PROGRESSIVE CASUALTY INSURANCE COMPANY, Plaintiff
v.
FEDERAL DEPOSIT INSURANCE CORPORATION, as Receiver of Vantus Bank; Arlene T. Curry; Gary L. Evans ; David M. Roedere; Barry E. Backhaus; Ronald A. Jorgensen; Charles D. Terlouw; Jon G. Cleghorn; Allen J. Johnson; Michael W. Dosland; and Michael S. Moderski, Defendants.
No. C 12–4041–MWB.
United States District Court, N.D. Iowa, Western Division.
Signed Oct. 3, 2014.
Guy R. Cook, Grefe & Sidney, P.L.C., Des Moines, IA, Lewis K. Loss, Matthew J. Dendinger, Loss, Judge & Ward, LLP, Washington, DC, for Plaintiff.
Andrew M. Reidy, Joseph Mark Saka, Lowenstein & Sandler, LLP, Geoffrey Martin Long, Dickstein Shaprio LLP, Washington, DC, Richard J. Kirschman, Whitfield & Eddy, PLC, Douglas A. Haag, Patterson Lorentzen Duffield Timmons Irish Becker & Ordway, William John Miller, Brian Andrew Melhus, David A. Tank, Megan Flynn, Dorsey & Whitney, LLP, Des Moines, IA, Daniel L. Hartnett, Crary–Huff–Inkster–Sheehan–Ringenberg–Hartnett–Storm, Sioux City, IA, Daniel Anthony Hargraves, Hargraves, McConnell & Costigan, PC, New York, NY, for Defendants.
MEMORANDUM OPINION AND ORDER REGARDING OBJECTIONS TO MAGISTRATE JUDGE'S AUGUST 22, 2014, DISCOVERY RULING
MARK W. BENNETT, District Judge.
| TABLE OF CONTENTS |
|---|
| I. | INTRODUCTION | 548 |
| II. | LEGAL ANALYSIS | 548 |
| A. | Standard Of Review | 548 |
| B. | Progressive's Objections | 549 |
| 1. | The challenged parts of the Order | 549 |
| 2. | Work–product disclosures | 549 |
| a. | Judge Strand's ruling | 549 |
| b. | Arguments of the parties | 550 |
| c. | Analysis | 551 |
| 3. | Attorney–client privilege | 554 |
| a. | Judge Strand's ruling | 554 |
| b. | Arguments of the parties | 555 |
| c. | Analysis | 556 |
| C. | Everest's Objections | 559 |
| 1. | The challenged part of the ruling | 559 |
| 2. | Arguments of the parties | 560 |
| 3. | Analysis | 562 |
| III. | CONCLUSION | 564 |
I. INTRODUCTION
Plaintiff Progressive Casualty Insurance Company (Progressive) filed this action, on April 25, 2012, seeking a declaration that there is no coverage under Directors & Officers/Company Liability Insurance Policy For Financial Institutions Policy No. 100322780–01 (the Vantus Policy) from Progressive for the claims asserted by the Federal Deposit Insurance Corporation, as Receiver for Vantus Bank, (FDIC–R) against the former officers and directors of Vantus Bank in Sioux City, Iowa, as such claims were stated in a May 7, 2010, letter to the directors and officers by the FDIC–R's outside counsel. The FDIC–R eventually filed a separate lawsuit, on May 20, 2013, against the former officers and directors, pursuant to the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA), 12 U.S.C. § 1811 et seq., alleging the gross negligence, negligence, and breach of fiduciary duty of the former officers and directors. See FDIC v. Dosland, C 13–4046–MWB. The FDIC–R's claims are based primarily on its allegations that the former officers and directors caused Vantus Bank to use $65 million—120 percent of its core capital—to purchase fifteen high risk collaterized debt obligations backed by Trust Preferred Securities (CDO–TruPS) without due diligence and in disregard and ignorance of regulatory guidance about the risks of and limits on purchases of such securities.
One twist on the tortuous road to trial in this case is now before me. On August 22, 2014, United States Magistrate Judge Leonard T. Strand entered an Order...
