Lehman's Motion to Compel Geithner Testimony

8/3/2019 Lehman's Motion to Compel Geithner Testimony

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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

OFFICIAL COMMITTEE OF UNSECUREDCREDITORS OF LEHMAN BROTHERS HOLDINGSINC.,

1 Chase Manhattan PlazaNew York, NY 10005

Plaintiff

v.

TIMOTHY F. GEITHNER,

Defendant

Case No. ____________

OFFICIAL COMMITTEE OF UNSECURED CREDITORS OF LEHMAN BROTHERS

HOLDINGS INC.'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT

OF MOTION TO COMPEL COMPLIANCE WITH DEPOSITION SUBPOENA BY

TIMOTHY F. GEITHNER

Jon D. Corey (D.C. Bar # 491311)QUINN EMANUELURQUHART & SULLIVAN, LLP1299 Pennsylvania Avenue NW, Suite 825Washington, D.C. 20004(202) 538-8000

Andrew J. RossmanQUINN EMANUELURQUHART & SULLIVAN, LLP51 Madison Avenue, 22nd FloorNew York, NY 10010-1601(212) 849-7000

Erica P. Taggart

QUINN EMANUELURQUHART & SULLIVAN, LLP865 South Figueroa Street, 10th FloorLos Angeles, California 90017-2543(213) 443-3000

Counsel for Plaintiff Official Committee of Unsecured

Creditors of Lehman Brothers Holdings Inc.


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The Official Committee of Unsecured Creditors of Lehman Brothers Holdings

Inc. (the "Committee") respectfully submits this Memorandum Of Points And Authorities In

Support Of Motion To Compel Compliance With Deposition Subpoena By Timothy F. Geithner.

For the reasons set forth below, the Committee moves the Court for the entry of an order

compelling Timothy F. Geithner to comply with the subpoena for his deposition testimony at a

time and location convenient for Mr. Geithner before March 16, 2012, pursuant to Rule 37(a)

and Rules 26, 30, and 45 of the Federal Rules of Civil Procedure.

I.

INTRODUCTION

In his welcome address to cabinet secretaries and senior staff, President Barack

Obama proclaimed, "[T]he way to make government accountable is make it transparent so that

the American people can know exactly what decisions are being made, how they're being made,

and whether their interests are being well served. . . . Transparency and the rule of law will be

the touchstones of this presidency." (Barack Obama, Remarks by the President in Welcoming

Senior Staff and Cabinet Secretaries to the White House (January 21, 2009)).1 The Department

of the Treasury now turns its back on the President's commitment to transparency as it refuses to

provide the creditors of Lehman Brothers with key evidence from the current Secretary of the

Treasury, Timothy F. Geithner, who was a crucial witness to certain key events at issue in the

creditors' litigation with JPMorgan Chase Bank, N.A. ("JPMorgan").

In the final week before the bankruptcy of Lehman Brothers Holdings Inc.

("LBHI" and, collectively with its subsidiaries, "Lehman"), Lehman's primary bank, JPMorgan,

demanded that LBHI guaranty any potential future obligation of any Lehman entity of any kind

1 Available at http://www.whitehouse.gov/the-press-office/remarks-president-welcoming-senior-staff-and-cabinet-secretaries-white-house (last accessed Feb. 9, 2012).


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and deliver $8.6 billion in cash and money market funds to support that guaranty. JPMorgan

went on to become the single largest creditor of LBHI and has asserted that all of its claims

against LBHI are fully secured above all other creditors by virtue of that pre-bankruptcy

guaranty and collateral grab. The Committee and the LBHI estate have filed a lawsuit in the

United States Bankruptcy Court for the Southern District of New York challenging JPMorgan's

right to the $8.6 billion and other collateral. As discovery in this case nears its March 16, 2012

conclusion, more than 200 witnesses have already been deposed. But an important deposition is

yet to be taken, because the United States Department of the Treasury ("Treasury") has for many

months delayed and ultimately refused to allow the testimony of Secretary Timothy F. Geithner.

The same week before LBHI's bankruptcy, Timothy F. Geithner ("Secretary

Geithner"), then the President of the Federal Reserve Bank of New York ("FRBNY") and

currently Secretary of the Treasury, had more than thirty-five telephone calls with Lehman's

Chief Executive Officer Richard Fuld, as well as more than ten telephone calls with James

Dimon, the Chief Executive Officer of JPMorgan. Some, if not all, of these conversations

concerned the collateral demands at the center of the present lawsuit. For example, on the

evening of September 11, 2008, one business day before LBHI filed for bankruptcy, and at

approximately the same time that JPMorgan demanded the last $5 billion of collateral from

LBHI, Dimon called Secretary Geithner. No one else besides Dimon and Secretary Geithner

were on that call, but it appears they discussed JPMorgan's purported justification for the

collateral. Moreover, two days later, on September 13, Secretary Geithner had an in-person

meeting with Dimon and Treasury Secretary Henry Paulson2 to discuss concerns that Dimon

2 On February 15, 2012 Treasury sent the Committee a letter refusing to allow Mr.Paulson to comply with a deposition subpoena. The Committee will be addressing the subject ofMr. Paulson's testimony separately.


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"was using the crisis to maneuver his bank into a stronger position" and that he "wanted to put

[Lehman] out of business entirely."

Despite being a crucial fact witness on these issues, Secretary Geithner has

refused to appear at a deposition in accordance with a valid subpoena issued by the Committee.

Initially, his counsel at Treasury refused to even discuss a possible deposition until all other

witnesses from Treasury and the FRBNY had testified. Once this occurred, they repeatedly

asked for additional information regarding the scope and basis of testimony. But despite the fact

that the depositions and documents confirm the uniqueness and relevance of Secretary Geithner's

knowledge, he nevertheless refuses to comply with the subpoena.

3

With the March 16, 2012

discovery deadline looming, the Committee asks this Court to compel his deposition prior to that

date.4

II. STATEMENT OF FACTSA. Nature of the Litigation

LBHI filed a voluntary petition for relief under chapter 11 of title 11 of the

United States Code, as amended (the "Bankruptcy Code") on September 15, 2008. On May 26,

2010, the Committee and LBHI brought an adversary proceeding against JPMorgan in the

Bankruptcy Court for the Southern District of New York (Lehman Brothers Holdings Inc. and

3 Throughout these discussions with Treasury, the Committee has offered to limit thetime of the deposition, and to conduct the deposition at a place and time convenient to SecretaryGeithner.

4Although all discovery including depositions must be completed by March 16, 2012

under a current court order, a brief extension would likely be permitted to allow for SecretaryGeithner's deposition shortly after that date, if doing so would be necessary to accommodate thewitness's schedule.


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Official Committee of Unsecured Creditors of Lehman Brothers Holdings Inc. et al. v. JPMorgan

Chase Bank, N.A., Case No. 10-03266 (JMP)).

Prior to its bankruptcy, Lehman was the fourth largest investment bank in the

United States. During all relevant periods, JPMorgan was Lehman's primary bank. Among its

many roles as Lehman's bank, JPMorgan served as the principal clearing bank of Lehman

Brothers Inc. ("LBI"), LBHI's United States capital markets broker-dealer subsidiary. As such,

JPMorgan acted as LBI's intermediary and agent in all securities trades entered into by LBI, by

making payments, transferring securities, and facilitating trades on behalf of LBI. JPMorgan

also acted as LBI's agent in tri-party repurchase agreements ("tri-party repo") that LBI used to

obtain short-term financing. This clearing function was essential to LBI's business.

The Committee filed a First Amended Complaint in its adversary proceeding

against JPMorgan on September 15, 2010. (See Odell Decl. Ex. A).5

The First Amended

Complaint alleges that JPMorgan used its positional leverage as the primary clearing bank for

LBI to coerce LBHI into posting billions of dollars of collateral and signing a series of one-sided

agreements to put it ahead of all other creditors for all potential obligations of any kind.

The First Amended Complaint brings causes of action under the United States

Bankruptcy Code and state law, seeking to avoid or invalidate the collateral transfers and

agreements. Included in the conveyances sought to be avoided are transfers of approximately

$8.6 billion in cash and cash equivalents made by LBHI between September 9 and September

5 "Odell Decl." refers to the Declaration of Benjamin Odell In Support Of Plaintiff'sMotion to Compel Compliance With Deposition Subpoena By Timothy F. Geithner, filedherewith.


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12, 2008 in response to demands from JPMorgan. One of these demands was placed in the early

afternoon on September 9, while another was placed in the evening on September 11.6

B. Role of Secretary Geithner and the FRBNY in the Events at IssueTimothy F. Geithner is the current Secretary of the United States Department of

the Treasury. Prior to joining Treasury, he served from November 17, 2003 to January 29, 2009

as the President of the Federal Reserve Bank of New York. All of the information that the

Committee is seeking from Secretary Geithner concerns events that occurred while he was

President of the FRBNY. The Committee has agreed with counsel for Treasury not to seek any

information regarding his tenure at Treasury.

The FRBNY, and Secretary Geithner in particular, became involved in issues of

importance to this litigation in early 2008. In March 2008, FRBNY representatives met with

JPMorgan to discuss JPMorgan's provision of tri-party repo clearing and custodial services,

specifically focusing on increases in the amount of collateral JPMorgan was holding from its

clearing customers, including Lehman. On July 17, 2008, Secretary Geithner met personally

with Dimon to discuss these same issues. In addition, throughout the summer and accelerating

into September 2008, Secretary Geithner played an integral leadership role in developing the

United States government's approach to Lehman's potential failure, including any government

policies and communications regarding a potential bailout, and was intimately involved with

overseeing the preparations for a potential Lehman failure and the attempts to facilitate an

6(See Report of Anton R. Valukas, Examiner,In re Lehman Brothers Holdings Inc., et

al., Case No. 08-13555 (JMP) (Bankr. S.D.N.Y.), at1140-41 (March 11, 2010) (stating "onSeptember 9, 2008, Black requested additional collateral from Fuld" and citing a call-logshowing Fuld received a phone call from JPMorgan's Steve Black that afternoon); id. at 1161("After the internal JPMorgan meeting [on the evening of September 11] Black and Dimoncalled Fuld . . . . On that call, Black and Dimon requested $5 billion in collateral from Lehman,in cash, by the next morning.")).


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acquisition of or other private sector solution for Lehman. For example, other witnesses have

identified Secretary Geithner as the person who made the final determination that the Federal

Reserve would not provide financing to Lehman outside of existing facilities.7

During Lehman's final week, September 8 to 14, 2008, Secretary Geithner spent

substantial time engaged in issues related to this litigation. According to his telephone log,

which was produced in this litigation by the FRBNY, Secretary Geithner spoke with Lehman

CEO Richard Fuld more than thirty-five times during the course of that week. (See Odell Decl.

Ex. B). Secretary Geithner spoke with JPMorgan CEO James Dimon more than ten times over

that same period. (Id.). Of particular importance to this litigation are phone calls between

Dimon and Secretary Geithner at 1:35 P.M. on September 9, as well as 7:59 P.M. and 8:11 P.M.

on September 11. In each case, these calls took place at approximately the same time as

JPMorgan demanded billions of dollars of cash collateral from LBHI. Other Federal Reserve

witnesses, although not personally present during the calls, stated that Secretary Geithner later

indicated that the subject of at least some of these calls was JPMorgan's collateral demands to

LBHI. For example, regarding one of Dimon's calls to Secretary Geithner on the evening of

September 11, FRBNY Senior Vice President Lucinda Brickler testified that "[t]he phone call

was from JPMorgan Chase informing Tim Geithner of a request that they had made to Lehman

Brothers for $5 billion of -- of collateral that they needed to assure their willingness to unwind

repo the following morning." (Brickler Tr., Aug. 30, 2011, 129:20-25).

7 (See Angulo Tr., Aug. 10, 2011, at 190:13-24 ("Q. So by this time in July the Fed hadnot made a decision about whether or not it would rescue Lehman in the event that Lehmanfailed? A. I would say that's correct. Q. Did the Fed ever come to a point in time when it madethat decision? A. I believe over the weekend that Lehman failed. Q. Okay. And who would beinvolved in that decision-making? A. Tim Geithner.")).


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Secretary Geithner spent much of the weekend of September 13 and 14the

weekend before LBHI's bankruptcy--at the FRBNY offices, spearheading meetings among the

CEOs of Wall Street's major banks in an effort to find a solution to the Lehman situation. On

September 13, Secretary Geithner met privately with Dimon and then-Secretary of the Treasury

Henry Paulson to discuss issues that are highly relevant to this litigation. In his memoir, Paulson

stated that this meeting was convened to discuss concerns, raised by other CEOs, that Dimon

"was using the crisis to maneuver his bank into a stronger position" and that he "wanted to put

[Lehman] out of business entirely." Henry M. Paulson, Jr., On the Brink: Inside the Race to

Prevent the Collapse of the Global Financial System 200-01 (2010); see also Report of Anton R.

Valukas, Examiner,In re Lehman Brothers Holdings Inc., et al., Case No. 08-13555 (JMP)

(Bankr. S.D.N.Y.), at1171 (March 11, 2010) ("Then-President of the FRBNY, Timothy

Geithner, did contact Dimon about concerns surrounding JPMorgan's collateral requests.").

Due to the integral involvement of the Federal Reserve in the events at issue in

this case, both the FRBNY and the Federal Reserve Board of Governors have provided the

parties with discovery in the form of documents and testimony. In addition to receiving

documents, the Committee has taken the depositions of fifteen current or former Federal Reserve

officials.8

During these depositions, the Committee attempted to obtain information that would

8The Committee has taken the depositions of the following current or former Federal

Reserve officials: Scott Alvarez, Federal Reserve General Counsel; Arthur Angulo, FRBNYSenior Vice President; Thomas Baxter, FRBNY General Counsel and Executive Vice President;Lucinda Brickler, FRBNY Senior Vice President; Gregory Gaare, former FRBNY SupervisingExaminer; Stephanie Heller, FRBNY Deputy General Counsel and Senior Vice President;Christopher Hunter, FRBNY Examining Officer; HaeRan Kim, FRBNY Assistant GeneralCounsel and Senior Vice President; Shari Leventhal, FRBNY Assistant General Counsel andSenior Vice President; Christopher McCurdy, former FRBNY Senior Vice President; PatrickParkinson, Federal Reserve Director of the Division of Banking Supervision and Regulation;Brian Peters, former FRBNY Senior Vice President; Mark Van Der Weide, Federal Reserve


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obviate the need for the depositions of high-ranking Federal Reserve officials, including

Secretary Geithner. For example, although the Committee initially served subpoenas on Federal

Reserve Chairman Ben Bernanke and current FRBNY President William Dudley, the Committee

was able to obtain the information it sought from these individuals through other deponents.

Consequently, the Committee did not pursue the depositions of Chairman Bernanke or President

Dudley. However, after extensive discovery the Committee has been unable to obtain from any

other source certain highly-relevant information that is known by Secretary Geithner.

C. The Committee's Subpoena and Meet and Confer EffortsThe Committee has been meeting and conferring with Secretary Geithner's

counsel from the General Counsel's Office of the Treasury Department on the topic of his

deposition for more than five months.

On August 9, 2011, the Committee issued a subpoena commanding Secretary

Geithner to appear for a deposition in Washington, D.C. (See Odell Decl. Ex. C). Secretary

Geithner's counsel notified the Committee that they accepted service of the subpoena on his

behalf. (Email from Andrew Stein to Christopher Kercher, Aug. 9, 2011) (Odell Decl. Ex. D).

On August 22, 2011 counsel for the Committee and Treasury met and conferred regarding the

depositions of Secretary Geithner and former Treasury employees. During that meeting, counsel

for Treasury stated their position that "we have not authorized Secretary Geithner's testimony in

this matter and will not consider a request to authorize his testimony until after the completion of

the depositions of any other former Treasury employees authorized to appear, as well as the

depositions of members of the Federal Reserve Board of Governors and the Federal Reserve

Bank of New York." (Email from Andrew Stein to Christopher Kercher, Aug. 24, 2011) (Odell

Senior Associate Director of the Division of Banking Supervision and Regulation; Jan Voigts,FRBNY Examining Officer; and Kevin Warsh, former Federal Reserve Governor.


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Decl. Ex. E). Over the following four months, the Committee worked to schedule and take the

depositions of two former Treasury employees, and fifteen current or former representatives of

the Federal Reserve Board of Governors and the FRBNY.

On September 7, 2011, counsel for the Committee wrote to counsel for Treasury,

asking that they reconsider their position with respect to Secretary Geithner, in light of evidence

already discovered that conclusively showed Secretary Geithner had personal knowledge of

unique, relevant information. (Email from Ben Odell to Andrew Stein, Sept. 7, 2011) (Odell

Decl. Ex. F). In response, counsel for Treasury restated their position that "Treasury would defer

a decision on whether to authorize the Secretary's testimony in this matter until after the

completion of the depositions of the former Treasury officials authorized to appear, as well as the

depositions of officials of the Federal Reserve Board of Governors and the Federal Reserve Bank

of New York." (Email from Andrew Stein to Ben Odell, Sept. 8, 2011) (Odell Decl. Ex. F).

On November 4, 2011, the Committee informed counsel for Treasury that "we

have nearly completed the depositions of the other witnesses from the Federal Reserve Board of

Governors, the FRBNY and the Treasury Department. In light of the evidence developed to

date, it is clear that we will require testimony from . . . President Geithner." (Email from

Christopher Kercher to Andrew Stein, Nov. 4, 2011) (Odell Decl. Ex. F). In response, counsel

for Treasury reiterated that they would wait until after "the depositions of any additional FRBNY

and Treasury witnesses, and then evaluate whether you need to depose the current . . .

Secretar[y]." (Email from Andrew Stein to Christopher Kercher, Nov. 8, 2011) (Odell Decl. Ex.

F).

On December 6, 2011 the Committee completed its deposition of the second of

two former Treasury Department employees whose testimony had been authorized. Two days


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later, counsel for Treasury asked the Committee to advise it, in detail, of the subjects about

which it sought testimony from Secretary Geithner. (Email from Andrew Stein to Christopher

Kercher, Dec. 8, 2011) (Odell Decl. Ex. F). On December 22, 2011 the Committee replied,

detailing six specific topics about which testimony was sought. (Letter from Erica Taggart to

Andrew Stein, Dec. 22, 2011) (Odell Decl. Ex. G). Counsel for Treasury responded on January

4, 2012, taking the position that a decision on whether to allow Secretary Geithner to appear for

a deposition was "premature at this time." (Letter from Brian Sonfield to Erica Taggart, Jan. 4,

2012) (Odell Decl. Ex. H). Treasury represented that it would consider the request after the

depositions of Dimon and Fuld, "as well as any other available discovery regarding the

information at issue." (Id.).

On January 17, 2012, the depositions of all authorized witnesses from Treasury,

the Federal Reserve Board of Governors, and the FRBNY were completed. The Committee

wrote to Treasury on January 23, 2012 expressing disagreement with Treasury's refusal to take a

position regarding the deposition of Secretary Geithner. (Letter from Erica Taggart to Brian

Sonfield, Jan. 23, 2012) (Odell Decl. Ex. I). In that letter, the Committee also agreed to further

narrow the scope of the testimony requested from Secretary Geithner to five topics, each of

which consisted of facts regarding relevant conversations that Secretary Geithner personally

engaged in. (Id.). The Committee requested a final answer regarding Secretary Geithner's

deposition by January 30. (Id.). Counsel for the Committee and Treasury met and conferred on

January 26. (See Email from Erica Taggart to Jean-David Barnea, Jan. 26, 2012) (Odell Decl.

Ex. J). On February 10, Treasury provided a final letter concluding that "Treasury declines to

authorize a deposition of Secretary Geithner at this time." (See Letter from Brian Sonfield to

Erica Taggart (Feb. 10, 2012)) (Odell Decl. Ex. K). The letter stated that Treasury "consider[ed]


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[the Committee's] January 23, 2012 letter to constitute a formal request for Treasury's decision

concerning whether such testimony will be authorized pursuant to Treasury's Touhy regulations.

After careful consideration and for the reasons provided below, we conclude that your request

does not meet the factors set forth in Treasury's Touhy regulations, and therefore we do not

authorize the Secretary's deposition in this matter." (Id.).

D. Specific Testimony Sought From Secretary GeithnerAs expressed in the Committee's letter to the Treasury Department on January 23,

2012, the Committee is only seeking testimony from Secretary Geithner on the following topics:

1. Conversations between Sec. Geithner and Dimon on September 9 and 11, 2008.

2. Conversations between Sec. Geithner and Fuld between September 8, 2008 and

September 15, 2008.

3. The September 13, 2008 meeting between Sec. Geithner, Paulson, and Dimon.

4. Any communications between Sec. Geithner and any third-party or the media

regarding the government's position on Federal assistance to Lehman.

5. Any additional communications between Sec. Geithner and Lehman or JPMorgan

between September 8, 2008 and September 15, 2008 on the following subjects:

(a) JPMorgan's collateral demands to Lehman;

(b) potential government assistance to Lehman; or

(c) whether JPMorgan intended to continue clearing, trading, extending credit,

and acting as tri-party repo clearing bank for Lehman.

(Letter from Erica Taggart to Brian Sonfield, Jan. 23, 2012) (Odell Decl. Ex. I). In that letter,

the Committee also stated its willingness to meet and confer to agree upon time limits for

Secretary Geithner's deposition that would allow both sides to pursue their necessary questions

without undue burden to the witness. (Id.). The Committee further expressed its willingness to


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hold the deposition on any date and at any location of the witness's choosing, prior to the close of

discovery on March 16, 2012. (Id.; see also Sixth Amended Scheduling Order and Discovery

Plan at 2, Lehman Bros. Holdings Inc. v. JPMorgan Chase Bank, N.A. (In re Lehman Bros.

Holdings Inc., No. 10-03266(JMP) (Bankr. S.D.N.Y. filed May 26, 2010) (Odell Decl. Ex. L)

("All fact discovery, including depositions, shall be completed on or before March 16, 2012.")).

III. ARGUMENTA. Treasury's Touhy Regulations Do Not Apply to the Committee's Subpoena

As an initial matter, Treasury applies the wrong standard in its letter refusing

Secretary Geithner's compliance with the Committee's subpoena. In that letter, Treasury stated,

"We consider your January 23, 2012 letter to constitute a formal request for Treasury's decision

concerning whether such testimony will be authorized pursuant to Treasury's Touhy regulations."

(Letter from Brian Sonfield to Erica Taggart (Feb. 10, 2012)) (Odell Decl. Ex. K). Then,

Treasury applied the factors laid out in those regulations, see 31 C.F.R. 1.11(e), concluding

that the Committee's "request does not meet the factors set forth in Treasury's Touhy

regulations." (Letter from Brian Sonfield to Erica Taggart (Feb. 10, 2012)) (Odell Decl. Ex. K).

But Treasury's Touhy regulations do not apply to the Committee's request. Nothing in the

Committee's correspondence over the past five months suggested the Committee was making a

request pursuant to the Touhy regulations,9

and Treasury is simply wrong to apply them here.

9On the contrary, the Committee expressly informed Treasury in September 2011 that it

was not making an application under the Touhy regulations because the regulations do not applyto the Committee's subpoena. (See Email from Ben Odell to Andrew Stein (Sept. 7, 2011) (OdellDecl. Ex. F) ("[W]e can confirm that we are only seeking testimony from Sec. Geithnerconcerning his time as President of the Federal Reserve Bank of New York. We are not seekingany information concerning his time at the Treasury Department. Therefore, Treasury's Touhyregulations do not govern Secretary Geithner's compliance with the Committee's subpoena.")).


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Treasury's Touhy regulations are codified under section 1.11 of title 31 of the

Code of Federal Regulations and set out certain policies and procedures regarding the testimony

of Treasury employees as witnesses in legal proceedings. See 31 C.F.R. 1.11. However, it is

plain on the face of the Touhy regulations that they apply only to requests for information or

materials acquired as part of an employee's official duties or status at Treasury. In its entirety,

the policy laid out in Treasury's Touhy regulations is that:

No current or former employee shall, in response to a demand, produce anyDepartment documents, provide testimony regarding any information relating toor based upon Department documents, or disclose any information or producematerialsacquired as part of the performance of that employee's official duties

or official status, without the prior authorization of the General Counsel or theappropriate agency counsel.

31 C.F.R. 1.11(c) (emphasis added). Thus, Treasury's authorization is only required for

testimony about information an employee acquired as part of his or her employment at Treasury.

Nothing in the Touhy regulations suggests that Treasury has the right to prevent an employee

from complying with a subpoena that seeks factual testimony about matters wholly unrelated to,

and occurring entirely prior to, the individual's employment at Treasury.

The inapplicability of the Touhy regulations to the Committee's subpoena is

reinforced elsewhere in the regulations. For example, in its letter refusing Secretary Geithner's

compliance with the subpoena, Treasury based its refusal on the alleged failure of the

Committee's request to meet the factors laid out in section 1.11(e)(1) subparts (i), (vi), and (vii)

of the Touhy regulations. (See Letter from Brian Sonfield to Erica Taggart (Feb. 10, 2012)

(Odell Decl. Ex. K) ("Therefore, your request for deposition testimony fails to meet the

requirements of 31 C.F.R. 1.11(e)(1).")). But the requirements in this section only apply to

requests for testimony "concerning official information." See 31 C.F.R. 1.11(e)(1).

Specifically, that section states, "In deciding whether to authorize the release of official


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information orthe testimony of personnelconcerning official information (hereinafter referred

to as 'the disclosure') agency counsel shall consider the following factors . . . ." Id. (emphasis

added). As the Committee is not requesting any testimony from Secretary Geithner concerning

official Treasury information, the factors described in this section are simply inapplicable.

The Committee has made clear throughout its negotiations with Treasury that the

testimony requested from Secretary Geithner consists entirely of information acquired prior to

his appointment with Treasury, while he was President of the FRBNY. (See Letter from Erica

Taggart to Brian Sonfield at 4 n.2 (Jan. 23, 2012) (Odell Decl. Ex. I) ("As you are aware, all of

the information we are seeking from Secretary Geithner concerns events that occurred while he

was President of the Federal Reserve Bank of New York. We agree that we will not seek any

testimony regarding his tenure at the Department of the Treasury."); Email from Ben Odell to

Andrew Stein (Sept. 7, 2011) (Odell Decl. Ex. F) ("First of all, we can confirm that we are only

seeking testimony from Sec. Geithner concerning his time as President of the Federal Reserve

Bank of New York. We are not seeking any information concerning his time at the Treasury

Department.")). Consistent with these representations, the five topics of requested testimony

only encompass information Secretary Geithner acquired while employed as President of the

FRBNY, and do not include any information related in any way to his tenure at Treasury.

As it is plain on the face of the Touhy regulations that they apply only to

information or materials "acquired as part of the performance of that employee's official duties or

official status," and the Committee has requested no such information from Secretary Geithner,

the Touhy regulations do not govern the Committee's subpoena. Equally clear is the fact that the

Touhy regulations do not apply to the Federal Reserve or any of its regional banks. See 31

C.F.R. 1.11(b)(3), (c) (setting out the "Department policy" for disclosure of information in


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legal proceedings and defining "Department" as "the United States Department of the Treasury").

For that reason, the Federal Reserve Bank of New York has interposed no Touhy objection to the

testimony of Secretary Geithner. Accordingly, the Committee's subpoena is subject only to the

standards for a subpoena of a non-party under Rule 45 of the Federal Rules of Civil Procedure,

as specifically applied to high-ranking government officials.

B. Legal Standards for Deposition of a High-Ranking Government OfficialUnder the Federal Rules of Civil Procedure, a party is entitled to obtain discovery

regarding any relevant, non-privileged matter. Fed. R. Civ. P. 26(b)(1) ("Parties may obtain

discovery regarding any nonprivileged matter that is relevant to any party's claim or defense. . . .

For good cause, the court may order discovery of any matter relevant to the subject matter

involved in the action."). Oral discovery via the deposition of a non-party witness is authorized

by Rules 30 and 45. Fed. R. Civ. P. 30(a)(1) ("A party may, by oral questions, depose any

person . . . . The deponent's attendance may be compelled by subpoena under Rule 45."). If a

non-party refuses to comply with a valid subpoena for deposition testimony, the court may issue

an order compelling compliance. Fed. R. Civ. P. 37(a)(3)(B) ("A party seeking discovery may

move for an order compelling an answer, designation, production, or inspection.").

The obligation to comply with a valid subpoena extends to all individuals, even

those who occupy important government positions. "No absolute rule precludes the deposition

of a high-ranking government official solely on the basis of the would-be deponent's status."

Payne v. Dist. of Columbia, CIV.A. No. 10-0679 RWR, 2011 WL 5228134, at *7 (D.D.C. Oct.

31, 2011) (ordering the deposition of the Mayor of the District of Columbia). Indeed, courts

have even ordered sitting Presidents of the United States to comply with discovery requests. See

Clinton v. Jones, 520 U.S. 681, 704-05 (1997) (observing that sitting Presidents have given

testimony at depositions, produced documents, and answered interrogatories, both voluntarily


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and pursuant to court orders); United States v. Fromme, 405 F. Supp. 578, 580-83 (E.D. Cal.

1975) (granting defendant's request to issue a subpoena for the deposition of the sitting President

of the United States).

"Courts have time and again allowed the deposition of current and former high-

ranking government officials upon a showing that the official has personal involvement or

knowledge relevant to the case." United States v. Sensient Colors, Inc., 649 F. Supp. 2d 309, 322

(D.N.J. 2009) (ordering deposition of former Environmental Protection Agency Regional

Administrator); see alsoEnergy Capital Corp. v. United States, 60 Fed. Cl. 315, 318 (2004)

(ordering deposition of the former Secretary of the United States Department of Housing and

Urban Development when he possessed "first-hand personal knowledge that no one else has").

In the District of Columbia, when a deposition is sought from a high-ranking

government official, such as the head of a Federal department or agency, "the deposition should

be allowed to proceed" if the official "possesses particular information necessary to the

development or maintenance of the party's case, which cannot be reasonably obtained by another

discovery mechanism." Am. Broad. Companies, Inc. v. U.S. Info. Agency, 599 F. Supp. 765, 769

(D.D.C. 1984) (internal quotation omitted) (authorizing the deposition of the Director of the

United States Information Agency); see also Willingham v. Ashcroft, 226 F.R.D. 57 (D.D.C.

2005) (ordering the deposition of the former Administrator of the Drug Enforcement

Administration). In determining whether the deposition of a high-ranking government official

should be allowed, "courts look to whether the official has some personal knowledge about the

matter and if the testimony will be relevant and material." Payne, 2011 WL 5228134, at *5

(internal quotation omitted). Additionally, "the party seeking the deposition must make a

showing that the information cannot be obtained elsewhere." Id.


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C. The Court Should Compel Secretary Geithner's DepositionThe Committee's request for the deposition of Secretary Geithner is the

quintessential example of a permissible deposition of a high-ranking government official. Each

topic in the requested testimony is both relevant and necessary to the Committee's adversary

proceeding against JPMorgan, does not encroach on any privilege, including the deliberative

process privilege, and is within his personal knowledge. Finally, the Committee's diligent

questioning of other government witnesses has conclusively shown there is no other source for

the requested information.

1. The Requested Testimony is Relevant, Necessary, and Non-PrivilegedFirst, the testimony sought from Secretary Geithner on topics 1, 3, 5(a), and 5(c)

is narrowly targeted to discover what JPMorgan represented contemporaneously to Secretary

Geithner about Lehman's collateral postings, the agreements between JPMorgan and Lehman,

and JPMorgan's use of its positional leverage in extracting those collateral postings and

agreements. In addition, this testimony will reveal what JPMorgan was told at the time

regarding the government's position toward Lehman. Any representations made by JPMorgan to

Secretary Geithner about the collateral postings and agreements with Lehman will bear on many

important issues, such as the purpose behind the collateral and agreements, what exposures they

were intended to secure, and what value, if any, JPMorgan believed it was giving up in

exchange.

For example, testimony from other FRBNY witnesses raises the possibility that

something Dimon said to Secretary Geithner on the September 11 calls cast doubt on the

reasonableness of JPMorgan's demand for $5 billion in cash collateral from Lehman that day.

(See Brickler Tr., Aug. 30, 2011, at 130:5-6, 132:15-18 ("A: Tim asked Chris McCurdy and I to

come up to his office after the call. . . . I think Mr. Geithner just wanted to -- our reactions and


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our opinions on whether they really -- whether they needed this collateral or not."); McCurdy

Tr., Dec. 9, 2011, at 117:8-19 ("A: Yes. Tim Geithner had learned that JPMorgan Chase had

requested 500 -- $5 billion in collateral from Lehman Brothers. I attended that meeting with

Lucinda Brickler, and I'm sure other people around the bank probably from the chief of staff's

office. . . . I know Lucinda and I went. And he passed along this information to us, and wanted

an assessment from us of whether -- why they were doing it, and was it reasonable.")). However,

none of these other witnesses were present during the phone calls themselves.

As another example, Steve Black, the former co-CEO of JPMorgan's investment

bank, testified that JPMorgan would have informed the Federal Reserve before it ceased

operating on a business-as-usual basis with Lehman. (Black Tr., Jan. 20, 2012, at 424:25-425:12

("Q. Okay. You mentioned that if JPMorgan were going to cease operating on a business-as-

usual basis with Lehman in any respect, that you would feel obligated to tell your regulators

that? A. I believe so. Absolutely we had an obligation to tell our regulators before we decided

what to do. Q. Which regulators did you have in mind? A. Well, we would have talked to the

Fed, for sure.")). Based on the timing of the conversations between Dimon and Secretary

Geithner on September 9 and 11, it is apparent that JPMorgan did in fact speak with Secretary

Geithner around the time JPMorgan made each collateral request that week. It is certainly

relevant and necessary to understand if Dimon indicated on these calls that JPMorgan was

"going to cease operating on a business-as-usual basis with Lehman" if Lehman did not provide

collateral to JPMorgan.

Second, the testimony requested on topics 2, 4, and 5(b) is narrowly targeted to

determine the extent to which there was a divergence between the market's belief about the

government's intentions and the government's actual expressed intentions regarding potential


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assistance to Lehman. Such testimony would bear on Lehman's financial state, by tending to

show that Lehman's publicly traded securities were overvalued as a result of a misperception

regarding the government's intentions, and would thus address a necessary element in the First

Amended Complaint's causes of action for constructive fraudulent conveyance. SeeStatutory

Comm. of Unsecured Creditors v. Motorola, Inc. (In re Iridium Operating LLC) , 373 B.R. 283,

344-53 (Bankr. S.D.N.Y. 2007).

Moreover, all five topics of requested testimony concern conversations Secretary

Geithner engaged in with persons outside the government, and do not encompass Secretary

Geithner's thought process or the reasoning behind inter-departmental decisions concerning

Lehman. As this Court explained inAmerican Broadcasting Companies, Inc. v. United States

Information Agency, the fact that the requested testimony is purely factual, and does not probe

into the reasoning or deliberation behind official decisions, favors authorization of the

deposition. 599 F. Supp. at 769. In that case, the court explained that this factor favored

allowing the deposition of the head of a federal agency:

[T]he plaintiffs are not seeking to depose [the agency head] regarding why his orhis agency's statutory discretion was exercised in a particular manner; neither areplaintiffs interested in [the agency head's] "deliberative thought processes."Plaintiffs simply seek to question [the agency head] with respect to facts that onlyhe can answer. [The agency head] is a crucial fact witness whose testimony isessential for the plaintiffs . . . .

Id. The testimony requested from Secretary Geithner is exclusively factual in nature, and

concerns conversations he personally engaged in on topics at the heart of this multi-billion dollar

litigation.

It is worth noting, moreover, that Secretary Geithner has already provided

information and testimony regarding the circumstances that led up to the bankruptcy of Lehman

Brothers in many other venues, including the United States Congress (seePublic Policy Issues


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Raised By the Report of the Lehman Bankruptcy Examiner: Hearing Before the H. Comm. on

Fin. Servs., 111th Cong. 13-15 (2010) (Statement of the Hon. Timothy F. Geithner, Secretary,

U.S. Dep't of the Treasury)), the Financial Crisis Inquiry Commission (see Financial Crisis

Inquiry Commission, Hearing on the Shadow Banking System, Session 2: Perspective on the

Shadow Banking System (May 6, 2010) (testimony of Timothy F. Geithner)), to the Examiner

appointed in the bankruptcy of Lehman Brothers Holdings Inc. (see Report of Anton R. Valukas,

Examiner,In re Lehman Brothers Holdings Inc., et al. , Case No. 08-13555 (JMP) (Bankr.

S.D.N.Y.), atApp'x 4 p. 9 (March 11, 2010) (listing Secretary Geithner as an individual

interviewed in the preparation of the Report)), and in interviews with media outlets such as CNN

(see Andy Serwer, Nina Easton & Allan Sloan, Geithner: "We Were Looking At the Abyss,"

CNN Money (Sept. 8, 2009))10 and MSNBC (see The Daily Rundown (MSNBC television

broadcast Sept. 15, 2010) (interviewing Secretary Geithner about the Lehman bankruptcy).11

Although Secretary Geithner has not yet provided testimony on the precise conversations sought

by the current subpoena, his willingness to discuss these issues publicly confirms that the general

subject matter is not privileged and the FRBNY does not have any particular interest in keeping

it concealed.12

Furthermore, all testimony in this litigation is subject to a Confidentiality

Stipulation and Protective Order. See Confidentiality Stipulation and Protective Order, Lehman

Bros. Holdings Inc. v. JPMorgan Chase Bank, N.A. (In re Lehman Bros. Holdings Inc., No. 10-

10 Available at http://money.cnn.com/2009/09/08/news/economy/geithner_lehman_bankruptcy.fortune/index.htm (last accessed Feb. 8, 2012).

11Available at http://www.hulu.com/watch/178252/the-obama-administration-geithner-

we-would-have-saved-lehman-if-we-could (last accessed Feb. 8, 2012).

12 The FRBNY has been aware of the Committee's interest in deposing SecretaryGeithner for the past five months and has neither objected nor sought to participate in meet andconfer discussions between the Committee and Treasury.


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03266(JMP) (Bankr. S.D.N.Y. filed May 26, 2010). Under this Order, certain information

including any testimony concerning non-public personal, confidential, commercially sensitive, or

proprietary information may be designated "Confidential" or "Highly Confidential" by the

producing party, and is then protected from public disclosure. Therefore, to the extent the

Treasury Department or FRBNY may be concerned about such information in Secretary

Geithner's testimony, it can designate those portions of his testimony as confidential.

2. The Requested Testimony is Within Secretary Geithner's PersonalKnowledge

Each of the five topics of requested testimony concerns communications made by

or to Secretary Geithner personally. Thus, the information sought is clearly with Secretary

Geithner's personal knowledge. Indeed, depositions of high-ranking government officials are

routinely granted when officials personally engaged in communications on topics that are

relevant to the litigation. SeePayne, 2011 WL 5228134, at *7-8 (ordering the deposition of the

Mayor of the District of Columbia on the subject of relevant conversations between the Mayor

and defendant);Byrd v. Dist. of Columbia, 259 F.R.D. 1, 3 (D.D.C. 2009) (finding that "even if

[the requested witnesses] were to be considered high-ranking officials, they would still be subject

to deposition" about relevant conversations the officials had with the plaintiff and third-parties);

see also Kob v. County of Marin, No. C 07-2211 JL, 2009 WL 3706820, at *4-5 (N.D. Cal. Nov.

3, 2009) (ordering the deposition of a high-ranking government official on the subject of relevant

meetings between the official and plaintiff); Pisani v. Westchester County Health Care Corp.,

No. 05 CIV.7113 (WCC), 2007 WL 107747, at *4 (S.D.N.Y. Jan. 16, 2007) (ordering the

deposition of a high-ranking government official on the subject of relevant conversations

between the official and defendant).


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Payne v. District of Columbia is particularly instructive. There, a former

employee in the office of the Chief Financial Officer ("CFO") of the District of Columbia filed

suit against the District and the CFO, alleging he was improperly terminated by the CFO in

retaliation for disclosing potential corruption related to the procurement of contracts for the D.C.

Lottery. 2011 WL 5228134 at *1. The plaintiff sought to depose the Mayor of the District of

Columbia about conversations the Mayor had with the CFO regarding the D.C. Lottery contracts

at issue. Id. In response, the District moved for a protective order to prevent the plaintiff from

taking the Mayor's deposition, arguing that the deposition would unduly burden a high-ranking

government official. Id. at *2. This Court denied the motion and ordered the Mayor's deposition

to proceed, since the Mayor had "personal knowledge about those conversations." Id. at *7-8.

Similarly, inByrd v. District of Columbia, former employees of the District of

Columbia Department of Parks and Recreation brought a sexual harassment suit against the

District. 259 F.R.D. at 3. The plaintiffs moved for leave to depose the District's Deputy Mayor

and the General Counsel of one of its agencies, on the subject of sexual harassment complaints

that they personally received from the plaintiffs and other individuals. Id. at 7. This Court found

that "even if [the two requested witnesses] were to be considered high-ranking officials, they

would still be subject to deposition because of their potential personal knowledge of the facts of

this case." Id. at 8.

Like the government officials in Payne andByrd, Secretary Geithner had

contemporaneous conversations concerning the exact subject matter at issue in this litigation.

Therefore, Secretary Geithner possesses personal knowledge about this matter.

3. There is No Other Means for the Committee to Obtain the RequestedTestimony


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Finally, there is no other means for the Committee to obtain the requested

testimony. As this Court explained when authorizing the deposition testimony of D.C. Mayor,

and former Council Chair, Vincent C. Gray:

Nor can Defendant District of Columbia fairly suggest that the informationPlaintiff seeks can be obtained from some other source. In theory, Plaintiff couldask other participants in the conversations among members of the Council andmembers of the executive branch what Council Chair Gray said; however, inreality, it is only Gray who can testify about his recollection of the conversations,and offer a non-hearsay account of what he said.

Payne, 2011 WL 5228134 at *7. Here, the information sought is within Secretary Geithner's

personal knowledge, and no other individual, even if they were present during the conversations

at issue, could testify about Secretary Geithner's own recollection. Furthermore, any such

testimony about what Secretary Geithner said during those conversations would be inadmissible

hearsay.

Nevertheless, the Committee has made every effort to obtain the information

sought in the requested testimony by other means, especially via the depositions of other

government witnesses. While these witnesses provided information to obviate Secretary

Geithner's testimony on a number of subjects, they also made clear that the five remaining topics

of requested testimony are exclusively within Secretary Geithner's knowledge.

In particular, the Committee has learned of no other government witness who was

present during Secretary Geithner's key phone calls with Dimon on September 9 and 11. (See,

e.g., Baxter Tr., Oct. 3, 2011, at 181:9-16 ("Q. Do you see there is an entry about the middle of

the page for September 9, 2008 at 1:35 p.m. with Jamie Dimon. Do you know what was

discussed on this call between Mr. Dimon and Mr. Geithner? A. I don't."); id. at 184:2-9 ("Q: . .

. According to this call log, does it show that Mr. Dimon had a conversation with Mr. Geithner at

7:59 5 p.m. and 8:11 p.m. on September 11th? A. I see that. Q. Do you know what was


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discussed on those conversations? A. I do not."); Brickler Tr., Aug. 31, 2011, 129:19-130:3 ("Q.

Who was the phone call with? A. The phone call was from JPMorgan Chase informing Tim

Geithner of a request that they had made to Lehman Brothers for $5 billion of -- of collateral that

they needed to assure their willingness to unwind repo the following morning. Q. Were you on

the call? A. I was not.")).

Likewise, no government witness has testified to being present during Secretary

Geithner's phone calls with Fuld during the week of September 8. (See, e.g.,Angulo Tr., Sept.

21, 2011, at 370:1-4 ("Q. Okay. Do you know whether or not Mr. Geithner spoke to Mr. Fuld on

September 9th? A. I don't know."); Baxter Tr., Oct. 3, 2011, at 183:10-14 ("Q. Let me just say,

do you know what was discussed on any of these conversations that Mr. Geithner had with Mr.

Fuld on September 9th? A. I don't."); Parkinson Tr., Aug. 31, 2011, at 275:8-14 ("Q Now, the

memo says Tim [Geithner] and [Chairman of the Securities and Exchange Commission

Christopher] Cox had been scheduled to call Fuld at 4:00. They moved it up to 11:30 a.m. to

convey the message that if it doesn't raise capital, Chapter 11 is the alternative except for the

U.S. broker-dealer. Do you know whether or not that message was delivered to Mr. Fuld? A

No."); Van Der Weide Tr., Oct. 4, 2011, at 133:16-19 ("Q: . . . Were you privy to any

discussions between government officials and Mr. Fuld at any point during the week preceding

Lehman's bankruptcy? A: I don't think so.")).

Nor have any lower-ranking government officials been identified as attending the

September 13 meeting between Dimon, Paulson, and Secretary Geithner. (See, e.g., Shafran Tr.,

Sept. 27, 2011, 302:24-303:5, 304:5-9 ("Q: Were you aware of the meeting described here

between Secretary Paulson, President Geithner, and Jamie Dimon? A. I knew -- I knew -- I did

not know the meeting was happening when it happened. . . . Q. Do you know if anyone other


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than Secretary Paulson and President Geithner participated in that meeting on the government's

side? A. I don't know."); see also Henry M. Paulson, Jr., On the Brink: Inside the Race to

Prevent the Collapse of the Global Financial System 200-01 (2010) ("Tim and I met privately

with Jamie Dimon. A number of CEOs had expressed concerns to us that he was using the crisis

to maneuver his bank into a stronger position. Indeed, some were convinced he wanted to put

them out of business entirely.")).

In its final letter to the Committee, Treasury claims that the testimony of

FRBNY General Counsel Thomas Baxter, the FRBNY's 30(b)(6) witness in the litigation, should

substitute for that of Secretary Geithner. (See Letter from Brian Sonfield to Erica Taggart (Feb.

10, 2012) (Odell Decl. Ex. K)). But Baxter testified that he was not himself present for many

important phone calls that appear on Secretary Geithner's telephone call log for that week,

including those with Dimon and Fuld:

I knew that I wasn't on all of these calls. Not only to Jamie Dimon and to RichardFuld, but to other people on this list. President Geithner was a person who wouldmake multiple phone calls, sometimes on his cell phone, and talk to peoplethroughout the crisis. And I was not on every single phone call he made, I wasrarely on the phone calls he made from his cell phone.

(Baxter Tr., Oct. 3, 2011, 181:24-182:10). Nonetheless, Treasury claims Baxter's testimony

"reflects the recollections of Secretary Geithner in regard to each of the subjects identified in the

request." (See Letter from Brian Sonfield to Erica Taggart (Feb. 10, 2012) (Odell Decl. Ex. K)).

In fact, all Baxter provided was a blanket denial that Secretary Geithner had any "specific

recollection" of any conversations at all with Dimon or Fuld during the week of September 8,

2008. (See Baxter Tr. 181:17-22 ("I asked now Secretary Geithner about whether he had a

recollection of specific conversations he had by telephone with Mr. Dimon and Mr. Fuld, and he

told me that he didn't have a specific recollection.")). A second-hand report disclaiming any


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"specific recollection" of the calls, even from a 30(b)(6) witness, is hardly a substitute for actual

deposition testimony. To the extent Secretary Geithner actually professes under oath that he has

no specific or general recollection of any such conversations, the Committee will be able to use

documents or testimony that could refresh Secretary Geithner's recollection and determine if he

truly does not remember anything at all about calls informing him that JPMorgan was demanding

over $8 billion dollars from Lehman mere days before it was forced to file the largest bankruptcy

in the history of the United States.

Treasury also emphasizes that the Committee "did not explore Mr. Baxter's

knowledge of Mr. Geithner's recollections in any significant way" during the second day of

Baxter's deposition. (See Letter from Brian Sonfield to Erica Taggart (Feb. 10, 2012) (Odell

Decl. Ex. K)). But any such questioning would have been fruitless, since Baxter had already

testified during his examination by JPMorgan, which occurred prior to the Committee's

opportunity to question him, that he had not even spoken with Secretary Geithner on these issues

since the first day of his deposition. (See Baxter Tr., Jan. 17, 2012, at 341:3-9 (Q. . . . Have you

discussed the Lehman situation with Secretary Geithner since your last deposition? A. Since my

deposition, I have not discussed Lehman with Secretary Geithner . . . .")).

In addition, Treasury claims in its final letter to the Committee that the

information requested from Secretary Geithner is available in the public record. (See Letter from

Brian Sonfield to Erica Taggart (Feb. 10, 2012) (Odell Decl. Ex. K)). In support, Treasury refers

specifically to Secretary Geithner's interview with the LBHI bankruptcy Examiner (which is not

actually available in the public record) and to testimony "on similar matters" given by Secretary

Geithner to the United States Congress and the Financial Crisis Inquiry Commission (the

"FCIC"). (Id.). But testimony "on similar matters" does nothing to address the specific,


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narrowly-crafted topics on which the Committee seeks Secretary Geithner's testimony. The

Committee has scoured thousands of pages of documents in the public record, including the

entire report by the LBHI bankruptcy Examiner, testimony by Secretary Geithner before

Congress and the FCIC, news articles and television programs in which Secretary Geithner was

interviewed, and books for which Secretary Geithner may have been a source, such as On the

Brinkby Henry Paulson and Too Big to Fail by Andrew Ross Sorkin. To the Committee's

knowledge, nothing in these documents describes the contents of the specific conversations and

meetings listed in the five topics of requested testimony. Nor has Treasury provided a citation to

any such information from anywhere in the public record. Even if it did exist, testimony given in

other fora, and certainly interviews provided to journalists, may not have the same evidentiary

value as a deposition taken in this litigation.

Finally, Treasury also claims that the upcoming depositions of Dimon and Fuld

"could yield much, if not all, of the information plaintiffs continue to seek." (Id.). But the

Committee cannot be restricted to only obtaining accounts from non-government participants in

these conversations, especially conversations in which the only other participant was the

Committee's very adversary in this litigation. SeePayne, 2011 WL 5228134 at *1, *7

(authorizing a party to depose a high-ranking government official regarding conversations

between the official and that party's adversary in the litigation); Pisani, 2007 WL 107747, at *4

(same).

Thus, testimony from other government witnesses makes clear that the Committee

has no means to obtain the requested testimony other than from Secretary Geithner himself.

Moreover, this information should not be proffered in a form other than oral deposition

testimony. As this Court previously explained when granting leave to depose government


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officials, a deposition is preferable to written interrogatories because "written testimonies may

not allow for the same in-depth probing that deposition testimony and examination can provide."

Byrd, 259 F.R.D.at 8.

Because the testimony requested by the Committee from Secretary Geithner is

narrowly-focused to encompass only relevant, necessary, non-privileged information within

Secretary Geithner's personal knowledge, and this information cannot be obtained from any other

source, Secretary Geithner's deposition on these topics should be authorized.

IV.

CONCLUSION

For the foregoing reasons, the Committee respectfully requests that the Court

issue an order compelling Timothy F. Geithner to appear for a deposition on or before March 16,

2012.13

[Remainder of Page Left Intentionally Blank]

13 The Committee offers to meet and confer with Secretary Geithner to select a date,time, and location for his deposition that are convenient for the witness.


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Dated: February 16, 2012

_______________________

Jon D. Corey (D.C. Bar # 491311)QUINN EMANUELURQUHART & SULLIVAN, LLP1299 Pennsylvania Avenue NW, Suite 825Washington, D.C. 20004(202) 538-8000

Erica P. TaggartQUINN EMANUELURQUHART & SULLIVAN, LLP865 South Figueroa Street, 10th Floor

Los Angeles, California 90017-2543(213) 443-3000

Andrew J. RossmanQUINN EMANUELURQUHART & SULLIVAN, LLP51 Madison Avenue, 22nd FloorNew York, New York 10010-1601(212) 849-7000

Counsel for Plaintiff, the Official Committee of Unsecured

Creditors of Lehman Brothers Holdings Inc.

Lehman's Motion to Compel Geithner Testimony

Documents