compensation. The Court disagrees, Fidelity is not required to prove its case in discovery. It
answered TCP’s interrogatory and pointed to documents that supported its answer. TCF’s
motion to compel Fidelity to supplement its response to interrogatory 20 is DENIED.

Interrogatory 9: Interrogatory 9 asks Fidelity to produce information related to its claim
that the “fraudulent transfers to the Bank were but one piece of a vast fraudulent scheme.” TCF
objects that Fidelity’s answer failed to respond with facts that “agents of TCF Bank engaged in
any misconduct that constituted either collaboration with or contribution to the actual intent to
defraud on the part of Intercounty” and that “[iJnterrogatory 9 specifically inquires about such
facts.” But that is not at all what interrogatory 9 asks for. Interrogatory 9 does not ask Fidelity
to demonstrate that TCF agents were part of Intercounty’s fraudulent scheme. Again, TCF’s
gross mischaracterization of the interrogatory undermines its credibility. The Court finds that
Fidelity’s response to interrogatory 9 was sufficient and the motion to compel is DENIED.

Interrogatories 16, 18, and 19: TCF asserts that the answers to these interrogatories are
incomplete, but fails to specify why. TCF may be arguing (though it certainly is not clear from
their brief) that Fidelity’s answers to interrogatories 16, 18, and 19 lack specific dates. But
Fidelity’s answer to interrogatory 19 contains but one dated reference, where a specific date is
presented. Interrogatory 18 does not appear to contain any instance where a specific date is
required. TCF’s motion to compel Fidelity to supplement its answers to interrogatories 16, 18,
and 19 is DENIED.

Interrogatory 15: Lastly, TCF argues that Fidelity’s answer to interrogatory 15 is
incomplete because it does not contain information related to a Banco Popular CD. Fidelity

argues that this CD was purchased by New Intercounty and not Old Intercounty. The

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Interrogatory 17: TCF speculates that Fidelity must have provided an “incomplete,
inconsistent, and probably false” response to interrogatory 17 because of an apparent discrepancy
it perceives in Fidelity’s answer. See Def. Mem. in Support of Mot. to Compel at 13. TCF all
but accuses Fidelity of lying. TCF’s rhetoric is tiresome. It plainly misreads Fidelity’s response
and then trumpets its gross mischaracterization of the response as evidence that Fidelity must be
lying. Fidelity pointed this out in their response to TCF’s motion, and TCF failed to respond.
TCF’s mischaracterization of Fidelity’s responses and inflammatory rhetoric only serve to
undermine its claims that Fidelity is hiding something. TCF’s motion to compel Fidelity to
supplement its response to interrogatory 17 is DENIED.

Interrogatories 13 & 14: In its memorandum in support of its motion, TCF writes only
that “the responsiveness of Fidelity to requests for such information remains disputed,” without

detailing this dispute. See Def. Mem, in Support of Mot. to Compel at 13. Later in its reply,

TCF sets forth its objections. But TCF cannot raise new arguments in its reply brief. It must
afford Fidelity the opportunity to respond to its arguments. TCF’s motion to compel Fidelity
to supplement its responses to interrogatories 13 & 14 is DENIED.

Interrogatory 20: Interrogatory 20(d) asks Fidelity to state why a payment to Susan Peloza
cannot be considered as executive compensation and 20(e) asks for documents that relate to the
answers, Fidelity states that “since the $250,000 CD was listed as an escrow account asset on Old
Intercounty’s bank reconciliation, this leads to the conclusion that the CD was funded with
escrow funds,” TCF argues that this response is insufficient and states that Fidelity must provide
additional information, such as documentation tracing the trail of funds back to the escrow fund,
the source of CD purchase funds, and facts that it could not have compensated executive

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interrogatory asks how Fidelity became aware that Old Intercounty purchased CD’s from TCE
Bank’s predecessor. If, as Fidelity alleges, Old Intercounty and New Intercounty are alter egos
of each other engaged in a vast fraudulent scheme, then a purchase of a CD by New Intercounty
may have alerted Fidelity that Old Intercounty might have also purchased some CDs. Fidelity
is directed to answer whether New Intercounty’s purchase of a Banco Popular CD alerted it as
to whether Old Intercounty purchased CDs from TCF Bank’s predecessor. Fidelity shall

supplement its response to interrogatory 15 by November 3, 2003.

IT IS SO ORDERED.

te (a7 Jak

Dated

fe William J. Hibbler
United States District Court



Minune Oner Porm (06/97)

United States District Court, Northern District of Illinois

‘Namie of Assigned Jud An : Sitting Judge if Oth
a Magistrate Judge William J. Hibbler than Assigned Judge

CASE NUMBER 02 C 668 DATE 10/27/03

CASE Fidelity v. TCF National Bank

TITLE

Tin the following box (a) indicate the party filing the motion, eg, plaintiff, defendant, 3rd party plaintiff, and (p) state briefly the
MOTION: nature of the motion being, presented.)
Defendant’s Motion To Compel (doc. #)

DOCKET ENTRY:
(1 a Filed motion of [ use listing in “Motion” box above.]

(2 a Brief in support of motiondue es.
(3) a Answer brief to motion due___.. Reply to answer brief due
(4) oO Ruling/Heanngon set for__ at
(6) ial Status hearing [held/continued to] [set for/re-set for] on setfor_ at
(6) ia Pretrial conference [held/continued to] [set for/re-set for]on__ set for at.
( Qa Trial [set for/re-set for]on at o
(8) Q [Bench/Jury trial] [Hearing] held/continued to att
QO

This case is dismissed [with/without] prejudice and without costs [by/agreement/pursuant to}
OFRCP4(m) O General Rule 21 OFRCP4i(a)(1) 0 FRCP41(a)(2).

(10) @ [Other docket entry] . Enter memorandum opinion and order. For the attached reasons, TCF’s motion to compel

is GRANTED in part and DENIED in parr.

(4) oO [For further detail see order on the reverse side of the original minute order, ]

‘No notices required, advised in open court

No notices required.

number of notices

Notices mailed by judge's staff.

728 2003

Notified counsel by telephone. due dockred

¥ | Docketing to mail notices,

Mail AO 450 form.

Copy to judge/magistrate judge.

, \ hte wuiled notice
courtroom cee ity bh vai

JHC deputy's

initials

Date/time received in

éentral Clerk's Office

mailing depucy initials



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

FIDELITY NATIONAL TITLE INSURANCE
COMPANY OF NEw YORK, a New York
corporation,

DOCKETED

OCT 2 8 2003
Plaintiff,

)

)

)

)

)
) No. 02 C 668

v. )
) The Honorable William J. Hibbler

TCF Nat’L BANK ILL., )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

This discovery squabble concerns the completeness of Fidelity National Title Insurance
Co.’s responses to a number of Defendant TCF National Bank’s interrogatories.

Interrogatories 2 and 3; TCF argues that Fidelity’s responses to these two interrogatories
are largely incomplete, asserting that Fidelity has failed to respond to virtually every query
contained within the interrogatories. Fidelity answers that it “provided all the information it
currently possesses related to the[{] CDs [at issue in the interrogatories] and directed TCF to the
appropriate documents . . . pursuant to 33(d).”. TCF speculates that Fidelity must be holding
something back, engaging in mental gymnastics in constructing a logical argument based on Rule
11. But Fidelity’s response is clear: it has provided all of the information it possesses. This does
not mean TCF is left totally without remedy. Fed. R. Civ. P. 26(e)(2) requires parties to
supplement their responses to interrogatories if it learns its response is incomplete. Rule 37 (¢)(1)
provides that if a party fails to amend its response to discovery as required by Rule 26(¢)(2) that
it shall not be permitted to use such evidence at trial or on a motion if that evidence was not

1



disclosed. Should TCF believe that Fidelity attempts to raise evidence that was responsive to
interrogatory 2 or 3 that it failed to disclose, it may file a motion pursuant to Rule 37(c)(1) to bar
that evidence. TCF’s motion to compel Fidelity to supplement its responses to interrogatories
2 and 3 is DENIED.

Interrogatory 5: Interrogatory 5 asks Fidelity to set forth facts that indicate why Fidelity
believes that the use of CDs purchased from TCF Bank’s predecessor “was either wrongful,
inappropriate, or subject to being set aside for any reason whatsoever.” Fidelity has answered that
question, but TCF believes it is incomplete because Fidelity has failed to provide facts that
indicate that its claim is not subject to any of the affirmative defenses raised by TCF. But the
interrogatory did not, as TCF claims, “squarely direct[] Fidelity to disclose all relevant
information bearing upon their UFTA claim to set aside the three CDs purchased” from T'CF’s
predecessor. In other words, TCF’s question does not ask Fidelity why it believes that TCF is
liable it asks why it believes the transfers were wrongful. Fidelity has done so, and TCF cannot
rewrite its interrogatory after the fact. TCF’s motion to compel Fidelity to supplement its
response to interrogatory 5 is DENIED.

Interrogatories 6, 7, 11, and 12: TCF complains that Fidelity has refused to answer the
interrogatories completely and that Fidelity’s argument that the interrogatory is overbroad is
without merit, See Def. Reply in Support of Mot. to Compel at 9. But TCF ignores the fact that
Fidelity did answer those questions by directing it to Fidelity’s submissions in the companion
case, Fidelity Nat. Title Ins. Co. of New York v. Intercounty Nat. Title Ins. Co., Case No 00 C5568.
TCF fails to demonstrate that Fidelity’s response is insufficient and therefore its motion to
compel Fidelity to respond to interrogatories 6, 7, 11 & 12 is DENIED.

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