Credit Suisse Defendants (Credit Suisse Securities (USA) LLC and Credit
Suisse First Boston Mortgage Securities Corp.); Goldman Sachs Defendants (Goldman, Sachs & Co.
and GS Mortgage Securities Corp.); Morgan Stanley Defendants (Morgan Stanley & Co., Inc., n/k/a
Morgan Stanley & Co. LLC and Morgan Stanley Capital I Inc.); RBS Defendants (RBS Securities,
Inc. f/k/a RBS Greenwich Capital Markets, Inc., RBS Acceptance, Inc., f/k/a Greenwich Capital
Acceptance Inc., and Financial Asset Securities Corp.); UBS Defendant (UBS Securities, LLC);
Wachovia Defendants (Wachovia Capital Markets, LLC, n/k/a Wells Fargo Securities, LLC, and
Wachovia Mortgage Loan and Trust, LLC); Nomura Defendants (Nomura Asset Acceptance Corp.
and Nomura Home Equity Loan, Inc.); and NovaStar Defendant (NovaStar Mortgage Funding
Corp.).
Add.5
- 6 -
b) Defendants may collectively serve up to 25 interrogatories directed at each credit union
and 10 interrogatories directed at NCUA across the Actions. Interrogatory responses
may be used by any party across the Actions.
c) Any interrogatories served before March 28, 2014 in any of the Actions shall remain
active and valid and shall count against the totals set forth in Sections 7(a) and 7(b)
above.
8. Requests for Production
a) For any requests for production that pertain to a liquidated credit union, Defendants
will collaborate and serve one set of requests for documents on NCUA across the
Actions involving that liquidated credit union. For any requests for documents that
pertain to a Defendant Group, NCUA will serve consolidated requests for production
on each Defendant Group across the Actions.
b) By April 18, 2014, NCUA and each Defendant Group shall use best efforts to agree on
a set of search terms and relevant time periods that each Defendant Group will employ
to locate and gather electronic documents for the Actions to which that Defendant
Group is party. Also by that date, NCUA and all Defendants shall use best efforts to
agree on a set of search terms and relevant time periods that NCUA will employ to
locate and gather the electronic documents of each credit union and for NCUA for all
Actions. The Parties shall inform all Judges of any agreement, or their respective
positions in the event of any disagreement, on April 18, 2014.
c) By April 18, 2014, NCUA and each Defendant Group shall use best efforts to agree on
a list of custodians and electronic and hard-copy repositories that each Defendant
Group will search for relevant documents. Also by that date, NCUA and all
Defendants shall use best efforts to agree on a list of custodians and electronic and
Add.6
- 7 -
hard-copy repositories that NCUA will search for relevant documents from NCUA and
each credit union. The Parties shall inform all Judges of any agreement, or their
respective positions in the event of any disagreement, on April 18, 2014.
d) Parties may request, and negotiate in good-faith, the supplementation of search terms,
time periods, custodians, and repositories during the course of discovery.
e) The parties agree to confer in good faith regarding how to identify non-privileged,
responsive documents, subject to asserted objections, that are not amenable to
identification through electronic searches using search terms, custodians, and
repositories, or that are amenable to being identified categorically.
f) Any requests for production served before March 28, 2014 in any of the Actions shall
remain active and valid.
9. Requests for Admission
a) NCUA may serve up to 50 requests for admission on each Defendant Group across the
Actions.
b) Defendants may collectively serve up to 25 requests for admission on each credit union
and 10 requests for admission on NCUA across the Actions.
c) The limitation on the number of requests for admission does not apply to requests for
admission regarding the existence, non-existence, authenticity, or foundation for the
admissibility of any document.
10. Fact Depositions
a) The parties shall confer and attempt to reach agreement on the number of fact
depositions. Their proposals regarding any limitations on fact depositions shall be
submitted by September 19, 2014. There shall be no limit on the number of Rule
Add.7
- 8 -
30(b)(6) depositions. The parties shall meet and confer regarding Rule 30(b)(6)
depositions and may proceed with such depositions at any time.
b) Fact depositions of a party witness taken in any of the above-captioned cases will be
deemed to have been taken in all of the above-captioned cases in which that party is a
plaintiff or defendant. The fact deposition of a party witness will be deemed to have
been taken in actions involving another Defendant Group (1) where the other
Defendant Group is also a defendant for an RMBS at issue in the fact deposition and
NCUA provides notice of such fact deposition to the other Defendant Group; (2) by
agreement of the parties; or (3) upon a showing of good cause. Fact depositions of
non-party witnesses will be deemed to have been taken in all of the above-captioned
cases across all of the Actions.
c) No fact deponent shall be required to be deposed more than once across all of the
Actions, except by agreement of the parties or a judicial Order.
d) All parties shall produce the transcripts of testimony and affidavits/affirmations,
including all exhibits, from any and all RMBS matters, including all civil, criminal, or
regulatory matters, in which it or one of its officers or employees was a party. The
testimony shall be treated as if taken in the Actions. The parties shall endeavor to not
subject witnesses to the same questioning for which a transcript was previously
provided. Each party shall produce existing transcripts and affidavits/affirmations,
including all exhibits, by May 15, 2014, and future transcripts and
affidavits/affirmations, including all exhibits, within two weeks after a final transcript of
a deposition is available, and two weeks after a witness has signed an
affidavit/affirmation.
Add.8
- 9 -
e) The parties shall agree in advance on a system of numbering deposition exhibits to
ensure that they employ unique exhibit numbers across the Actions suitable for use at
trial and in all motion papers and other submissions to the various Courts.
f) In any Action, all parties to that Action shall have the right to depose any witness who
has not previously been deposed, and who is designated to testify at trial, before the
witness begins testifying at trial.
g) Any deposition limits that will be set will apply to depositions of party fact witnesses
only, and do not apply to expert depositions, Rule 30(b)(6) depositions, or depositions
of non-parties. NCUA and Defendants shall work together to minimize the scope and
burden associated with such depositions.
h) Nothing in this order shall preclude any party or third-party from seeking a protective
order or other relief with respect to the deposition of any individual witness.
11. Expert Disclosures
a) Expert disclosures shall take place after the applicable fact discovery period, with
submissions of expert reports by the party bearing the burden of proof on an issue on
August 14, 2015, rebuttal expert reports on October 16, 2015, and any reply expert
reports on November 20, 2015.
b) If Defendants have re-underwritten any set of loans other than the sampled loans
identified by NCUA, Defendants shall submit any expert reports regarding that re-
underwriting on August 14, 2015.
c) If Defendants have re-underwritten the NCUA sampled loans, Defendants shall submit
any expert reports regarding that re-underwriting on October 16, 2015.
d) Expert reports shall be produced separately in each Action, absent agreement of the
parties or leave of the Court.
Add.9
- 10 -
12. Pre-Trial Schedule
The following pre-trial schedule shall apply to each of the Actions, vacating any prior
schedules in any particular Action:
a) Fact discovery to be completed by July 17, 2015. Each party shall make a significant
document production by June 6, 2014 and shall substantially complete its document
production by October 31, 2014. Depositions as to party fact witnesses may begin on
October 31, 2014. Party Rule 30(b)(6) depositions and non-party depositions may
proceed before October 31, 2014.
b) Expert discovery to be completed by January 15, 2016.
c) Any summary judgment motions are to be filed separately in an Action no later than
February 5, 2016, and fully submitted by March 25, 2016.
13. Trial Schedule
a) The SDNY trials shall proceed in two tranches, the first occurring in June 2016, and
the second in September 2016. All counsel will reserve both of these trial dates.
b) Case assignment into the two SDNY trial tranches shall await the completion of fact
discovery. A conference shall be scheduled for September 2015 to make case
assignments. Defense counsel may, however, at any time prior to the completion of
fact discovery, make a request for case assignment into the two trial tranches.

Add.10
- 11 -
c) In the Kansas and California Actions, trial dates shall await the completion of fact
discovery, provided that all trials shall be completed by March 2017. Conferences will
be scheduled for September 2015 in the Kansas and California Actions to discuss a
schedule for trials in those Actions.

SO ORDERED:

Dated: 04/10/2014 s/ Denise L. Cote

Dated: 04/10/2014 s/ John W. Lungstrum

Dated: 04/10/2014 s/ George H. Wu

Dated: 04/10/2014 s/ James P. OHara
United States Magistrate Judge

Add.11
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
NATIONAL CREDIT UNION )
ADMINISTRATION BOARD, )
)
Plaintiff, )
)
v. ) Case No. 11-2340-J WL
) (Consolidated with
RBS SECURITIES, INC., et al., ) Case No. 11-2649-J WL)
)
Defendants. )
)
_______________________________________)
MEMORANDUM AND ORDER
This matter comes before the Court on the motion by defendants RBS Securities
Inc., RBS Acceptance Inc., and Financial Assets Securities Corp. (collectively RBS)
to modify the Master Discovery Protocol (Doc. #329), in which defendant Nomura
Home Equity Loan, Inc. (Nomura) joined (Doc. #331). For the reasons set forth
below, the motion is denied.
1. On April 10, 2014, after considering written submissions and oral
argument, this Court issued a Master Discovery Protocol order (the MDP) that was
filed in this case (Doc. #314) and in the related cases in this district brought by plaintiff.
The MDP was also filed in similar cases pending in the Southern District of New York
and the Central District of California, and it was signed by the undersigned and
Magistrate J udge OHara of this Court, J udge Cote of the New York court, and J udge
Add.12
Wu of the California court. The MDP provided that it would serve as the discovery
protocol in all of the actions in the three courts and that any party could seek leave to
deviate from its provisions upon a showing of good cause. The MDP also provided for
a Coordination J udge, as follows:
To avoid unnecessary conflicts and inconsistencies in the rulings
in the Actions, J udge Cote is designated as the Coordination J udge for
all Actions. All discovery applications and disputes shall be brought to
the Coordination J udge in the form of a two-page letter, with copies
simultaneously provided to the other three J udges. Following consultation
with J udges Lungstrum and/or OHara, and J udge Wu, the Coordination
J udge will endeavor to respond promptly.
. . . The discovery parameters and limitations set forth in the ruling
by the Coordination J udge on the application or dispute will be given
effect in all Actions, unless the ruling indicates otherwise.
By their present motion, defendants request that the Court strike the Coordination
J udge provisions from the [MDP] and hold that any discovery disputes arising in this
matter will be resolved by this Court, according to the Rules of Practice of this District,
the laws of this District, and the rules of this Court.
2. Defendants argue that because these cases were not transferred as part of
a multi-district litigation, and because other statutory procedures allowing for the
assignment of judges to other districts were not followed here, there is no legal authority
that would allow J udge Cote or any other judge from another district to rule on disputes
and issue binding orders in cases pending in this Court, which rulings would violate
principles of jurisdiction. The Court rejects this argument, however, because it is based
on a mistaken premise. In fact, this Court does not understand or intend the MDP to
2
Add.13
provide for rulings by J udge Cote that are binding in the Kansas cases. The MDP
expressly requires J udge Cote to consult with a judge from this district on any discovery
dispute. To the extent that an issue affects or applies to a Kansas case, it will be decided
by a Kansas judge (after consultation in accordance with the MDPs procedure), and no
order will be effective in the Kansas cases unless it is signed by a Kansas judge and filed
in this Court. Defendants concerns about majority rule among the judges are
unfoundedif this Courts judges do not agree with their colleagues from California and
New York with respect to a particular dispute, or if the law applicable in the Kansas
cases dictates a different result, then the dispute will have a different outcome in these
cases, which will be reflected in the Courts resulting order. Indeed, the parties remain
free in any dispute to argue that particular circumstances dictate a different result in this
Court than in the other courts. Thus, because the Coordination J udge provisions in the
MDP will not be used to allow another courts judge to decide disputes and issue orders
in this case, the Court rejects this basis for striking the Coordination J udge provisions
from the MDP.
1
3. Defendants also argue that the MDPs Coordination J udge provisions
violate Fed. R. Civ. P. 77(b), which states that no hearingother than one ex
1
Although the judges of this Court did consult and decide how the issues would
be resolved for purposes of the Kansas cases, did authorize Orders to be issued bearing
this Courts caption and listing the names of the judges of this Court, and did cause the
resulting orders to be filed in this Court, in a few recent instances the signature of a
Kansas judge was inadvertently omitted from the orders. The Court will issue orders
nunc pro tunc to give those unsigned orders effect in the Kansas cases.
3
Add.14
partemay be conducted outside the district unless all the affected parties consent. See
id. Again, however, defendants argument is based on the mistaken premise that J udge
Cote would be making the rulings in the Kansas cases. The MDP requires that any
written arguments be submitted also to the judges in Kansas, who will then issue any
rulings from this district. In addition, in the event of an order filed here, the Court will
also cause to be filed the parties written submissions on that issue. Any joint hearings
that may fall within the scope of Rule 77(b)
2
may be conducted in this district as well,
for instance by telephone or video conference. Because the MDPs Coordination
J udges provisions do not on their face violate Rule 77(b), there is no basis to strike
them.
4. The Court also rejects defendants argument that the MDPs Coordination
J udge provisions violate this Courts local rules. Defendants have not explained how
those provisions violate the local rules other than to complain about the MDPs provision
for two-page letters. The rules of this Court, however, do not guarantee litigants a
certain number of pages for arguing motions. Indeed, it common practice for courts to
exercise their inherent authority to provide page limits for certain briefs. Moreover, the
MDP expressly allows parties to seek leave to deviate from its terms for good cause, and
2
Defendants have not addressed plaintiffs argument that Rule 77(b)s requirement
that hearings be held within the district would not apply to pretrial conferences at
which discovery matters may be discussed and pending motions may be disposed of. See
Fed. R. Civ. P. 16(c)(2) (listing possible matters for consideration at any pretrial
conference).
4
Add.15
any party remains free to request additional pages for argument when necessary and
appropriate.
5. In its separate reply brief, Nomura appears also to argue generally against
coordination of these cases in the different courts. First, defendants original briefs
discussed only the legal authority for the specific Coordination J udge dispute-resolution
procedure and did not challenge coordination generally, and the Court ordinarily does
not entertain arguments raised for the first time in a reply brief. See, e.g., U.S. Fire Ins.
Co. v. Bunge N. Am., Inc., 2008 WL 3077074, at *9 n.7 (D. Kan. Aug. 4, 2008) (citing
Minshall v. McGraw Hill Broadcasting Co., 323 F.3d 1273, 1288 (10th Cir. 2003)).
Moreover, the same concerns raised by Nomura would also be present with any
coordination with cases to which Nomura is not a party, and even if the Kansas cases
were not coordinated with the New York and California actions, there would be at least
some coordination among the Kansas cases (as has already occurred). At any rate, as
demonstrated by the entry of the MDP in the Kansas cases, the Court is persuaded that
coordination among the three courts generally and the Coordination J udge provisions
specifically make sense and will aid the just, speedy, and (relatively) inexpensive
resolution of discovery disputes in these actions. Finally, in response to Nomuras
specific concerns, the Court is dedicated to making sure that the interests of all parties
are protected, and as noted above, any party remains free to request additional
opportunities to make sure that its positions are fully litigated.
5
Add.16
IT IS THEREFORE ORDERED BY THE COURT THAT the RBS defendants
motion to modify the Master Discovery Protocol (Doc. #329), in which defendant
Nomura joined (Doc. #331), is hereby denied.
IT IS SO ORDERED.
Dated this 27th day of May, 2014, in Kansas City, Kansas.
s/ J ohn W. Lungstrum
J ohn W. Lungstrum
United States District J udge
6
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