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622568.1 1

UNITED STATES DISTRICT COURT

DISTRICT OF COLUMBIA

In re Federal National Mortgage

Association Securities, Derivative, andERISA Litigation

)

)

))

)

MDL No. 1668

In Re Fannie Mae Securities Litigation

)

)

)

)

)

Consolidated Civil Action No.: 1:04-CV-01639

Judge Richard J. Leon

LEAD PLAINTIFFS REPLY MEMORANDUM TO KPMGS OPPOSITION TO LEAD

PLAINTIFFS MOTION TO COMPEL TESTIMONY FROM DONALD NICOLAISEN

OR, ALTERNATIVELY, TO QUASH ANY FUTURE DEPOSITION DISCOVERY OFOFHEO BY DEFENDANTS

Lead Plaintiffs, the Ohio Public Employees Retirement System and the State Teachers

Retirement System of Ohio (collectively, Lead Plaintiffs), through counsel, respectfully submit

this reply memorandum to KPMG LLPs (KPMGs) Opposition to Lead Plaintiffs Motion for

an Order Compelling Compliance with Lead Plaintiffs Subpoena Duces Tucem for the

testimony of Donald Nicolaisen. As described below, KPMGs contentions that Lead Plaintiffs

motion to compel is untimely and unwarranted are baseless and should be rejected.

I. LEAD PLAINTIFFS HAVE NOT DELAYED PURSUIT OF MR. NICOLAISENSTESTIMONY

Donald Nicolaisen has been on Lead Plaintiffs witness list since the first such list was

provided to the parties on March 23, 2007. See Ex. A. Furthermore, contrary to KPMGs

contention that Lead Plaintiffs did not attempt to subpoena Mr. Nicolasien until June 2008, Lead

Plaintiffs twice attempted to effect service of the subpoena on Mr. Nicolaisen in December 2007

and March 2008, notice of which was provided to all Defendants. See Exs. B and C.1

1Unable to directly serve Mr. Nicolaisen, Lead Plaintiffs were forced to serve him via the United States

Securities and Exchange Commission (SEC).

Case 1:04-cv-01639-RJL Document 782 Filed 09/16/09 Page 1 of 7


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Moreover, Mr. Nicolaisen has been on KPMGs own witness listsince April 9, 2007 (see Ex. D),

and on the Individual Defendants witness list since September 12, 2007 (see Ex. E). Indeed, the

Individual Defendants listed Mr. Nicolaisen as a key witness requiring a multi-day

deposition. See Id.

Additionally, the deposition schedule in this case (particularly as influenced by KPMGs

own requests) has also contributed to the timing of Mr. Nicolaisens deposition. KPMG argued

that no depositions should occur before Fannie Maes and KPMGs document production was

complete. See Ex. G at 64-66. When asked by Lead Plaintiffs if any depositions could proceed

that were not affected by the Fannie Mae and KPMG document production, KPMG responded

that Mr. Nicolaisen was a witness whose testimony needed to wait until that production was

complete. KPMG subsequently sought (and the Court granted) a stay of depositions until July

15, 2008 so that Fannie Mae and KPMG could complete their production. See Case

Management Order No 5, entered May 7, 2008 (Docket No. 640). Soon thereafter, two

additional stays were granted, from September 8, 2008 until January 6, 2009, following Fannie

Maes entry into conservatorship.2 Pursuant to the last stay, depositions were not permitted to

resume until January 21, 2009.

However, Individual Defendants objected to the taking of Mr. Nicolaisens deposition

until all OFHEO documents had been produced. See Exhibit E. OFHEO has produced a

substantial number of additional documents since January 21, 2009,3 and there have been

2See Order Granting Stay of All Proceedings Pursuant to 12 U.S.C. 4617 entered September 22, 2008

(Docket No. 673) and Minute Order dated October 20, 2008, stating depositions could not resume until

January 21, 2008.

3 According to the Xerox document database being shared by all parties, OFHEO has made the following

productions:

5/20/09 - 74,992 pages

5/22/09 - 37,150 pages



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numerous motions to compel OFHEO filed by Defendants and in-chambers conferences to try to

resolve these OFHEO document issues since January 21, 2009.4

Finally, OFHEO document production issues are still not fully resolved. KPMG filed

another motion to compel OFHEO on July 24, 2009 (Dkt. 763) and Defendant Spencer just filed

another motion to compel against FHFA/OFHEO on September 15, 2009 (Docket No. 781)

these motions have yet to be ruled upon. Moreover, KPMG recently issued an additional

document subpoena on OFHEO. See Ex. F.

Accordingly, KPMGs claim that Lead Plaintiffs have waited four years to pursue Mr.

Nicolaisens testimony is simply not true. It is the Defendants, not Lead Plaintiffs, that have

refused to let Mr. Nicoliasens deposition be taken before now.

5/29/09 - 30,654 pages

6/10/09 - 35,908 pages

6/23/09 - 7 pages

7/7/09 - 56,595 pages

7/8/09 - 39,554 pages

7/16/09 - 140,339 pages

7/24/09 - 75 pages

7/28/09 - 93 pages7/30/09 - 205 pages

8/7/09 - 215 pages

8/10/09 - 17,638 pages

8/24/09 - 610 pages

9/8/09 - 16 pages

4 An in-chambers conference was held to discuss OFHEO document disputes on February 4, 2009 and,

based upon statements made on the record during public status conferences, several more were held

thereafter; Defendant Raines filed a motion to compel against OFHEO on February 26, 2009 (Dkt. No.

700); KPMG joined in that motion on March 4, 2009 (Dkt. No. 703); the Appellate Court affirmed the

District Courts sanction order on March 5, 2009 (Dkt. 705); a hearing on the motion to compel OFHEO

was held March 6, 2009; KPMG filed another motion to compel OFHEO on April 17, 2009 (Dkt. 717 and

Dkt. 722); Individual Defendants filed a joint motion to compel OFHEO on April 17, 2009 (Dkt. 720);Individual Defendants filed a motion for leave to file reply brief in support of their motion to compel

OFHEO on May 1, 2009 (Dkt. No. 726); KPMG filed a motion for leave to file a reply brief in support of

its motion to compel OFHEO on May 4, 2009 (Dkt. 730); OFHEO filed a motion re: Sneak Peek of

exempt documents on May 15, 2009 (Dkt. 735); a hearing on the motions to compel was held on May 27,

2009; a Joint Motion for an order concerning documents withheld as exempt was filed by Individual

Defendants and OFHEO on June 8, 2009 (Dkt. 739); the Court granted the Individual Defendants motion



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II. MR. NICOLAISEN IS A FACT WITNESS WHOSE TESTIMONY IS AT LEASTAS RELEVANT AS THAT OF THE OFHEO WITNESSES WHO HAVE

TESTIFIED

KPMG is wrong that Lead Plaintiffs seek to use Mr. Nicolaisen as an expert. The

evidence adduced to date has shown that Mr. Nicolaisen or representatives from the Office of

Chief Accountant participated in numerous meetings and other communications with Fannie

Mae, Fannie Maes consultants and KPMG where Fannie Maes accounting practices were

discussed. Mr. Nicolaisens participation in these meetings and that of his colleagues at the SEC

involve factual evidence not expert opinion and do not implicate pure opinion testimony.

See, e.g., St. Paul Mercury Ins. Co. v. Capitol Sprinkler Inspection, Inc., C.A. No. 05-2115

(CKK), 2007 U.S. Dist. LEXIS 39606, at *40-43 (D.D.C. June 1, 2007) (permitting a witness to

testify as a fact witness even though such witness might be an expert in his field regarding

information he learned from his pre-litigation inquiries and receipt of information and

materials). That Mr. Nicolaisen is a highly relevant fact witness concerning what occurred at

those meetings cannot be disputed his testimony regarding such facts is therefore wholly

appropriate and further compelled by the strong public interest in resolving the issues in this

case.

Moreover, given that KPMG itself listed Mr. Nicolaisen as a witness to be deposed, it

rings particularly hollow that it now contends that his testimony is irrelevant. Importantly,

Individual Defendants also listed Mr. Nicolisen on their witness list and indicated he was in fact

a key and multi-day witness. Indeed, KPMG does not claim that the nature of Mr.

Nicolaisens testimony is any different than the testimony of OFHEO (which KPMG and

Individual Defendants have vigorously sought and obtained). The testimony of Mr. Nicolaisen

to compel OFHEO on June 9, 2009 (Dkt. 740); and KPMG and OFHEO filed a joint motion regarding

documents withheld as exempt on June 11, 2009 (Dkt. 743).



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and the OFHEO testimony relate, in large part, to Defendants knowledge of, and discussions

with, the SEC and OFHEO regarding Fannie Maes accounting policies and practices in effect

during the class period that are at issue in this case, the documents and other information

considered by the SEC and OFHEO during their respective investigations, and whether Fannie

Maes financial statements were compliant with Generally Accepted Accounting Principles.

Defendants have spent enormous amounts of the Courts and parties time and resources

conducting discovery of OFHEO with respect to the nature and scope of its review and its

findings. Defendants have deposed at least eight OFHEO personnel to date. Since discovery

relating to the review and findings of one of Fannie Maes regulators OFHEO has been

permitted, then so should discovery relating to the review and findings of Fannie Maes other

regulator the SEC.

III. CONCLUSIONFor the reasons described above and in Lead Plaintiffs opening brief, Lead Plaintiffs

respectfully request an order compelling the deposition testimony of Mr. Nicolaisen.



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Dated: September 16, 2009 Respectfully submitted,

ATTORNEY GENERAL FOR

THE STATE OF OHIO RICHARD CORDRAYWAITE, SCHNEIDER, BAYLESS& CHESLEY CO., L.P.A.

/s/ Stanley M. Chesley

Stanley M. ChesleyJames R. Cummins (D.C. Bar #OH0010)

Melanie S. Corwin

1513 Fourth & Vine TowerOne West Fourth Street

Cincinnati, Ohio 45202

Telephone: (513) 621-0267

Facsimile: (513) 621-0262E-mail: [email protected]

E-mail: [email protected]

Special Counsel for the Attorney General of Ohio and Lead

Counsel for Lead Plaintiffs

BERNSTEIN LIEBHARD LLP

Jeffrey D. Lerner

10 East 40th Street

New York, New York 10016Telephone: (212) 779-1414

Facsimile: (212) 779-3218E-mail: [email protected]

Special Counsel for the Attorney General of Ohio and Co-

Lead Counsel for Lead Plaintiffs

COHEN MILSTEIN SELLERS & TOLL P.L.L.C.

/s/ Matthew K. HandleyDaniel S. Sommers (DC Bar #416549)

Matthew K. Handley (DC Bar #489946)1100 New York Avenue, N.W.

Washington, D.C. 20005

Telephone: (202) 408-4600Facsimile: (202) 408-4699E-mail: [email protected]

Local Counsel for Lead Plaintiffs



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CERTIFICATE OF SERVICE

I certify that on September 16, 2009, I electronically filed the foregoing with the Clerk of

Court using the CM/ECF system, which will send notification of such filing to all counsel of

record in this matter who are registered on the CM/ECF, and service was accomplished on any of

the counsel of record not registered through the CM/ECF system via regular U.S. mail.

/s/ Matthew K. Handley

Matthew K. Handley (DC Bar #489946)

33975



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Exhibit A

Case 1:04-cv-01639-RJL Document 782-1 Filed 09/16/09 Page 1 of 4


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Exhibit B



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Exhibit C



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Exhibit D



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Exhibit E



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40/139

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

IN RE FANNIE MAE SECURITIES

LITIGATION No. 1:04-cv-01639 (RJL)

FRANKLIN MANAGED TRUST et al.,

Plaintiffs,

v.No. 1:06-cv-00139 (RJL)

FEDERAL NATIONAL MORTGAGE

ASSOCIATION et al.,

Defendants.

NOTICE OF SUBPOENA

PLEASE TAKE NOTICE that pursuant to Rule 45 of the Federal Rules of Civil

Procedure, KPMG LLP, by and through its undersigned counsel, has served the attached

subpoena upon the Federal Housing Finance Agency, requesting them to produce for inspection

and copying the following documents identified in the schedules to the attached subpoena.

Dated: August 26, 2009

Respectfully submitted,

/s/ David DeboldF. Joseph Warin (D.C. Bar No. 235978)

Scott A. Fink (admittedpro hac vice)

Michael F. Flanagan (D.C. Bar No. 435942)Andrew S. Tulumello (D.C. Bar No. 468351)

David Debold (D.C. Bar No. 484791)GIBSON, DUNN & CRUTCHER LLP1050 Connecticut Avenue, N.W.


Telephone: (202) 955-8500Facsimile: (202) 467-0539

Counsel for Defendant KPMG LLP



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CERTIFICATE OF SERVICE

I hereby certify that I caused copies of the foregoing to be transmitted via electronic mail

to the following counsel:

James R. CumminsMelanie S. Corwin

Jean Marie Geoppinger

Waite, Schneider, Bayless & Chesley Co.,L.P.A.

1513 Fourth & Vine Tower

One West Fourth StreetCincinnati, OH 45202

Counsel for Lead Plaintiffs

Daniel S. SommersCohen, Milstein, Hausfeld & Toll P.L.L.C

West Tower, Suite 500

1100 New York Ave., N.W.Washington, D.C. 20005

Counsel for Plaintiffs Vincent Vinci; State

Teachers Retirement System of Ohio;Anne

E. Flynn; Robert L. Garber

Frank J. Johnson

Johnson Bottini, LLP655 W. Broadway, Suite 1400

San Diego, CA 92101

Counsel for Plaintiff Sassan Shahrokhinia

Robert W. LilesLiles Parker, PLLC

4400 MacArthur Blvd., N.W.Suite 203

Washington, DC 20007

Counsel for Plaintiff Sassan Shahrokhinia

Jeffrey W. KilduffMichael J. Walsh, Jr.

OMelveny & Myers LLP

1625 Eye Street, N.W.Washington, D.C. 20006

Counsel for Defendants Fannie Mae,

Thomas P. Gerrity, Taylor C. Segue, III,William R. Harvey, Joe Pickett,Kenneth M.

Duberstein, Manuel Justiz,H. Patrick

Swygert, and Leslie Rahl

Steven M. SalkyEric R. Delinsky

Ellen D. Marcus

Caroline E. ReidZuckerman Spaeder LLP

1800 M Street, N.W., Suite 1000Washington, D.C. 20036-2638

Counsel for Defendant Timothy J. Howard

Kevin M. Downey

Alex G. RomainJoseph M. Terry, Jr.

John E. Clabby

Williams & Connolly LLP725 Twelfth Street, N.W.

Washington, D.C. 20005-5091

Counsel for Defendant Franklin D. Raines

David S. Krakoff

Christopher F. ReganAdam B. Miller

Heather H. Martin

Mayer Brown LLP1909 K Street, N.W.


Counsel for Defendant Leanne G. Spencer



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William H. JeffressJulia E. Guttman

Nicholas A. Brady

Baker Botts LLP

The Warner1299 Pennsylvania Ave., N.W.


Counsel for Defendant Jamie S. Gorelick

Rhonda D. OrinAnderson Kill & Olick, P.C.

2100 M Street, N.W. Suite 650


Counsel for Defendant Leslie Rahl

John H. Doyle, III

Reed Smith LLP599 Lexington Ave.

New York, NY 10022-7650

Counsel for Defendant Leslie Rahl

James D. Wareham

Paul, Hastings, Janofsky & Walker LLP875 15th Street, N.W., Suite 12


Counsel for Defendant Daniel H. Mudd

Shannon RatliffRatliff Law Firm, PLLC

600 Congress AvenueSuite 3100

Austin, TX 78701

Counsel for Manuel Justiz

Barbara Van GelderMorgan, Lewis & Bockius LLP

111 Pennsylvania Ave., NWWashington, DC 20004

Counsel for Defendants Anne M. Mulcahy

and Frederic V. Malek

Cristen Sikes Rose

Edward S. Scheideman IIIJohn J. Clarke, Jr.

DLA Piper US LLP1200 19th Street, N.W.


Counsel for Defendants Stephen B. Ashley,

Donald B. Marron, and Ann Korologos

David I. Ackerman

James HamiltonBingham McCutchen LLP

2020 K Street, N.W.Washington, D.C. 20006

Counsel for Defendant Joe Pickett



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Seth Aronson

OMelveny & Myers LLP400 South Hope Street, 15th Floor

Los Angeles, Ca. 90071

Counsel for Defendant Fannie Mae,

Thomas P. Gerrity, Taylor C. Segue, III,William R. Harvey, Joe Pickett,Kenneth M.

Duberstein, Manuel Justiz,H. Patrick

Swygert, and Leslie Rahl

Ian H. Gershengorn

Jerome L. EpsteinJenner & Block

601 13th Street, NW

Suite 1200S

Washington, DC 20005

Counsel for Fannie Mae

William K. Dodds

Neil A. SteinerDechert LLP

30 Rockefeller Plaza

New York, NY 10112

Counsel for Defendant Thomas P. Gerrity

/s/ David DeboldDavid Debold



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2AO88 (Rev. 12/07) Subpoena in a Civil Case

Issued by the

UNITED STATES DISTRICT COURT__________ District of __________

SUBPOENA IN A CIVIL CASE

V.

Case Number:1

TO:

G YOU ARE COMMANDED to appear in the United States District court at the place, date, and time specified below to

testify in the above case.

PLACE OF TESTIMONY COURTROOM

DATE AND TIME

G YOU ARE COMMANDED to appear at the place, date, and time specified below to testify at the taking of a deposition

in the above case.

PLACE OF DEPOSITION DATE AND TIME

G YOU ARE COMMANDED to produce and permit inspection and copying of the following documents or objects at the

place, date, and time specified below (list documents or objects):

PLACE DATE AND TIME

G YOU ARE COMMANDED to permit inspection of the following premises at the date and time specified below.

PREMISES DATE AND TIME

Any organization not a party to this suit that is subpoenaed for the taking of a deposition shall designate one or more officers,

directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the

matters on which the person will testify. Federal Rule of Civil Procedure 30(b)(6).

ISSUING OFFICERS SIGNATURE AND TITLE (INDICATE IF ATTORNEY FOR PLAINTIFF OR DEFENDANT) DATE

ISSUING OFFICERS NAME, ADDRESS AND PHONE NUMBER

(See Federal Rule of Civil Procedure 45 (c), (d), and (e), on next page)

1 If action is pending in district other than district of issuance, state district under case number.

District of Columbia

In re Fannie Mae Securities Litigation;Fannie Mae

KPMG LLP

1:04cv016391:06cv02111

Federal Housing Finance Agency1700 G Street, N.W.Washington, DC 20552

Please see Attachment A

Gibson, Dunn & Crutcher LLP, 1050 Connecticut Ave., NW; Washington, DC 200369/9/2009 10:00 am

/s/ David Debold, attorney for KPMG 8/26/2009

David Debold c/o Gibson, Dunn & Crutcher LLP; 1050 Connecticut Ave., NW; Washington, DC 20036; phone: (202)955-8551



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AO88 (Rev. 12/07) Subpoena in a Civil Case (Page 2)

PROOF OF SERVICE

DATE PLACE

SERVED

SERVED ON (PRINT NAME) MANNER OF SERVICE

SERVED BY (PRINT NAME) TITLE

DECLARATION OF SERVER

I declare under penalty of perjury under the laws of the United States of America that the foregoing information contained

in the Proof of Service is true and correct.

Executed onDATE SIGNATURE OF SERVER

ADDRESS OF SERVER

Federal Rule of Civil Procedure 45 (c), (d), and (e), as amended on December 1, 2007:

(c) PROTECTING A PERSON SUBJECT TO A SUBPOENA.

(1) Avoiding Undue Burden or Expense; Sanctions. A party or attorney responsible for

issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or

expense on a person subject to the subpoena. The issuing court must enforce this duty and

impose an appropriate sanction which may include lost earnings and reasonable attorney's

fees on a party or attorney who fails to comply.

(2) Command to Produce Materials or Permit Inspection.

(A) Appearance Not Required. A person commanded to produce documents,

electronically stored information, or tangible things, or to permit the inspection of premises, need

not appear in person at the place of production or inspection unless also commanded to appear

for a deposition, hearing, or trial.(B) Objections. A person commanded to produce documents or tangible things or to

permit inspection may serve on the party or attorney designated in the subpoena a written

objection to inspecting, copying, testing or sampling any or all of the materials or to inspecting

the premises or to producing electronically stored information in the form or forms requested.

The objection must be served before the earlier of the time specified for compliance or 14 days

after the subpoena is served. If an objection is made, the following rules apply:

(i) At any time, on notice to the commanded person, the serving party may move

the issuing court for an order compelling production or inspection.

(ii) These acts may be required only as directed in the order, and the order must

protect a person who is neither a party nor a party's officer from significant expense resulting

from compliance.

(3) Quashing or Modifying a Subpoena.

(A) When Required. On timely motion, the issuing court must quash or modify a

subpoena that:

(i) fails to allow a reasonable time to comply;

(ii) requires a person who is neither a party nor a party's officer to travel more

than 100 miles from where that person resides, is employed, or regularly transacts business in

person except that, subject to Rule 45(c)(3)(B)(iii), the person may be commanded to attend

a trial by traveling from any such place within the state where the trial is held;(iii) requires disclosure of privileged or other protected matter, if no exception

or waiver applies; or

(iv) subjects a person to undue burden.

(B) When Permitted. To protect a person subject to or affected by a subpoena, the

issuing court may, on motion, quash or modify the subpoena if it requires:

(i) disclosing a trade secret or other confidential research, development, or

commercial information;

(ii) disclosing an unretained expert's opinion or information that does not

describe specific occurrences in dispute and results from the expert's study that was not

requested by a party; or

(iii) a person who is neither a party nor a party's officer to incur substantial

expense to travel more than 100 miles to attend trial

(C) Specifying Conditions as an Alternative. In the circumstances described in Rule

45(c)(3)(B), the court may, instead of quashing or modifying a subpoena, order appearance or

production under specified conditions if the serving party:

(i) shows a substantial need for the testimony or material that cannot be otherwise

met without undue hardship; and

(ii) ensures that the subpoenaed person will be reasonably compensated.

(d) DUTIES IN RESPONDING TO A SUBPOENA.

(1) Producing Documents or Electronically Stored Information. These procedures apply

to producing documents or electronically stored information:

(A) Documents. A person responding to a subpoena to produce documents must

produce them as they are kept in the ordinary course of business or must organize and label them

to correspond to the categories in the demand.

(B) Form for Producing Electronically Stored Information Not Specified. If asubpoena does not specify a form for producing electronically stored information, the person

responding must produce it in a form or forms in which it is ordinarily maintained or in a

reasonably usable form or forms.

(C) Electronically Stored Information Produced in Only One Form. The person

responding need not produce the same electronically stored information in more than one form.

(D) Inaccessible Electronically Stored Information. The person responding need not

provide discovery of electronically stored information from sources that the person identifies as

not reasonably accessible because of undue burden or cost. On motion to compel discovery or

for a protective order, the person responding must show that the information is not reasonably

accessible because of undue burden or cost. If that showing is made, the court may nonetheless

order discovery from such sources if the requesting party shows good cause, considering the

limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery.

(2) Claiming Privilege or Protection.

(A) Information Withheld. A person withholding subpoenaed information under a

claim that it is privileged or subject to protection as trial-preparation material must:

(i) expressly make the claim; and

(ii) describe the nature of the withheld documents, communications, or

tangible things in a manner that, without revealing information itself privileged or protected, will

enable the parties to assess the claim.(B) Information Produced. If information produced in response to a subpoena is

subject to a claim of privilege or of protection as trial-preparation material, the person making

the claim may notify any party that received the information of the claim and the basis for it.

After being notified, a party must promptly return, sequester, or destroy the specified

information and any copies it has; must not use or disclose the information until the claim is

resolved; must take reasonable steps to retrieve the information if the party disclosed it before

being notified; and may promptly present the information to the court under seal for a

determination of the claim. The person who produced the information must preserve the

information until the claim is resolved.

(e) CONTEMPT.

The issuing court may hold in contempt a person who, having been served, fails without

adequate excuse to obey the subpoena. A nonparty's failure to obey must be excused if the

subpoena purports to require the nonparty to attend or produce at a place outside the limits of

Rule 45(c)(3)(A)(ii).



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ATTACHMENT A

TO SUBPOENA DUCES TECUM

TO THE FEDERAL HOUSING FINANCE AGENCY

INSTRUCTIONS

1. If you object to producing any document (in whole or in part) based on anyprivilege, you should state the nature of the privilege claimed and the basis thereof; identify anddescribe the document and the reason for which it was created; identify the creator of the

document and all persons named on it, to whom the document was sent, for whose use it was

prepared, and state the date of the document. This information should be set forth separately on

a privilege log.

2. If you claim that any request is beyond the scope of permissible discovery,specify each and every ground on which such claim rests.

3. If you find any document request or term used in a request to be vague,ambiguous, subject to varying interpretations, or unclear, state what portion of the request orterm you find to be vague, ambiguous, subject to varying interpretations, or unclear, state your

understanding of the request or term, and respond in accordance with that understanding.

4. Draft or non-identical copies are to be considered separate documents forpurposes of these requests.

5. If any responsive document is no longer in existence, cannot be located or is notin your possession, custody or control, identify it, describe its subject matter and describe its

disposition (including without limitation identifying the person or persons (a) having knowledge

of the contents of the document and/or its destruction, deletion or disposition and (b) responsiblefor its destruction, deletion or other disposition.

6. To the extent you believe that any responsive document is not within yourpossession, custody, or control, but rather, is within the possession, custody, or control of another

individual or entity, identify the individual or entity that may possess the responsive documentand identify the responsive document that you believe that individual or entity may possess.

DEFINITIONS

1. All includes the term each or any, and vice versa. The singular shallinclude the plural, and the disjunctive shall include the conjunctive, and vice versa.

2. Commendation includes any plaque, certificate, ornament, document, reward,or award representing official recognition by the Office of Federal Housing Enterprise Oversight

(OFHEO) or the Federal Housing Finance Agency (FHFA) for contributions an employee ofOFHEO or FHFA has made to either of those agencies.

3. Communication is used in the comprehensive sense and means everyconceivable manner or means of disclosure, transfer, or exchange of oral, electronic, digital or



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written information between or among one or more persons or entities, including but not limited

to, writings, correspondence, meetings, conferences, conversations, dialogues, discussions,interviews, consultations, agreements, inquiries, and any other expressions or understandings,

whether made face-to-face, by telephone, mail, facsimile, computer or otherwise.

4. Concerning means, in whole or in part with respect to, in connection with,referring to, relating to, describing, evidencing, constituting, substantiating, purporting,

embodying, establishing, identifying, mentioning, reflecting, listing, stating, comprising,connected with, memorializing, recording, commenting on or upon, responding to, showing,

demonstrating, analyzing, reflecting, representing, supporting, explaining, consisting of,

regarding, discussing, containing, setting forth, disclosing, explaining, summarizing, pertainingto, or otherwise having any logical or factual connection to the subject matter, of the document

request.

5. Document is synonymous with the usage of that term in Rule 34 of the FederalRules of Civil Procedure, and includes, without limitation, writings, e-mails, reports, papers,

notes, accounts, memoranda, correspondence, communications, worksheets, workpapers,analyses, contracts, charts, schedules, agreements, working papers, corporate records, minutes of

meetings, books of account, ledger books, notebooks, calendars, photographs, films, slides,

audiotape, videotape, appointment books, diaries, drafts, memoranda of meetings orconversations, graphs, telephone records, computer tapes, computer discs, optical discs, laser

discs, computer cards and computer printouts and other data compilations from which

information can be obtained or translated all electronic, mechanical, magnetic, optical or electricdata, records or representations of any kind (including computer data, computer files, computer

programs, hard drives, floppy disks, compact disks, tapes and cards existing on desktop

computers, laptop computers, notebook computers, personal digital assistant computers, servers,

backup tapes or any other medium), and any other form of physical media.

6. The terms relate or relating mean constitute, comprise, reflect, record,memorialize, embody, discuss, describe, evaluate, consider, review or report on the subject

matter of the document request and also refers to documents reviewed in conjunction with, orcreated, generated or maintained as a result of the subject matter of the request.

7. The terms you, your, or FHFA mean the Federal Housing Finance Agencyand any of its present or former officers, employees, attorneys, accountants, advisers,

consultants, agents or any other person or entity acting form, at the direction of, or on behalf of

FHFA. This definition includes, but is not limited to the Office of Federal Housing EnterpriseOversight (OFHEO) and its present or former officers, employees, attorneys, accountants,

advisers, consultants, agents or any other person or entity acting for, at the direction of, or on

behalf of OFHEO.



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3

RELEVANT PERIOD

Unless otherwise specifically indicated, these requests seek documents created, dated,

prepared, generated, sent, received or otherwise used during the time period from January 1,

1998 to December 31, 2003 (the Relevant Period) or that refer or relate to all or any portion ofthe Relevant Period, or to events or circumstances during the Relevant Period, even though

created, dated, prepared, generated, sent, received or otherwise used prior to or after the Relevant

Period.

DOCUMENTS TO BE PRODUCED

Please produce the following documents or things in your possession, custody or control:

1. All commendations received by Deirdre Kvartunas for work she didconcerning, in whole or in part, FAS 133 for the Office of Federal Housing Enterprise Oversight,

including but not limited to, the commendation Ms. Kvartunas received from Scott Calhoun onMay 15, 2001 referenced in Exhibit A.

2. All documents relating to any commendations received by Ms. Kvartunas forwork she did concerning, in whole or in part, FAS 133 for the Office of Federal Housing

Enterprise Oversight, including but not limited to, the text of any communication made at the

time the commendation was announced or delivered (and drafts of such communications).



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Exhibit A



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