Complaint Counsel’s Motion for Leave to File Reply in Support of Complaint Counsel’s Motion For an Order That Respondent Has Waived Privilege

Transcript

1 PUBLIC UNITED STATES OF AMERICA TRADE COMMISSION BEFORE THE FEDERAL 03 07 2018 OFFICE OF ADMINISTRATIVE LAW JUDGES 589901 In the Matter of Docket No. 9374 INAL ' Louisiana Real Estate Appraisers Board, Respondent TO FILE REPLY IN SUPPORT OF COMPLAINT COUNSEL’S MOTION FOR LEAVE COMPLAINT COUNSEL’S MOTION FOR AN ORDER THAT RESPONDENT HAS WAIVED PRIVILEGE Pursuant to Rule 3.22(c) of the Commi ssion Rules of Practice, 16 C.F.R. § 3.22, leave to file the attached reply in support of Complaint Counsel respectfully move the Court for that Respondent Has Waived Privilege. Complaint Counsel’s Motion for an Order Respondent’s Opposition to the Motion, filed on March 6, 2018, alleges that Complaint Counsel made misrepresentations to Respondent’s Counsel. Complaint Counsel request that the Court grant leave to file the attached reply so that Complaint Counsel can answer these serious allegations. Respondent’s counsel has advised Complain t Counsel that Respondent has no objection to Complaint Counsel filing a Reply. Dated: March 7, 2018 Respectfully submitted, /s/ Lisa B. Kopchik Lisa B. Kopchik Kathleen M. Clair Christine M. Kennedy Michael J. Turner Counsel Supporting the Complaint 1

2 PUBLIC Federal Trade Commission Bureau of Competition 600 Pennsylvania Ave., N.W. Washington, DC 20580 Telephone: (202) 326-3139 Email: [email protected] 2

3 PUBLIC UNITED STATES OF AMERICA TRADE COMMISSION BEFORE THE FEDERAL OFFICE OF ADMINISTRATIVE LAW JUDGES _______________________________________ In the Matter of Louisiana Real Estate Apprais ers Board, Docket No. 9374 Respondent _______________________________________ [PROPOSED] ORDER on for leave to file its Reply in Support of Complaint Upon Complaint Counsel’s Moti ivilege, and Respondent having that Respondent Has Waived Pr Counsel’s Motion for an Order no objection thereto, it is hereby granted leave to file its Reply. ORDERED, that Complaint Counsel is ___________________________ D. Michael Chappell Chief Administrative Law Judge Date: __________, 2018

4 PUBLIC UNITED STATES OF AMERICA BEFORE THE FEDERAL TRADE COMMISSION OFFICE OF THE ADMINI STRATIVE LAW JUDGES In the Matter of Louisiana Real Estate Appraisers Board, Docket No. 9374 Respondent COMPLAINT COUNSEL’S REPLY BRIEF ON EXPEDITED MOTION FOR AN ORDER THAT RESPONDENT HAS WAIVED PRIVILEGE waiver of privilege, Respondent Louisiana In its response to our motion regarding its ounsel made misrepresentations Real Estate Appraisers Board has suggested that Complaint C that contributed to Respondent’s failure to act promptly to rectify the production of privileged 1 documents. Complaint Counsel disputes these allegations. Complaint Counsel does not wish to turn this motion into a finger-pointing exercise that will be of little assistance to the Court. We can advise the Court of the following: rney was involved in its initial document Respondent’s primary claim is that no atto 1. is is not an acceptable not to incur legal fees. Th production; Respondent preferred care in protecting from iled to exercise reasonable excuse. Respondent plainly fa mplaint Counsel played no role. disclosure any privileged documents. Co Setting aside the role of Res pondent’s initial counsel, and the reasons why she failed 2. ge, even Respondent’s replacement/current to act diligently to assert any privile counsel (Constantine Cannon) ha ve failed to act promptly. { 1 At the time of the Investigational Hearings, Complaint Counsel stated to Respondent’s Counsel that it is our practice not to provide a transcript of a witness’ Inve stigational Hearing testimony until and unless the Commission l dispute the allegations of misrepresentations. Further, issues a complaint. In all other respects, Complaint Counse Respondent’s affidavits are hearsay, and there has been no opportunity for cross-examination. The Court should disregard these affidavits.

5 PUBLIC } It took Respondent eleven months to take any steps to rectify the - ileged documents. This is too long. alleged inadvertent production of priv ed as Exhibit A, that was served on all The form Subpoena Ad Testificandum, attach 3. sses provides a link to the admi nistrative rules that are investigational hearing witne applicable to investigational hearings. Ru le 2.9(b)(2) gives counsel for the witness notice that she may raise objections: stigational hearing shall be stated Any objection during a deposition or inve concisely on the hearing record in a nonargumentative and nonsuggestive manner. rwise object or refuse to answer any Neither the witness nor counsel shall othe ination shall proceed and the testimony question. Following an objection, the exam ng the witness to divulge information shall be taken, except for testimony requiri . Counsel may instruct a witness not to protected by the claim of protected status answer only when necessary to preserve a claim of protected status. int Counsel denied witnesse Respondent claims that Compla 4. s an opportunity to review their investigational hearings. and correct the transcript of { } 5. Respondent was on notice – at the very la test –three months ago, that it produced privileged documents, when Complaint C ounsel cited disputed documents in our Motion for Partial Summary Judgment, da ted November 30, 2018. While we believe that Respondent had notice well before th en, even Respondent’s three month delay in 2

6 PUBLIC raising the privilege constitutes a failure to take “reasonable steps to rectify the error” in producing the document. e Court that it may deem useful for its We will provide any other materials to th consideration of our motion. Dated: March 7, 2018 Respectfully submitted, /s/ Lisa B. Kopchik Lisa B. Kopchik Kathleen M. Clair Christine M. Kennedy Michael J. Turner Counsel Supporting the Complaint Federal Trade Commission Bureau of Competition 600 Pennsylvania Ave., N.W. Washington, DC 20580 Telephone: (202) 326-3139 Email: [email protected] 3

7 PUBLIC EXHIBIT A

8 PUBLIC SUBPOENA AD TESTIFICANDUM "' • 11.,,,·, · ' - 1. TO 2. FROM UNITED STATES OF AMERICA FEDERAL TRADE COMMISSION 2a. MATTER NUMBER This subpoena requires you to appear and testify at the request of the Federal Trade Commission at a hearing [or deposition] in the proceeding described below (Item 6). 3. LOCATION OF HEARING YOUR APPEARANCE WILL BE BEFORE 4. DATE AND TIME OF HEARING OR DEPOSITION 5. 6. SUBJECT OF INVESTIGATION 8. 7. RECORDS CUSTODIAN/DEPUTY RECORDS CUSTODIAN COMMISSION COUNSEL DATE ISSUED COMMISSIONER'S SIGNATURE YOUR RIGHTS TO REGULATORY ENFORCEMENT INSTRUCTIONS AND NOTICES FAIRNESS The delivery of this subpoena to you by any method prescribed by the Commission's Rules of Practice is legal service and may subject you The FTC has a longstanding commitment to a fair regulatory to a penalty imposed by law for failure to comply. This subpoena enforcement environment. If you are a small business (under Small does not require approval by OMB under the Paperwork Reduction Business Administration standards), you have a right to contact the Act of 1980. Small Business Administration's National Ombudsman at 1-888- REGFAIR (1-888-734-3247) or www.sba.gov/ombudsman regarding the PETITION TO LIMIT OR QUASH fairness of the compliance and enforcement activities of the agency. You should understand, however, that the National Ombudsman cannot The Commission's Rules of Practice require that any petition to limit change, stop, or delay a federal agency enforcement action. or quash this subpoena be filed within 20 days after service, or, if the return date is less than 20 days after service, prior to the return date. The FTC strictly forbids retaliatory acts by its employees, and you will The original and twelve copies of the petition must be filed with the not be penalized for expressing a concern about these activities. Secretary of the Federal Trade Commission, and one copy should be sent to the Commission Counsel named in Item 8. TRAVEL EXPENSES Use the enclosed travel voucher to claim compensation to which you are entitled as a witness for the Commission. The completed travel voucher and this subpoena should be presented to Commission Counsel for payment. If you are permanently or temporarily living somewhere other than the address on this subpoena and it would require excessive travel for you to appear, you must get prior approval from Commission Counsel A copy of the Commission's Rules of Practice is available online at http://bit.ly/FTCsRulesofPractice. Paper copies are available upon request. FTC Form 68-A (rev. 11/17)

9 PUBLIC RETURN OF SERVICE I hereby certify that a duplicate original of the within subpoena was duly served: (check the method used) in person. r by registered mail. r by leaving copy at principal office or place of business, to wit: r on the person named herein on: (Month, day, and year) (Name of person making service) (Official title)

10 PUBLIC EXHIBIT B CONFIDENTIAL REDACTED IN ENTIRETY

11 PUBLIC EXHIBIT C CONFIDENTIAL REDACTED IN ENTIRETY

12 PUBLIC CERTIFICATE OF SERVICE iled the foregoing document electronically I hereby certify that on March 7, 2018, I f using the FTC’s E-Filing System and served the following via email: Donald S. Clark Secretary Federal Trade Commission 600 Pennsylvania Ave., NW, Rm. H-113 Washington, DC 20580 [email protected] The Honorable D. Michael Chappell Administrative Law Judge Federal Trade Commission 600 Pennsylvania Ave., NW, Rm. H-110 Washington, DC 20580 I also certify that I delive red via electronic mail a copy of the foregoing document to: W. Stephen Cannon Seth Greenstein Richard Levine James Kovacs Allison Sheedy Justin Fore Constantine Cannon LLP 1001 Pennsylvania Avenue, NW Suite 1300N Washington, DC 20004 [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] Counsel for Respondent Louisiana Real Estate Appraisers Board Dated: March 7, 2018 By: /s/ Lisa B. Kopchik Lisa B. Kopchik, Attorney

13 PUBLIC CERTIFICATE FOR ELECTRONIC FILING I certify that the electronic copy sent to the ission is a true and Secretary of the Comm al and that I possess a paper orig correct copy of the paper origin inal of the signed document that e parties and the adjudicator. is available for review by th By: Dated: March 7, 2018 /s/ Lisa B. Kopchik Lisa B. Kopchik, Attorney

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