Free Motion to Compel - District Court of Colorado - Colorado

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

Document 165-6

Filed 08/10/2005

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

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO
Civil Action No. 00-RB-1864 (BNB) (consolidated with Civil Action Nos. 00-RB-1908, 00-RB-1910,00-RB~1919,00-RB-1945,00-RB-1954,00-RB-1957,00-RB-1963,OO-RB-1996, 00-RB-2040,00-RB-2074,00-RB-2149,00-RB-2243, a d 00-RB-23 16)

In re ICG COMMUNICATIONS, INC. SECURITIES LITIGATION This Document Relates To: AU Actions.
-

DEFENDANTS' FIRST SET OF INTERROGATORIES
Pursuant to Rules 26 and 33 of the Federal Rules of Civil Procedure, Defendants J. Shelby Bryan and William S. Beans, Jr. ("Defendants"), by and through their attorneys, OYMelveny Myers LLP, hereby propound the following First Set of Interrogatories (the & "Iatemgatories~ be answered d e r oeth by Plaintiffi within thirty (30) days of the date to hereof.

D

m

Defendants hereby incorporate by reference the Definitions and Iushuctions h m Defendants' F r t Request for Production of Documents,dated February 4,2005, and add the is following Definitions to these Interrogatories:
1.

"August 24 Ordcrn refers to the Court's August 24,2004, Order Granting in Part

ims and Denying in Part Defendants' Motion to D s i s the Amended Complaint.
2.

"Identifjl" shall have the following meanings:
(a)

When used in reference to a natural person, it shall mean to
state his or her M name, last known residence address and I

telephone number, last known business address and telephone number,present title aad job description.

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(b)

When used in reference to a corporation, it shall mean to state the 1 1 1 name of the capation, the date and slate (or country,if not domestic) of its incorporation and the address and telephone number of its principal place of business, and to identify its officers and directors.

(c)

When used in reference to a communication, it shall meati to state the nature and substance of tbe communication, the parties involved in the wmmunication, and the date that such communication was made.

'

3.

In answering these Interrogatories, fumish all the ihrmation that is known to

Plaintiffs. If the answer to all or any part of an Inturogatoq is not presently known or available, Plaintiffs shall include a statement to that effect, W s h all i n f o d o n h o w n or available, or respond to the entire Interrogatoryby supplemental answer in writing and undex oath within ten
days f o the time the entire answer becomes known or available. If an estimate can be rm

reasonably made in place of unknown infarmation, Plaintiffs shall set forth theh best estimate, clearly designated as such, in place of unknown information and describe the basis on which the

e t m t is made. siae
4.

If Plaintiffs do not answer any Interrogatory because they claim the information

sought is privileged, identify the privilege claimed, and set forth in detail each f a supporting

this claim of privilege.
5.

If any Intemgatory is not answered in 111, set forth in detail the reason for not so

allwering.
6.

T e e Interrogatories are continuing so as to require prompt, further m d hs

supplemental answers if further information is obtained bemen the time the answers are served and the time of trial in this action.

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1.

Identify any and all pemms with knowledge concerning the allegations sustained

by the Court's August 24 Order, including but not limited to any and all persom with knowledge Relating to:

i.

allegations that Plaintiffs sustained "damages" caused by "defendants' violations of federal securities laws,"as demibed in paragraphs 1 and 24 of the Amended Complaint. 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 thut "~]ersons internally responsible for auditing the Company's line counts were preparing and circulating weekly reports which detailed the fact that a ICG's actual line count w s only about 25% of the represented figmes." ' the allegation in paragraph 13 of the Amended Complaint that %he Company's statements of revenue and eamings were wildly inflated" because ICG's line wunt w s purportedly lower then represented. a the allegation in paragraph 45 of the Amended Complaint that "[a]cmrding toa fomer ICG Infiastrucm 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 in paragraph 45 of the Amended Complaint that the "plan
was to connect ICG's switch sites first, and then start p d n g the

ii.

iii.

iv.

v.

vi.

RBOClILECs for reciprocal compensation. In this way, ICG's line counts and reported revenues could be dramatically incmsed, even though payment was uncertain." vii. the allegation in paragraph 46 of the Amended Complaint that "[alccording to the former Vice President of Governmental Affairs and a former Infrastructure Program Manager, it became inmasingly 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/ILECs were refusing to pay ICG's unauthorized bills!'

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viii.

the December 9,1999 confkrence call described in paragraph 54 of the Amended Complaint.

ix.

the allegation in paragraph 94 of the Amended Complaint that "[alctual collections h m the ILECs totaled only about 5% of what ICG hed billed them" the "internal company memoranda" described in paragraph 95 of the Amended Complaint in which ICG's "Executive Vice Resident of Govcrnmental Affairs" pqmrtedly "documented her opinion that it w s a extremely unlikely that the reciprocal wmpellsation revenue would be collected." the August 10,2000 c ~ ncallffor analysts and investors described in ~ paragraph 136 of the Amended Complaint. the allegations of scienter in paragraphs 143(a) and 1 4 3 0 (reganling the fourth quarte~ 1999) of the A m d e d Complaint. of
the allegations in paragraphs 145,146, 147, 148,149, 150 and 154 of the

x.

xi.
xii.
xiii.
2.

Amended Complaint. Identify the "over 20 former ICG employees and customers" who were

"contact[ed] and intervicw[ed]" as part of the "investigation" described in paragraphs 2 and 38 of the Amended Complaint.

3.

Identify the "former ICG InfMmcture Program hi8na~d'referred to in

paragraph 45 of the Amended Complaint.
4.

Identify the "fomer Executive Vice President of Csovemmental M is n f d a " t

to in paragraph 95 of the Amended Complaint.
5.

Identify the "former ICG technical consultant" r e f e d to in paragraph 78 of the

Amended Complaint and any other "technical consultants," "sales support d c e mmagers,'' or

any other Persons alleged to have been told by William S. Beans, Jr. to "create lines" during the
fourth quarter of 1999.
6.

Identify any fact witness(es) that P a n i f expect to call at trial. litfs

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7.

Identify any expert witness(es) that Plaintiffs expect to call at trial, and identifj.

the subject matter of the expectedtestimony. Dated: February 16,2005 New York, New Yofir

By:

Bradley J. Butwin

"""m
Reqwtfblly submitted,

Jonathan Rasenberg

William J. Sushon
7 Ties Square New Y & New Yrc 10036 o ol

(212) 326-2000 BROWNSTEM HYATT & FARBER. P.C. Timotb R. Beyer 410 17J St~&,22"~Floor Denver, CO 80202-4437 (303) 223-1 100
Attorneys for Defendants

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CERTIFICATE OF SERVICE

I, Benjamin D. Bianco, hereby certify that on this 16th day of February, 2205, a true and correct copy of DEFENDANTS' FIRST SET OF INTERROGATORIES was served by
F e d d Express to the following:

Robert J. Dyer, Dl, Esq. Kip B. Shurnan, Esq. Jeffiey A. Berens, Esq. Dyer & Shuman, LLP 801 E. 17' ~ v e m Denver, CO 80218
Daniel L. Berger, Esq.

Peier A. Pease, Esq. Sara A. Davis, Esq. Berman DeValerio Pease Tobacco Burt & Pucillo One Liberty Squate Boston, MA 02109
Timothy R Beyer, Esq. Brownstein Hyatt & Farbtr, P.C. 410 17' Stmt, 2 p lo or Denm,Colorado 80202

M r Lebovitch, Esq. ak
Bemstcin Litowitz Berger & Grossmann, LLP 1285 Avenue of the Americas New York, NY 10019
Charles W. Lilley, Esq. Lilley & Garcia LLP 1600 Stout Street, Suite 1loo Denver, CO 80202

PatTick D Vellone, Esq. . AUen & VeUone, P.C. 1600 Stout Street, Suite 1100 Denver, CO 80202

John B. Moorhead, Esq. Baker & Hostetler LLP 303 E. 17" Ave., Suite 1100 Denver, CO 80203

Murielle I. Steven Walsh, Esq. Pomtrantz W e k Block Grossman & Gross LLP 100 Park Amue, 26' Floor New York, NY 1001
Samuel H. Rudrnan, Esq.

Steven G. Schuhan, E%q. Milberg Weiss Bershad & Schulman LLP One Pennslyvania P l a q 49" Floor NewYork,NY 10119

Jonathan M.Stein, Esq. Geller Rudmm LLC 197 South Federal Hwy., Suite 200 Boca Raton, FL 33432

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F. JamesDmeUy, Esq.
Law Office of F. James Domlly 6076 S. Chester Way Greenwood Village, CO 801 1 1

Aaron L. Brody, Esq. Stull, Stull& B d y

6 East 45' Street,

Floor

New YorkNY 10017

M m A. Topaz, Esq.
SchifEb & Barroway, LLP ThreePlazaEast,Suite400 Bala Cynwyd, PA 19004 David Jaroslawicz, Esq. Jaroslawia & Jaros 150 Williams Street, 19' Floor New Yo& NY 10038 Patrick F. Monis, Esq. Jacqueline L. Gnen Morris And Monis 1 105 N. Market Street, Suite 1600 Wilmington, DE 19801

Barbara A. Podell, Esq Savett Fivtkin Podell & R a , P C y n .. 325 Chestnut Street, Suite 700 Philadelphia, PA 19 1 06
Arnold Levin, Esq. Levin, Fishbein, Sedran & Berman, P.C. 510 W l u Strett, Suite 500 ant Philadelphia, PA 19106
Fred Taylor Isquith, Esq. Wolf Haldenstein Adler Freemen & Hem, LLP 270 Madison Avenue New Yorlc, NY 10016

Leo W. Desmond, Esq. The Law Offices of Leo W. Desmond 13 Main Street, Suite #4
Sparta, New Jersey 07871

Laura M. Ptmme, Esq. The Law Offices of Laura M. P a n e , PLLC 60 East 42nd Street, 4 p Floor New York, NY 10165
Andnw M.Schatz, Esq.

M r W. McNair, Esq. ak
Law Ofices Of M r McNair ak

1101 3omStreetN.W.,Suite 500 Washington,D.C. 20007

J e w S. Nobei, Esq. Schstz& Nobel 330 Main Street Hartford, CT 06 1 06
Charles J. Piven, Esq. Law Oaces Of Charles J. Piven 401 E. h t t Street. Suite 2525

James V. Bashian, Esq. Law Offices Of James V. Bashian 500 5'Avenue, Suite 2700 New York,NY 101 10-2799

Baltimore,MD 21202-3003

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Joshua M.L f h t ,Esq. isiz Peter D. Bull, Esq. Bull & Lifshitz, LLP 18 ~ a s41" Street,11" lo or t
New Yo&,

James S. Bailey, Esq. Bailey & Peterson

1660 Lincoln Street, Suite 175
Denwr, CO 80264

NY 10017