Free Brief in Opposition to Motion - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-cv-1451-REB-CBS (Consolidated with Civil Action Nos. 01-cv-1472-REB-CBS, 01-cv-1527-REB-CBS, 01cv-1616-REB-CBS, 01-cv-1799-REB-CBS, 01-cv-1930-REB-CBS, 01-cv-2083-REBCBS, 02-cv-0333-REB-CBS, 02-cv-0374-REB-CBS, 02-cv-0507-REB-CBS, 02-cv-0658REB-CBS, 02-cv-755-REB-CBS, 02-cv-798-REB-CBS and 04-cv-0238-REB-CBS) In re QWEST COMMUNICATIONS INTERNATIONAL, INC. SECURITIES LITIGATION LEAD PLAINTIFFS' OPPOSITION TO DEFENDANT QWEST COMMUNICATIONS INTERNATIONAL INC.'S MOTION TO RECONSIDER PART II OF THIS COURT'S AUGUST 15, 2005 ORDER CONCERNING RULE 72 OBJECTIONS AND TO CERTIFY INTERLOCUTORY APPEAL PURSUANT TO 28 U.S.C. §1292(b)

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TABLE OF CONTENTS Page I. II. INTRODUCTION .................................................................................................. 1 ARGUMENT ......................................................................................................... 2 A. Qwest's Motion for Reconsideration Should Be Denied as the Present Matter Is Unlike United States v. Graham Because Here Qwest Waived Work-Product Protection for the 220,000 Pages When It Voluntarily Produced Them to the United States Government ............................................................................................... 2 This Court Should Decline to Certify for Appeal the August 15 Order Because Qwest Has Failed to Show that There Is a Controlling Question of Law, that There Is Substantial Ground for Difference of Opinion and that an Immediate Appeal Would Materially Advance the Ultimate Termination of the Litigation ................... 4 1. 2. The Standard for Certifying a 28 U.S.C. §1292(b) Appeal .............. 4 Certification Is Inappropriate Because There Is No Controlling Question of Law and the Termination of the Litigation Will Not Be Materially Advanced by Qwest's Appeal............................................................................................. 5 Certification Is Inappropriate Because There Is No Substantial Ground for Difference of Opinion.................................. 9

B.

3. III.

CONCLUSION.................................................................................................... 12

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TABLE OF AUTHORITIES Page Adams v. Burlington N. R.R., 843 F. Supp. 686 (D. Kan. 1994)........................................................................ 10 Anderson v. GMC, No. 96-2090-GTV, 1997 U.S. Dist. LEXIS 11843 (D. Kan. July 25, 1997)................................................................................... 6, 11 Bachowski v. Usery, 545 F.2d 363 (3d Cir. 1976) ............................................................................... 11 Burchett v. Bardahl Oil Co., 470 F.2d 793 (10th Cir. 1972)............................................................................... 8 Duke v. Grady Mun. Sch., 127 F.3d 972 (10th Cir. 1997)............................................................................... 8 Etienne v. Wolverine Tube, Inc., 15 F. Supp. 2d 1060 (D. Kan. 1998)..................................................................... 4 FDIC v. First Nat'l Bank, 604 F. Supp. 616 (E.D. Wis. 1985)..................................................................... 10 Genentech, Inc. v. U.S. Int'l Trade Comm'n, 122 F.3d 1409 (Fed. Cir. 1997) ............................................................................ 9 Giron v. Corrections Corp. of Am., No. CIV-96-0980 LH/DJS, 1997 U.S. Dist. LEXIS 18644 (D.N.M. Oct. 29, 1997) ..................................................................................... 5, 6 Homeland Stores v. Resolution Trust Corp., 17 F.3d 1269 (10th Cir. 1994)............................................................................... 8 In re Am. Freight Sys., 194 B.R. 659 (D. Kan. 1996) ................................................................................ 6 In re Americana Expressways, No. 91-C-25142, 1995 U.S. Dist. LEXIS 22111 (D. Utah Aug. 2, 1995).................................................................................... 4, 11

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Page In re Chrysler Motors Corp. Overnight Evaluation Program Litig., 860 F.2d 844 (8th Cir. 1988)................................................................................. 9 In re Columbia/HCA Healthcare Corp. Billing Practices Litig., 293 F.3d 289 (6th Cir. 2002)................................................................................. 9 In re Grand Jury Proceedings, 767 F. Supp. 222 (D. Colo. 1991)................................................................. 4, 5, 6 In re Lupron Mktg. & Sales Practices Litig., 313 F. Supp. 2d 8 (D. Mass. 2004)................................................................. 9, 10 In re M & L Bus. Machs. Co., 161 B.R. 689 (D. Colo. 1993) ............................................................................. 11 In re Martin Marietta Corp., 856 F.2d 619 (4th Cir. 1988)................................................................................. 9 In re Natural Gas Commodity Litig., No. 03 Civ. 6186 (VM) (AJP), 2005 U.S. Dist. LEXIS 11950 (S.D.N.Y. June 21, 2005) .................................................................................. 10 In re Steinhardt Partners, L.P., 9 F.3d 230 (2d Cir. 1993) ..................................................................................... 9 In re Zamora, 251 B.R. 591 (D. Colo. 2000) ............................................................................... 2 Johnson v. Burken, 930 F.2d 1202 (7th Cir. 1991)............................................................................... 7 Judicial Watch, Inc. v. Nat'l Energy Policy Dev. Group, 233 F. Supp. 2d 16 (D.D.C. 2002) ........................................................................ 6 Kautio v. Zurich Ins. Co., No. 97-2411-JWL, 1998 U.S. Dist. LEXIS 8304 (D. Kan. May 12, 1998) ...................................................................................... 10

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Page Kidneigh v. UNUM Life Ins. Co. of Am., 345 F.3d 1182 (10th Cir. 2003), cert. denied, 540 U.S. 1184 (2004) ........................................................................................... 7 Major v. Benton, 647 F.2d 110 (10th Cir. 1981)............................................................................... 2 Max Daetwyler Corp. v. Meyer, 575 F. Supp. 280 (E.D. Pa. 1983) ..................................................................... 10 Maxey v. GMC, No. 3:95cv6-D-A, 1996 U.S. Dist. LEXIS 21136 (N.D. Miss. Dec. 16, 1996) ................................................................................... 6 Millsap v. McDonnell Douglas Corp., 368 F.3d 1246 (10th Cir. 2004)............................................................................. 7 Permian Corp. v. United States, 665 F.2d 1214 (D.C. Cir. 1981) ............................................................................ 9 Resolution Trust Corp. v. Heiserman, No. 93-B-944, 1994 WL 907409 (D. Colo. Aug. 31, 1994)....................................................................................... 7 Sedillos v. Bd. of Educ., 313 F. Supp. 2d 1091 (D. Colo. 2004)................................................................ 11 Span East Airlines, Inc. v. Digital Equip. Corp., 486 F. Supp. 831 (D. Mass. 1980)........................................................................ 5 Sterling Consulting Corp. v. United States, 245 F.3d 1161 (10th Cir. 2001)............................................................................. 7 Stout v. Ill. Farmers Ins. Co., 882 F. Supp. 776 (S.D. Ind. 1994)........................................................................ 6 Trigalet v. City of Tulsa, 239 F.3d 1150 (10th Cir. 2001)............................................................................. 7

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Page United States ex rel. Hollander v. Clay, 420 F. Supp. 853 (D.D.C. 1976) ......................................................................... 11 United States v. Graham, No. 03-CR-089-RB, 2003 WL 23198792 (D. Colo. Dec. 2, 2003)..................................................................................... 2, 3 United States v. MIT, 129 F.3d 681 (1st Cir. 1997)................................................................................. 9 United Transp. Union Local 1745 v. City of Albuquerque, 178 F.3d 1109 (10th Cir. 1999)............................................................................. 7 W. Tenn. Chapter of Associated Builders & Contractors, Inc. v. City of Memphis, 138 F. Supp. 2d 1015 (W.D. Tenn. 2000)............................................................. 7 Westinghouse Elec. Corp. v. Republic of Phil., 951 F.2d 1414 (3d Cir. 1991)................................................................................ 9 Wilcox v. Commerce Bank, 474 F.2d 336 (10th Cir. 1973)............................................................................... 8 Wm. Passalacqua Builders, Inc. v. Resnick Developers S., Inc., 611 F. Supp. 281 (S.D.N.Y. 1985).................................................................. 5, 11 SECONDARY AUTHORITIES 28 U.S.C. §1292(b) ...................................................................................................... passim Federal Rules of Civil Procedure Rule 26 ................................................................................................................ 8 Rule 72 ............................................................................................................... 10 9 James Wm. Moore et al., Moore's Federal Practice (1991) §110.22[2] ............................................................................................................ 5

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I.

INTRODUCTION Defendant Qwest Communications International Inc. ("Qwest") has moved this Court

to reconsider or to certify for interlocutory appeal its August 15, 2005 order ("Order") requiring production of 220,000 pages of discovery that Qwest already produced to the United States Securities & Exchange Commission ("SEC") and/or the Department of Justice ("DOJ"). Both this Court and Magistrate Judge Shaffer have already concluded that Qwest fully waived any claim of privilege or work-product protection when it voluntarily produced these documents to the Government. Reconsideration is not warranted here. There has been no intervening change in law, defendants have pointed to no new evidence, and defendants are unable to point to any clear error committed by the Court. Qwest raises no new issues, simply rehashing the same arguments that this Court already rejected. Since both this Court and Magistrate Judge Shaffer's opinions are well-reasoned and supported by the great weight of authority, reconsideration is inappropriate. Further, an order should not be certified for an interlocutory appeal under 28 U.S.C. §1292(b) unless "exceptional circumstances" exist. The moving party must satisfy the stringent requirements of demonstrating that the case involves a controlling issue of law as to which there is substantial ground for difference of opinion, and that an immediate appeal would materially advance the termination of the litigation. Qwest fails to carry its burden with respect to any of these three factors as the production of the documents at issue will not be dispositive of the case nor will it materially advance the termination of the litigation, as plaintiffs already possess substantial evidence against defendants, including a -1-

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restatement of approximately $2 billion in revenue, a guilty plea from the CFO, and a production of approximately 8 million non-privileged documents, which includes thousands of highly incriminating contemporaneous statements which contradict defendants' positive remarks to investors. Thus, even in the unlikely event that Qwest's appeal is successful, the case would still need to proceed to trial and the termination of the litigation would not be materially advanced. Accordingly §1292(b) certification is inappropriate. II. ARGUMENT A. Qwest's Motion for Reconsideration Should Be Denied as the Present Matter Is Unlike United States v. Graham Because Here Qwest Waived Work-Product Protection for the 220,000 Pages When It Voluntarily Produced Them to the United States Government

"`There are three major grounds that justify reconsideration: (1) an intervening change in the controlling law; (2) the availability of new evidence; and (3) the need to correct clear error or prevent manifest injustice.'" In re Zamora, 251 B.R. 591 (D. Colo. 2000); Major v. Benton, 647 F.2d 110 (10th Cir. 1981) (the law of the case doctrine generally requires a court to adhere to its rulings in the interest of expeditious resolution of disputes and to prevent continued reargument of issues already decided).1 None of the three exist here. Here, the Court's ruling should not be reconsidered as there has been no intervening change in law nor has the evidentiary record changed. Both this Court's ruling and Magistrate Judge Shaffer's ruling are well-reasoned and based upon the overwhelming

1

Emphasis is added and citations are omitted throughout unless otherwise indicated.

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weight of authority that rejects the concept of selective waiver.2 The Court correctly ordered the unredacted production of the 220,000 pages which were previously turned over to the Government. Contrary to Qwest's assertion, this Court's prior decision in United States v. Graham, No. 03-CR-089-RB, 2003 WL 23198792 (D. Colo. Dec. 2, 2003), does not impact documents that were themselves turned over by Qwest to the SEC and DOJ in an attempt to garner an advantage in proceedings against it. In Graham, a case where Qwest was not even a party, this Court held that "the subject-matter waiver rule does not extend to opinion work-product." Id., at *5. Unlike the documents being sought by Graham in the criminal litigation, however, the 220,000 pages at issue here have not been ordered produced under the "subject-matter rule." Instead, these documents have been ordered to be produced because they were previously provided to the SEC and DOJ, in proceedings pending against Qwest, in an attempt by Qwest to garner a benefit. Qwest is thus in a position quite distinct from the position it occupied in Graham, where it had not already turned over the documents in question, and where it was not even a party to the litigation. Because: (1) the Court's ruling in this regard is supported by the great weight of authority; (2) no intervening change in the controlling law has occurred; and (3) no new evidence has become available, reconsideration is wholly inappropriate.3

2 3

See infra §II.B.3.

Moreover, Qwest has already revealed its true motive in asking the Court to reconsider its Order in this manner. Qwest recently produced the BSF Report to Lead Plaintiffs, but the report was almost entirely redacted in a manner that renders it virtually -3-

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B.

This Court Should Decline to Certify for Appeal the August 15 Order Because Qwest Has Failed to Show that There Is a Controlling Question of Law, that There Is Substantial Ground for Difference of Opinion and that an Immediate Appeal Would Materially Advance the Ultimate Termination of the Litigation 1. The Standard for Certifying a 28 U.S.C. §1292(b) Appeal

Section 1292(b) imposes four criteria to be met before an issue may be certified for appeal: (1) the action must be a "civil action";4 (2) the court must conclude that the order from which appeal is to be taken involves a "controlling question of law"; (3) as to that question there must be a "substantial ground for difference of opinion"; and (4) the court must believe that "an immediate appeal from the order may materially advance the ultimate termination of the litigation." In re Grand Jury Proceedings, 767 F. Supp. 222, 223 (D. Colo. 1991); see also 28 U.S.C. §1292(b). The Tenth Circuit has demonstrated reluctance to accept cases for interlocutory appeal "except in the rarest of circumstances." Etienne v. Wolverine Tube, Inc., 15 F. Supp. 2d 1060, 1062 (D. Kan. 1998) (denying defendant's motion for certification under §1292(b)); In re Americana Expressways, No. 91-C-25142, 1995 U.S. Dist. LEXIS 22111,

unintelligible. A redacted version of the BSF Report can, at the Court's request, be provided, for in camera review to demonstrate the egregious nature of the redactions. If the Court were to modify its Order as requested by Qwest, the 220,000 pages would likely be subject to the same fate.
4

Lead Plaintiffs do not dispute that this action is a "civil action" for purposes of 28 U.S.C. §1292(b) and will not address this point further in their opposition.

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at *2 (D. Utah Aug. 2, 1995) ("Certification under 28 U.S.C. § 1292(b) is generally only granted in exceptional cases."). See also Wm. Passalacqua Builders, Inc. v. Resnick Developers S., Inc., 611 F. Supp. 281, 284 (S.D.N.Y. 1985) (§1292(b) certification is to be used sparingly). The movant bears the "`heavy burden'" of showing that the order in question is "`exceptional.'" Giron v. Corrections Corp. of Am., No. CIV-96-0980 LH/DJS, 1997 U.S. Dist. LEXIS 18644, at *3 (D.N.M. Oct. 29, 1997). defendants have not carried that burden. Id. It is in the Court's discretion to decide whether to allow the interlocutory appeal. As explained below, defendants have failed to provide even the baseline facts demonstrating a question of whether certification should be granted. "Generally, certification for an As explained below,

interlocutory appeal is considered inappropriate if resolution of the question involves the trial court's exercise of discretion." Giron, 1997 U.S. Dist. LEXIS 18644, at *4. Likewise, "courts should decline to override the important historic policy against `piecemeal' litigation and appeals." Id., at *3; see also Span East Airlines, Inc. v. Digital Equip. Corp., 486 F. Supp. 831, 834 (D. Mass. 1980) (§1292(b) certification is not a routine procedure because it goes against federal policy against piecemeal appeals). 2. Certification Is Inappropriate Because There Is No Controlling Question of Law and the Termination of the Litigation Will Not Be Materially Advanced by Qwest's Appeal

A question of law is controlling when the question has the "potential for substantially accelerating disposition of the litigation." Grand Jury, 767 F. Supp. at 225 (citing 9 James Wm. Moore et al., Moore's Federal Practice, §110.22[2] (1991)). Questions are not controlling unless their resolution would accomplish the speedy resolution of the -5-

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proceeding. Id.; see also Anderson v. GMC, No. 96-2090-GTV, 1997 U.S. Dist. LEXIS 11843, at *5 (D. Kan. July 25, 1997) (holding that question is "controlling" if error in its resolution would warrant reversal of a final judgment or dismissal). It has been held that "[g]enerally, `discovery orders do not present "controlling questions of law" capable of significantly advancing litigation.'" In re Am. Freight Sys., 194 B.R. 659, 662 (D. Kan. 1996). See also Giron, 1997 U.S. Dist. LEXIS 18644, at *5 ("[I]t 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."); Stout v. Ill. Farmers Ins. Co., 882 F. Supp. 776, 778 (S.D. Ind. 1994) ("issue of the documents to which plaintiff will have access in building his case is not a controlling question of law"); Maxey v. GMC, No. 3:95cv6-D-A, 1996 U.S. Dist. LEXIS 21136, at *9 (N.D. Miss. Dec. 16, 1996).5 Qwest's unhappiness with the Court's discovery Order fails to present a controlling issue of law as an appeal will not advance the termination of the litigation. Simply put, considering the billions of dollars in restated revenue, and the felony plea of Qwest's CFO, regardless of whether or not Lead Plaintiffs receive the 220,000 pages, this case will still proceed to trial. In fact, any delay in the production of the documents already ordered by this Court would likely serve only to delay the timely completion of fact discovery. A stay of production would necessitate the recalling of witnesses well beyond the current October 15,

5

"Finally, this Court's discovery Orders would not require reversal if decided incorrectly, nor would such a finding materially alter the course of litigation. The Eighth Circuit has held that `resolution of a discovery dispute does little to advance the ultimate termination of litigation and results only in delay.'" Judicial Watch, Inc. v. Nat'l Energy Policy Dev. Group, 233 F. Supp. 2d 16, 28 (D.D.C. 2002).

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2005 fact discovery cut-off if the appeal were unsuccessful, as pertinent witnesses would need to be re-examined once Lead Plaintiffs were permitted to review the documents at issue. Accordingly, because the great weight of authority supports the Court's Order, an appeal accompanied by a stay of production will most likely delay the termination of this litigation. The cases cited by Qwest on this point are distinguishable, as each involved not a discovery order but an issue that was potentially dispositive of the case. See, e.g., Resolution Trust Corp. v. Heiserman, No. 93-B-944, 1994 WL 907409 (D. Colo. Aug. 31, 1994) (certifying question of whether defendants could raise significant affirmative defenses); Johnson v. Burken, 930 F.2d 1202 (7th Cir. 1991) (certifying issue relating to validity of service); W. Tenn. Chapter of Associated Builders & Contractors, Inc. v. City of Memphis, 138 F. Supp. 2d 1015 (W.D. Tenn. 2000) (certifying issue of the admissibility of post-enactment evidence). Likewise, the Tenth Circuit has almost uniformly found

controlling issues of law to be those issues which are potentially dispositive of at least a portion of the litigation. See Millsap v. McDonnell Douglas Corp., 368 F.3d 1246 (10th Cir. 2004) (whether back pay is available as "appropriate equitable relief" to the class members pursuant to ERISA §502(a)(3)); Kidneigh v. UNUM Life Ins. Co. of Am., 345 F.3d 1182 (10th Cir. 2003) (scope of ERISA preemption), cert. denied, 540 U.S. 1184 (2004); Sterling Consulting Corp. v. United States, 245 F.3d 1161 (10th Cir. 2001) (whether the lower court had jurisdiction over the IRS's tax liability determinations for entities within the receivership estate); Trigalet v. City of Tulsa, 239 F.3d 1150 (10th Cir. 2001) (whether a municipality can be held liable if the City's actions can be characterized as arbitrary); United Transp. Union -7-

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Local 1745 v. City of Albuquerque, 178 F.3d 1109 (10th Cir. 1999) (whether particular damages are compensable); Duke v. Grady Mun. Sch., 127 F.3d 972 (10th Cir. 1997) (whether local school boards and districts are arms of the state and therefore entitled to Eleventh Amendment immunity); Homeland Stores v. Resolution Trust Corp., 17 F.3d 1269 (10th Cir. 1994) (whether federal court jurisdiction over claim is barred under 12 U.S.C. §1821(d)(13)(D)); Wilcox v. Commerce Bank, 474 F.2d 336 (10th Cir. 1973) (whether the court below abused its discretion in refusing to permit the suit to be maintained as a class action); Burchett v. Bardahl Oil Co., 470 F.2d 793 (10th Cir. 1972) (jurisdiction). Unlike the above cases, an appeal of the discovery Order at issue in this case is in no way dispositive nor would it accelerate the disposition of the litigation. Even Qwest must recognize the great weight of evidence already available to plaintiffs. For example, not only has Qwest already restated its relevant financial statements but its CFO has entered a guilty plea to related criminal charges. Because the case can and will go forward with or without the 220,000 pages, the issue is not a controlling question of law. Thus, two of the factors essential for certification are not met.6

Qwest suggests that if the Tenth Circuit subsequently determines that the production of the 220,000 pages was improper, then the admission of the documents will likely constitute reversible error and lead to a retrial. Qwest completely ignores that there has been no order regarding the admissibility of these documents. The August 15, 2005 Order simply holds that the documents are discoverable under Fed. R. Civ. P. 26, not that they are admissible at trial. Moreover, even if plaintiffs ultimately moved for the admission of certain documents into evidence at trial, and such a motion was granted, the great weight of authority supports the Court's finding of waiver, and thus it is extremely unlikely that the Tenth Circuit would reverse this Court's evidentiary ruling. The issue of admissibility has not yet even been raised before this Court and is surely not ripe for resolution at this stage of the litigation. -8-

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3.

Certification Is Inappropriate Because There Is No Substantial Ground for Difference of Opinion

There is no substantial ground for difference of opinion on the question of whether disclosure to the Government waives the attorney-client privilege or work-product protection as to all other parties, as each of the United States Courts of Appeals who have addressed the issue recently have rejected the concept of selective waiver. Qwest relies heavily on In re Columbia/HCA Healthcare Corp. Billing Practices Litig., 293 F.3d 289 (6th Cir. 2002) for the notion that there is a substantial ground for difference of opinion. However, Qwest draws this inference not from the opinion of the Court, but from the dissent. In reality, the Sixth Circuit in Columbia/HCA simply added to the great weight of authority when it "refus[ed] the doctrine of selective waiver." Id. at 304. The clear trend is that voluntary disclosures to the Government in an enforcement context destroy the attorney-client privilege. In re Lupron Mktg. & Sales Practices Litig., 313 F. Supp. 2d 8, 12 (D. Mass. 2004) (denied §1292(b) appeal because there is no substantial ground for difference of opinion). See, e.g., Columbia/HCA, 293 F.3d at 304; Genentech, Inc. v. U.S. Int'l Trade Comm'n, 122 F.3d 1409, 1417 (Fed. Cir. 1997); United States v. MIT, 129 F.3d 681, 686 (1st Cir. 1997); Westinghouse Elec. Corp. v. Republic of Phil., 951 F.2d 1414, 1424-26 (3d Cir. 1991); In re Martin Marietta Corp., 856 F.2d 619, 623-24 (4th Cir. 1988); Permian Corp. v. United States, 665 F.2d 1214, 1221 (D.C. Cir. 1981). Likewise, voluntary disclosure to the Government waives work-product protection. See, e.g., Columbia/HCA, 293 F.3d at 307; Westinghouse, 951 F.2d at 1429; In re Chrysler Motors Corp. Overnight Evaluation Program Litig., 860 F.2d 844, 846-47 (8th Cir. 1988); In re Steinhardt Partners, L.P., 9 F.3d 230, 235 (2d Cir. 1993) ("selective assertion of [(work-9-

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product)] privilege should not be merely another brush on an attorney's palette, utilized and manipulated to gain tactical or strategic advantage"). Like the defendant in Lupron, Qwest is left only with the support of outdated opinions over two decades old. 313 F. Supp. 2d at 12; see also Defendant Qwest Communications International Inc.'s Motion to Reconsider Part II of this Court's August 15, 2005 Order Concerning Rule 72 Objection and to Certify Interlocutory Appeal Pursuant to 28 U.S.C. §1292(b) ("Qwest's Brf.") at 6 n.4. All recent authority supports this Court's Order and Magistrate Judge Shaffer's May 31, 2005 order. See In re Natural Gas Commodity Litig., No. 03 Civ. 6186 (VM) (AJP), 2005 U.S. Dist. LEXIS 11950 (S.D.N.Y. June 21, 2005) (collecting recent authority explaining that the clear majority consensus is that waiver attaches). It is unlikely the Tenth Circuit would make a ruling in this case which is contrary to such a clear weight of authority. The fact that the Tenth Circuit has yet to address the question of complete versus limited waiver is in no way dispositive, as Qwest would lead the Court to believe. Qwest's Brf. at 7; see Kautio v. Zurich Ins. Co., No. 97-2411-JWL, 1998 U.S. Dist. LEXIS 8304, at *2-*3 (D. Kan. May 12, 1998) (district court denied §1292(b) certification "[e]ven though the Tenth Circuit has not yet ruled on the issue"). "The mere fact that a specific issue has not been previously ruled on, or that the question presented is one of first impression, is not in itself sufficient to establish a substantial ground for difference of opinion." Adams v. Burlington N. R.R., 843 F. Supp. 686, 688 (D. Kan. 1994); see also FDIC v. First Nat'l Bank, 604 F. Supp. 616, 620 (E.D. Wis. 1985); Max Daetwyler Corp. v. Meyer, 575 F.

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Supp. 280, 283 (E.D. Pa. 1983); United States ex rel. Hollander v. Clay, 420 F. Supp. 853, 859 (D.D.C. 1976). The great weight of authority holding that disclosure to the Government waives the attorney-client and work-product privileges demonstrates that there is not a substantial ground for difference of opinion. The law is clear: courts have almost uniformly refused to permit a party to selectively waive the attorney-client privilege or work-product protection for its own benefit while subsequently asserting these doctrines against another party. Courts in this district have followed suit, holding that in circumstances such as this "the attorneyclient privilege must be applied to `prevent litigants from selectively asserting the privilege as a tactical tool for their own benefit.'" Sedillos v. Bd. of Educ., 313 F. Supp. 2d 1091, 1094 (D. Colo. 2004); In re M & L Bus. Machs. Co., 161 B.R. 689 (D. Colo. 1993). Accordingly, the third factor required for certification is also not met. Further, even if all three criteria were met, this Court still has discretion to refuse certification. Americana Expressways, 1995 U.S. Dist. LEXIS 22111, at *5; Bachowski v. Usery, 545 F.2d 363, 368 (3d Cir. 1976) (certification procedure is not mandatory); Anderson, 1997 U.S. Dist. LEXIS 11843, at *5 (court denied §1292(b) certification despite the fact the questions were controlling questions of law and an immediate appeal would materially advance termination of litigation). Even if Qwest were able to satisfy the three factors (which it clearly is not), certification is disfavored as "`"open[ing] the floodgates to a vast number of appeals from interlocutory orders in ordinary litigation."'" Wm. Passalacqua, 611 F. Supp. at 284.

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III.

CONCLUSION Since Qwest has failed to meet any of the required criteria for reconsideration or

certification under 28 U.S.C. §1292(b), Lead Plaintiffs respectfully request the Court to decline to reconsider its August 15, 2005 Order or certify it for interlocutory appeal. DATED: September 21, 2005 Respectfully submitted, LERACH COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP MICHAEL J. DOWD SPENCER A. BURKHOLZ THOMAS E. EGLER SCOTT H. SAHAM X. JAY ALVAREZ TRIG R. SMITH TED MINAHAN ANDREA N. SALOW

/s/ SCOTT H. SAHAM SCOTT H. SAHAM 401 B Street, Suite 1600 San Diego, CA 92101 Telephone: 619/231-1058 LERACH COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP MICHELLE M. McCARRON 9601 Wilshire Blvd., Suite 510 Los Angeles, CA 90210 Telephone: 310/859-3100 310/278-2148 (fax) Lead Counsel for Plaintiffs DYER & SHUMAN, LLP ROBERT J. DYER III KIP B. SHUMAN JEFFREY A. BERENS 801 East 17th Avenue Denver, CO 80218-1417 Telephone: 303/861-3003 Liaison Counsel
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DECLARATION OF SERVICE BY MAIL I, the undersigned, declare: 1. That declarant is and was, at all times herein mentioned, a citizen of the

United States and a resident of the County of San Diego, over the age of 18 years, and not a party to or interested party in the within action; that declarant's business address is 401 B Street, Suite 1600, San Diego, California 92101. 2. That on September 21, 2005, declarant served the LEAD PLAINTIFFS'

OPPOSITION TO DEFENDANT QWEST COMMUNICATIONS INTERNATIONAL INC.'S MOTION TO RECONSIDER PART II OF THIS COURT'S AUGUST 15, 2005 ORDER CONCERNING RULE 72 OBJECTIONS AND TO CERTIFY INTERLOCUTORY APPEAL PURSUANT TO 28 U.S.C. §1292(b) by depositing a true copy thereof in a United States mailbox at San Diego, California in a sealed envelope with postage thereon fully prepaid and addressed to the parties listed on the attached Service List. 3. That there is a regular communication by mail between the place of mailing

and the places so addressed. I declare under penalty of perjury that the foregoing is true and correct. Executed this 21st day of September, 2005, at San Diego, California. /s/ KATHLEEN R. JONES KATHLEEN R. JONES

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QWEST (LEAD) Service List - 9/14/2005 Page 1 of 4 Defendant(s) Scott B. Schreiber John A. Freeman Kwame Clement Arnold & Porter 555 Twelfth Street, N.W. Washington, DC 20004 202/942-5000 202/942-5999(Fax)

(201-067)

Timothy Atkeson Joshua D. Franklin Arnold & Porter LLP 370 Seventeenth Street, Suite 4500 Denver, CO 80202-1370 303/863-1000 303/832-0428(Fax)

Mark T. Drooks Thomas V. Reichert Bird, Marella, Boxer & Wolpert, P.C. 1875 Century Park East, 23rd Floor Los Angeles, CA 90067-2561 310/201-2100 310/201-2110(Fax) Alfred Levitt Jonathan D. Schiller David Boyd Boies, Schiller & Flexner, LLP 5301 Wisconsin Avenue, N.W., Suite 800 Washington, DC 20015-2015 202/237-2727 202/237-6131(Fax) David Meister James Miller David Cook Clifford Chance US LLP 31 West 52nd Street New York, NY 10019 212/878-8000 212/878-8375(Fax)

David Boies Boies, Schiller & Flexner, LLP 333 Main Street Armonk, NY 10504 914/749-8200 914/749-8300(Fax)

David W. Shapiro John F. Cove, Jr. Boies, Schiller & Flexner, LLP 1999 Harrison Street Oakland, CA 94612 510/874-1005 510/874-1460(Fax)

James E. Nesland Paul H. Schwartz Jeff Smith Cooley Godward, LLP 380 Interlocken Crescent, Suite 900 Broomfield, CO 80021-8023 720/566-4000 720/566-4099(Fax)

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QWEST (LEAD) Service List - 9/14/2005 Page 2 of 4

(201-067)

Holly Stein Sollod Jennifer H. Weddle Holland & Hart 555 Seventeenth Street, Suite 3200 Denver, CO 80202 303/295-8000 303/295-8261(Fax) Mark C. Hansen Rebecca Beynon David Schwarz Kellogg, Huber, Hansen, Todd, Evans & Figel, P.L.L.C. 1615 M Street, N.W., Suite 400 Washington, DC 20036 202/326-7900 202/326-7999(Fax) Barbara Moses Haley Fabricant Morovillo, Abramowitz, Grand, Iason & Silberberg 565 Fifth Avenue New York, NY 10017 212/856-9600 212/856-9494(Fax)

Bruce F. Black Michael J. Hofmann Holme Roberts & Owen LLP 1700 Lincoln Street, Suite 4100 Denver, CO 80203 303/861-7000 303/866-0200(Fax) Walter W. Garnsey, Jr. Kelly Haglund Garnsey & Kahn LLC 1441 Eighteenth Street, Suite 300 Denver, CO 80202-1255 303/296-9412 303/293-8705(Fax)

Eric S. Goldstein Roberta A. Kaplan Marguertie S. Dougherty Paul, Weiss, Rifkind, Wharton & Garrison LLP 1285 Avenue of the Americas New York, NY 10019-6064 212/373-3000 212/757-3990(Fax) Frederick J. Baumann James M. Lyons Rothgerber Johnson & Lyons LLP 1200 17th Street, Suite 3000 Denver, CO 80202-5839 303/623-9000 303/623-9222(Fax)

Robert N. Miller Stephanie E. Dunn Perkins Coie LLP 1899 Wynkoop Street, Suite 700 Denver, CO 80202 303/291-2300 303/291-2400(Fax)

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QWEST (LEAD) Service List - 9/14/2005 Page 3 of 4

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Terence C. Gill Marcy M. Heronimus Sherman & Howard L.L.C. 633 Seventeenth Street, Suite 3000 Denver, CO 80202 303/297-2900 303/298-0940(Fax)

Neil Peck James D. Kilroy Snell & Wilmer, LLP One Tabor Center, SUite 1900 1200 Seventeenth Street Denver, CO 80202 303/634-2000 303/634-2020(Fax)

Charles A. Stillman Diana Nehro Stillman & Friedman, P.C. 425 Park Avenue New York, NY 10022 212/223-0200 212/223-1942(Fax) Plaintiff(s) Robert J. Dyer III Kip B. Shuman Jeffrey A. Berens Dyer & Shuman, LLP 801 East 17th Avenue Denver, CO 80218-1417 303/861-3003 303/830-6920(Fax) William S. Lerach Spencer A. Burkholz Thomas E. Egler Lerach Coughlin Stoia Geller Rudman & Robbins LLP 401 B Street, Suite 1600 San Diego, CA 92101 619/231-1058 619/231-7423(Fax) Michelle M. McCarron Lerach Coughlin Stoia Geller Rudman & Robbins LLP 9601 Wilshire Blvd., Suite 510 Los Angeles, CA 90210 310/859-3100 310/278-2148(Fax)

Joe R. Whatley, Jr. Whatley Drake, LLC 2323 Second Ave., North Birmingham, AL 35203 205/328-9576 205/328-9669(Fax)

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QWEST (LEAD) Service List - 9/14/2005 Page 4 of 4

(201-067)

Plaintiff Stichting Pensioenfonds Counsel Jay W. Eisenhofer Geoffrey C. Jarvis Michael J. Barry Grant & Eisenhofer, P.A. 1201 North Market Street, Suite 2100 Wilmington, DE 19801 302/622-7000 302/622-7100(Fax) Intervenor Plaintiff William J. Leone District of Colorado United States Attorney 1225 17th Street, Suite 700 Denver, CO 80202 303/454-0100 303/454-0400(Fax) Clyde A. Faatz Christopher J.W. Forrest Hamilton and Faatz, A P.C. 1600 Broadway, Suite 500 Denver, CO 80202-4905 303/830-0500 303/860-7855(Fax)