Free Motion to Compel - District Court of Colorado - Colorado

Case 1:00-cv-01864-REB-BNB

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLOMDO
Civil Action No. 00-RB-1864 (BNB) (consolidated with Civil Action Nos. 00-RB-1908,00RB-1910,00-RB-1919,00-RB-1945,00-RB-19~4, 00-RB-1957,OO-RB-1963,OO-RB-1996, 00-RB-2040,00-RB-2074,00-RB-2149,0O-RB-2243, 00-RB-2316) and

In re ICG COh4MUNICATIONS, INC. SECURITIES LJTIGATION
This Document Relates To: All Actions

LEAD PLAINTIFFS' OBJECTIONS AND RESPONSES TO DEFENDANTS' FIRST SET OF INTERROGATORIES
Pursuant to Rules 26 and 33 of the Federal Rules of Civil Procedure, Stratesic Market Analysis Fund,Retirement Systems of Alabama, and the Policemen's Annuity and Benefit Fund, City of Chicago (collectively "Lead Plaintiffs"), hereby object and respond to Defendants' First Set of Interrogatories ("Interrogatories").

GENERAL OBJECTIONS
1.

Lead Plaintiffs object to the Intekogatories to the extent that they, individually

or cumulatively. seek to impose duties and responsibilities on Lead Plaintiffs beyond those required by the Federal Rules of Civil Procedure, the Local Rules or Orders of this Court.
2.

Lead Plaintiffs object to the Interrogatories to the extent that they, individually

or cumulatively, seek information or material not within Lead Plaintiffs' possession, custcdy
and control.

3.

Lead Plaintiffs object to the Interrogatories to the extent that they are

overbroad, harassing, vague or ambiguous and to the extent the discovery sought is unreasonably cumulative, or unduly burdensome.

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4.

Lead Plaintiffs object to the Interrogatories to the extent that the information

andlor documents sought is pmtected from disclosure by the attorney-client privilege, the attorney work-product protection, Rule 2 @ ( ) of the Federal Rules of Civil Procedure 6)3 relating to trial preparation materials, or any other applicable privilege or protection, or is otherwise immune from discovery. This objection includes, but is not limited to, information andlor documents requested by Defendants that relates t :(1) mental impressions, o conclusions, opinions, or legal theories of Lead Plaintiffs' counsel, their consultants or other representatives concerning the litigation; or (2) communications between Lead Plainti* and any attorneys representing Lead Plaintiffs or the Class in this action.
5.

Lead Plaintiffs object to the Interrogatories to the extent that they seek

information and/or documents that are neither relevant nor reasonably calculated to lead to the discovery of admissible evidence.

6 .

Lead Plaintiffs object to the Interrogatories to the extent that they seek

information and documents that are publicly available and the production of which would place an undue burden on Lead Plaintiffs.
7.

Lead Plaintiffs object to the Interrogatories to the extent that they are not

properly limited in time or scope.
8 .

In providing responses to the Interrogatories, Lead Plaintiffs do not in any

way waive or intend to waive, but rather intend to preserve and are preserving:
(a)

All objections as to competency, relevancy, materiality and

admissibility of the Interrogatories, Lead Plaintiffs' responses and their subject matter;

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(b)

All rights to object on any ground to the use of any of Lead Plaintiffs'

responses to the Interrogatories, or their subject matter, in any subsequent proceedings, including the trial of this or any other action; (c) All rights to object on any ground to any further discovery requests

involving or relating to the subject matter of the Interrogatories; (d) The right to supplement Lead Plaintiffs' responses to the

Interrogatories prior to trial; and (e) Any and all privileges or rights arising under applicable Federal Rules

of Civil Procedure, Local Rules of this Court,other statutes, or the common law.

9.

In addition to the General Objections, Lead Plaintiffs state specific objections

to the Interrogatories where appropriate. By setting forth such specific objections, Lead Plaintiffs do not intend to limit or restrict these General Objections. By responding in whole or in part to any Intmgatory, Lead Plainti* do not waive, and expressly preserve, any stated objections. In addition, the inadvertent disclosure of privileged or protected
.

information shallnot constitute a waiver of any applicable privilege or protection from disclosure. Subject to, and without waiving the foregoing General Objections, each of which Lead Plaintiffs incorporate into each of Lead Plaintiffs' responses and specific objections to each Interrogatory, Lead Plaintiffs respond as follows:

INTERROGATORIES Interrogatory No. 1: Identify any and all persons with knowledge concerning the allegations sustained by the Court's August 24 Order, including but hot limited to m y and all persons with knowledge Relating to:
1 .

allegations that Plaintiffs sustained "damages" caused by "defendants' violations of federal securities laws," as described in paragraphs 1 and 24 of the Amended Complaint.
3

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ii.

allegations that Defendants and ICG "knowingly or extremely recklessly reported ICG's inflated line counts and revenues throughout the Class Period," as described in paragraphs 12,58 and 59 of the Amended Complaint. allegations in paragraphs 13 and 79 of the Amended Complaint that "Lplersons internally responsible for auditing the Company's line counts were preparing and circulating weekly reports which detailed the fact that ICG's actual line count was only about 25% of the represented figures." the allegation in paragraph 13 of the Amended Complaint that "the Company's statements of revenue and earnings were wildly inflated" because ICG's line count was purportedly lower than represented. the allegation in paragraph 45 of the Amended Complaint that "[alcwrding to a former ICG hfiasiructure Program Manager, ICG decided to press ahead with the switch site connections, even though in nearly all cases, ICG did not have interconnect agreements." the allegation inparagraph 45 of the Amended Complaint that the ')plan was to connect ICG's switch sites first, and then start pursuing the RBoCm,ECs for reciprocal compensation. In this way, ICG's line wunts and reported revenues could be dramatically increased, even though payment was uncertain." the allegation in paragraph 46 of the Amended Complaint that " [ a ] c c o d i to the former Vice President of Governmental Affairs and a former Infrastructure Program Manager, it became increasingly apparent that no reciprocal compensation payments were forthcoming because ICG did not enter into 'interconnect agreements' with the given RBOCmEC prior to connecting the Company's switch sites, and the RBOC/nECs were rehsing to pay ICG's unauthorized bills." the December 9,1999 conference call descn%ed in paragraph 54 of the Amended Complaint. the allegation in paragraph 94 of the Amended Complaint that "[alctual collections from the ILECs totaled only about 5% of what ICG had billed them." the "internal company memoranda" described in paragraph 95 of the Amended Complaint in which ICG's Executive Vice President of Governmental Affairs" purportedly "documented her opinion that it was extremely unlikely that the reciprocal compensation revenue would be collected." the August 10,2000 conference call for analysts and investors descnied in

iii.

iv.

v.

vi.

vii.

viii. ix.

x.

xi.

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paragraph 136 of the Amended Complaint. xii. xiii. the allegations of scienter in paragraphs 143(a) and 143(f)(regarding the fourth quarter of 1999) of the Amended Complaint. the allegations in paragraphs 145, 146, 147,148, 149,150 and 154 of the Amended Complaint.

Response to Interrogatory No. 1: Lead Plaintiffs object to Interrogatory No. 1 on grounds that it is overbroad, harassing and unduly burdensome. Lead Plaintiffs hrther object to this interrogatory to the extent that the information andlor documents sought is protected fiom disclosure by the attorneyclient privilege, the attorney work-product protection, Rule 26@)(3) of the Federal Rules of Civil Procedure relating to trial preparation materials, or any other applicable privilege or protection, or is otherwise immune fiom discovery. Subject to, and without waiving the foregoing objections, Lead Plaintiffs direct Defendants to Lead Plaintiffs' Rule 26(a) Initial Disclosures (including any amendments thereto), and Lead Plaintiffs' Second Amended and Consolidated Complaint, filed on March

Interrogatory No. 2: Identify the "over 20 former ICG employees and' customers" who were"contact[ed.] and intemiew[ed]" as part of the "investigation" described in paragraphs 2 and 38 of the Amended Complaint. Response to Document Interrogatory No. 2: Lead Plainti% object to Intemgatory No. 2 to the extent that the information andfor documents sought is protected from disclosure by the attomey-client privilege, the attorney work-product protection, Rule 26(b)(3) of the Federal Rules of Civil Procedure relating to trial preparation materials, or any other applicable privilege or protection, or is otherwise immune fiom discovery. Interrogatory No. 3: Identify the "former ICG Infrastructure Program Manager" referred to in paragraph 45 of the Amended Complaint.

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Response to Interrogatory No. 3: Subject to, and without waiving the foregoing

objections, Lead Plaintiffs direct Defendants to Lead Plaintiffs' Rule 26(a) Initial Disclosures (including any amendments thereto), and Lead Plainti*' Complaint, filed on March 15,2005.
Interrogatory No. 4: Identify the "former Executive Vice President of Governmental Affairs" referred to in paragraph 95 of the Amended Complaint. Response to Interrogatory No. 4: Subject to, and without waiving the foregoing

Second Amended and Consolidated

: objections, Lead Plaintiffs direct Defendants to Lead Plaintiffs' Rule 26(a) Initial Disclosures
(including any amendments thereto), and Lead Plaintiffs' Second Amended and Consolidated Complaint, filed on March 15,2005.
Interrogatory No. 5: Identify the "former ICG technical consultant" referred to in paragraph 78 of the Amended Complaint and any other "technical consultants," "sales support service managers," or any other Persons alleged to have been told by William S. Beans, Jr. to "create lines" during the fourth quarter of 1999. Response to Interrogatory No. 5: Lead Plaintiffs object to Interrogatory No. 5 to

the extent that the information andlor documents sought is protected h m disclosure by the attorney-client privilege, the attorney work-product protection, Rule 26(b)(3) of the Federal Rules of Civil Procedure relating to trial preparation mataials, or any other appIicable privilege or protection, or is otherwise immune from discovery. Subject to, and without waiving the foregoing objections, Lead Plaintif% direct Defendants to Lead PIaintiffs' Rule 26(a) Initial Disclosures (including any amendments thereto), and Lead Plaintiffs' Second Amended &d Consolidated Complaint, filed on March

Interrogatory No. 6: Identify any fact witness(es) that Plaintiffs expect to call at

trial.

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Response to Document Interrogatory No. 6: Lead Plaintiffs object to Intemgatory No. 6 to the extent the information andlor documents sought is protected h m disclosure by the attorney-client privilege, the attorney work-product protection, Rule 26(b)(3) of the Federal Rules of Civil Procedure relating to trial preparation materials, or any other applicable privilege or protection, or is otherwise immune h m discovery. Subject to, and without waiving the foregoing objections, Lead Plaintiffs state that, at this early stage of discovery, they have not yet determined which witnesses they expect to call at trial. Lead Plaintiffs reserve the right to supplement their answer to this interrogatory at the appropriate time. Interrogatory No. 7: Identify any expert witness(es) that Plaintiffs expect to call at trial, and identify the subject matter of the expected testimony. Response to Interrogatory No. 7: Subject to, and without waiving the foregoing objections, Lead Plaintiffs state that, at this early stage of discovery, they have not yet determined which expert witness(es), if any, they expect to call at trial. Lead Plaintiffs reserve the right to supplement their answer to this interrogatory at the appropriate time.
As to objections,

Dated: March 21,2005

BERMAN DeVALERIO PEASE TABACCO BURT & PUCILLfi

BRYAN One Liberty Square Boston, MA 02 109 Tel: (617) 542-8300 Fax: (617)542-1194

WOOD

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BERNSTEIN LITOWrl'Z BERGER & GROSSMANN LLP DANIEL L. BERGER MARK LEBOVITCH 1285 Avenue of the Americas New Y r ,NY 10019 ok Tel: (212) 554-1400 Fax: (2 12) 554- 1444 Co-Lead Counsel for the Class

DYER & SHUMAN, LLP
ROBERT J. DYER III KIP B. SHUMAN JEFFREY A. BERENS 801 East 17' Avenue Denver, co 80218-1417 Tel: (303) 861-3003 Fax: (303) 830-6920 Liaison Counsel for the Class

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I declare under peualty of pq'ury that my foregoing answers t inturogatorics are o

true and comct

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5

8

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HbR-21-2005 HON 01:43 PH R S A

FAX NO. 334 240 1754

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1dcclarc undcr pcnally of pcjurytlut my foregoing answers to inlerrogatorics are Iruc and corrcct.

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- POLICE PENSION Case 1:00-cv-01864-REB-BNB 2-726-3216 Document 165-7 21 200508/10/2005 Mar Filed 12:30 Fax: 31

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