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Federal Deposit Insurance Corp. v. Myers

United States District Court, M.D. Tennessee, Nashville Division

September 24, 2014

FEDERAL DEPOSIT INSURANCE CORPORATION, as receiver of Tennessee Commerce Bank, Plaintiff
v.
DAVID S. MYERS, Defendant.

MEMORANDUM AND ORDER

JOHN S. BRYANT, Magistrate Judge.

Pending before the Court is Defendant's Motion to Compel Production of Documents (Docket Entry No. 18). Plaintiff Federal Deposit Insurance Corporation ("FDIC") has filed a response in opposition (Docket Entry No. 20), and Plaintiff has filed a reply (Docket Entry No. 21).

For the reasons stated below, the undersigned Magistrate Judge finds that Defendant's Motion to Compel Production of Documents should be GRANTED.

STATEMENT OF THE CASE

Plaintiff FDIC, acting as receiver of Tennessee Commerce Bank ("TCB") has filed this action against Defendant David S. Myers alleging breach of a promissory note in the principal amount of $5, 875, 000 signed by Myers as maker in favor of Citizens Corporation on November 30, 2009. According to the complaint, Citizens Corporation sold to TCB a participation in the Myers promissory note in principal amount of $5, 300, 000, also on November 30, 2009. Plaintiff FDIC, as receiver for TCB, seeks recovery against Myers for the principal amount of this note plus accrued and unpaid interest, late charges, attorneys' fees and costs (Docket Entry No. 16). Defendant has filed an answer denying liability (Docket Entry No. 19).

ANALYSIS

Myers has served upon the FDIC 42 requests for production of documents (Docket Entry No. 18-1). While not waiving his right to seek additional documents, Myers limits his current motion to compel to six of his requests for production, Nos. 30, 31, 32, 33, 34, and 35. In summary, these requests for production seek documents relating to nine specific loans listed in the table in Request No. 30 and identified as "Other Shareholder Loans". Among these nine loans are four loans which have the same origination date, November 30, 2009, as the Myers promissory note. These loans, according to Myers, were executed as part of a larger transaction that included the Myers note that is the subject of this action.

Request Nos. 34 and 35 seek documents related to a later transaction, referred to as the "DPC transaction, " which apparently was proposed but never consummated.

The FDIC has objected to requests for production No. 30, 31, 32, 33, 34, and 35 on largely identical grounds and has lodged certain additional objections to requests 34 and 35 (Docket Entry No. 18-1 at 31-37).

Rule 26(b)(1) of the Federal Rules of Civil Procedure states the general rule that parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense. The rule further states that relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.

According to Myers, the borrowers listed in the table of Other Shareholder Loans in Request No. 30 were all participants in the same transaction that included the Myers promissory note in suit. In addition, Request Nos. 34 and 35 seek documents related to a proposed transaction in the summer of 2011 that, according to Myers, would have reduced or satisfied his obligation under the subject promissory note. This transaction is referred to in the motion papers as the "DPC transaction." Apparently, this transaction was not consummated as initially proposed.

FDIC objects to responding to these requests first on the grounds of relevancy. Apparently, there is no dispute that the Other Shareholder Loans dated November 30, 2009, were all executed simultaneously along with the Myers promissory note as part of a larger transaction. Without deciding whether the responsive documents ultimately will be admissible at trial, the undersigned Magistrate Judge finds, at a minimum, that these documents are reasonably calculated to lead to the discovery of admissible evidence, since they admittedly relate to the same transaction that produced the Myers note.

The FDIC objects on grounds that the requests are "unduly burdensome, overly broad, vague and unlimited as to scope and time." Despite this conclusory assertion, the FDIC has offered no evidence to support a claim of undue burden or overbreadth. The undersigned finds that the description of the documents sought is limited to two specific transactions that occurred, or were to occur, on dates certain as well as nine specific loans identified by borrower, loan number, origination date and original principal amount. Accordingly, the undersigned Magistrate Judge finds that objections based on burden, overbreadth and vagueness lack merit.

Next, FDIC objects to these requests on grounds that they seek personal financial information of a nonparty and that Myers has failed to make a sufficient showing that he has complied with all applicable privacy laws so as to be allowed to obtain such private financial information. The undersigned notes that the Court has previously entered a protective order in this action designed to limit access to and uses of confidential financial information that may be produced during discovery (Docket Entry No. 10). Moreover, Myers asserts that the FDIC has instituted legal proceedings against the other related borrowers on their respective promissory notes either in district court or in bankruptcy court, and many of the documents requested have already been produced and filed in the records of those cases. Finally, Defendant Myers has filed as an exhibit to his ...


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