Free Opening Brief in Support - District Court of Delaware - Delaware

Case 1:04-cv-01551-JJF Document 232-5 Filed 05/11/2007 Page1 014
EXHIBIT D

Case 1:04-cv-01551-JJF Document 232-5 Filed 05/11/2007 Page 2 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
In re: Chapter 7
STUDENT FINANCE CORPORATION, Case No. 02-11620 (KJC)
Debtor.
CHARLES A. STANZIALE, JR.,
CHAPTER 7 TRUSTEE OF
STUDENT FINANCE CORPORATION,
Plaintiff,
V' Civil No. 04-1551 (JJF)
PEPPER HAMILTON LLP, ET &.,
Defendants.
ROYAL INDEMNITY COMPANY,
Plaintiff,
v. Civil No. 05-165 (JJF)
PEPPER HAMILTON LLP, Q A_I,._.,
Defendants.
AFFIDAVIT OF CHARLES A. GILMAN
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
CHARLES A. GILMAN, being first duly sworn, deposes and says:
1. Pursuant to a written agreement dated December 12, 2006, between Royal
Indemnity Company ("Royal"), Charles A. Stanziale, Jr., Chapter 7 Trustee of Student Finance
Corporation (“Trustee"), Pepper Hamilton LLP ("Pepper Hamilton"), and Defendants Robert L.
Bast, Pamela Bashore Gagne, The Brennan Trust and W. Roderick Gagne (in both his capacity
as an attomey at Pepper Hamilton LLP and as a Trustee of the Brennan Trusts) ("Family Defen-
dants”), Royal, the Trustee, Pepper Hamilton and the Family Defendants engaged in a Confiden-
tial Mediation held in Philadelphia before Professor Eric D. Green of Resolutions, LLC ("Media-

Case 1:04-cv-01551-JJF Document 232-5 Filed 05/11/2007 Page 3 of 4
tion"). The remaining Defendants (the accotmting Defendants) were not invited to attend and
did not attend the Mediation. The Mediation Agreement signed by counsel for Plaintiffs and the
participating Defendants, a copy of which is attached to the Brief submitted herewith, provides:
"CONFIDENTIALITY
This entire process is a compromise negotiation. All offers, promises, conduct
and statements, whether oral or written, made in the course of the mediation by
any of the Parties, their agents, employees, experts and attomeys, and by Resolu-
tions, LLC employees, who are the Pa1ties’ joint agents and Mediators for pur-
poses of these compromise negotiations, are confidential. Such offers, promises,
conduct, and statements will not be disclosed to third parties and are privileged
and inadmissible for any purpose, including impeachment, under Rule 408 of the
Federal Rules of Evidence and any applicable federal or state statute, rule or
common law provision. However, evidence that is otherwise admissible or dis-
coverabie shall not be rendered inadmissible or not discoverable as a result of it’s
use in the mediation?
2. In connection with the Mediation, Royal stamped the cover of its media-
tion submission: “CONFIDENTIAL" in large, bold all-caps.
3. In connection with the Mediation, the Trustee titled its mediation submis-
sion: “CONFIDENTIAL FOR SETTLEMENT PURPOSES ONLY" in bold, capitalized and
underlined text.
4. In connection with the Mediation, Pepper Hamilton stamped every page of
its mediation submission "CONFIDENTIAL SETTLEMENT COMMUNICATION
SUBJECT TO FEDERAL RULE OF EVIDENCE 408" in bold capital letters.
5. In connection with the Mediation, the Family Defendants stamped each
page of their mediation submission: "CONFIDENTIAL/SUBJECT TO FED.R.EVID. 408" in
bold capital letters.
6. In the “Report of Professor Douglas M. Branson on Behalf of Trustee
Charles A. Stanziale, Jr." dated May 7, 2007, Professor Branson lists Pepper Hamilton’s confi-
dential mediation submission under “Documents and materials considered."
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Case 1:04-cv-01551-JJF Document 232-5 Filed 05/11/2007 Page 4 of 4
7. In the "Expert Report of Nancy J. Moore" dated May 7, 2007, Professor
Moore lists Pepper Hami1ton’s and the Family Defendants’ confidential mediation submissions,
and the appendices of documents attached thereto, under "Data and Information Considered?
8. In the "Expert Report of Steven L. Schwarcz” dated May 7, 2007, Profes-
sor Schwarcz lists Pepper Hamilton’s confidential mediation submission and the appendix of
documents attached thereto, wider "Data and Information Considered."
9. Neither Royal nor the Trustee ever sought the consent of Pepper Hamilton
or the Family Defendants to disclose their confidential mediation submissions to any party, and
neither Pepper Hamilton nor the Family Defendants ever provided such consent.
Charles A. Gilman
Swom to before me this
llth day of May, 2007.
‘ n Notary éuglrc
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