Free Answering Brief in Opposition - District Court of Delaware - Delaware

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UNITED STATES BANKRUPTCY COURT DISTRICT OF DELAWARE Chapter 11 In re: Case No. 00-2263 (MFW) KAISER GROUP INTERNATIONAL, INC., et al., Debtors, (Jointly Administered)

KAISER GROUP INTERNATIONAL, INC., et al., Plaintiffs, v. NOVA HUT a.s. and INTERNATIONAL FINANCE CORPORATION, Defendants.

Adv. P. No. 01-928 (MFW) Re: Docket No. 283

OPPOSITION OF DEFENDANT MITTAL STEEL OSTRAVA, A.S. (FORMERLY NOVA HUT, A.S.), TO DEBTORS' MOTION IN SUPPORT OF APPEAL OR GRANTING LEAVE TO APPEAL OF DEBTORS' MOTION FOR AN ORDER PURSUANT TO FED. R. BANKR. P. 2004, OR ALTERNATIVELY, A BILL OF EQUITABLE DISCOVERY, DIRECTING EXAMINATION OF, AND PRODUCTION OF DOCUMENTS BY THE INTERNATIONAL FINANCE CORPORATION, NOVA HUT AND RELATED PARTIES Defendant Mittal Steel Ostrava, a.s. (formerly Nova Hut, a.s.) ("Nova Hut") hereby opposes the plaintiffs' motion for leave to appeal ("Motion for Leave") this Court's decision on Plaintiffs' Motion for an order pursuant to FED. R. BANKR. P. 2004, or alternatively, a bill of equitable discovery directing examination of, and production of documents by the International Finance Corporation ("IFC"), Nova Hut and related parties

("Plaintiffs' Discovery Motion").

Plaintiffs' attempt to seek

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an appeal in this case is a waste of the Debtors' resources and this Court's time and is completely unsupported by the law. The

case law is clear that this Court's order denying Plaintiffs' Discovery Motion is interlocutory and accordingly, there is no right of appeal at this time. There is no evidence in the

record, nor can a rational person even conclude, that an appeal on discovery issues would be unavailable after judgment in this adversary proceeding. Accordingly, there is no basis for appeal

here and Plaintiffs' motion should flatly be denied. BACKGROUND & PROCEDURE 1. reciting case. Plaintiffs spend nearly half of their Motion for Leave purported "facts" without citation related to this

Nova Hut notes that Plaintiffs' recitation of the facts

is ripe with mischaracterizations and omissions, some of which are discussed infra. However, Nova Hut does not believe it is

necessary to re-hash and review facts that have already been determined by an arbitral tribunal and, accordingly, refer this Court to the 333 page Final Award issued by the tribunal. copy of the Final Award is attached hereto as Exhibit A A.

Instead, the following is a summary of the relevant procedural issues and posture of the case which demonstrate why appeal of the order denying the Plaintiff's Discovery Motion is not

supported by law and should be denied. 2. Plaintiffs in this case are Kaiser Group

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International,

Inc.

("Kaiser

International"),

and

Kaiser

Engineers, Inc. ("Kaiser Engineers") (collectively "Debtors" or "Plaintiffs"). agreement (the This adversary proceeding which arises Kaiser out of an

"Agreement")

under

Netherlands

agreed to design and construct "Phase 1" of a steel mill at Nova Hut's facility in Ostrava, Czech Republic. Kaiser Netherlands, a non-debtor Under the Agreement, of Kaiser

subsidiary

International, was obligated to prove the steel mill performed to contract-mandated quality and quantity standards within a

certain time period. Kaiser Netherlands

To secure its contractual obligations, a "Performance Letter of Credit"

posted

requiring annual renewal. International Kaiser guaranteed failed

As Kaiser Netherlands' parent, Kaiser performance to provide to under a steel renew the mill the Agreement. that met

Netherlands

contractual

standards,

and

failed

Performance

Letter of Credit. Plaintiffs' Because claims,

Those two issues, that lie at the heart of have now been resolved to deliver in the arbitration. steel mill

Kaiser

Netherlands

failed

within the terms of the Agreement or to renew the Performance Letter of Credit, Nova Hut drew under the letter of credit. Nova Hut's draw prompted the present adversary proceeding to recover the proceeds of the Performance Letter of Credit. a number of complaint amendments, Kaiser International After and

Kaiser Engineers also asserted additional claims against Nova

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Hut

relating

to

(1)

Kaiser

Engineers'

alleged

provision

of

engineering and financial services under a purported Letter of Intent, and (2) an alleged contingency fee under an alleged

Memorandum of Understanding. The Debtors' Complaints Against Nova Hut 3. On June 9, 2000, the Debtors filed their petition for

relief under Chapter 11 of the Bankruptcy Code. 4. To preserve its rights under the Plaintiffs'

performance guaranty, on August 14, 2000, Nova Hut filed a proof of claim (the "Proof of Claim") in the Debtors' chapter 11 case. 5. On September 27, 2000 and March 19, 2001, the Debtors

objected to Nova Hut's Proof of Claim, but adjourned hearings on its objections. 6. Because Kaiser Netherlands failed to deliver a steel

mill that conformed to its Agreement with Nova Hut, or to renew the Performance Letter of Credit, on February 16, 2001, Nova Hut drew the Performance Letter of Credit and retained the $11.1 million proceeds. 7. On April 9, 2001, Kaiser International commenced this

adversary proceeding asserting "Breach of Contract" limited to Nova Hut's draw under the Performance Letter of Credit. 8. On May 16, 2001, Nova Hut moved to dismiss the initial

adversary complaint, or to stay proceedings pending resolution of an arbitration between Nova Hut and Kaiser Netherlands.

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9.

Before the motion to dismiss could be decided, Kaiser

International filed an Amended Adversary Complaint on May 29, 2001 (the "Amended Adversary Complaint"). Kaiser International

recharacterized its claim against Nova Hut to include "Breach of Warranty" and asserted claims against the International Finance Corporation ("IFC"), one of Nova Hut's lenders at the time, for tortious interference with contract and with prospective

business relations. 10. On July 6, 2001, Nova Hut moved to dismiss the Amended

Adversary Complaint. 11. Complaint Before could the be motion to dismiss on the Amended 17, Adversary Kaiser

decided,

December

2001,

International filed a Second Amended Adversary Complaint (the "Second Amended Adversary Complaint") in which it repeated its contract, warranty, and tortious interference claims, and added claims for quantum meruit and unjust enrichment. 12. On January 9, 2002, the Bankruptcy Court authorized In re Kaiser Group

Nova Hut to withdraw its Proof of Claim.

Int'l, Inc., 272 B.R. 852 (Bankr. D. Del. 2002). 13. On May 15, 2002, Kaiser International filed a motion

for temporary restraining order and preliminary injunction (the "TRO Motion") seeking a world-wide, prejudgment freeze of Nova Hut's accounts and to enjoin Nova Hut, including its controlling shareholder at the time, the Czech Government, from entering

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into any agreement to privatize the steel mill. moved to dismiss the Second Amended Complaint

Nova Hut crossand to compel

arbitration (the "Cross-Motion"). 14. Kaiser On May 31, 2002, TRO the Bankruptcy under the Court denied the

Netherlands'

Motion

Supreme

Court's

controlling decision in Grupo Mexicano de Desarrollo S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308 (1999), which Kaiser

Netherlands did not reference in its TRO Motion.

Thereafter, on

October 7, 2002, the Bankruptcy Court conducted a hearing on Nova Hut's Cross-Motion to dismiss and to compel arbitration. At Kaiser International's request, the Bankruptcy Court

permitted submission of a Third Amended Complaint. 15. On October 21, 2002, Kaiser International filed a

Third Amended Complaint (the "Third Amended Complaint") adding Kaiser Engineers as a party plaintiff. The Third Amended

Complaint asserts three claims against Nova Hut: return of the $11,100,000 draw of the Performance

(1) for a Letter of

Credit under theories of breach of warranty, breach of contract, unjust enrichment, and quantum meruit (First, Second, Fifth, and Eighth Claims); (2) a $510,000 claim by Kaiser Engineers

relating to alleged engineering and financial services under a purported "Letter of Intent" (Third, Sixth, and Ninth Claims), and (3) a $5.25 million claim for an alleged contingency fee under a purported "Memorandum of Understanding" (Fourth,

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Seventh, and Tenth Claims).1 Kaiser International And Kaiser Engineers Are Ordered To

Arbitrate 16. Adversary On October Proceeding 28, 2002, and Nova to Hut moved to stay this or

compel

arbitration,

alternatively, to dismiss the Third Amended Complaint. on January 6, 2003, the Bankruptcy Court denied

However, Hut's

Nova

motion to compel arbitration, as well as its alternative motion to dismiss. 17. Nova Hut thereafter filed a timely appeal to the

United States District Court for the District of Delaware (the "District Court"), as permitted under the provisions of the

Federal Arbitration Act. 18. Jr., of On March 18, 2004, the Honorable Joseph J. Farnan, the of District Hut's this Court motion action reversed to the Bankruptcy Court's ordered Kaiser claims

denial

Nova in

compel

arbitration, compelled their

proceedings International

stayed, to

and

and

Kaiser

Engineers

arbitrate

against Nova Hut.

In re Kaiser Group Int'l (Kaiser Group Int'l The District

v. Nova Hut a.s.), 307 B.R. 449 (D. Del. 2004).

Court expressly found that Plaintiffs admitted that the payments they seek in this action are the "[p]ayments due Kaiser

1

The Plaintiffs also asserted claims defendant IFC for Tortious Interference with Business Relations and Prospective Economic Advantage.

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International

through

its

subsidiary

Kaiser

Netherlands

from

Nova Hut . . . ." and that "[t]he profits from the Agreement" -- amounts sought in the Arbitration -- "will be paid to Kaiser International." Kaiser, 307 B.R. at 457. As a result, the

Court found that the Plaintiffs "embraced" the Agreement between Kaiser Netherlands under the and Nova Hut, and ordered of Plaintiffs the to

arbitrate

arbitration

provisions

Agreement.

Id. at 457.2 Kaiser Netherlands Commences Arbitration Seeking The Identical Relief Sought In The Third Amended Complaint 19. Kaiser Before Judge Farnan could rule, on January 2, 2004, Netherlands of Claim" the submitted against a Nova "Request Hut (the for Arbitration & as 1

Statement required Agreement.

"Arbitration") in the Phase

under

arbitration

provisions

In the Arbitration, Kaiser Netherlands asserted the

very claims Kaiser International and Kaiser Engineers asserted in the Third Amended Complaint. 20. During the course of the Arbitration, Kaiser

Netherlands was afforded the opportunity to conduct discovery and did in fact obtain discovery from Nova Hut.3 On February 3, 2005, Kaiser Netherlands filed a rather extensive request for production of documents with the Arbitral Tribunal.
2 3

On March

This is contrary to Plaintiffs' claim that they never agreed to arbitrate. Plaintiffs' allegations that somehow Nova Hut has managed to avoid discovery is simply untrue. As demonstrated infra, Nova Hut was not "hiding anything" but rather complied with all discovery requests in the Arbitration.

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14, 2005, the Arbitral Tribunal handed down a Procedural Order #2 and ordered that Nova Hut communicate to Kaiser Netherlands all the documents Kaiser Netherlands referred to in 6 out of its 7 categories of requests. Nova Hut complied with the order and In addition, on March

produced several binders of documents.

22-23, 2005, representatives of Kaiser Netherlands were allowed to inspect Nova Hut's plant in Ostrava, Czech Republic. Kaiser Netherlands never voiced any objection to the discovery it

received and never submitted a complaint pursuant to Article 16 of the Terms of Reference objecting to such discovery. See

Objection of Nova Hut to Discovery Motion, Adv. Proc. Docket No. 303. 21. On April 26, 2006, the Arbitration panel entered the

Final Award, consisting of a 333 page decision in favor of Nova Hut which was a final order. as Exhibit A. 22. According to Kaiser International's public filings, A copy of the 8-K of See Final Award, attached hereto

the Final Award is final and unappealable.

Kaiser Group Holdings, Inc. is attached hereto as Exhibit B. Nova Hut's Motion for Summary Judgment & Plaintiffs' Discovery Motion 23. claims Because and the Final further Award resolved of the the Plaintiffs' adversary

renders

prosecution

proceeding unnecessary under the doctrines of res judicata and

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collateral estoppel, on December 13, 2006, Nova Hut moved to lift the stay in this case and filed its motion for summary judgment based on the Final Award that was issued by the ICC arbitral tribunal in its favor on the same claims as in the Third Amended Adversary Complaint. 24. In response, on or about January 25, 2007, Plaintiffs for summary judgment and also filed Plaintiffs'

cross-moved

Discovery Motion. fact that this

In Plaintiffs' Discovery Motion, despite the adversary proceeding was stayed, Plaintiffs

sought discovery pursuant to FED. R. BANKR. P. 2004, FED. R. CIV. P. 56(f), and under the antiquated doctrine of equitable bill of discovery. In Plaintiffs' Discovery Motion, they argued that

they were entitled to discovery pursuant to FED. R. BANKR. P. 2004 to aid in the prosecution of some future arbitration against Nova Hut before an ICC arbitral tribunal and in defense of the Final Award because they claimed that no discovery was available in the Austrian arbitration proceedings. Plaintiffs also

claimed that they were entitled to discovery pursuant to FED. R. CIV. P. 56(f) before the summary judgment motions could be

considered because they claim they need discovery as to whether they had a full and fair opportunity to litigate the dispute before the ICC arbitral tribunal. following Plaintiffs "facts" to support that a this Plaintiffs set forth the need for discovery: (the (a)

asserted

website

article

"Website

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Article") dated April 26, 2006 summarizing the Final Award was posted on the website of Cleary Gottlieb Steen & Hamilton LLP, counsel to Nova Hut in the Arbitration, three weeks before

Kaiser Netherlands received notice of the arbitration award4; (b) Plaintiffs also alleged that there was an "inexplicable" delay before the Tribunal rendered its decision, which "suggests that the IFC may have intervened in this interim period to influence the decision;"5 (c) Plaintiffs also alleged that the fact that the Arbitral Tribunal Kaiser under dismissed Netherlands Agreement also a Nova Hut's alleged prior

admissions tests sort;

that

passed infers

certain

performance of some a the

required and (d)

the

collusion that IFC

Plaintiffs to

alleged

"had [in

significant

motive

secure

favorable

award

Arbitration because] a substantial number of shares of Nova Hut stock are pledged to the IFC as collateral for its lending

4

To counter this allegation, Nova Hut submitted affidavits from Cleary Gottlieb witnesses demonstrating the Cleary Gottlieb did not learn of the Final Award until May 16, 2007 when it was released, the Website Article was posted to the Cleary Gottlieb web site on June 30, 2006, and the Website Article was merely dated with the date that appeared on the Final Award (as noted on the front page of the Final Award). See Declaration of Jean-Yves Garaud dated March 23, 2007 and Declaration of Edward Weppler dated March 23, 2007, attached hereto as Exhibit C. Indeed, not only did Cleary Gottlieb inform counsel for Plaintiffs regarding the inaccuracies of its allegations regarding the Press Release before it files its various pleadings, these allegations are currently the subject of a Motion pursuant to FED. R. BANKR. P. 11.
5

The Arbitral Tribunal itself explained to the parties by letter that because of the large number of claims and the complexity of the case, the drafting of the 333 page Final Award took longer than expected. The timing of the filing of the Final Award with the ICC was in line with the time frames presented to the parties.

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program" and an adverse decision in the Arbitration could have pushed Nova Hut into bankruptcy.6 The Plaintiffs incredulously

contended the Bankruptcy Court should have reasonably inferred from these facts that Nova Hut, Cleary Gottlieb, IFC and the arbitral Award tribunal were all in collusion were regarding to the Final

and

therefore,

Plaintiffs

entitled

discovery.

Finally, in their Discovery Motion, Plaintiffs argued that they were also entitled to discovery pursuant to doctrine of

equitable bill of discovery. 25. After oral argument on April 25, 2007, and after

considering these arguments and those put forth by Nova Hut, the Bankruptcy Court denied Plaintiffs' Discovery Motion. See Transcript of Bankruptcy Court hearing on Discovery Motion,

dated April 25, 2007, a copy of which is attached hereto as Exhibit D. Plaintiffs' On May 31, 2007, this Court issued the order denying Discovery Motion (the "Discovery Order"). See

Exhibit A to Motion for Leave. 26. Order. Plaintiffs now are attempting to appeal the Discovery Because the Discovery Order is interlocutory in nature,

because it does not fit within the collateral order exception and because there is no reason for this Court to exercise

6

The truth is that Mittal Steel Ostrava, which purchased Nova Hut in January 2003, satisfied all loans from the IFC as of December 15, 2004, a fact which was presented to this Court and Plaintiffs in Nova Hut's opposition to Plaintiffs' Discovery Motion.

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discretion

under

28

U.S.C.

§1292(b),

this

Court

should

deny

Plaintiffs' Motion for Leave. ARGUMENT I. PLAINTIFFS' REQUEST TO APPEAL THE ORDER DENYING PLAINTIFFS' DISCOVERY MOTION MUST BE DENIED. A. THE ORDER IS INTERLOCUTORY AND ACCORDINGLY APPEALABLE AT THIS TIME AS A MATTER OF RIGHT. is beyond dispute that the Discovery IS NOT

It

Order

is An

interlocutory and not the subject of appeal as of right.

interlocutory order is one "which does not finally determine a cause of action but only decides some intervening matter

pertaining to the cause, and which requires further steps to be taken in order to enable the court to adjudicate the cause on the merits." Matter of Tahkenitch Tree Farm P'Ship, No. 94-460,

1994 WL 374215, at *1 (E.D. La. July 12, 1994); see also In re Bank of New England Corp., 218 B.R. 643, 646 (B.A.P. 1st Cir. 1998) (holding that an interlocutory order "only decides some intervening matter pertaining to the cause, and which requires further steps to be taken in order to enable the court to

adjudicate the cause on the merits.").

In contrast, a final

order is one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment. In re

Delaware and Hudson Ry. Co., 96 B.R. 469, 471 (D. Del. 1989). District Courts only have jurisdiction to hear appeals from

final orders or, if an order such as the Discovery Order is

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interlocutory, where leave is granted. long-standing Congressional policy

28 U.S.C. § 158(a). of avoiding

A

piecemeal

litigation underlies the rule permitting appeals as of right only for final orders. In re Edison Bros. Stores, Inc., 1996 WL

363806, at *4 (D. Del. July June 27, 1996), aff'd, 884 F.2d 1383 (3d Cir. 1989); In re Prudential Lines, Inc., 59 F.3d 327, 332 (2d Cir. 1995) of (holding actual is that the requirement between [the] of a final to an

determination adversary

controversies "consistent

parties long

proceeding

with

standing

policy of limiting piecemeal appeals."); In re Continental Inv. Corp., 637 F.2d 1, 2 (1st Cir. 1980) (recognizing that the final judgment rule serves "a strong congressional policy against

piecemeal review, and against obstructing or impeding an ongoing judicial omitted). Accordingly, because the Discovery Order has not ended the instant litigation, it is not a final order. There is no reason proceeding by interlocutory appeals.") (citation

why the question regarding the propriety of discovery can not be considered after judgment is rendered in this adversary

proceeding, whether on the cross motions for summary judgment or otherwise. Indeed, if Nova Hut prevails at summary judgment7 and

7

Nova Hut has filed a motion for summary judgment seeking to apply the Final Award against the Plaintiffs under the doctrines of collateral estoppel and res judicata. See Adv. Proc. Docket No. 274. This motion is currently pending. Accordingly, Nova Hut contends that no further arbitration proceedings are required.

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a separate and final judgment enters in its favor on all counts, Plaintiffs can seek to appeal the decision, including the

decision to deny discovery.8

If Nova Hut's motion for summary

judgment is instead denied either (a) the stay will remain in place while any arbitrations are completed and judgment in the adversary proceeding will be entered after such arbitration has concluded, or (b) the stay will be lifted and Plaintiffs' will be free to exercise their rights under FED. R. CIV. P. 26-37. It is well settled, even in the bankruptcy context, that orders denying leave to take discovery in adversary proceedings are considered interlocutory. Parsons, 392 F.3d 886, 888 See, e.g., Caldwell-Baker Co. v. (7th Cir. 2004); In re Towers

Financial Corp., 164 B.R. 719, 720 (S.D.N.Y. 1994). the must Third be Circuit viewed has "consistently in recognized that

Although finality In re

pragmatically Inc., the 978

bankruptcy 116, 120 in

appeals," (3d their Cir.

Market merely

Square

Inn, as

F.2d

1992), for

stating,

Debtors

attempt

Motion

Leave, that the concept of finality is treated more broadly in bankruptcy cases does not establish that the Discovery Order is final. See First Am. Bank of New York v. Century Glove, Inc., Courts which recognize the

64 B.R. 958, 959 (D. Del. 1986).

need for a more expansive view of finality in bankruptcy cases

8

However, Nova Hut reserves the right to challenge the scope of any appeal available based on the grounds of the underlying judgment.

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have

made

clear

that

this is

need

stems

from

the

fact

that

a

bankruptcy

proceeding

"umbrella

litigation

often

covering

numerous actions that are related only by the debtor's status as a litigant." In re Sonnax Indus., Inc., 907 F.2d 1280, 1283 (2d Cir. 1990); see also F/S Airlease II, Inc. v. Simon, 844 F.2d 99, 103 (3d Cir. 1988), cert. denied, 48 U.S. 852 (1988) (noting that "[t]he unique characteristics of bankruptcy cases have led [the Third Circuit] to `consistently consider [] finality in a more pragmatic and less the technical finality way.'"). doctrine Rather, depends on the the

flexibility

afforded

specific circumstances involved. 854 (B.A.P. 9th Cir. 2001).

See In re Belli, 268 B.R. 851, Inefficient use of judicial

resources is as objectionable in bankruptcy appeals as in other fields. In re White Beauty View, Inc., 841 F.2d 524, 526 (3d

Cir. 1988).9 It is still the law in the Third Circuit that in individual adversary proceedings in a bankruptcy case, a "general antipathy toward piecemeal appeals still prevails [as in general civil
9

As a result, the Debtors' reliance on cases such as Kaiser Aluminum Corp., 327 B.R. 554 (D. Del. 2005) and United Jersey Bank v. Collated Prods. Corp., 121 B.R. 195 (D. Del. 1990) is misplaced. In Kaiser Aluminum, the Delaware District Court merely recognized that bankruptcy appeals necessitate a pragmatic approach to finality. 327 B.R. at 558. In Collated Prods. Corp., the District Court noted that the primary basis for the more expansive interpretation of finality in bankruptcy cases results from the fact that "b]ankruptcy cases frequently involve protracted proceedings with many parties ... [and such flexibility is necessary to] avoid the waste of time and resources that might result from reviewing discrete portions of the action only after a plan of reorganization is approved." 121 B.R. at 200.

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litigation]."

White Beauty, 841 F.2d at 526.

The Third Circuit

has instructed that in adversary proceedings, the Court "must apply the same concepts of appealability as those used in

general civil litigation." (ruling that finality for

Id.; see also Belli, 268 B.R. at 855 purposes of appeals in adversary

proceedings "does not differ from finality in ordinary federal civil actions."). In civil litigation, discovery orders are, with rare

exception, non-appealable.

In re Jeannette Corp., 832 F.2d 43,

46 (3d Cir. 1987); In re Ford Motor Co., 110 F.3d 954, 958 (3d Cir. 1997) ("As a general rule, discovery orders are not final orders ... for purposes of obtaining appellate jurisdiction."); Union Carbide Corp. v. U.S. Cutting Serv., Inc., 782 F.2d 710, 712 (7th Cir. 1986) (finding that the "general and very salutary rule is that discovery orders are not appealable until the end of the case."); Mitsubishi Int'l Corp. v. Prepetition Senior Lenders, No. IP-00-1468-C HIG, 2000 WL 1902188, at *1 (S.D. Ind. Dec. 19, 2000) (holding that "[d]iscovery orders are not final decisions and can, if erroneous, be corrected on appeal after a final decision.") (citing Reise v. Bd. of Regents of Univ. of Wisconsin Sys., 957 F.2d 293, 295 (7th Cir. 1992)); In re

Towers, 164 B.R. at 720 (holding that bankruptcy court orders granting or denying discovery "do not finally dispose of an

entire claim on which relief may be granted, and therefore are

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generally right.").

treated

as

interlocutory

and

not

appealable

as

of

Further, courts have held that, by definition, an

order on a nondispositive motion within an adversary proceeding is interlocutory. 138 (Bankr. W.D. In re Texas Bumper Exch., Inc., 333 B.R. 135, Tex. 2005). Where an adversary proceeding

continues after entry of an order, such as an order denying additional discovery, that order is not a final decision, but rather, interlocutory. Indeed, orders In re Caldwell-Baker, 392 F.3d at 888. denying discovery under the rules of

procedure and theories used by the Plaintiffs in this case have long been considered, as a matter of law, interlocutory.

Plaintiffs' Discovery Motion sought relief pursuant to FED. R. BANKR. P. 2004, FED. R. CIV. P. 56(f) and the antiquated theory of equitable bill of discovery. these rules and theories, Orders denying motions made under are, as a matter of law,

interlocutory.

See Matter of Vance, 165 F.3d 34 (7th Cir. 1998)

(Table) ("A majority of Courts that have considered the issue have held that orders granting or denying Rule 2004 examinations are, like discovery orders, interlocutory. This court does not

have jurisdiction to consider appeals from interlocutory orders in bankruptcy proceedings." (citations omitted)); In re Towers, 164 B.R. at 720 (order denying Rule 2004 examination in

adversary proceeding was not a final appealable order); see, e.g., Pacitti v. Macy's, 193 F.3d 766 (3d Cir. 1999) (discovery

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orders, including decisions on motions pursuant to FED. R. CIV. P. 56(f) are interlocutory); Gregory Lumber Co., Inc. v. U.S., 11 Cl. Ct. 489, 496 (Cl. Ct. 1986), aff'd, 837 F.2d 305 (Fed. Cir. 1987) (discretionary appeal of order made on FED. R. CIV. P. 56(f) motion denied).10 Under this prevailing law, the Discovery Order

can be seen as nothing other than interlocutory. Accordingly, there is absolutely no way to consider the Discovery Order final and no reason why appeal is unavailable after a final resolution of this action.11 The Discovery Order

is interlocutory, and not appealable as of right pursuant to 28 U.S.C. § 158(a). Therefore, unless the Discovery Order fits

into a recognized exception to the finality rule (which it does not) or this Court otherwise determines it should exercise its discretion to grant appellate review pursuant to 28 U.S.C. §§ 158(a)(3) and 1292(b) (for which Plaintiffs' have not offered a compelling reason to do so), Plaintiffs' request for appellate review should be denied.
10

The order denying Plaintiffs' request for equitable bill for discovery is as well interlocutory and not subject to appeal as of right. In the Motion for Leave, Plaintiffs state without citation to any authority that the order denying the requested equitable bill of discovery is essentially a final order because their request constitutes a separate proceeding. This is not the case. Plaintiffs' used the so-called equitable bill of discovery to impermissibly circumvent discovery rules. This Court saw through these attempts and denied Plaintiffs' Discovery Motion. Just as the bill cannot be used to circumvent rules of discovery, it also cannot be used to thwart the general rule that orders on motions for leave to take discovery are interlocutory. In re Jeannette Corp., 832 F.2d at 46; In re Ford Motor Co., 110 F.3d at 958; Union Carbide, 782 F.2d at 712; Mitsubishi Int'l, No. IP00-1468-C HIG, 2000 WL 1902188, at * 1; In re Towers, 164 B.R. at 720. See also, Etiene v. Oyake, 347 F.Supp.2d 215, 220-21 (D. V.I. 2004).
11

See Note 8, supra.

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B.

THE ORDER IS NOT APPELLATE REVIEW. 1.

A

COLLATERAL

ORDER

ENTITLED

TO

The Discovery Order Does Not Meet the Requirements to be Immediately Appealable Under the Collateral Order Doctrine.

Plaintiffs' attempts to provide the Discovery Order a path to appellate review with the collateral order doctrine must

fail.

The collateral order doctrine was first espoused by the

United States Supreme Court in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949), and provides under certain

circumstances a very narrow exception to the rule permitting appeals of only final orders. According to the collateral order

doctrine, an interlocutory order may be immediately appealable if the following three criteria are met: (1) the order from which the appellant appeals conclusively determines the disputed question; the order resolves an important issue that is completely separate from the merits of the dispute; and the order is effectively unreviewable on appeal from a final judgment. All three prongs must be met in

(2)

(3)

In re Ford, 110 F.3d at 958.

order for the collateral order doctrine to apply and for the court to have appellate jurisdiction. Cipollone v. Liggett

Group, Inc., 785 F.2d 1108, 1117 (3d Cir. 1986), cert denied, 484 U.S. 976 (1987).

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The Supreme Court has repeatedly referred to the collateral order doctrine and as "narrow," that it described should its "never application be allowed as to

"stringent"

urged

swallow the general rule."

See, e.g., Digital Equip. Corp. v.

Desktop Direct Inc., 511 U.S. 863, 868 (1994); Midland Asphalt Corp. v. United States, 489 U.S. 794, 799 (1989). The Third

Circuit has "followed this admonition and consistently construed the collateral order doctrine narrowly lest the exception

swallow up the salutary general rule that only final orders be appealed." We, Inc. v. City of Philadelphia, 174 F.3d 322, 324

(3d Cir. 1999) (internal citations omitted); see also ADAPT of Philadelphia v. Philadelphia Housing Authority, 417 F.3d 390 (3d Cir. 2005). The District Court for the District of Delaware has

also acknowledged that the collateral order doctrine is a narrow exception to the final judgment rule. B.R. at 960. None of the cases in the Third Circuit considering the See First American, 64

collateral order doctrine would support for its application to the simple Discovery Order in this case. See, e.g., ADAPT of

Philadelphia, 417 F.3d at 395 (holding that routine discovery order was not reviewable under collateral order doctrine because it was not seeking to prevent disclosure of information on the basis of trade secrets or privilege); Ford, 110 F.3d at 964 (holding that order compelling production of documents arguably

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subject to attorney-client privilege was final under collateral order doctrine); Smith v. BIC Corporation, 869 F.2d 194 (3d Cir. 1989) (holding that decision denying protective order for trade secrets was final under collateral order doctrine); Merkle v. Upper Dublin School Dist., 166 F. Supp.2d 210 (E.D. Pa 2001) (holding that discovery order requiring disclosure of attorneyclient privileged and work product doctrine documents was

appealable under collateral order doctrine).

In fact, the Third

Circuit, in Bacher v. Allstate Ins. Co., 211 F.3d 52, 53-55 (3d Cir. 2000), declined to extend the collateral order doctrine for discovery orders beyond those that involve information which the party claims to be privileged or that constitute a trade secret. The Court dismissed as non-final an appeal of a discovery order which denied a party protection for highly sensitive information which didn't rise to the level of trade secrets. Id. at 55.

The Court stated that it "must be careful not to open the door to a flood of collateral order appeals from discovery orders requiring disclosure of unprivileged information which might be characterized as `sensitive'." Circuit in ADAPT order of Id. Additionally, the Third declined the to of extend a the

Philadelphia to allow

collateral

doctrine

appeal

routine

discovery order, reiterating that "[i]t is well-established that unless a party is seeking to prevent the disclosure of

information on the basis of trade secrets or some traditionally-

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recognized privilege such as attorney-client or work product, the collateral order doctrine does not permit appeal from

discovery orders." should flatly deny

417 F.3d at 395. Plaintiffs' order

Accordingly, this Court to a use the narrowly of

attempts on

tailored

collateral

doctrine

routine

denial

discovery order. The Discovery Order in this case is nothing more than an order denying leave to take discovery. It does not involve

issues of privilege or other unique circumstances appropriate for collateral doctrine review. This Court simply denied

Plaintiffs' requests to take discovery pursuant to FED. R. BANKR. P. 2004, FED. R. CIV. P. 56(f) and equitable bill of discovery because the parties already had the same dispute decided in an arbitration governed by ICC rules. There is no reason to treat

the Discovery Order as warranting special treatment under the collateral order doctrine and accordingly, Plaintiffs' request for appellate review should be denied. To the extent this Court performs the analysis regarding the applicability of the collateral order doctrine, Plaintiffs' attempts to manufacture finality for the Discovery Order should be rejected. doctrine, Under the first prong of the collateral order claim the Discovery Order conclusively

Plaintiffs

determines the disputed question because "the Discovery Order may well be the final word from the Bankruptcy Court on this

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issue." should be

Motion for Leave, p. 16. considered proceeding here and is not the the

The actual dispute that dispute narrow involved issue in the in

adversary

involved

Plaintiffs' Discovery Motion.

Regardless, the Discovery Order

cannot be considered the final decision on whether discovery is appropriate. As explained above, if summary judgment is granted in Nova Hut's favor, the Discovery Order can be appealed as a separate and final judgment. If Nova Hut's request for summary

judgment is denied, Plaintiffs can take discovery if the stay is lifted or proceed with discovery in any arbitration that may take place.12 Therefore, the discovery issue has not been

finally determined. Under the second prong of the collateral order doctrine, Plaintiffs claim that the Discovery Order is completely separate from the merits of the substantive dispute and that the question of whether Plaintiffs are entitled to discovery is too important an issue to deny immediately appellate review. Plaintiffs

12

Also, Kaiser has taken the position in pleadings both in the pending bankruptcy adversary proceeding and before the Dutch Court (where Nova Hut has filed an Execution Petition to enforce the Arbitration Award against Kaiser Netherlands), that it still has a pending discovery request for the very same discovery that was the subject of the Discovery Order. Although Nova Hut contests that this so-called separate discovery request remains pending after the Discovery Order, based on Kaiser's own contentions, the Discovery Order would not have conclusively determined the discovery Kaiser was requesting. See Memorandum of Law in Opposition to Motion of Mittal Steel Ostrava, a.s. (Formerly Nova Hut, a.s.) Pursuant to Bankruptcy Rule 9011 for Sanctions Against Saul Ewing LLP, at p. 4 n.5. [Docket No. 323] and Reply in Support of Motion of Mittal Steel Ostrava, a.s. (Formerly Nova Hut, a.s.) Pursuant to Bankruptcy Rule 9011 for Sanctions Against Saul Ewing LLP, at p. 8 n.5 [Docket No. 329].

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attempt

to

bolster

their

argument

that

their

entitlement

to

discovery meets the "importance" criterion by rehashing their past attempts throughout this case to procure discovery (mostly recounting efforts to obtain discovery from Nova Hut's co-

defendant, IFC).

All of Plaintiffs' past attempts to obtain

discovery from IFC or Nova Hut were denied by the Bankruptcy Court due to the facts and procedural posture of the case when such discovery was sought, as well as the inappropriate bases for which Plaintiffs attempted to seek such discovery. Notably,

Plaintiffs did not attempt to seek leave to appeal any prior denials of attempts Just entered to as in obtain discovery will in this the adversary right to once to

proceeding. judgment is

Plaintiffs the

have

adversary

proceeding

seek

appeal any prior orders denying discovery, they will also have ample opportunity to seek to appeal this current Discovery Order once a judgment is entered in the adversary proceeding. There

is no justification for treating the current denial of discovery different than any past denials of discovery. Also, as the

Bankruptcy Court noted at the hearing on the Discovery Motion, the parties to the adversary proceeding should be governed by any procedural rules governing any ICC arbitrations they may engage in, including any ICC arbitration Plaintiffs' rules claim governing that the

discovery

procedures.

Moreover,

entitlement to discovery in and of itself meets the "importance"

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prong

is

contradicted orders are

by not

the final

prevailing orders.

general Under

rule

that

discovery

Plaintiffs'

reasoning, every discovery order would be a final order, thus eviscerating the purpose and policy behind the finality rule in the first place. Under the third and final prong of the collateral order doctrine, Plaintiffs claim that the Discovery Order is

effectively unreviewable on appeal from a final judgment if it is not reviewed at this time. To meet this requirement,

Plaintiffs must show that review postponed will effectively be review denied. See e.g., Martin v. Brown, 63 F.3d 1252, 1261

(3d Cir. 1995); United States v. Bertoli, 994 F.2d 1002, 1012 (3d Cir. 1993). The only real harm Plaintiffs articulate is the

requirement to wait for the Bankruptcy Court to rule on a motion to enforce the arbitration ruling. Requiring Plaintiffs to wait

until a judgment is entered by the Bankruptcy Court does not make the Discovery Order unreviewable such that postponing the review equates to denial of an opportunity for review, as is required to meet this prong. their position and Plaintiffs cite no law to support they fail to meet the

accordingly,

requirements of the final criterion. 2. The Discovery Order is Not Final Under the Exception for Orders Issued in a Different Jurisdiction Than the Jurisdiction of the Main Proceeding.

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Plaintiffs also make a misguided attempt to fit the denial of the Discovery Order into the extremely narrow exception to the final order rule which is applicable only where the court denying discovery is in a different circuit than the court where the main litigation proceeding is pending. See, e.g., Republic This

Gear v. Borg-Warner Corp., 381 F.2d 551 (2d Cir. 1967).

exception has only been applied in the very limited circumstance where discovery is sought against a non-party to a litigation in the District Court that would have jurisdiction over that nonparty, but which is not the jurisdiction in which the litigation is pending.13 Id. Circuit Courts considering whether an appeal

of such a discovery order should be immediately appealable have held that such orders are final orders based on the theory that the Circuit Court in which the main litigation is pending would have no jurisdiction over the nonparty and therefore there would be no right to appeal that decision once a judgment on the main case was reached. See Heat & Control, Inc. v. Hester Indus.,

Inc., 785 F.2d 1017, 1021 (Fed. Cir. 1986) (holding that because California court had no jurisdiction over nonparty, party would have no other means of obtaining review than by appealing West

13

Certain courts have even further limited this exception by holding that the jurisdiction where the discovery order is entered may not even be in the same Circuit as the jurisdiction where the main litigation is pending for this exception to the finality rule to apply. See Barrick Group, Inc. v. Mosse, 849 F.2d 70, 74 (2d Cir. 1988); In re Subpoena Served on California Pub. Util. Comm'n, 813 F.2d 1473, 1479 (9th Cir. 1987).

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Virginia court's discovery order to the Circuit Court for West Virginia cases); Ariel v. Jones, 693 F.2d 1058, 1059 (11th Cir. 1982) ("[i]f a court in one district quashes a subpoena or

otherwise denies discovery from a person not a party to the action and that action is pending in a different district, the order is a final disposition of the only proceeding in that district discovery concerning may the controversy 8 C. and the party and A. seeking Miller,

appeal.")(quoting

Wright

Federal Practice and Procedure § 2006 (1970)); Republic, 381 F.2d at 554 ("Our decision applies only when a witness is beyond the jurisdictional reach of the court in which the main

proceeding is pending . . ."). Most notably, this exception cannot apply in the instant case because the Discovery Order was entered by the very same Bankruptcy "main Court before between which the the adversary is proceeding and (the where

proceeding"

parties)

pending

ultimately a judgment will be entered.

This Court should not be

confused by Plaintiffs' argument that the Discovery Order was issued by a different tribunal (i.e. the Delaware Bankruptcy Court) than the tribunal before which the main proceeding will be held (i.e. arbitrations under the auspices of the ICC) should be dismissed. The main proceeding in this case is still the

adversary proceeding in the Delaware Bankruptcy Court, which has been stayed in favor of arbitration. Any judgment to be entered

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against

Nova

Hut

or

IFC

arising

out

of

an

award

in

the

Arbitration or any other ICC-conducted arbitration between the parties to the adversary proceeding will necessarily have to be entered by the Bankruptcy Court in the adversary proceeding. the time that such a judgment is entered by the At

Bankruptcy

Court, Plaintiffs would then have their opportunity to appeal both the judgment and the interlocutory order denying their

Discovery Motion.

This would foster the goal of the finality See, e.g., We,

rule - to avoid piecemeal appellate reviews.

Inc., 174 F.3d at 324-325; Heat & Control, 785 F.2d at 1020. Moreover, in all of the cases cited by Plaintiffs and any additional exception, cases the discovered only by Nova Hut to that apply to this the

exception

applies

non-parties

litigation and has no application to this case.

Plaintiffs'

Motion for Leave to Appeal likewise notes in a footnote that "[t]his exception may be limited to discovery proceedings

brought against non-parties on the theory that the court hearing the main action does not have jurisdiction over the non-party to the case." Motion for Leave, p.12, fn. 2. The Discovery Order

in this case only relates to Plaintiffs, Nova Hut and IFC, all of which are parties to this adversary proceeding and all of which are subject to the jurisdiction of the Delaware Bankruptcy Court. This exception is completely inapplicable and cannot

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transform

a

run-of-the

mill

interlocutory

order

denying

a

discovery motion into a final, appealable order. Under these circumstances, it is clear that the collateral order doctrine does not apply and cannot save the Discovery

Order from its interlocutory status. appeal should therefore be denied. C.

Plaintiffs' request for

DISCRETIONARY INTERLOCUTORY RELIEF IS NOT WARRANTED AT THIS TIME. final step of the in conclusively Order determining is a review the of

The

nonappealability

Discovery

discretionary interlocutory appellate review under 28 U.S.C. §§ 158(a)(3) circuits and is 1292(b). clear that The case law from have this no and other for

Plaintiffs

grounds

discretionary appeal of the Discovery Order.

As a general rule, Tilden Fin.

a nonfinal interlocutory order may not be appealed.

Corp v. Palo Tire Serv., Inc., 596 F.2d 604, 606 (3d Cir. 1979). Exceptions to the general rule are limited and must be strictly construed. Matterhorn, Inc. v. NCR Corp., 727 F.2d 629, 633 Furthermore, the burden is on the movant to certification for immediate appeal is

(7th Cir. 1984). demonstrate warranted. 320 that

Orson, Inc. v. Miramax Film Corp., 867 F.Supp. 319, 1994). The purpose of section 1292(b) is the

(E.D.Pa.

allowance of appeals from orders other than final judgments when they have final and irreparable effect on the rights of parties.

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Albert v. School Dist. of Pittsburgh, 181 F.2d 690, 691-92 (3d Cir. 1950). should appeals. For be In exercising of the its sound discretion, against this Court

mindful

strong

policy

piecemeal

Orson, at 321. the Bankruptcy Court's Discovery Order to be

appealable, it must either be final or must fall into one of a series of specific classes of interlocutory orders enumerated in the statute. Siebert v. Great N. Dev. Co., 494 F.2d 510, 511 The relevant provision, 28 U.S.C. § 1292(b),

(5th Cir. 1974).

provides that such an order must, in the opinion of the District Judge, (1) involve a controlling issue of law; (2) as to which there is a substantial ground for a difference of opinion; and (3) immediate appeal may materially advance the ultimate

termination of the litigation. to certify an order for

A "controlling question of law" appeal is one that would

immediate

result in reversal of judgment after final hearing.

Orson, 867

F.Supp. at 321 (citing Katz v. Carte Blanche Corp., 496 F.2d 747, 755 (3d Cir. 1974)). In making its evaluation of whether

the issue is controlling and if immediate appeal is necessary to avoid irreparable harm, the Court must remember that the motion should not be granted merely because a party disagrees with the ruling of the Court that issued the order in question. v. Gen. Motors Corp., 939 F.Supp. 351, 353 (D.N.J. Cardona 1996).

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Substantial ground for difference of opinion must arise out of a genuine doubt as to the correct legal standard. There is abundant case law to support Id. a rejection of

Plaintiffs' attempt to appeal the Discovery Order through the statutory procedure. Attempts to take interlocutory appeal from

discovery orders are generally dismissed as premature because they are not a final orders disposing of all issues. Murdaugh

Volkswagen, Inc. v. First Nat. Bank of South Carolina, 741 F.2d 41, 44 (4th Cir. 1984). Some courts have determined that an

order denying a discovery motion is interlocutory and therefore, the appeals court has no jurisdiction to determine whether

denial was error. (8th Cir. 1977).

Kropp v. Ziebarth, 557 F.2d 142, 143 n. 1 In any event, courts conducting the statutory

analysis have found that discovery orders usually do not involve controlling questions of law requiring immediate appeal.

Sterling Supply Corp. v. Mullinax, 154 B.R. 660, 662-63 (E.D.Pa. 1993); McCann v. Communications Design Corp., 775 F.Supp. 1506, 1534 (D.Conn. 1991); Ostow & Jacobs, Inc., v. Morgan-Jones,

Inc., 181 F.Supp. 208, 218 (S.D.N.Y. 1960). For instance, in a case that is on all fours with the present adversary proceeding, the District Court held that a party could to not take appeal a Rule the 2004 Bankruptcy Court's of denial of a 11

request Trustee.

examination

the

Chapter

In re Towers, 164 B.R. at 720.

Like this case, Towers

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involved an adversary proceeding arising out of a Chapter 11 bankruptcy. After denial of the motion to take a Rule 2004

examination, the applicants appealed to the District Court. Upon review of the unequivocal legal precedent, the District Court dismissed granting the or appeal stating discovery that do "Bankruptcy finally court dispose orders of an

denying

not

entire claim on which relief may be granted, and therefore are generally right." treated as interlocutory and not appealable as of

Id. (citations omitted).

The Court also noted the

applicants' inability to locate a single case in which an order denying a Rule 2004 examination was considered a final order. Id. Where there is indication that further action by the

Bankruptcy Court will be forthcoming, such an order cannot be considered final. Id. Finally, the District Court recited the

standard for appeals under 28 U.S.C. § 1292(b), finding that the applicants had not presented a controlling question of law. Id.

Other cases construing the appealability of orders denying 2004 examinations are in accord. B.R. 707, 710 (S.D.N.Y. 1990); In re Chateaugay Corp., 120 see also Gache v. Balaber-

Strauss, 198 B.R. 662, 664 (S.D.N.Y. 1996) (ordinarily it is difficult to believe that a discovery order will present a

controlling question of law or that an immediate appeal will materially advance the termination of the litigation), quoting,

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8 Charles Alan Wright and Richard L. Marcus, Federal Practice and Procedure, § 2006 at 31 (1970 ed.). This case is no different. First, the Discovery Order does not involve a controlling questions of law. Whether or not to

allow discovery in this adversary proceeding before the Court considers summary judgment is not a question which will Orson,

necessitate a reversal of judgment after final hearing.

867 F.Supp. at 321 (citing, Katz v. Carte Blanche Corp., 496 F.2d 747, 755 (3d Cir. 1974)). ordinary entitled discovery to motions do Indeed, it is well settled that rule as a on whether of a law, party is

which not,

discovery

matter

involve

controlling questions of law. Group, Inc., 785 F.2d 1109,

See e.g., Cipollone v. Liggett 1118 n.14 (3d Cir. 1986)

("Ordinarily it is difficult to believe that a discovery order will present a controlling question of law" (citing C. WRIGHT & A. MILLER, FEDERAL PRACTICE
AND

PROCEDURE:

CIVIL §

2006 at 31 (1970 &

Supp. 1985)); Burns v. Lavender Hill Herb Farm, Inc., 2005 WL 545288 *2 (E.D. Pa. 2005) (Order denying party leave to take discovery did not raise controlling question of law); Motor

Carriers Labor Advisory Council v. Trucking Mgmt., Inc., 1988 WL 120689 *5 (E. D. Pa. 1988) (order restricting discovery did not involve controlling question of law);. The mere fact that

Plaintiffs' disagree with the Discovery Order is not sufficient to create a controlling question of law. Cardona, 939 F.Supp.

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at

353.

Second,

there

can

be

no

argument

that

there

are

substantial grounds for dispute regarding the Discovery Order. Indeed, Plaintiffs' counsel admitted at oral argument on

Plaintiffs' Discovery Motion that

he knew of no case law

supporting the allowance of a Fed. R. Bankr. P. 2004 exam where a case had been stayed pending arbitration. Exhibit D, p. 38.

The Court too based its decision on this absence of supporting law. Exhibit D at pp. 38-39. Accordingly, there is no dispute.

Finally, there is no possible way that allowing discovery would advance the termination of the case between Nova Hut and

Plaintiffs.

As the disputed issues have already been resolved

in an arbitration between Kaiser Netherlands and Nova Hut, a proceeding through which Plaintiffs and Kaiser Netherlands

obtained all the discovery they requested,

and where there are

cross motions for summary judgment pending before this Court, there can be no contention that allowing discovery of Nova Hut would advance resolution of this case. Under these

circumstances, Plaintiffs have entirely failed to satisfy the requirements of 28 U.S.C. §§ 158(a)(3) and 1292(b) and,

accordingly, their Motion for Leave must be denied. CONCLUSION It is undisputed order and that the be Discovery appealed Order as of is an

interlocutory

cannot

right.

Furthermore, based on the foregoing, Plaintiffs have failed to

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demonstrate the applicability of the collateral order doctrine or why discretionary review pursuant to 28 U.S.C. §§ 158(a)(3) and 1292(b) is appropriate. Therefore, Plaintiffs' Motion for

Leave must be summarily denied.

Dated:

June 18, 2007

GREENBERG TRAURIG, LLP

/s/ Dennis A. Meloro Victoria Watson Counihan (No. 3488) Dennis A. Meloro (No. 4435) The Nemours Building 1007 North Orange Street, Suite 1200 Wilmington, Delaware 19801 (302) 661-7000 -- and -- Annapoorni R. Sankaran One International Place, 20th floor Boston, MA 02110 (617) 310-6000 -- and -- Adam D. Cole 200 Park Avenue New York, NY 10166 212-801-3183

Attorneys for Defendant Mittal Steel Ostrava, a.s. (formerly Nova Hut, a.s.)

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