Corrected Appendix

Case 1:13-cv-00465-MMS Document 50-1 Filed 06/02/14 Page 1 of 74
Fairholme Funds, Inc. et al. v. United States, No. 13-465C

Corrected Appendix To
Defendants Motion For Protective Order
dated May 30, 2014
INDEX TO CORRECTED APPENDIX
PAGE(S)
Declaration of Melvin L. Watt ...................................................................................................... A1
Declaration of Dr. Michael A. Stegman ....................................................................................... A8
Declaration of Christopher H. Dickerson ................................................................................... A20
Plaintiffs First Set of Requests for Production,
dated April 7, 2014 ......................................................................................................... A31
Defendants Response To Plaintiffs First Set of Requests for Production,
dated May 2, 2014........................................................................................................... A43
Fairholme Funds, Inc. and the Fairholme Funds Answer to Defendants First Interrogatory,
dated May 7, 2014........................................................................................................... A66
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
FAIRHOLME FUNDS, INC., et al.,
Plaintiffs,
THE UNITED STATES,
)
)
)
)
v.
No. 13-465C
(Judge Sweeney)
Defendant.
)
DECLARATIO~
OF MELVIN L1 W,ATT
I, Melvin L. Watt, hereby declare, based on personal knowledge and/or information and
belief as follows:
1.
I am Director of the Federal Housing Finance Agency ("FHFA" or the
"Conservator") and assumed office on January 6, 2014. Prior to assuming office as Director, 1
served as an elected Member of the United States House of Representatives from January 1993
until January 2014.
2.
FHFA is an independent federal agency with regulatory authority over the Federal
National Mortgage Association ("Fannie Mae"), the Federal Home Loan Mortgage Corporation
("Freddie Mac") (together, the ''Enterprises") and the 12 Federal Home.Loan Banks. Congress
created FHFA in July 2008 in response to the housing and economic crisis with the goal of
stabilizing the Enterprises and the national housing market. FHPA has served as the Conservator
of the Enterprises since September 6, 2008.
3.
I have reviewed Plaintiffs' Requests for Production. I have also reviewed the
Declaration of Christopher H. Dickerson that will be contemporaneously filed in this case, and I
share the concerns expressed about the potential disclosure ofpredecisional documents plaintiffs
seek relating to ongoing and future operations of the conservatorships. The purpose of this
A1
declaration is to set forth some of the significant ways in which Plaintiffs' discovery requests
pursuant to the Court's February 26, 2014 Order would adversely impact the ability ofFHFA to
exercise its powers and functions as Conservator and adversely impact the financial markets.
The disclosure of the information requested will have extraordinarily deleterious consequences
on the Conservator's conduct of the ongoing and future operations of the conservatorships.
4.
In my role as Director, I am responsible for making policy decisions on behalf of
the Agency. As such, I am frequently involved in confidential internal deliberations regarding a

wide range of policy matters relating to the management, supervision, operation and function of
the Enterprises, These deliberations, which frequently concern how the conservatorships should
proceed on a wjde variety of fronts, embody issues at the heart of the Conservator's
congressionally-defined missions.
5.
I am aware that Plaintiffs' claims and allegations in this case challenge the 1:hird
Amendment to the Preferred Senior Stock Agreements ("PSP As'') between FHF A. on behalf of
the Enterprises, and the U.S. Department of the Treasury. I am also aware of this Court's
February 26, 2014 Discovery Order, and that on April 7, 2014 Plaintiffs served their First Set of
Requests for Production.
6.
Plaintiffs' discovery plan -- through document requests, interrogatories and
deposing Agency officials -- seeks to obtain confidential, non-public infonnation concerning a

range of critical issues such as potential courses of action regarding the furore of the
conservatorships that relate directly to the Conservator's ongoing mission. Specifically,
Plaintiffs' document requests 1 [to the extent it seeks documents relating to ongoing and future
operations of the Enterprises], 6, 7, 8, 9 and 10 each seeks information that relates to ongoing or
future conservatorship operations. The disclosure of such information, including information
A2
relating to or considered in collllection with past conservatorship decisions or relevant to the

Conservator's conduct of the ongoing and future operations of the conservatorshlps, will affect
the exercise of powers or functions of the Conservator in a number of ways,
7.
The Conservator is charged with directing the largest conservatorships in U.S.
history in support of the Nation's multi-trillion dollar mortgage finance system. The disclosure
of any plans relating to ongo:ing and future operation of the conservatorships, including the
projections of the future profitability of Fannie Mae and Freddie Mac (or lack thereof) under a
range of economic, business and policy scenarios, can be anticipated to have a destabilizing
effect on the Nation's housing market and economy.
8.
The Enterprises provide critical liquidity to the national housing finance system.
To discharge their missions, the Enterprises purchase residential mortgages originated by banks
and other qualified lenders, which in turn use the proceeds from those sales to engage in further
lending to homebuyers in the primary mortgage market. To finance their purchases of residential
mortgages, the Enterprises borrow funds from investors by issuing debt securities, and they also
bundle the mortgages into mortgage:backed securities that are in turn sold to investors. The
prices at which the Enterprises can sell their debt securities and mortgage-backed securities to
such investors are directly related to market perceptions of the Enterprises' financial viability, If
the market perception is that the Enterprises are not financially viable, they will have greater
difficulty selling their debt and mortgage-backed securities, leading to lower proceeds from such
sales. As less capital becomes available to the Enterprises for their future operations, the
Enterprises become less able to purchase mortgages from loan originators. That effect would in
turn result in higher mortgage rates, reduced loan availability for homebuyers in the primary
A3
market, or both, as loan originators find it more difficult to generate capital for further lending
and reduce portfolio risk by re-selling their loans in the secondary market.
9.
The disclosure of forward-looking, non-public financial projectioi:is could
immediately alter market expectations and have a destabilizing impact on the housing market in
both the short and long tenn. For example, disclosure of projections that suggested (or that
market participants interpreted as suggesting) that the Enterprises' financial conditions were
worse than previously assumed could, through the mechanism outlined above, increase current
prices in the primary and secondary mortgage mar~ets. Conversely, disclosure of projections
that tended to suggest that the Enterprises' financial viability were enhanced relative to current
market expectations could also impact the sales of the Enterprises' debt and mortgage-backed
securities, and hence the rates available in the primary and secondary markets. In either case,
disclosure of forward-looking, non-public information could result in an array of consequences
such as sharp spikes or declines in the cost of obtaining credit for borrowers and large shifts in
the demand for mortgage-backed securities. This result would undermine FHFA's ability to
direct the conservatorships and detract from Congress's goal of maintaining stability in the
federal housing markets. In sum, making available potentially market-moving information
regarding projections of future profitability (responsive to document request 1) of the
Enterprises, as well as how the oonservatorships may end (responsive to document requests 6, 7,
8, 9 and 10), easily could set off a chain of volatile and unpredictable reactions in the financial
markets that could not be contained.
1O.
The intention of the PSPAs was to instill market confidence in the Enterprises.
Disclosure of confidential infonnation relating to ongoing and future operations of the

conservatorships, which was for internal use by FHFA, and not intended for public disclosure
A4
and consumption, would directly undennine that goal and could induce precisely the market
instability that FHFA was created to prevent.
11.
Making available in this litigation the type of non-public and confidential
information relating to the Conservator's conduct of the ongoing and future operations of the
conservatorships could also adversely affect the Conservator's ability to operate the
conservatorships because it would enable the Enterprises to gain access to confidential internal
FHFA documents that were not intended to be shared with or reviewed by the Enterprises. It is
essential for the Conservator to be able to restrict access to confidential agency docwnents that
reflect internal policy deliberations, the disclosure of which would affect the Conservator's
ability to direct the ongoing and future operations and activities of the Enterprises. A contrary
result would greatly restrain the unfettered ability Congress conferred upon the Conservator to
continue to develop and implement the most effective policy solutions for the wide array of
operational and other challenges confronting the Enterprises.
12.
Disclosure of documents relating to the future of the Enterprises, such as
documents responsive to document requests 6 and 8 pertaining to a possible future wind down
and termination of the conservatorships, could also severely affect employee stability at Fannie
Mae and Freddie Mac, thereby compromising critical policy matters regarding the
conservatorships. Between late 2011 and early 2012, voluntary departures from Freddie Mac
reached 17% in the wake of different proposals to alter its compensation system. Disclosure of
confidential information about the Enterprises' futures could lead to equivalent, or greater,
departure levels.
13.
Disclosure of information sought by Plaintiffs concerning a wide range of
operational and other issues about which final decisions have not yet been made or implemented
A5
fully, such as documents responsive to requests 8 and 10, would mislead the public and
adversely affect market participants by disseminating raw data and information suggesting
courses of action that may later be rejected or significantly altered. This would be extremely
damaging because of the critical policy matters regarding the conservatorships currently under
examination and evaluation. The release of documents that reflect prior thinking of Agency
personnel concerning matters about which the Agency may follow a different course during my
tenure as Director are likely to lead to the public and market participants second-guessing every
decision, and will make any changes to Agency policy more difficult at both the deliberation and
implementation stages. Thus, the disclosure of such documents and information would
substantially impair my ability to direct the operations of the conservatorships in the manner I
believe to be in the best interests of the conservatorships and the Agency. Accordingly,
disclosure of deliberations of my immediate predecessor and during my tenure could have
adverse impact to the Enterprises and market consequences.
14.
In summary, any disclosure of information concerning the Conservator's future
financial projections, strategic analyses, operational plans, and a broad range ofrelated
information responsive to requests 1,. 6, 7, 8, 9 and 10 that relate to the Conservator's conduct of
the ongoing and future operations of the conservatorships would affect the Conservator's ability
to direct the Enterprises. Likewise, the potential negative impact on the Enterprises' financial
health from disclosure of such confidential , nonpublic information would undermine the
Conservator's ability to conserve and preserve the assets and property of the Enterprises and
maintain stability in the housing finance market.
A6
I declare under penalty of perjury under the laws of the United States of America that the
foregoing is true and correct.
A7
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Plaintiffs,
v.
THE UNITED STATES,
Defendant.
No. 13~465C
(Judge Sweeney)
DECLARATION OF DR. MICHAEL A. STEGMAN
I, Dr. Michael A. Stegman, declare as follows:

1.
I am Counselor to the Treasury Secretary for Housing Finance Policy. I have held
this position.at the U.S. Department of the Treasury ("Treasury") since January 3, 2012. I am
responsible for coordinating Treasury's activities relating to the development of housing finance
policy, and for assisting in the implementation of Treasury's housing programs. I chair a
steering committee composed of the senior Treasury participants in these areas. I coordinate
Tl'easury's work in these areas with other agencies and offices within the Executive Branch, in
particular with the Department of Housing and Urban Development ("HUD"), the National
Economic Council, and the Domestic Policy Council. I am also responsible for coordinating
TreasUl'y' s internal and external communications on housing finance reform. In my position at
Treasury, I have been substantively engaged in housing policy and housing finance reform.
2.
Pdor to joining Treasury, I served as Director of Policy and Housing for the
Program on Human and Community Development at the John D. and Catherine T. MacArthur
Foundation. Prior to joining the Foundation, I was the MacRac Professor of Public Policy,
Planning, and Business at the University of North Carolina at Chapel Hill, Chairman of the
Department of Public Policy, and founding director of the Center for Community Capitalism.
AS
have served as a consultant to Treasury, the Community Development Financial Institutions

Fund, and the U.S. General Accounting Office (now named the Government Accountability
Office). From 1993-1997, I served as the Assistant Secretary for Policy Development and
Research at HUD.
3.
The statements contained in this declaration are made to the best of my
knowledge and belief, and are based upon my personal knowledge and information made
available to me in the course of performing my official duties.
4.
Pursuant to Treasury Order 101-05, "the Under Secretaries ... are authorized to
perform any functions the Secretary is authorized to perform ...." In a memorandum dated May
29, 2014, the Deputy Secretary of the Treasury delegated to me for the purposes of this litigation,
the authority to invoke the deliberative process privilege. I therefore possess delegated authority
to assert the deliberative process privilege on behalf of Treasury with respect to documents and
information subject to discovery requests in this lawsuit. A true and correct copy of the
memorandum is attached hereto as Exhibit A.
5.
I have reviewed a subset of the documents that could be covered by the vague,
broad, and ambiguous requests for production, and it is clear a number of plaintiffs' document
requests involve solely the production of pre-decisional and deliberative materials. Treasury
invokes the deliberative process privilege for documents responsive to Requests for Production
Nos. 1, 6, 7, 8, 9, and 10.
6.
A court order requiring such documents be disclosed would immediately have a
chilling effect on the exchange of opinions and ideas between Treasury staff and senior officials
as well as between Treasury officials and officials tmd staff from other government agencies.
The purpose of this declaration is to describe some of the important ways in which the discovery
A9
sought by plaintiffs will have an adverse effect on Treasury's ability to develop policy and will
impede Treasury's ability to help bring about comprehensive reform of the housing finance
system.
Treasury's Role in the GSE Rescue
7.
Treasury is the executive agency that acts as the steward of the U.S. economy.
Maintaining a strong economy and creating economic and job opportunities by promoting
conditions that enable economic growth and stability at home and abroad are part of Treasury's
mission.
8.
Throughout the first half of 2008, Federal National Mortgage Association
("Fannie Mae") and the Federal Home Loan Mortgage Corporation ("Freddie Mac")
(collectively, "OSEs") suffered multi-billion dollar losses on their mortgage portfolios and
guarantees. By late summer 2008, the GSEs faced severe capital shortfalls, and investors
questioned their ability to raise capital to offset credit and market losses.
9.
On September 6, 2008, the Federal Housing Finance Agency ("FHFA"), as the
regulator of the GS Es, exercised the power that Congress had granted to it in the Housing and
Economic Recovery Act of2008 ("HERA") to place the OSEs into conservatorship. FHFA, as
conservator, then entered into senior prefen'ed stock purchase agreements ("PSP As") with
Treasury whereby Treasury committed taxpayer funds to the GSEs in exchange for senior
preferred stock and additional economic rights.
10.
Initially, Treasury's commitment was capped at $100 billion for each GSE. In
May 2009 and December 2009, FHFA, as conservator, and Treasury amended the PSPAs to
increase Treasury's commitment for each GSE due to the unprecedented losses the GSEs
suffered.
A10
11.
These losses resulted in the GSEs drawing over $187 billion from Treasury to
prevent mandatory receivership-approximately $116.1 billion for Fannie Mae and $71.3 billion
for Freddie Mac. As of December 31 . 2012, the remaining funding available from Treasury
became fixed at approximately $117.6 billion for Fannie Mae and $140.5 billion for Freddie
Mac.
12.
On August 17, 2012, FHF A, as conservator, and Treasury agreed to modify the
terms of the PSP As, in light of the cap that was set to go into effect at the end of 2012. That
amendment (the "Third Amendment") made several changes to the original agreements to reduce
the risk profile of the GS Es, and, by extension, the risk of future losses that the taxpayers faced.
13.
Today, the GSEs remain in conservatorship and their future has not been
determined. It is impossible to predict when or how such final decisions will be made. Treasury
believes that the end to the conservatorships will involve Congressional action.
Treasury's Efforts Toward Housing Finance Reform
14.
Treasury has been actively engaged in efforts aimed toward achieving
comprehensive housing finance reform. The flawed system of housing finance that contributed
to the financial crisis is still substantially in place. The current system continues to put the
taxpayer at risk, and we believe that now is the time to reform the system.
15.
To further this goal, senior Treasury officials and staff have been continuously
deliberating among themselves and with officials and staff from other government agencies to
develop policies for reforming the existing Fannie Mae and Freddie Mac-centered housing
finance system since 2010. Senior Treasury officials and staff have been engaging with their
counterparts at other government agencies to discuss
~md
further develop policy proposals. For
example, Treasury engaged in extensive discussions to prepare the report to Congress, titled
A11
"Reforming America's Housing Finance Market A Report to Congress." This work marked the
beginning of a multi-year policy development process that is ongoing.
16.
It is cunently anticipated that Congressional action will establish the framework
of the housing finance system going forward. Treasury has worked closely with Congressional
staff during the process of drafting bipartisan legislative proposals for housing finance refo1111.
Senior Treasury officials have provided assistance to the Senate Banking Committee and other
Congressional staff regarding some of the more complex technical issues surrounding housing
finance reform.
17.
We believe that this productive engagement is critical to putting in place a
permanent, durable housing finance system. Our intensive efforts to formulate policy in support
of effective housing finance reform have been ongoing since 2010.
18,
I am aware of the Court's order dated February 26, 2014, where this Court
authorized Plaintiff to take discovery regarding: (1) Fannie and Freddie's solvency and the
expectations about the future profitability of Fannie Mae and Freddie Mac at the time of the
appointment of a conservator in September 2008; (2) whether FHFA "acted at the direct behest"
of Treasury in executing the August 2012 Third Amendment to the PSP As; and (3) the
Government's current assessment of the foture profitability of Fannie Mae and Freddie Mac and
when and how the conservatorships will end.
19.
I have reviewed the plaintiffs' first set of document requests dated April 7, 2014.
The requests demonstrate that the plaintiffs intend to seek extensive discovery on topics that
extend far beyond the scope of the plaintiffs' claims related to the Third Amendment. Many of
plaintiffs' requests seek material at the heart of the current and ongoing policy deliberations
regarding housing finance reform.
A12
20.
Request No. 1 seeks "[a]ny and all projections, from the time Defendant began
considering whether to place the Companies into conservatorship to the present, including any
models relating to those projections ... " My understanding is that the documents that might be
covered by the above request include spreadsheets, models, emails, presentations (including
drafts), memoranda (including drafts), and assessments reflecting Treasury's ongoing, internal
evaluations and assessments of the GSEs' financial condition. I have reviewed certain
documents covered by this request, and have determined that the documents I have reviewed and others that are expected to be covered by the request - reflect Treasury discussions and
deliberations. Many of the documents sought by this request are preliminary, interim, and/or
non-final.
21.
Request Nos. 6, 7, 8, and 9 seek documents relating to agency deliberations and
the formulation of policy on the future framework of the housing finance system. Specifically,
these requests seek:
a. any and all documents relating to the standards for determining when,
whether, and how to terminate the conservatorships ... including but not
limited to documents relating to Treasury's authority to prevent termination of
the conservatorships by withholding consent to termination of the
conservatorships (Request No. 6);
b. any and all docume.nts relating to Defendant's commitment to ensure that
existing equity holders will not have access to positive earnings from the
GSEs, including the development of this policy and actions taken pursuant to
this policy (Request No. 7);
c. any and all documents relating to Defendant's policies to reduce the [GSEs}
role in the mortgage market and to wind the [GSEs] down, including
development of those policies and actions taken pmsuant to those policies
(Request No. 8);
d. any and all documents reflecting co1n1mmications between FHFA and/or
Treasury, on the one hand, and the Companies' board members and
executives, on the other hand, relating to termination of the conservatorships
(Request No. 9).
6
A13
My understanding is that the documents that might be covered by these requests include emails,
presentations (including drafts), memoranda (including drafts), assessments, recommendations,
and questions and answers prepared for senior officials (including drafts). I have reviewed
certain documents covered by this request, and have determined that the documents I have
reviewed - and others that are expected to be covered by the request - reflect Treastuy
discussions and deliberations. Preliminary opinions, recommendations, and analyses in these
documents may or may not have been taken into account in developing, or formed the bases for,
any of the policies or activities described in these requests. Moreover, documents related to the
"development" of those policies are inherently pre-decisional. It is currently anticipated that
Congressional action will establish the framework of the housing finance system going forward.
Thus, final decisions regarding when, whether, and how the conservatorships will be terminated
have not been made. In addition, it is impossible to predict when or how such final decisions
will be made. Consequently, documents responsive to Request Nos. 6, 7, 8, and 9 would reflect
pre-decisional deliberations central to the policy-making process and the considerations made by
Treasury officials and staff in connection with these deliberations.
22.
Request No. 10 seeks "[a]ny and all documents relating to Defendant's
expectation that the [GSEs] will not continue as they existed before the conservatorships." My
understanding is that the documents that might be covered by these requests include emails .
presentations (including drafts), memoranda (including drafts), assessments, recommendations,
and questions and answers prepared for senior officials (including drafts). I have reviewed
certain documents covered by this request, and have determined that the documents I have
reviewed - and others that are expected to be covered by the request - reflect Treasury
discussions and deliberations. Preliminary opinions, recommendations, and analyses in these
A14
documents may or may not have been taken into account in developing, or formed the bases for,
any of the objectives or strategies that Treasury subsequently adopted. Because, in Treasury's
view, the future of the conservatorships will involve Congressional action (and thus is uncertain),
discussions have evolved and continue to evolve in response to political and economic
developments. For example, over the last several weeks, expectations regarding the future of the
GSEs have changed frequently as the Senate Banking Committee has been considering and
voting on draft legislation. Further, any expressions of expectations contained in responsive
documents do not necessarily represent the expectations of the U.S. government or of Treasury.
23.
If Treasury personnel are told that their deliberations will become public instead
of only their final policy decisions, they are unlikely to feel at liberty to offer their opinions.
Relatedly, if Treasury personnel are told that they cannot put their ideas, suggestions, opinions,
and recommendations in writing without those writings being disclosed, it will immediately
become difficult to fully develop policies and strategies.
24.
Indeed, because policy efforts in the area of housing finance reform are ongoing,
the documents covered by these requests continue to be created as an ongoing matter. If other
agencies feel that they cannot share information with Treasury without it being subject to
disclosure in the future, they may cease communicating freely with Treasury.
25.
As described above, the near-constant work on housing finance refonn over the
last several years has created a huge volume of documents that are covered by plaintiffs'
requests. Based on the documents that I have reviewed and my reading of the plaintiffs'
discovery requests, I am confident tlmt many of the documents requested by plaintiffa contain the
type of pre-decisional and deliberative information described above.
A15
26.
Moreover, discovery on these topics is also likely to impede the productive
engagement that Treasury staff has had with Congress as it seeks to bring about a legislative
solution. This policy-making process will be at risk if Congressional members and their staff no
longer foel that they can communicate freely with Treasury.
27.
Apart from calling for documents that are necessarily deliberative and pre-
decisional in nature, Request Nos. 1, 6, 7, 8, 9 and I 0 all seek disclosure of information that has
the potential to afiect the U.S. markets and, by extension, the U.S. economy, in a number of
ways.
28.
Disclosure of deliberations has the potential to result in significant
misunderstanding, disruption, and confusion in the markets. The policy decision-making process
is iterative. It involves evaluation, testing, and re-testing of ideas, options, and strategies. Often
early hypotheses, strategies, suggestions, and ideas prove to be not workable for any number of
reasons. Being required to produce deliberative materials that reflect such discarded
assumptions and ideas could misinform the public and result in unintended market consequences.
Such information has the potential to influence public perception of the OSEs, which could, in
turn, affect mortgage interest rates for home purchasers, and the market values of mortgagebacked securities and GSE debt securities held by investors.
29.
In addition, disclosure of views or opinions of individual Treasury officials may
suggest rationales for Treasury's policies and decisions that may or may not have been relied
upon as the basis for final policy positions and decisions. Requiring premature disclosure of
proposed policies could also cause confusion by leading the public to believe that a certain
policy has been adopted or will be adopted when, in fact, it might not be adopted at all.
A16
30.
The risk associated with being required to disclose pre-decisional, deliberative
documents is especially acute in this context, because housing finance reform is subject to
immense public interest and scrutiny. Requiring disclosure of the details of this evolving policy
making process before any final decisions have been made will have a profound negative impact
on Treasury's ability to engage in ongoing policy deliberations. As Treasury continues its efforts
to help bring about comprehensive reform of the housing finance system, it is critical that we
preserve the ability to have robust discussions in which we are able to explore sensitive and
important policy decisions from multiple angles.
I declare under penalty of perjury that the foregoing is true and correct. Executed
on May 29, 2014, in Washington, DC.
rn
A17
Exhibit A
A18
DEPARTMENT OF THE TREASURY

WASHINGTON, D.C. 20220
May 29, 2014
MEMORANDUM FOR MICHAEL STEGMAN, COUNSELOR TO THE TREASURY

SECRETARY FOR HOUSING FINANCE POLICY
FROM:
SUB,JECT:
Sarah Bloom Raskin <.}j,Jl;fa.-~"

Deputy Secretary of the Treasury
Delegation of Authority to Invoke the Deliberative Process Privilege:
Fairho!me Funds, Inc. v. United Statr;s
This memorandum delegates my authority to invoke the deliberative process privilege to the
Counselor to the Treasury Secretary for Housing Finance Policy with respect to documents and
information at issue in Fairho/me Funds, Inc. v. United States, No. 13-465C (Fed. Cl.).
The Counselor to the Treasury Secretary for Housing Finance Policy may exercise this delegated
authotity with respect to agency records or information that are predecisional and deliberative,
including advisory opinions, recommendations, and deliberations that comprise part of the
process by which Treasury Department decisions and policies are formulated, when he
determines that the release of such records would cause unacceptable haim to that process.
This authority may not be re-delegated.
A19
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Plaintiffs,
v.
THE UNITED STATES,
Defendant.
DECLARATIO~
No. 13-465C
(Judge Sweeney)
QF ~HRISTOPH~ll II DIC~RO~
I, Christopher H. Dickerson, hereby declare, based on personal knowledge of the facts, as

follows:
1,
I am the Senior Associate Director, Division of Enterprise Regulation at the
Federal Housing Finance Agency ("Ff:IFA"). Previously, I was Deputy Director, Division of
Enterprise Regulation at FHPA. FHFA is an independent federal agency with regulatory
authority over the Federal National Mortgage Association ("Fannie Mae"), the Federal Home
Loan Mortgage Corporation ("Freddie Mac") (together, the "Enterprises") and the Federal Home
Loan Banks.
2.
For the purposes of this litigation, I have been delegated the authority by FHPA
Director Melvin L. Watt to invoke the deliberative process privilege. I therefore possess
delegated authority to assert the deliberative process privilege on behalf of FHP A with respect to
documents and information subject to discovery requests in this lawsuit. A true and correct copy
of the delegation memorandum is attached hereto as Exhibit A.
3.
As Senior Associate Director, Division of Enterprise Regulation, I am involved in
confidential internal deliberations regarding operational, policy and regulatory matters relating to
A20
the supervision of the Enterprises. These deliberations concern the operation and the future of
the conservatorships and reflect judgments and decisions that Congress has entrusted to FHFA.
4.
The purpose of this declaration is to set forth some of the significant ways in
which Plaintiffs' discovery requests pursuant to the Court's February 26, 2014 order authorizing
discovery into the Conservator's conduct of the ongoing and future operations of Fannie Mae
and Freddie Mac, including discovery into FHFA's "assessment of [their] future profitability"
and to "answer the question as to when, and how, the conservatorship will end," necessarily
require the production of pre-decisional and deliberative documents from FHFA and will
adversely impact the financial markets.
5.
On September 6, 2008, FHFA's Director appointed FHFA as Conservator of the
Enterprises. Among the broad goals of the conservatorships are to help restore confidence in the
Enterprises and avoid the systemic risk that can directly destabilize the national housing finance
market. As Conservator, FHFA focuses on improving the Enterprises' operational efficiency
and effectiveness, promoting and maintaining foreclosure prevention efforts and credit
availability for new and refinanced mortgages and building infrastructure for future mortgage
finance markets. The strategic plan for the conservatorships issued on May 13, 2014 describes
the broad-range of issues on which the Conservator is focusing its direction of the Enterprises.
To achieve the policy goals discussed above, Congress provided FHFA with a broad array of
tools and authorities to enable the Conservator to take the steps it detennines are necessary to
carry out its functions.
6.
FHFA is a small government Agency, with approximately six hundred employees,
only a portion of whom work on issues relating to the conservatorships. The Enterprises, with
assets in excess of$5 trillion and a combined 12,000 employees, are among the largest financial
A21
institutions in the world. Because resources are limited, it is important that Agency personnel be
able to execute the critical missions of the conservatorships insulated from interference of
outside parties. In fact, Congress provided that the Conservator is statutorily immune from
direction and supervision of any other federal agency and from State intrusions. Nor may any
court take any action to restrain or affect tlie exercise of the Conservator's powers and functions.
Finally, any rights of shareholders, officers, and the board of directors have been expressly given
by Congress to the Conservator so that various stakeholders may not impede the Conservator's
functions or operations.
7.
As permitted by the Housing and Economic Recovery Act of2008 ("HERA"), on
September 7, 2008, FHFA, as Conservator of the Enterprises, entered into two materially
identical Senior Preferred Stock Purchase Agreements (''PSPAs") with the Department of
Treasury--one fur Fannie Mae and one for Freddie Mac. The purpose of the PSPAs was to
ensure that the net worth of each Enterprise was not negative, thereby avoiding mandatory
statutory receivership. The Conservator is authorized to draw on the Preferred Stock
Agreements at the end of each fiscal quarter to niake up any deficiency in either Enterprise's net
worth that otherwise would mandate the placement of such Enterprise into receivership. To date,
the Conservator has drawn on behalf of the Enterprises over $187 billion from Treasury---$116.1
billion for Fannie Mae, and $71.3 billion for Freddie Mac. As of December 31, 2012, the
remaining funding available from Treasury became fixed at $117.6 billion for Fannie Mae and
$140.5 billion for Freddie Mac.
8.
To preserve and conserve this fixed remaining funding, FHFA and Treasury
executed a Third Amendment to the PSPAs that added a quarterly variable dividend in the
A22
amount of each Enterprise's net worth to replace the Periodic Commitment Fee and fixed 10%
dividend,
9,
I am aware that Plaintiffs' claims and allegations in this case challenge the Third
Amendment to the PSPAs.

10.
On February 26, 2014, this Court authorized Plaintiff to take discovery regarding:
(1) the Government's assessment of the future profitability of Fannie Mae and Freddie Mac at
the time of the appointment of a conservator in September 2008; (2) whether FHFA "acted at the
direct behest" of Treasury in executing the August 2012 Third Amendment to the PSPAs; and
(3) the Government's current assessment of the future profitability of Fannie Mae and Freddie
Mac and when and how the conservatorships will end.
11.
I have reviewed the First Set of Requests for Production that Plaintiffs served on
April 7, 2014. A number of Plaintiffii' document requests will involve solely the production of
pre-decisional and deliberative material. Pursuant to the Director's delegation, FHFA hereby
invokes the deliberative process privilege for documents responsive to Requests for Production
No's. 1 (to the extent it seeks documents relating to ongoing and future operations of the
Enterprises) 6, 7, 8, 9 and 10.
12.
Several of the subcategories of documents included within Plaintiffs' First
Request will contain information that relates to the ongoing and future operations of the
Enterprises. For example, Request for Production 1(i) requests "all documents relating to the
impact that guarantee fee increases would have on the Companies' revenues." Documents
responsive to this request include analyses and projections that underlie Agency deliberations
and are necessarily pre-decisional. Likewise, Request 1(d) calls for ')Jrojections prepared by the
Companies and the assumptions, models, data, and analyses relating to those evaluations" and
A23
would include forward-looking, deliberative and non-public information. As we discuss below,

disclosure ofhon-public, confidential, pre-decisional pricing documents will impede the ability
ofFHFA to operate and supervise the Enterprises.
13.
In Plaintiffs' own words, Requests for Production No's 6-10 seek infonnation
"Relating to Termination ofConservatorships," a category of materials that will necessarily

involve the ongoing and future operations of the Enterprises. For example, Request for
Production No. 6 calls for "all documents relating to the standards fur determining when,
whether, and how to terminate the conservatorships of the [Enterprises]." Request No. 9 calls for
"all documents reflecting communications between FHFA and/or Treasury, on the one hand, and
the Companies' board members and executives, on the other hand, relating to termination of the
conservatorships." It.is presently anticipated that Congressional action will establish the
framework of the structure of the housing finance system going forward. Thus, how and when
the conservatorships will be terminated remains undetermined. The disclosure of information
relating to deliberations, standards and other considerations regarding the future and ultimate
termination of the conservatorships is therefure by definition pre-decisional and documents
responsive to document requests 6 and 9 will be covered by the deliberative process privilege.
14.
Likewise, Request for Production No. 8 calls for all "documents relating to
Defendant's policies to reduce the Companies' role in the mortgage market and to wind the
Companies down." Request No. 10 calls for all documents relating to the Government's
"expectation that the Enterprises will not continue as they existed before the conservatorships.''
Documents responsive to these requests include ongoing internal agency analyses and
discussions relating to the development long-term strategic initiatives would therefore
necessarily involve the production of pre-decisional and deliberative documents.
A24
15.
Besides containing documents that are necessarily deliberative and pre-decisional
in nature, Requests No. 's 1 (to the extent it seeks documents relating to ongoing and future
operations ofthe Enterprises) 6, 7, 8, 9 and 10 all seek information that, if made available, would
threaten the Nation's housing market.
16.
Fannie Mae and Freddie Mac serve the critical function of expanding home
ownership to Americans by supplying capital and liquidity in the market for residential
mortgages. The Enterprises purchase mortgages from originating lenders and either hold them in
their own portfolios, or pool the mortgages and sell mortgage-backed securities to investors. The
additional capital and liquidity provided by the Enterprises to private lenders frees up banks'
limited capital, allowing them to make more loans. The disclosure of confidential, non-public
information such as projections of future profitability is plainly relevant to investor perceptions
of the financial health ofFruinie Mae and Freddie Mac and will directly affect the housing
market in a number of ways. For example, prices for mortgage-backed securities in the
mortgage futures market (which are an indicator of investor demand for mortgages) would
change very quickly if information were made available suggesting that the Enterprises would
significantly alter their role in the mortgage market. Because mortgage rates are very sensitive to
price changes in the futures market, the disclosure of the type ofnon-public information
contained in response to Plaintiffs' Requests No. 's 1 (to the extent it seeks documents relating to
ongoing' and future operations of the Enterprises) 6, 7, 8, 9 and 10 would quickly result in higher
costs for borrowers. Over time, the increased costs for mortgages would have significant
repercussions not just for the nationwide housing market, but for the National economy as a
whole.
A25
17.
FHFA's decision-making process is likely to be significantly hanned by the
forced disclosure in discovery of confidential pre-decisional and deliberative documents. If

senjor policy makers such as I believe that our deliberations and candid advice will be disclosed,
we will be less likely to engage in the thorough, robust and frank discussion required to enable
FHFA to make sound decisions in support of its statutory missions.
18.
The potential chilling effect on the FHFA's deliberations from the making
available of confidential, non-public, pre-decisional documents is especially great in this case,

where the future of the conservatorships and policy decisions made by FHFA are the subject of
significant public interest and pre-decisional documents from FHFA would likely be the subject
of intense publicity and national debate. Such chilling effect will negatively impact FHFA
continuing ability to direct and supervise the Enterprises.
19.
In addition, disclosure of pre-decisional information is likely to mislead the public
and confuse investors because documents will be made available that discuss courses of action
that may have been under consideration at one time, but were not ultimately taken or were
modified.
20.
Although FHFA has not yet reviewed all of the potentially responsive documents,
based on the documents that I have reviewed and Plaintiffs' discovery requests, I am confident
that many of the documents requested by Plaintiffs contain the type of confidential and
potentially market-moving information described above, as well as pertain to matters that are
pre-decisional and deliberative in nature.
21.
For example, I have reviewed documents that discuss long-tenn strategic goals for
the conservatorships, including issues pertaining to the Enterprises' future business. These
documents reflect ongoing confidential internal agency deliberations and policy discussions.
A26
Making these documents available would immediately have a chilling effect on the free
exchange of opinions and ideas between Agency personnel. Moreover, these documents contain
the type of confidential market-moving information that, if made available, would likely have an
immediate impact on financial markets.
22.
In sum, the chilling effect engendered by the making available ofpre-decisiona~
confidential and deliberative documents in this case would undoubtedly have an adverse effect
on FHFA's exercise of its powers in a sphere crucial to the financial health of the housing
finance market. FHFA's internal analysis and deliberations would be inhibited and therefore less
robust, FHFA's strategic and operational decision-making would be less effective as a result, and
the markets that deterinine the value of the Enterprises' assets and property would be adversely
affected.
23.
For the reasons discussed above, FHFA asserts the deliberative process privilege
over all of the documents that are responsive to Request for Production No. 1 (to the extent it
seeks documents relating to ongoing and future operations of the Enterprises), as this request
necessarily seeks information that is exclusively pre-decisional and deliberative in nature. For
the same reason, FHPA also asserts the deliberative process privilege over all documents
responsive to Requests No. 's 6, 7, 8, 9, and 10 because these requests seek documents
necessarily relating to plans about the future and ultimate termination of the conservatorships.
Because these documents necessarily contain pre-decisional and deliberative information, an
individualized review of all documents responsive to these Requests would be unnecessary and
unduly burdensome.
A27
I declare under penalty of perjury under the laws of the United States of America that the
foregoing is true and correct.
Executed this ~'l~day of __l!:'l::!:l_~-- 2014 at Washington, D. C.
ti~.!,-~_:_,
TOPHER H. DICKERSON
A28
EXHIBIT A
A29
SUBJECT: DELEGATION OF AUTHORJTY TO SUBMIT, ON BEHALF OF FHFA,

DECLARATIONS ASSERTING PRIVILEGES OVER AGENCY DOCUMENTS
a.
Pursuant to 12 U.S.C. 4513(b), I hereby make the following delegation for the Federal
Housing Finance Agency (FHFA):
1.
Delegation of Authority to Submit, on Behalf ofFHFA, Declarations Asserting Privileges
over Agency Documents. The individuals listed below, as appropriate, hereby are delegated the authority
to reYiew FHFA documents for privileges, including the deliberative process privilege and the bank
examination privilege, and to submit on behalf of FHFA declarations asserting privileges over such
documents, in litigation brought by or against FHFA:
A. Chris Dickerson, Senior Associate Director, Division of Enterprise Regulation,
B. Alfred Pollard, General Counsel.

b.
The authority herein may not be re-delegated, except as provided in paragraphs a. herein,
c.
All actions taken pursuant to the delegations made in paragraph a. shall conform to the
internal policies, guidelines, and controls approved by the Director, and shall comply with all applicable
requirements oflaw, regulation, directive, guideline, or Executive Order.
d.
The delegations made in paragraph a. shall be effective immediately and remain in full
force until amended, superseded, or revoked by subsequent order.
Date:
A30
FAIRHOLME FUNDS, Inc., et al.;
)
)
)
)
)
)
)
)
)
Plaintiffs,
v.
THE UNITED STATES,
Defendant.
No. 13-465C
(Judge Sweeney)
PLAINTIFFS' FIRST SET OF REQUESTS FOR PRODUCTION
Pursuant to Rules 26 and 34, Plaintiffs hereby propound upon Defendant the following
Requests for Production. Defendant is requested to produce and/or permit the Plaintiffs to
inspect and copy each of the requested documents that may be in Defendant's possession,
custody, or control, or those which are in the possession, custody, or control of Defendant's
attorneys, agents, or representatives. Under the Court's order of April 4, 2014 (doc. 40),
responses to these requests are due withiri 30 calendar days. Document production should be
delivered to the offices of Cooper & Kirk, PLLC, 1523 New Hampshire Ave., N.W.,
Washington, D.C. 20036, or at any other location and time to which counsel mutually agree.
DEFINITIONS
As used herein, the following terms shall have the following meanings:
1.
"Communication" means any meeting, conversation (face-to-face, telephonic, or
otherwise), discussion, telex message, cable, correspondence, message, electronic mail, voice
mail, exchange, provision or relay of a document, or other occurrence whereby thoughts,
opinions, data, or other information are transmitted between or among more than one person, or
through any photographic, mechanical, electrical or electronic device or devices for receiving,
transmitting, or storing data or other information.
A31
2.
"Companies" refers to the Federal National M01igage Association (Fannie Mae)
and the Federal Home Loan Mortgage Corporation (Freddie Mac) collectively.
3.
"Defendant" refers to the United States, including but not limited to agencies of
the United States such as the Department of Treasury (Treasury) and the Federal Housing
Finance Agency (FHFA).
4.
"Document(s)" should be construed in the broadest sense permissible, and
includes all "writings," "recordings," and "photographs," as those terms are defined in Rule 1001
of the Federal Rules of Evidence, as well as all "communications" as defined above.
Accordingly, "document(s)" includes, but is not limited to, all written, printed, recorded or
graphic matter, photographic matter, sound reproductions, electronic mail, or other retrievable
data (whether recorded, taped, or coded electrostatically, electromagnetically, optically or
otherwise on hard drive, diskette, compact disk, primary or backup tape, audio tape or video
tape) from whatever source derived and however and by whomever prepared, produced,
reproduced, disseminated or made. Without limiting the generality of the foregoing,
"document(s)" includes the original and any non-identical copy and also every draft and
proposed draft of all correspondence, internal memoranda, notes of meetings, telegrams, telexes,
facsimiles, electronic mail, reports, transcripts or notes of telephone conversations, diaries,
notebooks, minutes, notes, tests, reports, analyses, studies, testimony, speeches, worksheets,
maps, charts, diagrams, computer printouts, and any other writings or materials of any nature
whatsoever, whether or not divulged to other parties, together with any attachments thereto and
enclosures therewith. In addition, the word "document(s)" encompasses all forms and
manifestations of electronically or optically coded, stored, and/or retrievable information,
A32
including but not limited to "email," "voice mail," digital images and graphics, digital or analog
audiotapes and files, and digital or analog videotapes and files.
5.
"Government Stock" refers to the Senior Preferred Stock Treasury received from
the Companies pursuant to the PSPAs.

6.
"Models" refers to any and all models, assumptions, data, and analyses.
7.
"Net Worth Sweep" refers to the provision of the Third Amendment to the PSPAs
that requires the Companies to pay to Treasury each quarter their entire net worth, less a
gradually decreasing capital reserve amount.
8.
"Person" means and refers to not only natural persons, but also firms,
partnerships, associations, corporations, subsidiaries, divisions, departments, joint ventures,

proprietorships, syndicates, trusts, groups, and organizations; federal, state, or local government
or government agencies, offices, bureaus, departments, entities, including any court (or judge or
other officer thereof); other legal, business, or government entities; and all subsidiaries, affiliates,
divisions, departments, branches, and other units thereof or any combination thereof. "Person"
includes the present and former officers, executives, partners, directors, trustees, employees,
attorneys, agents, representatives, and all other persons acting or purporting to act on behalf of
the person and also its subsidiaries.
9.
"Profitability" refers to any and all information relating to the Companies'
financial performance, prospects, income, and liabilities, including both their profits and losses.
10.
"Projections" refers to any and all financial projections, stress tests, forecasts, and
any other evaluations of the Companies' financial condition and/or profitability.
A33
11.
"PSPAs" refers to the Senior Preferred Stock Purchase Agreements under which
Treasury agreed to provide the Companies with funding in exchange for, inter alia, Government
Stock and warrants to purchase 79.9% of the Companies' common stock.
12.
The word "including" shall have its ordinary meaning and shall mean "including
but not limited to" and shall not indicate limitation to the examples or items mentioned.
13.
The words or phrases "reflect," "refer,'' or "relate to"-or any tense or
combination of those words or ph1:ases-mean reflecting, referring to, relating to, regarding,
discussing, concerning, constituting, mentioning, pertaining to, alluding to, or associated with.
14.
The singular of each word shall be construed to include its plural and vice versa,
and the root word and all derivations (i.e., "ing," "ed," etc.) shall be construed to include each
other.
15.
The words "and" as well as "or" shall be construed both conjunctively as well as
disjunctively.
16.
The word "each" shall be construed to include "every" and vice versa.
17.
The word "any" shall be construed to include "all" and vice versa.
18.
The present tense shall be construed to include the past tense and vice versa.
19.
The "knowledge," "information," "possession," "custody," and "control" of a
person shall be construed to include such person's agents, representatives, and attorneys.
INSTRUCTIONS
1.
Pursuant to RCFC 26(e)(l), these Requests are continuing in nature and
Defendant shall provide supplemental answers and documents, which will augment or modify
any answers contained in Defendant's responses.
A34
2.
Each Request herein constitutes a request for each document referred to or a true,
complete, and legible copy thereof.

3.
Each Request seeks documents that are in any way in Defendant's possession,
custody, or control from any source, wherever situated, including, but not limited to, the files,
records, and documents to which the Defendant has access, including all documents in the
possession, custody, or control of contractors, experts, consultants, or the Companies.
4.
A document is deemed to be in Defendant's "control" if Defendant or
Defendant's attorneys have the right to secure the document or a copy thereof from another
person or entity having actual possession of the document.
5.
If a requested document was, but no longer is, in Defendant's possession, custody,
or control, Defendant shall identify the document, its current location, and the person who has
possession, custody, or control of the document; if such information is unavailable, Defendant
shall identify the last known location and person who had possession, custody, or control of the
document and explain the reason for and circumstances under which the document left
Defendant's possession, custody, or control.
6.
If any of the documents requested herein has been destroyed, Defendant shall
furnish a list identifying each such document, its author and addressee, each person to whom
copies of the documents were furnished or to whom the contents thereof were communicated, a
summary of the substance of the document, the date (or approximate date) upon which it was
destroyed, and the reason it was destroyed.
7.
If Defendant does not answer any Request or part thereof, on the basis of
privilege, Defendant shall provide with respect to each such document the following:
a. The date of the document;
A35
b. The number of pages comprising the document and a description of any

identifying marks or designations (e.g., Bates numbers) if any, on the document;
c. The nature of the document (letter, memorandum, spreadsheet, presentation,
report, etc.);
d. A description of the subject matter of the document;
e. A list of all attachments or enclosures to the document;
f. The name(s) of the author(s) and of any recipient(s) of the document;
g. The name and address of any person who is not included in response to s,ubpart (f)
with respect to such document and who has access to or has seen, read, or heard
any portion of the material in the document; and
h. The nature of the privilege asserted.
8.
For each Request or part of a Request that Defendant refuses to answer on
grounds of burdensomeness, Defendant shall explain in as much detail as possible the basis for
its contention.
9.
If Defendant objects to any Request, or portion of a Request herein, Defendant
must produce all documents covered by the Request, or portion of the request, not subject to the
objection. Similarly, if Defendant objects to production of a document, Defendant must produce
the parts of the document that are not subject to objection, redacting and clearly indicating the
parts of the document that are subject to the objection.
10.
Defendant shall produce all documents as they are kept in the usual course of
business and label them to correspond to the categories in the request.
A36
REQUESTS RELATING TO PROFITABILITY 1

REQUEST NO. 1: Any and all projections, from the time Defendant began considering
whether to place the Companies into conservatorship to the present, including any models
relating to those projections. This request includes, but is not limited to, the following:
a. Projections produced, reviewed, or provided to FHFA or Treasury in connection with the
Companies' conservatorships, see, e.g., T88 2 ;
b. Projections produced, reviewed, or provided to FHFA or Treasury in connection with the
second amendment to PSPAs, see, e.g., Tl 76;
c. Projections provided to Defendant by Moody's or Grant Thornton, see, e.g., T3285,
T3786, T3837;
d. Projections prepared by the Companies and the assumptions, models, data, and analyses
relating to those evaluations, see, e.g., FHFA 2421;
e. Any models relating to FHFA's October 2010 (F.HFA 1379) and October 2011 (FHFA
2408) financial projections;
f.
Any models relating to Treasury's May 2012 (T3775), June 2012 (T3833), July 2012
(T3884), and August 2012 (T3900) financial projections, including scenarios developed
by Treasury staff to produce any such projections, see, e.g., T3887, T3894;
g. Any and all documents relating to scenarios in which Treasury would have received
more in some quarters under the Net Worth Sweep than it would have received under the
original terms of the PSPAs, see, e.g., T3802;
h. Any models relating to the Office of Management and Budget's recent projections of
future Government Stock dividends, see Office of Management & Budget, Fiscal Year
2015 Analytical Perspectives: Budget of the U.S. Government 323 (2014),
http://www. whi tehouse.gov /sites/ default/files/omb/budget/fy2015/assets/spec. pdf.
1
These requests for production are organized by subject matter, but many of the requests
call for information that pertains to more than one topic as to which the Court has authorized
discovery. Accordingly, the inclusion of particular requests under particular headings is not
intended to suggest, and should not be read to suggest, that those requests do not also pertain to
other authorized topics.
2
For ease of ieference and purely by way of example, we refer herein to documents
Defendants submitted in Fairholme Funds, Inc. et al. v. Federal Housing Finance Agency, et al.,
No. 13-cv-1053 (D.D.C.). Citations to materials included in FHFA's "document compilation"
are preceded by "FHFA" and citations to materials included in Treasury's administrative record
are preceded by "T."
7
A37
i.
Any and all documents relating to the impact that guarantee fee increases would have on
the Companies' revenues;
j.
Any and all documents relating to the Periodic Commitment Fee authorized by the
PSPAs, including without limitation the decision about whether to charge the Periodic
Commitment Fee and the costs the Companies were expected to incur in paying the
Periodic Commitment Fee, see, e.g., T2359;
k. Any and all documents relating to significant sources of revenue for the Companies,
including deferred tax assets, loan loss reserves, and proceeds from private label
securities lawsuits.
RESPONSE:
REQUEST NO. 2: Any and all documents relating to the decision to compensate
Treasury for its financial commitment by awarding it warrants to purchase 79.9% of the
Companies' common stock.
RESPONSE:
REQUEST NO. 3: Any and all documents relating to any valuations of Treasury's
warrants to purchase the Companies' common stock, including but not limited to any analyses
underlying valuations of the warrants in the following Treasury reports: Treasury's 2008 Agency
Financial Report (FHFA 204); Treasury's 2009 Agency Financial Report (FHFA 987);
Treasury's 2010 Performance and Accountability Report (FHFA 1395); Treasury's 2011 Agency
Financial Rep01i; Treasury's 2012 Agency Financial Rep01i (FHFA 4073); and Treasury's 2013
Agency Financial Report.
RESPONSE:
REQUEST NO. 4: Any and all documents relating to the decision to leave the
Companies' existing capital structure in place during the conservatorships.
RESPONSE:
A38
REQUEST NO. 5: Any and all documents relating to Government Stock dividends,
includi11g without limitation: the circular practice of requesting draws on Treasury's funding
commitment to pay cash dividends to Treasury, requests to make draws on Treasury's funding
commitment, the provisions of the PSP As that permit the Companies to add Government Stock
dividends to Treasury's liquidation preference rather than paying those dividends in cash, and
authorizations to declare dividends during the conservatorships pursuant to 12 C.F.R. 1237.12.
RESPONSE:
REQUESTS RELATING TO TERMINATION OF CONSERVATORSHIPS
REQUEST NO. 6: Any and all documents relating to the standards for determining
when, whether, and how to terminate the conservatorships of the Companies, including but not
limited to documents relating to Treasury's authority to prevent termination of the
conservatorships by withholding consent to termination of the conservatorships.
RESPONSE:
REQUEST NO. 7: Any and all documents relating to Defendant's commitment to
ensure that existing equity holders will not have access to positive earnings from the GSEs,
including the development of this policy and actions taken pursuant to this policy. See, e.g.,
T202.
RESPONSE:
REQUEST NO. 8: Any and all documents relating to Defendant's policies to reduce the
Companies' role in the mortgage market and to wind the Companies down, including
development of those policies and actions taken pursuant to those policies. See, e.g., T207.
RESPONSE:
A39
REQUEST NO. 9: Any and all documents reflecting communications between FHFA
and/or Treasury, on the one hand, and the Companies' board members and executives, on the
other hand, relating to termination of the conservatorships.
RESPONSE:
REQUEST N0.10: Any and all documents relating to Defendant's expectation that the
Companies will not continue as they existed before the conservatorships. See, e.g., T2390.
RESPONSE:
REQUESTS RELATING TO WHETHER FHFA IS THE UNITED STATES
and Treasury relating to the following subjects: the decision to place the Companies in
conservatorship, the terms of the PSPAs, amendments to the PSPAs, the practice of making
draws on Treasury's funding commitment to fund dividends on Government Stock, the Periodic
Commitment Fees authorized by the PSPAs, and FHFA's strategic plan for the conservatorships
released in February 2012.
RESPONSE:
REQUEST NO. 12: Any and all documents relating to whether and under what
circumstances the Companies could buy back the Government Stock or otherwise reduce the size
of the Government Stock's liquidation preference.
RESPONSE:
REQUEST NO. 13: Any and all documents relating to FHFA's determination that it is
obligated to maximize Treasury's return on its investment in the Companies or otherwise
prioritize the interests of taxpayers. See, e.g., T2376.
RESPONSE:
10
A40
REQUEST NO. 14: Any and all documents relating to FHFA's and/or Treasury's
decision to enter into the Net Worth Sweep.
RESPONSE:
REQUEST NO. 15: Any and all documents reflecting communications between
Treasury and the Justice Depaitment relating to the Net Worth Sweep. See, e.g., T4332.
RESPONSE:
REQUEST NO. 16: Any and all documents relating to the considerations Defendant
took into account when it imposed the Net Worth Sweep and the purposes of the Net Worth
~weep,
including:
a. Helping to ensure the Companies' financial stability;

b. Fully capturing benefits for taxpayers;
c. Acting upon the commitment that the Companies will be wound down and not allowed to
return to the market in their prior form; and
d. Eliminating the need for the Companies to continue to make draws on Treasury's funding
commitment to pay cash dividends on the Government Stock.
REQUEST NO. 17: Any and all documents reflecting communications relating to the Net
Worth Sweep between FHFA and/or Treasury, and:
a. Fannie and Freddie Boards of Directors and Executives;
b. The Companies' lawyers;
c. The Companies' auditors;
d. Rating agencies or other market analysts.
RESPONSE:
REQUEST NO. 18: Any and all documents reflecting communications between members
of the Federal Housing Finance Oversight Board (FHFA Director, Treasury Secretary, HUD
11
A41
Secretary, and SEC Chair) or their staffs, or any other person acting at their direction, relating to
the imposition of the Net Worth Sweep.
RESPONSE:
REQUEST NO. 19: Any and all documents relating to the steps the United States has taken
to ensure that potentially relevant evidence is not destroyed during the pendency of this action.
RESPONSE:
Date: April 7, 2014
Respectfully submitted,
s/ Charles J. Cooper
Charles J. Cooper
Counsel of Record for Plaintiffs
COOPER & KIRK, PLLC
1523 New Hampshire Avenue, N.W.
Washington, D.C. 20036
(202) 220-9600
(202) 220-9601 (fax)
ccooper@cooperkirk.com
Of Counsel:
Vincent J. Colatriano
David H. Thompson
COOPER & KIRK, PLLC
(202) 220-9600
(202) 220-9601 (fax)
12
A42

Plaintiffs,
)
)
)
v.
)
)
THE UNITED STATES,

Defendant.
No. 13-465C
(Judge Sweeney)
)
)
DEFENDANT'S RESPONSE TO PLAINTIFFS'

FIRST SET OF REQUESTS FOR PRODUCTION
Pursuant to Rule 34 of the Rules of the United States Court of Federal Claims (RCFC)
and the Court's order dated April 4, 2014, the United States responds as follows to the first
requests for production of documents served by plaintiffs Fairholme Funds, Inc., et al.
(Fairholme). This response should not be construed as a waiver of our objections that discovery
is inappropriate at this stage of the litigation for the reasons stated in
o~r
February 12, 2014, and
March 17, 2014 filings.
GENERAL OBJECTIONS
The United States asserts and incorporates by reference the following general and
categorical objections to Fairholme's requests for production as if they were set forth in full in
response to each request.
1.
The United States objects to the requests on the ground that they seek discovery
beyond the three subjects identified by the Court in its February 26, 2014 order permitting
limited discovery.
2.
The United States objects to the requests to the extent that they purport to require
the United States to search for documents in the possession of persons or entities outside the
Government. The United States will not search for or produce such documents.
A43
3.
The United States objects to the requests to the extent that they seek to impose an
obligation on the United States to conduct anything beyond a diligent search of files where
responsive documents reasonably would be expected to be found. The United States will
conduct a diligent search of files where responsive documents reasonably would be expected to
be found.
4.
The United States objects to the requests to the extent that they seek documents
that are not in the custody or control of the United States Department of the Treasury (Treasury),
the Federal Housing Finance Agency (FHF A), or the Department of Justice. The United States
will not produce documents of other Federal agencies, the Federal National Mortgage
Association (Fannie Mae), the Federal Home Loan Mortgage Corporation (Freddie Mac), or the
United States Congress.
5.
The United States objects to the requests to the extent that they seek the
production of documents that are protected by the attorney-client privilege, the work-product
doctrine, the deliberative process privilege, executive privilege, the bank examination privilege,
or any other applicable privilege, immunity, or doctrine, including without limitation the Privacy
Act of 1974, 5 U.S.C. 552a. The United States will not produce privileged or protected
documents, materials, or information. Nothing in this response is intended to be or is a waiver of
any of these protections, and the United States reserves the right to retrieve and to prevent the
use of any privileged or protected documents or information inadvertently produced. Moreover,
any inadvertent production of privileged or protected documents, materials, or information shall
not constitute a waiver of privilege or protection concerning the subject matter of the documents,
materials, or information.
A44
6.
The United States objects to the requests to the extent that any inference can be
drawn from the requests or responses that the documents requested or events referenced in the
requests actually exist or occurred, or are relevant, non-privileged, or admissible in evidence.
The failure to object to each such inference in no way constitutes an admission that such
information exists or that such events actually occurred, or that any statement or characterization
in the request is accurate or complete.
7.
The United States objects to the requests to the extent they seek information
regarding claims that are not within the jurisdiction of the Court.
8.
The United States objects to the requests because all ofFairholme's shareholder
rights with respect to Fannie Mae and Freddie Mac have been, "by operation of law," transferred
to the conservator, FHFA, for the duration of the conservatorships. See 12 U.S.C.
4617(b )(2)(A) (Upon its appointment, FHPA shall "immediately succeed to all rights, titles,
powers, and privileges of [Fannie Mae and Freddie Mac], and of any stockhoider, officer, or
director of [Fannie Mae and Freddie Mac] .... ").
9.
The United States objects to any discovery that restrains or affects the exercise of
the powers and functions of the Conservator and is, therefore, barred by 12 U.S.C. 4617().
10.
It is presently anticipated that Congressional action will establish the framework
of the structure of the housing finance system going forward. Thus, how and when the
conservatorships will be terminated is unknown. The production of documents relating to any
deliberations, standards, legislative or other considerations regarding the future of the
conservatorships will affect the ongoing operations of the conservatorships and any ongoing
planning for their ultimate termination. In addition, because how and when the conservatorships
will be terminated is unknown, the requests relating to this issue seek material that is by
3
A45
definition pre-decisional and deliberative. Accordingly, the United States objects to the requests
to the extent that they seek non-public documents containing deliberations as to the future of the
conservatorships. The United States will not produce such documents.
11.
The United States objects to the requests to the extent they seek the production of
documents reflecting deliberations relating to the operations, including but not limited to future
profitability, of Fannie Mae and Freddie Mac. The United States will not produce such
documents.
12.
The United States objects to the requests to the extent that they seek documents
that are available to the public, were provided to the United States or any Government agency by
plaintiff, or are already in the possession, custody, or control of plaintiff, readily available to
plaintiff, or attainable by plaintiff through public sources, on the ground that the request is
overbroad and unduly burdensome. The United States will not produce such documents.
13.
The United States objects to the requests to the extent that they do not include any
restrictions regarding time. The United States will search for and produce documents from the
time periods that are relevant to subjects identified ill the Court's February 26, 2014 order, as
described in responses to specific requests.
14.
The United States also objects to the requests to the extent that the term "relating
to" does not identify documents with reasonable specificity.

15.
The United States' responses and objections are based upon present knowledge
of, and information provided to, counsel. We reserve the right at any time to revise, supplement,
correct, or add to these responses and objections.
4
A46
OBJECTIONS TO DEFINITIONS AND INSTRUCTIONS
1.
The United States objects to the definitions and instructions included with
Fairholme's requests as vague and ambiguous.

2.
The United States objects to the definitions and instructions included with
Fairholme' s requests to the extent that they purport to impose requirements beyond those in the
RCFC and the Court's February 26, 2014 order.
3.
The United States objects to Fairholme's definitions of the terms
"communication," "document(s)," "person," and the phrase "relate to" to the extent that these
definitions render the requests overbroad, unduly burdensome, or ambiguous.
4.
The United States objects to Fairholme's definition of the term "Defendant" to the
extent it includes any agencies or entities beyond Treasury, FHPA, or the Department of Justice.
5.
The United States objects to Fairholme's definition of the term "Defendant" to the
extent that it includes FHF A when acting as conservator. Our responses provide for document
discovery from both Treasury and FHFA. We do this to facilitate compliance with the Court's
orders, but do not waive or forfeit our position that FHPA - when acting as conservator - is not
the United States and not subject to this Court's jurisdiction.
6.
The United States further objects to Fairholme's definition of the term
"Defendant" to the extent that it includes unspecified Government agencies, ofijces, bodies,
affiliates, contractors, consultants, or individuals. Defining the term "Defendant" to include such
unspecified entities renders all of plaintiffs' discovery requests overly broad, unduly
burdensome, and not reasonably calculated to lead to the discovery of admissible evidence,
because doing so would require the United States to seek information from, and about, more than
one million Federal employees in numerous offices, agencies, and departments, the missions of
5
A47
which have no relation whatsoever to the allegations in plaintiffs' complaint and the locations of
which are scattered across the nation and around the world. Further, the United States objects to
these requests to the extent that they purport to seek information from the files of the entire
Federal Government, without specifying which offices, agencies, or individuals are the subject of
the requests.
7.
The United States objects to Fairholme's instruction that purports to create an
obligation to search for and produce documents "in the possession, custody, or control of
contractors, experts, consultants, or the Companies."
8.
The United States objects ta Fairholme's instruction to "explain in as much detail
as possible" the basis for any objection on grounds of burdensomeness. The United States will
provide a reasonable explanation for its objections.
9.
The United States objects to Fairholme's definitions and instructions to the extent
that they fail to accurately and completely characterize known terms and events. The failure to
object to each use of such terms and events in no way constitutes an admission that any
statement or characterization in the request is accurate or complete.
SPECIFIC OBJECTIONS AND RESPONSES

The United States' objections stated above are hereby incorporated by reference into each
response to a request for documents, and may not be repeated as objections to each request to
which they are applicable. In addition to the above objections, the United States asserts the
specific objections stated below. By stating further specific objections below, the United States
does not waive any of the objections incorporated herein.
6
A48
REQUEST NO. 1: Any and all projections, from the time Defendant began considering
whether to place the Companies into conservatorship to the present, including any models
relating to those projections. This request includes, but is not limited to, the following:
a. Projections produced, reviewed, or provided to FHP A or Treasury in connection with the
Companies' conservatorships, see, e.g., T88;
b. Projections produced, reviewed, or provided to FHPAor Treasury in connection with the
second amendment to PSPAs, see, e.g., Tl 76;
c. Projections provi~ed to Defendant by Moody's or Grant Thornton, see, e.g., T3285,
T3786, T3837;
d. Projections prepared by the Companies and the assumptions, models, data, and analyses
relating to those evaluations, see, e.g., FHP A 2421;
e. Any models relating to FHFA's October 2010 (FHFA 1379) and October 2011 (FHFA
2408) financial projections;
f.
Any models relating to Treasury's May 2012 (T3775), June 2012 (T3833), July 2012
(T3884), and August 2012 (T3900) financial projections, including scenarios developed
by Treasury staff to produce any such projections, see, e.g., T3887, T3894;
g. Any and all documents relating to scenarios in which Treasury would have received more
in some quarters under the Net Worth Sweep than it would have received under the
original terms of the PSPAs, see, e.g., T3802;
h. Any models relating to the Office of Management and Budget's recent projections of
future Government Stock dividends, see Office of Management & Budget, Fiscal Year
2015 Analytical Perspectives: Budget of the U.S. Government 323 (2014),
http://www. whitehouse. gov /sites/ default/files/omb/budget/fy2015/assets/spec. pdf.
i.
Any and all documents relating to the impact that guarantee fee increases would have on
the Companies' revenues;
j.
Any and all documents relating to the Periodic Commitment Fee authorized by the
PSP As, including without limitation the decision about whether to charge the Periodic
Commitment Fee and the costs the Companies were expected to incur in paying the
Periodic Commitment Fee, see, e.g., T2359;
k. Any and all documents relating to significant sources of revenue for the Companies,
including deferred tax assets, loan loss reserves, and proceeds from private label
securities lawsuits.
A49
RESPONSE:
The United States objects to the request on the ground that it seeks discovery beyond the
scope of the Court's February 26, 2014 order permitting limited discovery on three subjects.
Fairholme states that this request relates to "profitability." With respect to profitability, the
Court permitted discovery only as to (1) the Government's current assessment of the future
profitability of Fannie Mae and Freddie Mac; and (2) the Government's assessment of
profitability at the time of the appointment of a conservator in September 2008. The request
impermissibly seeks documents from 2008 to present, encompassing time periods far beyond the
limited periods identified by the Court. In particular, subparts b, e, f, and g request documents
relating to projections and events that clearly fall outside the limited periods identified by the
Court.
The United States further objects to the request because it is vague,
overbroa~,
unduly
burdensome, and not reasonably calculated to lead to the discovery of admissible evidence. The
United States objects to the use of the term "models," "projections," "scenarios," and "impact"
as vague and ambiguous.
The United States further objects to this request to the extent it seeks the production of
documents reflecting deliberations relating to the operations, including but not limited to future
profitability, of Fannie Mae and Freddie Mac.
Subject to the foregoing general and specific objections, the United States will produce
responsive, non-privileged documents in a manner and at a time that are mutually agreeable to
the parties.
8
A50
REQUEST NO. 2: Any and all documents relating to the decision to compensate
Treasury for its financial commitment by awarding it warrants to purchase 79.9% of the
Companies' common stock.
RESPONSE:
Fairholme states that this request relates to "profitability." With respect to profitability, the
Court permitted discovery only as to (1) the Government's current assessment of the future
profitability of Fannie Mae and Freddie Mac; and (2) the Government's assessment of
profitability at the time of the appointment of a conservator in September 2008. The request
seeks documents unrelated to the issue of the Enterprises' profitability at the time of the
appointment of the conservator in September 2008.
The United States further objects to the request because it misstates the agreement
between FHPA, acting as conservator of the Enterprises, and Treasury.
Given the foregoing general and specific objections, the United States will not produce
documents in response to this request.
REQUEST NO. 3: Any and all documents relating to any valuations of Treasury's
warrants to purchase the Companies' common stock, including but not limited to any analyses
underlying valuations of the warrants in the following Treasury reports: Treasury's 2008 Agency
Financial Report (FHFA 204); Treasury's 2009 Agency Financial Report (FHFA 987);
Treasury's 2010 Performance and Accountability Report (FHFA 1395); Treasury's 2011 Agency
A51
Financial Report; Treasury's 2012 Agency Financial Report (FHFA 4073); and Treasury's 2013
Agency Financial Report.
RESPONSE:
Fairholme states that the request relates to "profitability." With respect to profitability, the Court
permitted discovery only into (1) the Government's current assessment of the future profitability
of Fannie Mae and Freddie Mac; and (2) the Government's assessment of profitability at the time
of the appointment of a conservator in September 2008. The request seeks documents unrelated
to the issues identified by the Court.
The United States further objects to the request to the extent that it seeks documents
reflecting deliberations relating to the operations, including but not limited to future profitability,
of Fannie Mae and Freddie Mac.
REQUEST NO. 4: Any and all documents relating to the decision to leave the
Companies' existing capital structure in place during the conservatorships.
RESPONSE:
The United States objects to the request to the extent that it seeks documents reflecting
deliberations relating to the operations, including but not limited to future profitability, of Fannie
Mae and Freddie Mac.
10
A52
responsive, non-privileged documents in a manner and at a time that are mutually agreeable to
the parties.
REQUEST NO. 5: Any and all documents relating to Government Stock dividends,
including without limitation: the circular practice ofrequesting draws on Treasury's funding
commitment to pay cash dividends to Treasury, requests to make draws on Treasury's funding
commitment, the provisions of the PSPAs that permit the Companies to add Government Stock
dividends to Treasury's liquidation preference rather than paying those dividends in cash, and
authorizations to declare dividends during the conservatorships pursuant to 12 C.F.R. 1237.12.
RESPONSE:
Fairholme states that the request relates to "profitability." With respect to profitability, the Court
only permitted discovery into (1) the Government's current assessment of the future profitability
of Fannie Mae and Freddie Mac; and (2) the Government's assessment of profitability at the time
of the appointment of a conservator in September 2008. The request seeks documents unrelated
to the issues identified by the Court.
The United States further objects to the request to the extent that it seeks the production
of documents reflecting deliberations relating to the operations, including but not limited to
future profitability, of Fannie Mae and Freddie Mac.
11
A53
REQUEST NO. 6: Any and all documents relating to the standards for determining
when, whether, and how to terminate the conservatorships of the Companies, including but not
limited to documents relating to Treasury's authority to prevent termination of the
conservatorships by withholding consent to termination of the conservatorships.
RESPONSE:
It is presently anticipated that Congressional action will establish the framework of the
structure of the housing finance system going forward. Thus, how and when the
will be terminated is unknown, the request seeks material that is by definition pre-decisional and
deliberative. Accordingly, the United States objects to the request because it seeks non-public
documents containing deliberations as to the future of the conservatorships.
REQUEST NO. 7: Any and all documents relating to Defendant's commitnwnt to

ensure that existing equity holders will not have access to positive earnings from the GSEs,
including the development of this policy and actions taken pursuant to this policy. See, e.g.,
T202.
12
A54
RESPONSE:
The United States objects to this request on the ground that it seeks discovery beyond the
Fairholme states that this request is related to the "termination of the conservatorships." With
respect to this issue, the Court only permitted discovery "to answer the question as to when and
how the conservatorships will end." This request seeks documents unrelated to the issue
identified by the Court.
The United States also objects to the request because it seeks non-public documents
reflecting deliberations as to the future of the conservatorships. The United States further objects
that the request mischaracterizes the Treasury administrative record material that is cited.
REQUEST NO. 8: Any and all documents relating to Defendant's policies to reduce the
Companies' role in the mortgage market and to wind the Companies down, including
development of those policies and actions taken pursuant to those policies. See, e.g., T207.
RESPONSE:
Fairhohne states that this request is related to the "termination of the conservatorships." With
respect to this issue, the Court only permitted discovery "to answer the question as to when and
how the conservatorships will end." This request seeks documents unrelated to the issue
identified by the Court.
13
A55
and/or Treasury, on the one hand, and the Companies' board members and executives, on the
other hand, relating to termination of the conservatorships.
RESPONSE:
conservatorshlps will be terminated is unknown. The production of documents relating to any
14
A56
REQUEST NO. 10: Any and all documents relating to Defendant's expectation that the
Companies will not continue as they existed.before the conservatorships. See, e.g., T2390.
RESPONSE:
REQUEST NO. 11: Any and all documents reflecting communications between FHPA
and Treasury relating to the following subjects: the decision to place the Companies in
conservatorship, the terms of the PSPAs, amendments to the PSPAs, the practice of making
15
A57
draws on Treasury's funding commitment to fund dividends on Government Stock, the Periodic
Commitment Fees authorized by the PSPAs, and FHFA's strategic plan for the conservatorships
released in February 2012.
RESPONSE:
Fairholme states that the request relates to "whether FHFA is the United States." With respect to
this subject, the Court permitted discovery only into whether, "FHF A acted at the direct behest
of Treasury" in executing the Third Amendment. Fairholme's request seeks documents related
to the conservatorship decisions, the original PSP As, other amendments, and other events which
are clearly outside the scope of the Court's order. The request, therefore, seeks documents
unrelated to the issue identified by the Court.
The United States further objects to the request because it is vague, overbroad, unduly
burdensome, and not reasonably calculated to lead to the discovery of admissible evidence.
responsive, non-privileged documents related to whether FHF A acted at the direct behest of
Treasury in executing the Third Amendment in a manner and at time that are mutually
agreeable to the parties.
REQUEST NO. 12: Any and all documents relating to whether and under what
circumstances the Companies could buy back the Government Stock or otherwise reduce the size
of the Government Stock's liquidation preference.
16
A58
RESPONSE:
Fairholme states that the request relates to "whether FHP A is the United States." With respect to
this subject, the Court permitted discovery only into whether, "FHP A acted at the direct behest
of Treasury in executing the Third Amendment." The request seeks documents unrelated to the
issue identified by the Court.
REQUEST NO. 13: Any and all documents relating to FHFA's determination that it is
obligated to maximize Treasury's return on its investment in the Companies or otherwise

prioritize the interests of taxpayers. See, e.g., T2376.
RESPONSE:
Fairhohne states that the request relates to "whether FHFA is the United States." With respect to
this subject, the Court permitted discovery only into whether, "FHP A acted at the direct behest
of Treasury" in executing the Third Amendment. The request seeks documents unrelated to the
The United States further objects to the request because it is vague, overbroad, unduly
burdensome, and not reasonably calculated to lead to the discovery of admissible evidence. The
17
A59
United States further objects that the request mischaracterizes the Treasury administrative record
material that is cited.
REQUEST NO. 14: Any and all documents relating to FHFA's and/or Treasury's
decision to enter into the Net Worth Sweep.
RESPONSE:
this subject, the Court permitted discovery only into whether, "FHFA acted at the direct behest
of Treasury" in executing the Third Amendment. The request seeks documents unrelated to the
The United States further objects to the requ.est because it is vague, overbroad, unduly
The United States further objects that the request mischaracterizes the Third Amendment
as "the Net Worth Sweep."
responsive, non-privileged documents related to whether FHF A acted at the direct behest of
Treasury in executing the Third Amendment, in a manner and at a time that are mutually
18
A60
Treasury and the Justice Department relating to the Net Worth
S~eep.
See, e.g., T4332.
RESPONSE:
this subject, the Court permitted discovery only into whether, "FHPA acted at the direct behest
of Treasury in executing the Third Amendment" The request seeks documents unrelated to the
The United States further objects to the request because it seeks documents that are
necessarily protected by the attorney-client privilege and the deliberative process privilege. The
United States further objects that the request mischaracterizes the Third Amendment as "the Net
Worth Sweep."
Given the foregoing general and specific objections, the United
S~ates
will not produce
REQUEST NO. 16: Any and all documents relating to the considerations Defendant
took into account when it imposed the Net Worth Sweep and the purposes of the Net Worth
Sweep, including:
a. Helping to ensure the Companies' financial stability;
b. Fully capturing benefits for taxpayers;
c. Acting upon the commitment that the Companies will be wound down and not allowed to
return to the market in their prior form; and
19
A61
d. Eliminating the need for the Companies to continue to make draws on Treasury's funding
commitment to pay cash dividends on the Government Stock.
RESPONSE:
this subject, the Court permitted discovery only into whether "FHPA acted at the direct behest of
Treasury" in executing the Third Amendment. The request seeks documents unrelated to the
The United States further objects to the term "impose" to describe the agreement between
FHFA, on behalf of the Enterprises, and Treasury. The United States also objects that the
request mischaracterizes the Third Amendment as "the Net Worth Sweep,'' as well as the reasons
for FHP A and Treasury entering into the Third Amendment.
responsive, non-privileged documents related to whether FHP A acted at the direct behest of
Treasury in executing the Third Amendment in a manner and at a time that are mutually
REQUEST NO. 17: Any and all documents reflecting communications relating to the
Net Worth Sweep between FHFA and/or Treasury, and:
a. Fannie and Freddie Boards of Directors and Executives;
b. The Companies' lawyers;
c. The Companies' auditors;
d. Rating agencies or other market analysts.
20
A62
RESPONSE:
s.cope of the Court's February 26, 2014 order permitting limited discovery on three subjects.
this subject, the Court permitted discovery only into whether "FHPA acted at the direct behest of
documents in response to this request except to the extent that they have been produced in
response to another request.
members of the Federal Housing Finance Oversight Board (FHFA Director, Treasury Secretary,
HUD Secretary, and SEC Chair) or their staffs, or any other person acting at their direction,
relating to the imposition of the Net Worth Sweep.
RESPONSE:
this subject, the Court permitted discovery only into whether "FHFA acted at the direct behest of
21
A63
The United States fur.ther objects to the request because it is vague, overbroad, unduly
documents in response. to this request except to the extent that they have been produced in
response to another request.
REQUEST NO. 19: Any and all documents relating to the steps the United States has
taken to ensure that potentially relevant evidence is not destroyed during the pend ency of this
action.
RESPONSE:
scope of the Court's February 26, 2014 order permitting limited discovery on three subjects. The
Court permitted plaintiffs to engage in only limited discovery, and this request does not seek
information within a topic identified by the Court. The United States also objects to this request
on the basis that it seeks information irrelevant to the issues being litigated in this case, and is
beyond the scope of the United States' obligations under the RCFC at any stage of proceedings.
The United States further objects to the request because it calls for privileged information, such
as that protected by the attorney client privilege and the work product doctrine, and because it is
22
A64
unduly burdensome and not reasonably calculated to lead to the discovery of admissible
evidence.
STUART F. DELERY
Assistant Attorney General
s/ Robert E. Kirschman, Jr.
ROBERT I;:. KIRSCHMAN, JR.
Director
s/ Kenneth M. Dintzer
KENNETH M. DINTZER
Acting Deputy Director
Commercial Litigation Branch
Civil Division
U.S. Department of Justice
P.O. Box 480 Ben Franklin Station
(202) 616-0385
(202) 307-0972 fax
KDintzer@CIV.USDOJ.GOV
Attorneys for Defendant

May 2, 2014
23
A65

FAIRHOLME FUNDS, Inc., et al.,
)
)
)
)
)
)
)
)
)
Plaintiffs,
v.
THE UNITED STATES,
Defendant.
No. 13-465C
(Judge Sweeney)
FAIRHOLME FUNDS INC. AND THE FAIRHOLME FUND'S ANSWER TO

DEFENDANT'S FIRST INTERROGATORY
Interrogatory No. 1: Identify all shares of stock in the Enterprises owned by plaintiffs at
any time. For each share identified, describe in detail the following information:
The parties to the transaction in which the share was acquired;
A description of the share including the type or class of share;
The date of acquisition;
The terms of the acquisition including the purchase price; and
All post-acquisition transactions related to the share.
Response: Fairholme Funds, Inc. and the Fairholme Fund ("Fairholme Plaintiffs")
reasse11 their objections of April 21, 2014, and the response to this interrogatory is not a waiver
of those objections. Except where indicated, the Fairholme Plaintiffs do not know the identities
of the counter-parties to the listed transactions. Additionally, because the transactions listed
below occurred electronically, the Fairholme Plaintiffs could not identify an address or location
for the listed transactions. Plaintiffs have provided only the information that could be obtained
through a reasonable investigation. Thus, they have not included the identity and actions of
every person involved in the listed transactions.
A66
The Fairholme Fund - Fannie Preferred

Security
Trade Date
Activity
Quantity
fnmao
6/4/2013
Purchase
256,000
Price
11.60
fnmah
fnmah.
fnmah
5/8/2013
5/15/2013
617/2013
Purchase
Purchase
Purchase
300,000
3,163,097
95,000
4.10
4.84
4.60
fnmai
fnmai
fnmai
5/15/2013
6/7/2013
617/2013
Purchase
Purchase
Purchase
1,250,000
70,000
237,500
4.84
4.60
4.50
fnmfn
fnmfn
fnmfn
fnmfn
fnmfn
fnmfn
5/14/2013
5/14/2013
6/20/2013
7/2/2013
7/15/2013
8/14/2013
Purchase
Purchase
Purchase
Purchase
Purchase
Purchase
1,700,000
1,000,000
1,000,000
151,900
275,000
1,045,443
9.08
8.98
8.50
8.00
8.00
7.27
fnmaj
5/14/2013
Purchase
1,500,000
4.75
fnmas
fnmas
fnmas
fnmas
fnmas
fmnas
fnmas
fnmas
fnmas
fnmas
fnmas
fnmas
fnmas
fnmas
fnmas
fnmas
fnmas
5/2/2013
5/3/2013
5/6/2013
5/7/2013
517/2013
5/8/2013
5114/2013
5/21/2013
5/21/2013
5/22/2013
6/4/2013
6/25/2013
6/25/2013
8/5/2013
8/5/2013
81612013
8/13/2013
Purchase
Purchase
Purchase
Purchase
Purchase
Purchase
Purchase
Purchase
Purchase
Purcbase
Purchase
Purchase
Purchase
Purchase
Purchase
Purchase
Purchase
100,000
350,000
2,334,000
1,000,000
8,663,766
15,075,000
9,851,000
1,549,000
1,067,953
850,000
1,900,000
2,000,000
2,678,300
1,158,500
400,000
1,000,000
500,000
4.40
4.54
4.60
4.60
4.60
4.65
5.10
4.92
4.85
4.86
6.33
4.85
4.92
5.15
5.10
4.97
4.71
A67
The Fairholme Fund - Fannie Common

Quantity
Price
Trade Date Activity
5/8/2013
Purchase
50,000
0.89
5/9/2013
Purchase
950,000
0.93
0.87
5/10/2013
Purchase 1,542,000
2,000,000
Purchase
5/22/2013
1.77
5/23/2013
Purchase 1,500,000
2.07
5/30/2013
Purchase 1,000,000
1.63
( 1,500,000)
6/5/2013
Sale
1.92
(2,000,000)
6/5/2013
Sale
1.92
(512,300)
6/5/2013
Sale
1.92
(487,700)
6/6/2013
1.86
Sale
(950,000)
6/6/2013
Sale
1.86
1.86
(50,000)
6/6/2013
Sale
(1,542,000)
6/6/2013
1.86
Sale
Purchase 1,898,200
9/30/2013
1.29
10/1/2013 Purchase 3,628,700
1.36
10/2/2013 Purchase 6,515,600
1.46
10/3/2013 Purchase 2,259,000
1.55
1.48"
10/4/2013 Purchase
699,000
10/7/2013 Purchase 1,304,600
1.54
1.61
10/8/2013 Purchase 5,000,000
(819,800)
11/26/2013
Sale
2.76
(6,828,000)
3/11/2014
4.03
Sale 1
The Fairholme Fund - Freddie Preferred
Security Trade Date Activity Quantity
fmccm
Purchase 1,614,250
6/4/2013
fmcci
6/4/2013
I Purchase I 1,308,929 I 11.60 I
fmccl
6/4/2013
I Purchase I 519,142 I 11.60 I
5/8/2013
fmckk
fmcch
fmcch
Price
11.60
fmckm
5/8/2013
7/24/2013
5/23/2013
Purchase
Purchase
Purchase
200,000
8.12
334,600
560,000
8.20
8.05
I Purchase I 2;000,000 I
1 The
5.00
Fairholme Fund sold 3,242,468 shares to Icahn Partners LP; 2,219,932 shares to Icahn
Partners Master Fund LP; and 1,365,600 shares to High River Limited Partnership.
3
A68
fmckm
fmckm
fmckm
5/28/2013
8/22/2013
9/10/2013
fmckn
5/21/2013 [ Purchase [ 437,340
4.27
fmcko
fmcko
5/8/2013
8/22/2013
Purchase
Purchase
250,000
200,000
4.10
3.53
fmcki
fmcki
.fmcki
fmcki
5/28/2013
5/31/2013
6/4/2013
6/7/2013
Purchase
Purchase
Purchase
Purchase
1,535,000
335,000
228,100
285,000
5.75
5.18
5.31
4.50
fmckj
fmckj
fmckj
fmcki
fmckj
fmckj
fmckj
fmckj
fmckj
fmckj
fmckj
fmckj
fmckj
fmckj
5/1/2013
5/6/2013
517/2013
5/8/2013
5/20/2013
5/21/2013
5/21/2013
5/21/2013
5/22/2013
6/4/2013
6/4/2013
8/5/2013
8/6/2013
8/13/2013
Purchase
Purchase
Purchase
Purchase
Purchase
Purchase
Purchase
Purchase
Purchase
Purchase
Purchase
Purchase
Purchase
Purchase
1,000,000
1,500,000
250,000
5,000,000
5,000,000
5,936,000
2,606,000
2,702,000
5,830,000
1,900,000
546,200
453,300
750,000
500,000
4.55
4.60
4.60
4.70
4.90
4.96
4.92
4.85
4.86
6.33
6.30
5.15
4.95
4.71
Purchase
Purchase
Purchase
2,966,575
164,000
620,000
The Fairholme Fund - Freddie Common

Trade Date Activity
Quantity
Price
Purchase
5/8/2013
50,000
0.90
5/9/2013
Purchase
950,000
0.91
5/10/2013
Purchase 1,517,800
0.84
5/22/2013
Purchase 2,000,000
1.61
5/23/2013
Purchase 1,500,000
1.96
5/30/2013
Purchase 1,000,000
1.62
5/31/2013
Purchase
200,400
1.30
6/5/2013
Sale
(273,000)
1.80
6/6/2013
Sale
(1,227,000)
1.79
6/6/2013
Sale
(665,800)
1.79
4
A69
5.85
3.53
4.55
6/7/2013
6/7/2013
6/10/2013
6/10/2013
6/10/2013
6/10/2013
6/10/2013
6/11/2013
6/12/2013
9/30/2013
10/1/2013
10/2/2013
10/3/2013
10/4/2013
10/7/2013
10/8/2013
10/9/2013
10/10/2013
10/11/2013
10/15/2013
10/16/2013
10/17/2013
10/18/2013
10/21/2013
10/22/2013
10/23/2013
11/26/2013'
11/26/2013
3/11/2014
(334,200)
Sale
Sale
(1,587,000)
(413,000)
Sale
Sale
(200,400)
(950,000)
Sale
(50,000)
Sale
(152,800)
Sale
Sale
(833,200)
Sale
(531,800)
Purchase 1,279,000
Purchase 2,267,000
Purchase 2,696,500
Purchase
870,800
Purchase
251,700
Purchase
597,400
Purchase 2,975,100
Purchase 2,710,000
7,000
Purchase
Purchase
64,300
Purchase
628,000
Purchase
966,400
Purchase . 789,400
Purchase
169,200
Purchase
380,800
Purchase
753,600
Purchase
222,300
Sale
(222,300)
(180,600)
Sale
2
Sale
(5,742,000)
1.90
1.90
1.79
1.79
1.79
1.79
1.79
1.85
1.81
1.25
1.31
1.37
1.45
1.41
1.44
1.51
1.55
1.48
1.54
1.55
1.53
1.49
1.46
1.55
1.63
1.84
2.52
2.52
4.04
The Fairholme Fund sold 2,726,750 shares to Icahn Partners LP; 1,866,850 shares to Icahn
Partners Master Fund LP; and 1,148,400 shares to High River Limited Partnership.
A70
Respectfully submitted,
Date: May 7, 2014
Isl Charles J. Cooper

Charles J, Cooper
Counsel of Record for Plaintiffs
COOPER & KIRK, PLLC
(202) 220-9600
(202) 220-9601 (fax)
ccooper@cooperkirk.com
Of Counsel:
Vincent J. Colatriano
David H. Thompson
Peter A. Patterson
COOPER & KIRK, PLLC
(202) 220-9600
(202) 220-9601 (fax)
A71
VERIFICATION
I state under penalty ofpetjury that the information contained in the foregoing response
has been collected and the response prepared with the advice and assistance of counsel, and that,
subject to any inadvertent or undiscovered errors, and based 011 the records and information still
in existence and thus far discovered, the response is true and correct to the best of my
knowledge, recollections, and belief based upon the information known or made available to me.
Q(LQ.~
Paul R. Thomson
May 6, 2014
A72

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Case 1:13-cv-00465-MMS Document 50-1 Filed 06/02/14 Page 1 of 74

Fairholme Funds, Inc. et al. v. United States, No. 13-465C

Case 1:13-cv-00465-MMS Document 50-1 Filed 06/02/14 Page 2 of 74

INDEX TO CORRECTED APPENDIX

Case 1:13-cv-00465-MMS Document 50-1 Filed 06/02/14 Page 3 of 74

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

FAIRHOLME FUNDS, INC., et al.,

THE UNITED STATES,

I am Director of the Federal Housing Finance Agency ("FHFA" or the

Case 1:13-cv-00465-MMS Document 50-1 Filed 06/02/14 Page 4 of 74

In my role as Director, I am responsible for making policy decisions on behalf of

the Agency. As such, I am frequently involved in confidential internal deliberations regarding a

Plaintiffs' discovery plan -- through document requests, interrogatories and

deposing Agency officials -- seeks to obtain confidential, non-public infonnation concerning a

Case 1:13-cv-00465-MMS Document 50-1 Filed 06/02/14 Page 5 of 74

relating to or considered in collllection with past conservatorship decisions or relevant to the

The Conservator is charged with directing the largest conservatorships in U.S.

Case 1:13-cv-00465-MMS Document 50-1 Filed 06/02/14 Page 6 of 74

The disclosure of forward-looking, non-public financial projectioi:is could

Disclosure of confidential infonnation relating to ongoing and future operations of the

Case 1:13-cv-00465-MMS Document 50-1 Filed 06/02/14 Page 7 of 74

Making available in this litigation the type of non-public and confidential

Disclosure of documents relating to the future of the Enterprises, such as

Disclosure of information sought by Plaintiffs concerning a wide range of

Case 1:13-cv-00465-MMS Document 50-1 Filed 06/02/14 Page 8 of 74

In summary, any disclosure of information concerning the Conservator's future

Case 1:13-cv-00465-MMS Document 50-1 Filed 06/02/14 Page 9 of 74

Case 1:13-cv-00465-MMS Document 50-1 Filed 06/02/14 Page 10 of 74

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

FAIRHOLME FUNDS, INC., et al.,

DECLARATION OF DR. MICHAEL A. STEGMAN

I, Dr. Michael A. Stegman, declare as follows:

Case 1:13-cv-00465-MMS Document 50-1 Filed 06/02/14 Page 11 of 74

have served as a consultant to Treasury, the Community Development Financial Institutions

The statements contained in this declaration are made to the best of my

A court order requiring such documents be disclosed would immediately have a

Case 1:13-cv-00465-MMS Document 50-1 Filed 06/02/14 Page 12 of 74

Throughout the first half of 2008, Federal National Mortgage Association

On September 6, 2008, the Federal Housing Finance Agency ("FHFA"), as the

Case 1:13-cv-00465-MMS Document 50-1 Filed 06/02/14 Page 13 of 74

Treasury has been actively engaged in efforts aimed toward achieving

further develop policy proposals. For

Case 1:13-cv-00465-MMS Document 50-1 Filed 06/02/14 Page 14 of 74

It is cunently anticipated that Congressional action will establish the framework

We believe that this productive engagement is critical to putting in place a

Case 1:13-cv-00465-MMS Document 50-1 Filed 06/02/14 Page 15 of 74

Request Nos. 6, 7, 8, and 9 seek documents relating to agency deliberations and

Case 1:13-cv-00465-MMS Document 50-1 Filed 06/02/14 Page 16 of 74

Request No. 10 seeks "[a]ny and all documents relating to Defendant's

Case 1:13-cv-00465-MMS Document 50-1 Filed 06/02/14 Page 17 of 74

Case 1:13-cv-00465-MMS Document 50-1 Filed 06/02/14 Page 18 of 74

Moreover, discovery on these topics is also likely to impede the productive

Disclosure of deliberations has the potential to result in significant

In addition, disclosure of views or opinions of individual Treasury officials may

Case 1:13-cv-00465-MMS Document 50-1 Filed 06/02/14 Page 19 of 74

The risk associated with being required to disclose pre-decisional, deliberative

Case 1:13-cv-00465-MMS Document 50-1 Filed 06/02/14 Page 20 of 74

Case 1:13-cv-00465-MMS Document 50-1 Filed 06/02/14 Page 21 of 74

DEPARTMENT OF THE TREASURY

May 29, 2014

MEMORANDUM FOR MICHAEL STEGMAN, COUNSELOR TO THE TREASURY

Sarah Bloom Raskin <.}j,Jl;fa.-~"

Case 1:13-cv-00465-MMS Document 50-1 Filed 06/02/14 Page 22 of 74

IN THE UNITED STATES COURT OF FEDERAL CLAIMS