With but a day or two remaining in a trial which consumed almost four and a half months, Mr. Slattery's attorneys finally discovered what was behind certain blacked-out portions of two pieces of key evidence which had been turned over by the FDIC.  The documents in question were the official minutes of two key FDIC board of directors meetings which dealt with Meritor's seizure.  The FDIC produced the documents in discovery, as required, but only after heavily "redacting" (i.e., blacking-out) much of their contents on the grounds of "executive privilege".   When Mr. Slattery's attorneys discovered what was behind the redactions, they complained to Judge Smith, asking him to draw "adverse inferences".   The government, on the other hand, argued that it had all been an honest mistake due to a series of errors, some of which they blamed on Mr. Slattery's attorneys.  Judge Smith instead directed that the government lift all of the redactions, at which point the government admitted that actual verbatim transcripts of the two meetings also existed and had not been turned over to Mr. Slattery's attorneys as well.  Judge Smith ordered all of the redacted testimony, and the transcripts, entered into the record and offered the Slattery counsel the opportunity to recall certain witnesses to the stand, but he declined their request that he draw "adverse inferences" on the basis that there was insufficient evidence that the government had acted in bad faith and had deliberately withheld the evidence.  Meritor's pleadings and Judge Smith's response are available by clicking on the links below.

Plaintiff's Spoliation Motion:               Resource-203/SPOLIATIONMOTION.pdf                         Plaintiff's Reply Brief:               Resource-208/SPOLIATIONREPLYBRIEF.pdf
                              The Court's Response