Federal Home Loan Mortgage Corporation v. Deloitte & Touche LLP
309 F.R.D. 41
| D.D.C. | 2015Background
- Freddie Mac sued Deloitte in the Southern District of Florida for $1.3 billion, alleging negligent misrepresentations in audits for 2002–2008 (Underlying Action).
- FHFA is Freddie Mac’s conservator (and former regulator) and was identified by Deloitte as a potential Fabre defendant whose proportionate fault could reduce Deloitte’s liability.
- Deloitte served a third-party subpoena duces tecum on FHFA in the D.C. District and moved to compel production there; FHFA opposed and the subpoena-related motion was filed in D.D.C.
- Deloitte moved to transfer its Motion to Compel to the Southern District of Florida under Fed. R. Civ. P. 45(f); FHFA opposed, so transfer required a finding of "exceptional circumstances."
- Deloitte argued the motion implicates substantive, privilege-based issues central to the Underlying Action, risks disruption of the Florida court’s discovery schedule, and poses minimal burden on FHFA.
- The D.D.C. court found that the complexity of the underlying case, potential impact on case management and discovery deadlines in Florida, and minimal burden on FHFA constituted exceptional circumstances and granted transfer.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the subpoena motion should be transferred under Fed. R. Civ. P. 45(f) absent consent | FHFA (plaintiff here opposing transfer) argued transfer would inappropriately convert the exception into the rule and that D.D.C. has special expertise on executive privilege issues | Deloitte argued exceptional circumstances exist because the motion raises substantive privilege issues central to the Florida case, risks disrupting Florida’s discovery schedule, and imposes minimal burden on FHFA | Court held exceptional circumstances exist and transferred the Motion to Compel to the S.D. Fla. |
| Whether resolving the motion requires substantive familiarity with the underlying case | FHFA asserted the Florida judge has limited familiarity and thus transfer is unnecessary | Deloitte argued resolution requires ad hoc balancing of privileges tied to the substantive litigation and Florida is better situated | Court agreed Deloitte: substantive privilege issues and case management implications favor transfer |
| Whether transfer would burden the nonparty (FHFA) unduly | FHFA claimed loss of D.D.C. experience with executive-privilege issues would be burdensome | Deloitte argued FHFA is a federal agency with national reach, active in the underlying case, and has litigated in S.D. Fla., so burden is minimal | Court found burden minimal and outweighed by the need for consolidated management |
| Whether transfer is needed to avoid disruption/inconsistent rulings | FHFA argued limited Florida involvement and that many subpoena motions would otherwise transfer | Deloitte argued transfer avoids disruption to Florida’s tight discovery schedule and risk of inconsistent rulings | Court concluded transfer would avoid disruption and potential inconsistency and granted transfer |
Key Cases Cited
- Fabre v. Marin, 623 So.2d 1182 (Fla. 1993) (establishes doctrine apportioning fault among tortfeasors)
- First E. Corp. v. Mainwaring, 21 F.3d 465 (D.C. Cir. 1994) (discusses ad hoc balancing for executive-privilege claims)
- Wutz v. Bank of China, 304 F.R.D. 38 (D.D.C. 2014) (supports transfer where underlying court better situated to address subpoena implications)
- Citizens for Responsibility & Ethics in Washington v. Nat'l Archives & Records Admin., 583 F. Supp. 2d 146 (D.D.C. 2008) (deliberative-process privilege analysis depends on individual documents)
- Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854 (D.C. Cir. 1980) (describes document-specific nature of deliberative-process privilege)