Free Response to Motion - District Court of Colorado - Colorado

Case 1:01-cv-01451-REB-KLM

Document 736-6

Filed 07/06/2005

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EXHIBIT 5

Case 1:01-cv-01451-REB-KLM
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Document 736-6

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IN THE UNITED STATES DISTRICT COURT

F:

FOR THE DISTRICT OF COLORADO.:~.. T'Y;:::,~H :ase No. O1-RB-1451(CBS) (Consolidated with Civil Action Nos. 0lcRB-1472-,---O4r-RB---15.7,~ D1--RB-l616, 0l-RB~-1799, Ol-RB-l930, O1-RB-2083, 02-RB-333, D2-RB-374, 02-RB-507, 02-RB--658, 02--RB-755 and 02-RB-0798) EN RE: QWEST COMMUNICATIONS INTERNATIONAL, INC.., SECURITIES [jITIGATION
~EW ENGLAND HEALTH CARE,

et al.,

Plaintiffs, 10 II 12 13 14 15 16 17 18 19 20 21 22 23 24 25 APPEARANCES

c013"hir
United States District Court f or the

~WEST COMMUNICATIONS INTERNATIONAL, INC., et al., Defendants.

Proceedings before CRAIG B. SHAFFER, United States `4agistrate Judge, District of 2005,

Colorado,

commencing

at 10:07 a.m., March 1,

in the United States Courthouse. Denver, Colorado.

WHEREUPON, THE ELECTRONICALLY RECORDED PROCEEDINGS RE HEREIN TYPOGRAPHICALLY TRANSCRIBED...

THOMAS A. EGLER and MICHAEL J. DOWD, Attorneys ~aw, appearing for the plaintiffs.

at

ALFRED P. LEVITT, DIANNA NEHRO, and ELISSA ?REHEIM, Attorneys at Law, appearing for the defendants. (APPEARANCES CONTINUED ON PAGE 2) TELEPHONIC STAmS CONFERENCE

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Case 1:01-cv-01451-REB-KLM

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2 I 2 3 4 S 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 disputesPROCEEDINGS (Whereupon, the within electronically recorded pursuant to order of PPEARA.NCES (Continued) Present by telephone but not addressing the Court: Scott Saharn, Ray Mandlekar, Kip Shuman, David Meister, Stephanie Dunn, Neil Gorsuch, Martin D. Litt, Michael J, Hoffman, Shelby H. Hunt, Kwame Clement, Scott M. Himes, James E. Nesland, Paul H. Schwartz, Frederick,J. Baumann and James J. Lyons.

proceedings are herein transcribed, counsel.)

THE CLERK: Court is in session. THE COURT: Good afternoon
--

I guess it's still

good morning, everyone.

This is Magistrate Judge Shaffer.

MR. EGLER: Good morning, Your Honor. THE COURT: We are on the record in In Re: Qwest Communications International, This is O1-RB-1451. Inc. Securities Litigation.

Ellen has given me a list of all the least

folks who are participating either directly or at listening in on this telephone conference, people to go through a recital of names. when and if you speak, record. Okay.

so I won't ask

My only request is

please identify yourself for the

We're here to address various discovery

Who wants to go first? MR. EGLER: I'll go first, Your Honor. This is Torn

Egler for the plaintiffs. to raise with you today.

We have four issues that we want
And there may be a couple more but

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Case 1:01-cv-01451-REB-KLM

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think four with regard to Qwest and non Arthur Andersen efendants.
THE COURT: Okay. Go ahead. She first

MR. EGLER: I'll just launch into them.

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e is pursuant to your order last week on Friday, February 4th, Qwest sent us a
--

counsel for Qwest sent plaintiffs

letter stating that they do not, quote, intend to assert defense of reliance on legal counsel in this case fense of reliance on legal counsel. You remember last week we talked about this, and e believe that the statement that they made is inadequate, cause, as we talked about last week, one of the big issues jthat's coming up in this case is the timing. The depositions
jstarts
---

the

or started yesterday with the first deposition. the letter that Qwest

~knd we believe that the wording of

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~doesnot intend to raise a defense of counsel defense is not
~o0d for us now because it leaves open the possibility that

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Jthey may raise it in the future.
THE COURT: Okay. MR. EGLER: And we want to be able to have finality

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s to that issue whether they are going to raise the defense

~r not.

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THE COURT: Well,

Counsel,

come on.

I mean,

I

--

fgiven how this case has proceeded,

I mean,

I

think your
finality is

I~equest

that

you

get

absolute,

unequivocal

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Case 1:01-cv-01451-REB-KLM

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fprobably think Lying ~an

asking

for something

that's
--

a little

unrealistic. you are and I with

the more appropriate

remedy

and obviously

to proceed with discovery that. But

with some certainty, sit here and say

appreciate

I cant thing that

jkbsolute t the

certainty early that

how this of

is going you are I
--

to evolve.

And given the fact stages that's

we

all are

--

discovery,

am not

necessarily I think your somewhere
--

ertain ~etter ~own ~hink ~1evelop, ~26(g). iswear

the best

way to proceed. that surprise

avenue, the road

to the extent
--

occurs

and I'm not suggesting that it will course under to sit will of action, Rule if that and/or

I

the more appropriate is to seek I'm not relief

should Rule

37(a) and

But

going that

here

make people present that

unequivocally

they

never

~iefense, because I think that's unrealistic MR. EGLER: All right, Your Honor. THE COURT: The same way I'm not going ~fco commit finally MR. to ask you

and irrevocably to a particular position. I appreciate that, I totally hear you,
--

EGLER:
--

Your Honor.

Our

osition is that

if I can just give

ou some background oing on, ill

is that, you know, we have the depos we and

and if the situation does change with them, seek relief from you. But I hear you,

need to

jjthat's okay.

We'll proceed along those lines.

THE COURT: Okay. What's the next issue? AVERY/WOODS REPORTING SERVICE, 303-825-6119 INC. 80203

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Case 1:01-cv-01451-REB-KLM

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MR. EGLER: The next issue is that we want to key

~.xp motion to compel Qwest to produce documents regarding a Hther people's affirmatively stated reliance on counsel's }defense. We have heard the best example is defendant
--

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empest in his answer affirmatively

says,

unlike

Qwest, that

e did rely on Qwest's counsel and that that should negate is liability in this case. Counsel for defendant Tempest has told us that

jthey do not have any documents for which they are stating a ~rivilege, but that Qwest does have the documents that he Qwest has told us that they continue to over those documents, Owest's of own the

Jwould be using. ~issert the ~rivi1ege. }defense

privilege We

believe the

that

Tempest's that

assertion has,

waives

privilege

Qwest

because

therwise we are in a situation where we cannot prosecute 1~Dur action or understand the defenses unless we get those I~ocument5. MR. LEVITT: Your Honor, this is Alfred Levitt for

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)~west. May I be heard on this?

j
hat

THE COURT: Sure. MR. LEVITT: The company's position, Your Honor, is the privilege belongs to the company and a former

fficer's assertion of a reliance on counsel defense does not operate to waive that privilege. his jssue. There's good law on

I believe this is an issue that we have reached

F

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Case 1:01-cv-01451-REB-KLM

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6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ight. qimpasse on. ~considered. I think that lead plaintiffs' position is well I think ours is well considered. And I think

~he proper resolution is to present the matter to Your Honor in briefs. THE COURT: Well, And I will withhold I suspect that you're probably any comments at this point save

to observe

that the Supreme Court

and other courts have

ecognized that there is inherently a tension between the ttorney-client privilege which excludes otherwise relevant information from the jury's access and the fundamental

jnot ion that a jury should be deciding a case on all relevant finformation. We have a very interesting situation here where ~ne party asserts the defense of reliance. jnot relying on that same defense. ~1east at first blush, Qwest that Qwest Qwest says it's at all

So it would seem, gets the best of

jPossible worlds. ~ocuments

gets an

opportunity to withhold allowing other It's

on the basis of

privilege while

kormer officers and directors to assert the defense. F very interesting question. ow you brief it. rjefs. MR. EGLER: Your Honor, frednesday for that.

I guess we'll just have to see

Beyond that, just go ahead and file your

if we can have till next

We want to work out exactly what some I'd appreciate

~ther defendants' positions are as to this.

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Case 1:01-cv-01451-REB-KLM

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2 3 4 S 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ~ime? MR. EGLER: Yes, I think it will. THE COURT: Okay. Go ahead and file.
--

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THE COURT: I

--

1
onor.

MR.

LEVITT:

I

have

no objection

to

that,

Your

THE COURT: Is Wednesday going to give you enough

MR. EGLER: Wednesday of next week, not the THE COURT: No, that's fine. That's fine.
--

I mean, go ahead

las a

practical matter, you can file that the 9th.

yeah,

and file that on Wednesday,

MR. LEVITT; Thank you, Your Honor. THE COURT: Go ahead. MR. EGLER: The next issue that we have does not elate to the documents, it's a letter that we received from ounsel for Qwest. een served in It goes to interrogatories that have case. The
--

this

interpretation

of

its

~scheduling order that was signed THE COURT: Served MR. EGLER:
---

in this case.

THE COURT: Served by whom? MR. EGLER: Served by us, THE COURT: Okay. nterrogatories
--

served by plaintiffs.

All right. So plaintiffs served

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