United States District Court, S.D. Florida
ORDER DENYING DEFENDANTS' MOTION FOR LEAVE TO USE
CERTAIN PURPORTEDLY PRIVILEGED DOCUMENTS [DE
WILLIAM MATTHEWMAN, JUDGE
CAUSE is before the Court on Defendants' Motion for Leave
to Use Certain Purportedly Privileged Documents [DE 421/426');">426].
This matter was referred to the undersigned by United States
District Judge Kenneth A. Marra. [DE 495]. Defendants Ocwen
Financial Corporation, Ocwen Mortgage Servicing, Inc., and
Ocwen Loan Servicing, LLC (collectively, "Ocwen")
filed their motion on August 16, 2019. [DE 421/426');">426].
Plaintiff Florida Office of Financial Regulation
("OFR") responded to Ocwen's motion on
September 13, 2019. [DE 456/463-1]. Ocwen replied to
OFR's response on September 18, 2019. [DE 465/468]. The
Court held a lengthy hearing on this matter on October 17,
2019. [DE 498]. Thus, this matter is ripe for review. For the
reasons that follow, the Court DENIES Ocwen's motion.
Analysis and Discussion
seeks leave to use two documents that OFR clawed back from
production as privileged: Bl 122 and OFROcwen053924. Ocwen
contends these "documents are crucial to key defenses
that Ocwen has raised flowing from the overlap between this
litigation and claims Plaintiffs waived in the [National
Mortgage Settlement].".[DE 421/426');">426, p. 2]. OFR argues in
response that the two documents are privileged and Ocwen has
failed to overcome that privilege.
B1122, OFR asserts it is protected under the deliberative
process privilege. That privilege "protects the internal
decisionmaking processes of the executive branch in order to
safeguard the quality of agency decisions." Raffa v.
Wachovia Corp., No. 02-1143, 2003 WL 2157778, at *2
(M.D. Fla. May 15, 2009) (citing Nadler v. U.S. Dep't
of Justice, 955 F.2d 1479, 1490 (11th Cir. 1992)).
"Two prerequisites must be met before an agency may
properly withhold a document from production pursuant
to" that privilege. Id. "First, the
document must be 'predecisional,' i.e., 'prepared
in order to assist an agency decisionmaker in arriving at his
decision.'" Id. (quoting Nadler,
955 F.2d at 1491). "Second, it must be
'deliberative,' that is, 'a direct part of the
deliberative process in that it makes recommendations or
expresses opinions on legal or policy matters.'"
Id. (quoting Nadley, 955 F.2d at 1491).
deliberative process privilege is "qualified, not
absolute." Fed. Home Loan Mortgage Corp. v. Deloitte
& Touche, LLP, No. 15-22754, 2015 WL 12766397, at *2
(S.D. Fla. Sept. 3, 2015). It may be overcome by a showing of
need based on "(1) the relevance of the evidence sought
to be protected; (2) the availability of other evidence; (3)
the seriousness of the litigation and the issues involved;
(4) the role of the government in the litigation; and (5) the
possibility of future timidity by government employees who
will be forced to recognize that their secrets are
voidable." Raffa, 2003 WL 2157778, at *3;
see also Fed. Home Loan Mortgage Corp., 2015 WL
12766397, at *2.
carefully considering the parties' arguments, the
relevant case law, and counsels' arguments at the
discovery hearing and conducting a careful in camera
review of B1122, the Court finds that B1122 is protected
under the deliberative process privilege, and Ocwen has
failed to meet its burden of overcoming that privilege. B1122
is both "predecisional," in that it was created
prior to the instant litigation, and
"deliberative," in that it reflects a debate
between members of the National Mortgage Settlement
Monitoring Committee as to whether to continue certain
monitoring of Ocwen in advance of the instant litigation.
extent that Ocwen hopes to use Bl 122 to support its argument
that its operations were "sound," there is surely
other evidence available to Ocwen to support such an
argument, such as Ocwen's own internal data or the
testimony of its corporate representatives. Finally, the
seriousness of the litigation, the pervasive role of the
government in this litigation, and the possibility of
chilling future agency investigations by ordering the
production of predecisional, deliberative communications all
weigh in favor of the Court's finding that Ocwen has
failed to rebut OFR's assertion of privilege.
OFR_Ocwen053924, a draft version of the NMS judgment that
contains the thoughts and opinions of an OFR attorney, OFR
asserts it is a privileged attorney-client communication.
Ocwen asserts that, nonetheless, it should be entitled to use
the document because "Plaintiffs have put [its contents]
at issue." [DE 421/426');">426, p. 6]. However, the Court finds
that Ocwen has failed to overcome OFR's assertion of
attorney-client privilege. As OFR points out, it was Ocwen,
not OFR, that injected a new legal issue into the case when
it raised its defense of claim preclusion. After injecting
that issue into this litigation through its claim preclusion
defense, Ocwen cannot now claim that OFR put the contents of
OFRO_cwen053924 at issue merely by bringing claims against
Ocwen that may or may not be precluded by the NMS. See
Bivins v. Rogers, No. 15-81298, 2017 WL 1535110, at *4
(S.D. Fla. Apr. 27, 2017) ("Thus, the guardians have not
injected the issue into the proceedings such that the
attorney-client privilege has been waived");
Guarantee Ins. Co. v. Heffernan Ins. Brokers, Inc.,
300 F.R.D. 590, 593-94 (S.D. Fla. 2014) (explaining that
"under the federal standard, in or for a court to
properly find at-issue waiver, it is the holder of the
privilege that must have put the information sought at
issue"); Lorenz v. Valley Forge Ins. Co., 815
F.2d 1095, 1098 (7th Cir. 1987) (noting that "[t]o waive
the attorney-client privilege by voluntarily injecting an
issue in the case, . . . [t]he holder [of the privilege] must
inject a new factual or legal issue into the case");
see also Kehle v. USAA Cos. Ins. Co., No. 17-80447,
2018 WL 2435176, at *5-8 (S.D. Fla. May 30, 2018) (discussing
at-issue waiver in the context of the work-product
privilege), affirmed by 2019 WL 1429674 (S.D. Fla.
Mar. 25, 2019).
both an in camera review of the disputed documents
and careful review of Ocwen's motion, OFR's response,
Ocwen's reply, relevant case law, counsels' arguments
at the discovery hearing, and the entire docket in this case,
it is hereby ORDERED that Ocwen's Motion
for Leave to Use Certain Purportedly Privileged Documents [DE
421/426');">426] is DENIED.