Free Reply Brief - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWAR
ARIN M. ADAMS, Chapter 11 Trustee of
the Post-Confirmation Bankrptcy Estates of CORAM HEALTHCARE CORP. and CORAM, INC.,
)
) ) )

) Civ. Action No. 04-cv-1565(SLR)
Plaintiff,
v.
) ) )

DANIELD. CROWLEY, etal.,
Defendants.

)
) ) )

REPLY BRIEF IN SUPPORT OF MOTION FOR PROTECTIVE ORDER
Dated: May 10, 2007
Richard A. Barkasy (#4683) Michael 1. Bare (#4684)

SCHNADER HARSON SEGAL & LEWIS LLP 824 N. Market Street, Suite 1001 Wilmington, DE 19801 (302) 888-4554 (telephone) (302) 888-1696 (facsimile)
OF COUNSEL:
Nancy Winkelman (admitted pro hac vice)

SCHNADER HARSON SEGAL & LEWIS LLP 1600 Market Street, Suite 3600
Philadelphia, P A 19103 (215) 751-2400 (telephone) (215) 751-2205 (facsimile)
Counsel to Plaintif

Arlin M Adams, Chapter 11 Trustee of the PostConfirmation Bankruptcy Estates of CORAM HEALTHCARE CORP. and CORA INC.

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TABLE OF CONTENTS
Page

i. INTRODUCTION.......................................... .................................................................... 1

II. CROWLEY HAS THE BUREN OF PROOF.................................................................. 6
III. THE TRUSTEE'S POSITION HAS REMAINED CONSISTENT. .................................. 8
IV. TRIAL COUNSEL'S OPINIONS ARE NOT ADMISSIBLE AND ARE NOT LIKLY TO LEAD TO THE DISCOVERY OF ADMISSIBLE EVIDENCE. .............. 11

V. DEPOSING OPPOSING TRIL COUNSEL IN THIS MATTER IS NOT ONLY

UNCESSARY BUT WOULD CAUSE HAR TO THE TRUSTEE........................ 14
VI. CONCLUSION................................................................................................................. 16

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TABLE OF AUTHORITIES
CASES

Allergan Inc. v. Pharmacia Corp., Civ. A. No. 01-141,2002 WL 1268047
(D. DeL. May 17, 2002)..................................................................................................................6

In re Arthur Treacher's Franchisee Litgation, 92 F.RD. 429 (E.D. Pa. 1981)..............................8
Caruso v. The Coleman Co., 157 F.R.D. 344 (B.D. Pa. 1994) ......................................................13

Caruso v. The Coleman Co., Civ. A. No. 93-6733, 1994 u.s. Dist. LEXIS 15824
(E.D. Pa. Oct. 25, 1994) ............... ........... ........................ .............................. ...................... ..... ....13

Cipollone v. Liggett Group, 785 F.2d 1108 (3d Cir. 1986) .............................................................7
Cole v. Mousavi, 1990 WL 63945 (DeL. Super. Ct. 1990).........................................................7, 15
Johnston Development Group, Inc. v. Carpenters Local Union No. 1578, 130 F .R.D. 348 (D .NJ. 1990)........................................................................................................ 7

In re Linerboard Antitrust Litigation, 237 F.RD. 373 (E.D. Pa. 2006) ........................................11
Nationwide Mutual Ins. Co. v. The Home Ins. Co., 278 F.3d 621 (6th Cir. 2002)..........................7

Peerless Heater Co. v. Mestek, Inc., Civ. A. No. 98-6532,2000 U.S. Dist. LEXIS 1409 (B.D. Pa. Feb. 7,2000) ............................................................................7
Shelton v. American Motors Corporation, 805 F.2d 1323 (8th Cir. 1986)................................6, 15
Slater v. Liberty Mutual Ins. Co., Civ. A. No. 98-1711, 1999 U.S. Dist. LEXIS 275 (E.D. Pa. 1999).......................... ............ ..................................................................................... ..15

Static Control Components, Inc. v. Darkprint Imaging, 201 F.RD. 431 (M.D.N.C. 2001) ...........7

FEDERA RULE
Fed. R. Civ. P. 8( a) ................ ........ .................. ...... ............. ...... ......... .............. ................ ..... .........1 0

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I. INTRODUCTION
On April

13, 2007, the Trustee filed a motion for a protective order seeking an

Order precluding Crowley from deposing the Trustee's trial counsel. (D.I. 120, 121.) On April
30,2007, Crowley filed his answering brief

in opposition to the Trustee's motion. (D.I. 131.)

The Trustee now files this reply brief. The parties also have each filed motions for sumary
judgment. (D.I. 122, 123; 128, 129.)

The Trustee fied this motion for a protective order because Crowley provided
only conclusions and generalities in connection with his request to depose the Trustee's trial

counseL. Crowley's answering brief suffers from the same infirmity. Crowley claims that the

Trustee's trial counsel "authored relevant documents" - but does not specify what they are. (D.I.
131 at 10). i Crowley claims that tral counsel will give testimony inconsistent with the Trustee

(D.I. 131 at I) - but does not identify what testimony would be inconsistent. In fact, nowhere
does Crowley identify a single document, a single topic, or a single piece of information that

would be admissible and that he can obtain only from opposing counsel. The motion for a
protective order should be granted because Crowley has not come close to meeting his burden of
justifying the depositions of trial counseL.

Crowley's argument appears to stem primarly from the Trustee's position
regarding two draft letters that Crowley's counsel produced and that were admitted into evidence

in the Bankptcy Court proceedings. The draft letters related to communications between
i The subpoenas served on trial counsel do not seek any documents, so presumably Crowley is

already in possession of the documents that tral counsel allegedly authored (documents that he does not identify).

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Crowley and Cerberus (one of Coram's three major creditors) in May 2002, after the
appointment of

the Trustee in March 2002. (See Draft Letters, attached as Ex. C-1.) The draft

letters refer to the possible settlement of Crowley's claims against Cerberus. In order to place
the letters in context, a brief

background is necessary.

In February 2003, pursuant to a "transition agreement" between the Trustee and
Crowley, the Trustee filed a motion to extend Crowley's employment for a short period through
Coram's reorganization process. In addition, as part of

his effort to propose a plan that would

settle with as many constituencies as possible, the Trustee entered into a letter of intent with

Crowley, subject to the negotiation of a formal, written agreement and Banptcy Court
approval, to reduce Crowley's claim for compensation under his Coram Employment Agreement

from more than $16 million to $2 milion and to give Crowley a release. (Mar. 27,2007 Adams
Dep. at 84:13-25, 95:9-96:7, excerpts attached as Ex. C-2.) A week or so before the scheduled
March 3, 2003 hearing on the Trustee's motion to extend Crowley's employment (and the Equity
Committee's competing motion to terminate Crowley's employment), Crowley's counsel

produced the draft letters in response to the Equity Committee's request for production.2 The
letters underscored the depth of

Crowley's relationship with Cerberus.

At his recent deposition in this case, the Trustee testified that he first saw the draft

letters about six days prior to the March 3,2003 hearing. (Mar. 28,2007 Adams Dep. at 132:1619, excerpts attached as Ex. C-4.) The Trustee elected to go forward with the motion anyway
2 Crowley has claimed that the draft letters were inadvertently produced and has requested that
the Trustee retur them. (See Correspondence regarding privilege, attached as Ex. C-3.) The
Trustee has responded that Crowley waived any claim of admission of

privilege by not objecting to the the letters into evidence at the March 3, 2003 hearng. (Id.) Crowley has not filed the draft letters. a motion to compel the retu of

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because he was concerned that terminating Crowley's employment could lead to significant
departres of key employees and place in

jeopardy Coram's ability to promptly reorganize,

because he wanted to avoid litigation with Crowley, and because he thought it best that the

Bankptcy Cour make the decision.3 (Chapter 11 Trustee's Answers to Crowley First Set of
Interrogs. to PI. at 11, attached as Ex. C-5.)

The Trustee was the first witness at the March 3,2003 hearing. He testified that
on March 26, 2002, shortly after his appointment as Trustee, he met with Crowley. At that
meeting, Crowley told the Trustee that he was no longer being paid by Cerberus, but that he had

a claim against Cerberus for work that Crowley had done unrelated to Coram. (Mar. 3,2003
Hrg. Tr. at 14-15, excerpts attached as Ex. C-6.) The Trustee also testified that he did not think

3 As the Trustee recently explained:

Q: Was there anything preventing you from withdrawing your
motion prior to March 3?

A: Yes, there was.
Q: What was that?

A: I gave that some thought. We had agreed in wrting as part
the settlement with Crowley to use our best efforts to implement the settlement, the proposed settlement. So that I was then in the position that if I withdrew the settlement it would lead to more litigation from Crowley against me as the Trustee, and I thought that it was wiser to let the cour decide the issue because then Crowley couldn't say, well, you reneged on your agreement. You owe me $17 milion or whatever he was talking about. And,
of

fortately, I was right because what happened is that the court

decided that Crowley's explanation was incredible, unbelievable, or whatever the words she used. That relieved me as the Trustee of any legal obligation to implement the proposed deal with Crowley.

(Ex. C-4 at 136:21- 37:18.)

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the draft letters demonstrated that Crowley's statement to him on March 26, 2002 regarding
curent compensation from Cerberus was false. (!d. at 70.)

The Trustee's counsel called Crowley as a witness, but asked no questions about

the draft letters in the direct examination. Counsel for the Equity Committee then crossexamined Crowley extensively about the draft letters (see Ex. C-6 at 89-101); Crowley testified

that they reflected his efforts to get Cerberus to pay him what he believed he was owed for work

he performed for Cerberus unrelated to Coram. (Id. at 99, 110.)

The Bankptcy Cour denied the Trustee's motion to extend Crowley's
employment. In its oral ruling, the Court stated that, contrary to Crowley's testimony, the draft
letters evidenced that Crowley was seeking to get paid by Cerberus for his work at Coram. (Id.
at 196.) Given the Banuptcy Cour's ruling, Crowley resigned. (Ex. C-5 at 12.) The letter of
intent between Crowley and the Trustee became moot by reason of

the Bankptcy Court's

decision.

In October 2006, in the course of

this litigation, Crowley served a set of

contention interrogatories calling for the Trustee to "Identify and describe each act or omission

that forms the basis for your allegations that Crowley had a conflct of interest" and that Crowley

had breached his fiduciar duties of care, loyalty, and good faith. (See Ex. C-5 at 3-4.) The
Trustee responded with an eight-page narrative that included a reference to the draft letters. The Trustee's response stated that the draft letters were evidence that Crowley's March 26,2002
representation to the Trustee that he was not seeking payment from Cerberus for his work at
Coram was not tre, and to the contrary, showed that Crowley was seeking payment from
Cerberus for his work at Coram after the confirmation of the Trustee's plan of

reorganization

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when neither he nor Coram would be under the jurisdiction of the Banptcy Court. (!d. at 4-

12.)

This is the "2002 and 2003 conduct" and the "change in position" that Crowley
now claims entitle him to take the depositions of

the Trustee's trial counseL. There are numerous

problems with Crowley's argument. First, it proceeds from a false premise. This case is about

Crowley's conflict of interest that caused the Banptcy Court to rej ect Coram's proposed plans
of reorganization in 2000 and 2001. There are no "new

allegations." Chief Judge Walrath found
interest and found at the March

on two separate occasions that Crowley had an actual conflict of

2003 hearing that the draft letters were additional evidence of

that conflict. A reasonable trer of

fact could also conclude that the draft letters demonstrate that Crowley had a conflct when he

was Coram's CEO. The letters do not constitute a "new" breach. Second, the Trustee has no
personal knowledge of

these letters. He saw the letters prior to his testimony in March 2003,

decided to leave the matter in the Bankptcy Court's hands, listened to Crowley's explanation at
the hearing, and formed a new opinion. He answered questions about the draft letters at his
deposition because he was asked about them.

Third, and most importantly here, the Trustee's personal views of

the evidence

and/or his purported "change in position" have nothing whatsoever to do with the Trustee's

counsel. It does not make them "percipient" witnesses and certainly does not justify the
extraordinary step of taking their depositions.

Even assuming that the Trustee would be permitted to testify at trial about his
personal views of

the evidence, Crowley is free to cross-examine the Trustee about those

personal views, as he did in the Trustee's recent deposition. Even assuming that whether
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Crowley was completely forthcoming to the Trustee on March 26, 2002, is an issue at trial,

Crowley is free to cross-examine the Trustee. But this motion is about Crowley's right to depose
the Trustee's trial counsel- not about the Trustee's views of

the case. Crowley's motion fails

because he has not come close to carrying his burden - and it is his burden - to show that trial
counsel has relevant, non-privileged information that he cannot obtain from another source.

II. CROWLEY HAS THE BURDEN OF PROOF.
Crowley's assertion that the Trustee, not he, has the burden on this motion ignores

the context in which the Trustee seeks a protective order, instead relying on broad precepts

related to discovery that are irrelevant here. Taking the deposition of opposing counsel is a
highly-disfavored tactic. This Court has made clear that the burden is on the party seeking the

deposition. See Allergan Inc. v. Pharmacia Corp., Civ. A. No. 01-141,2002 WL 1268047, at *1
(D. DeL. May 17,2002) ("The court concludes that plaintif have not met their burden to

demonstrate a compellng needfor the requested discovery.") (emphasis added). See also
Shelton v. Am. Motors Corp., 805 F.2d 1323, 1327 (8th Cir. 1986) ("Those circumstances (in

which opposing trial counsel can be deposedJ should be limited to where the party seeking to
take the depositon has shown that (1) no other means exist to obtain the information than to

depose opposing counsel; (2) the information sought is relevant and nonprivileged; and (3) the
information is crucial to the preparation of

the case.") (emphasis added); Cole v. Mousavi, 1990

WL 63945, at *2 (DeL. Super. Ct. 1990) (party seeking deposition of opposing counsel has the
burden of demonstrating the Shelton factors); Nationwide Mutual Ins. Co. v. The Home Ins. Co.,
278 F.3d 621,628 (6th Cir. 2002) (upholding denial of

request to depose opposing counsel

because party seeking deposition failed to make the requisite showing necessary); Static Control

6

.

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Components, Inc. v. Darkprint Imaging, 201 F.RD. 431, 434 (M.D.N.C. 2001) (a request to take

deposition of pary's litigation attorney justified departre from general rule that pary seeking
protective order bears burden); Peerless Heater Co. v. Mestek, Inc., Civ. A. No. 98-6532,2000
U.S. Dist. LEXIS 1409, at *7 (E.D. Pa. Feb. 7,2000) (noting that deposition of opposing counsel

presents unique opportnity for harassment and possibility of disqualification and therefore pary
requesting deposition must show relevant and critical nature of information sought and that
information cannot be obtained any other way).

Crowley cites no cases from this Cour to support his position that the burden here

rests with the persons to be deposed. Furhermore, the cases that he does cite are distinguishable.
For example, Cipollone v. Liggett Group, 785 F.2d 1108 (3d Cir. 1986), does not involve a
subpoena to trial counseL. Rather, Cipollone involves protective orders aimed at preventing the

dissemination of documents produced during tobacco litigation. The Third Circuit thus had no
need to consider the applicable standard for a deposition subpoena addressed to tral counseL.

In Johnston Development Group, Inc. v. Carpenters Local Union No. 1578, 130

F.RD. 348 (D.N.J. 1990), although the cour placed the burden on the party seeking the
protective order, trial counsel unquestionably played a key role in meetings that were "highly

relevant to plaintiffs' claims." Id. at 352, 354. Nonetheless, the court greatly limited the scope
and time of

the depositions. Id. at 356.

Here, although Crowley has tred to paint the involvement ofKipnes and Bressler
as relevant to the underlying cause of action, their actions do not touch upon the central issue in

this case - whether Crowley had an actual conflict of interest and whether he breached his

fiduciary duties. Crowley is not seeking relevant and nonprivileged information. Even ifthere
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were some sort of discrepancy between the Trustee's views and those of

his attorneys, such a

discrepancy has nothing to do with this case.

Finally, in In re Arthur Treacher's Franchisee Litigation, 92 F.RD. 429 (E.D. Pa.
1981), a case decided before Shelton, the court precluded oral deposition but allowed a

deposition upon written questions under Fed. R. Civ. P. 31. The court did not explicitly place the
burden upon the party seeking the protective order, but balanced the need for the deposition and

the dangers inherent in allowing the deposition to go forward. Id. at 437-440. The court was also
mindful of the potential prejudice that could result from compelling trial counsel to testify, id. at 439, but ultimately concluded that good cause existed under Rule 26(c) to permit the deposition,

but even then only upon written questions because an oral deposition would raise the possibility
of disqualification of counsel and subsequent undue prejudice to the client. Id. at 439. Here, as

discussed below, neither Kipnes nor Bressler possesses relevant,.nonprivileged information and,
therefore, their depositions are both unnecessary and inappropriate.

Accordingly, contrary to Crowley's assertion, it is not the Trustee's burden to
establish that he would be hared in the absence of a protective order; it is Crowley's burden to

demonstrate the extraordinary circumstances justifying the depositions. He has not come even
close to doing so.

III. THE TRUSTEE'S POSITION HAS REMANED CONSISTENT.
Crowley claims that opposing counsel's depositions are necessary because the

Trustee has "recently injected into this case certain factual issues" and that "in late December
2006, the Trustee changed the focus of

his case." (D.I. 131 at 1,4.) That is wrong. This case is

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today, and always has been, about the actual conflict of

interest Crowley had in 1999,2000, and

2001 as a result of

his dual employment agreements with Coram and with Cerberus. Crowley's

"actionable conduct" took place during that period, and the damages the Trustee seeks arise directly from that "actionable conduct."

Crowley argues that by referrng to the May 2002 draft letters in his answers to
interrogatories, the Trustee is asserting a new claim based on new "actionable conduct." That is
not so. The draft letters in and of

themselves are not actionable. The Trustee's claim is based on

Crowley's conduct - his conflct. The letters themselves do not constitute a cause of action or a
conflct, but as the Bankuptcy Cour found, they provide fuher evidence of

Crowley's

"actionable conduct," namely the conflct. The letters themselves caused no damage - they were
never sent, and the Trustee's damage claim is the same whether or not the draft letters had ever

been written. The letters are simply evidence that the trer of fact here could consider in

determining whether Crowley is liable (as indeed, the Banptcy Court already did).

Crowley's allegation that the Trustee's deposition testimony "bore little

resemblance to the allegations in the Complaint, but instead focused heavily on the events of
2002 and 2003" is inaccurate and misleading, as well as irrelevant to the determination of

this

motion. (D.I. 131 at 7.) Crowley states that the complaint did not address 2002 and 2003
"facts." The Trustee was not required in his complaint to put forth every piece of evidence that
might support his claim. See FED. R Crv. P. 8(a). And, as stated above, there is no "new" issue.4

4 Crowley claims that the Trustee's recent deposition testimony contradicts his testimony at the
March 3, 2003 hearing (D.I. 131 at 5-6), but the Trustee's testimony at the hearng was much

narower. On redirect, the Trustee was asked whether anything in the documents and unsent drafts that he had been shown on cross-examination "is not consistent with Mr. Crowley's
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Finally, and most important for this motion, there is no connection between the
Trustee's alleged change of position and the need for the testimony of

Kipnes and Bressler. The

Trustee has not, as Crowley states, made an "about-face in this litigation concerning Crowley's

performance at Coram." (D.I. 131 at 6.) The issue is not whether the Trustee was "displeased
with Crowley" (id. at 7); it is whether Crowley had a conflct. Even if

the Trustee had changed

his position in the litigation (which he did not), that would not

justify deposing the Trustee's

counsel. Deposing the Trustee's trial counsel wil uncover no relevant information; the thoughts
and opinions of

Bressler and Kipnes do not tend to make a material fact in issue more or less

likely

and are privileged in any event. Further, Crowley can explore the issues within the scope

of permissible cross-examination of the Trustee.

Crowley makes no effort to explain what relevant information tral counsel has
that he cannot obtain elsewhere. To the extent Crowley seeks testimony and information related

to the documents counsel authored, the attorney-client privilege would prevent Kipnes and

Bressler from revealing conversations they had with the Trustee. Other than his conclusory
mantra of

the "percipient witness," Crowley offers no explanation how the Trustee's lawyers'

thoughts on a particular subject are at all relevant. Despite his protest to the contrar, the

absence of specifics can only mean that Crowley seeks deposition testimony from the Trustee's

representation to you that he's no longer getting paid by Cerberus?" and he answered "I have
seen nothing. IfI did, I would be upset about it and probably take steps." (Ex. C-6 at 70.) In

fact, Crowley was not getting paid by Cerberus in 2002. After later hearing Crowley's explanation, the Trustee came to the view that Crowley was trng to get paid by Cerberus for his efforts at Coram, but that is not what he was asked at the March 3,2003 hearing. As discussed above, the Trustee came to view the draft letters as evidence of Crowley's conflict, but those letters are not evidence that in fact Cerberus was paying Crowley anything in 2002.

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lawyers in the hope that they may contradict their client. That is inappropriate. See In re
Linerboard Antitrust Litigation, 237 F.RD. 373, 385 (E.D. Pa. 2006).

In short, if Crowley believes that the Trustee has changed his stance on Crowley's

performance or his honesty (or any other topic for that matter), Crowley's remedy is to cross-

examine the Trustee, as he did in the Trustee's recent deposition. Even assuming that the
Trustee had changed his position regarding Crowley, the depositions ofKipnes and Bressler are

unnecessary. Contrary to Crowley's arguent, there is simply no nexus between the Trustee's
views and the need for the depositions of trial counseL.

iv. TRIAL COUNSEL'S OPINIONS ARE NOT ADMISSIBLE AND ARE NOT LIKELY TO LEAD TO THE DISCOVERY OF ADMISSIBLE EVIDENCE.
No matter how Crowley attempts to spin the events surounding the motion to

continue his employment and the subsequent statement by the Bankptcy Court that Crowley
was dishonest, the thoughts and actions ofKipnes and Bressler cannot serve as a basis for
deposing either attorney in this matter. Kipnes and Bressler dispute Crowley's position "that
they are percipient witnesses and participants in events that the Trustee claims are relevant to his
claim against Crowley." (D.I. 131 at 10.) As discussed above, Crowley's brief

is very cryptic

about (in fact, it is virtually silent on) just what "events. . . the Trustee claims are relevant." The
Trustee, of course, is not the arbiter of relevance.

A review of counsel's participation in the "2002 and 2003" events shows that

there is no need for their depositions. As Crowley testified, Kipnes did not prepare him for his
deposition in connection with the March 3, 2003 hearing with respect to the draft letters. (Feb.

27,2003 Crowley Dep. at 9:7-11, 100:14 -103:5, except attached as Ex. C-7.) Kipnes asked

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only limited questions on redirect examination of

Crowley about one ofthe letters. None of

the

facts surrounding the motion to extend Crowley's employment renders the depositions ofKipnes

and Bressler necessary. Neither attorney was involved in the underlying claims regarding
Crowley's conflct. Neither attorney had anything to do with the preparation of

the draft letters.

Neither discussed them with Crowley at the time. Crowley points out that Kipnes was present at
Crowley's deposition preparation when Crowley's lawyers showed him the draft letters. Kipnes

questioned Crowley about a portion of one of the draft letters at the hearing, a matter of public
record. Bressler authored the Trustee's brief in support of

his motion to continue Crowley's

employment for a limited period of

time, also a matter of

public record. Crowley does not

explain how these ordinary actions between lawyers and their client justify taking the depositions
of opposing trial counseL.

Crowley repeatedly asserts that Bressler and Kipnes are "percipient witnesses,"

but does not identify what they are percipient witnesses to. Rather, Crowley relies solely on the
fact that they served as the Trustee's counseL. For example, Crowley makes much of

the fact that

Bressler negotiated the conditional

letter of intent regarding settlement with Crowley's lawyer.

There is no dispute about that, nor about the baek and forth between Bressler and Schreiber

(Crowley's counsel) - their negotiations are documented and Schreiber has authenticated the
documents. What is there to ask Bressler except questions invading the privilege?

Crowley's position is that because Kipnes and Bressler engaged in conduct such

as having conversations with opposing counsel and witnesses and preparing pleadings, they
somehow become fact witnesses. If Crowley were right, th~n every lawyer would be a fact

witness. Any viewpoints asserted by Kipnes and Bressler both durng the curent litigation and

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the bankptcy proceedings are irrelevant. Kipnes and Bressler represent the Trustee; their
thoughts and opinions regarding decisions made throughout the litigation have no bearng on any
issues in this case. And again, the Trustee's reasons for taking certain actions is a matter for the
Trustee to speak on, not his lawyers.

The only case upon which Crowley relies for his argument that he is entitled to

depose the Trustee's lawyers - Caruso v. The Coleman Co., Civ. A. No. 93-6733, 1994 U.S.

Dist. LEXIS 15824 (E.D. Pa. Oct. 25, 1994) - actually proves the Trustee's point. As set forth in

an earlier opinion, Caruso was a wrongful death action. Caruso v. The Coleman Co., 157 F.RD.
344, 346 (E.D. Pa. 1994). The decedents were found inside a camper, with Coleman lanterns
and propane cylinders. Id. Plaintiff noticed the deposition of

Coleman pursuant to Rule
the

30(b)(6). Coleman's sole corporate designee was unable to provide information on many of

subjects listed in the deposition notice. The corporate designee testified that defendant's tral
counsel "played a significant role" in relevant matters surounding the litigation. Caruso, 1994

U.S. Dist. LEXIS 15824, at *3. The cour allowed the deposition of opposing counsel because
he had personal knowledge and documents reflecting other incidents of carbon monoxide related

injuries or death, "played a significant role in designing the warings" at issue, had possession of
a relevant fie, attended at least one meeting about the problem of carbon monoxide and portable
camping equipment, and had personal knowledge about whether the defendant considered using
carbon monoxide detectors on its products. Id. at *3-*4. Therefore, if

the cour did not allow the

deposition of counsel, the plaintiff

would be left without any way to obtain this critical

information. The cour also found that trial counsel "has the best knowledge" of "many matters
relevant to the issues in this case," id. at *5, and had acted in both a business and legal capacity
for Coleman. !d. at *7-*8.

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The facts that warranted the deposition of opposing counsel in Caruso are not

present here. First, nobody has testified (or even suggested) that Kipnes or Bressler is the best
source of

relevant information. Second, Crowley can get the information he appears to be

seeking elsewhere; the Trustee can testify (indeed, he has done so at length) about the motion

and his interactions with Crowley. Furthermore, Crowley can obviously testify regarding the
draft letters, as he already did in the Banptcy Cour proceedings. Kipnes and Bressler, on the

other hand, who neither authored the letters nor counseled Crowley on them, have no relevant

nonprivileged information about them. And Kipnes and Bressler have acted only as counsel to
the Trustee, never in a business advisory capacity.5 Crowley cites the tasks Kipnes and Bressler

have performed during the course ofthis litigation such as wrting briefs, questioning witnesses
and composing letters, but this adds nothing to his argument. Kipnes and Bressler performed the
tasks that litigators perform in every case.

V. DEPOSING OPPOSING TRIAL COUNSEL IN THIS MATTER IS NOT ONLY UNNECESSARY BUT WOULD CAUSE HAR TO THE TRUSTEE.
Although, as set forth above, it is not the Trustee's burden to show that he would
be hared if the depositions of

his lawyer are permitted to go forward, in fact sueh is the case.

Deposing opposing tral eounsel is a tactic fraught with the potential for abuse. For that reason,
"(t)he practice of

forcing trial counsel to testify as a witness ( ) has long been discouraged and

recognized as disrupting the adversarial nature of our judicial system." Shelton, 805 F.2d at
5 The Trustee on one occasion testified that his lawyers provided "business" advice, but that was

in the context of describing advice that banptcy lawyers do routinely provide. He has otherwise consistently testified that Bressler and Kipnes were his lawyers, not his business advisors. The other witnesses who testified on this subject stated that Bressler and Kipnes acted as lawyers, not business advisors. (See Apr. 6,2007 Dantz Dep. at 188:12-15, excerpts attached as Ex. C-8; see also Apr. 5,2007 Marabito Dep. at 167:3-168:24, excerpts attached as Ex. C-9.)

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Page 18 of 20

1327. Such depositions are "inherently anoying, oppressive, disruptive and burdensome."
Slater v. Liberty Mutual Ins. Co., Civ. A. No. 98-1711, 1999 U.S. Dist. LEXIS 275, at *2 (E.D.

Pa. 1999). They present a unique opportunity for harassment and detract from time spent
preparing for triaL. Id. Additionally, deposing opposing counsel "lowers the standards of the

profession" and "adds to the already burdensome time and costs of litigation. . . the practice of
deposing opposing counsel detracts from the quality of client representation." Shelton, 805 F.2d
at 1327. The practice also opens up the possibility that opposing counsel must be disqualified,
further delaying the disposition of

the case and increasing costs. Cole, 1990 WL 63945, at *2.

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Page 19 of 20

VI. CONCLUSION
For all of

the above stated reasons, the Trustee respectfully requests that the Cour

grant the Trustee's motion for a protective order and prohibit Crowley from deposing the
Trustee's trial counsel, Wilbur L. Kipnes and Barry E. Bressler.

Dated: May 10, 2007

Respectfully submitted,

Isl Michael J. Barre Richard A. Barkasy (#4683) Michael J. Barre (#4684)

SCHNADER HARSON SEGAL & LEWIS LLP 824 N. Market Street, Suite 1001 Wilmington, DE 19801 (302) 888-4554 (telephone) (302) 888-1696 (facsimile)
OF COUNSEL: Nancy Winkelman (admitted pro hac vice)

SCHNADER HARSON SEGAL & LEWIS LLP 1600 Market Street, Suite 3600 Philadelphia, PA 19103 (215) 751-2400 (telephone) (215) 751-2205 (facsimile)
Counsel to Plaintif

ArUn M Adams, Chapter 11 Trustee of the PostConfirmation Bankruptcy Estates of CORA HEALTHCARE CORP. and CORAM, INC

16

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Page 20 of 20

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWAR
ARIN M. ADAMS, Chapter 11 Trustee of
the Post-Confirmation Bankrptcy Estates of CORAM HEALTHCARE CORP. and CORAM,
) )

INC,
Plaintiff,
v.

) ) )
) Case No. 04-1565 (SLR)

) )

DANIEL D. CROWLEY, et al.,
Defendants.

) ) )

CERTIFICATE OF SERVICE
I, Michael J. Bare, hereby certify that I am at least eighteen years of age and that
on May 10, 2007, I caused a true and correct copy of the Reply Brief in Support of

the Motion

for Protective Order, to be served upon the following:

Jeffrey C. Wisler, Esquire
Chrstina M. Thompson, Esquire

Ellot R Peters, Esquire

Connolly Bove Lodge & Hutz LLP 1007 N. Orange St., P.O. Box 2207 Wilmington, DE 19899 (via CM/ECF and hand delivery)

Laurie Carr Mims, Esquire Keker & VanNest, LLP 710 Sansome Street San Francisco, CA 94111 (via CM/ECF, email and overnight mail)

Dated: May 10, 2007

SCHNADER HARSON SEGAL & LEWIS LLP

By: Isl Michael J. Bare
Richard A. Barkasy (#4683) Michael J. Bare (#4684) 824 N. Market Street, Suite 1001 Wilmington, DE 19801
Telephone: (302) 888-4554
Facsimile: (302) 888-1696