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 COLORADO
Civil Action No. 00-RB-1864 (BNB) (consolidated with Civil Action Nos. 00-RB-1908,OORB-19 10,OO-RB-1919,OO-RB-1945,OO-RB-1954.00-RB1957.00-RB-1963,OO-RB-1996, 00-RB-2040,00-RB-2074,00-RB-2149,00-RB-2243, 00-RB-23 16) and In re ICG COMMUNICATIONS, INC. SECURITIES LRIGATION This Document Relates To: All Actions

LEAD PLAINTLFFS' OBJECTIONS Ah'D RESPONSES TO DEFENDANTS' SECOND REQUEST FOR PRODUCTION OF DOCUMENTS
-

Pursuant to Rules 26 and 34 of the Federal Rules of Civil Procedure, Strategic 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' Second Request for Production of Documents ("Requests").

GENERAL OBJECTIONS
1. Lead Plaintiffs incorporate by reference and interpose here their General

Objections in Lead Plaintiffs' Objections and Responses to Defendants' First Request for Production of Documents.
2.

Lead Plaintiffs object to the Requests 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. 3. Lead Plaintiffs object to the requests to the extent that they, individually or

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

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4.

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Lead Plaintiffs object to the Requests to the extent that they are overbroad,

harassing, vague or ambiguous and to the extent the discovery sought is unreasonably cumulative or unduly burdensome.
5.

Lead Plaintiffs object to the Requests to the extent that they seek documents

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

6.

Lead Plaintiffs object to the Requests to the extent that they are not properly

limited in time or scope.

7 .

Lead Plaintiffs object to the Requests on grounds that they seek, or can be

construed to seek, the production of confidential or sensitive documents or information, including but not limited to proprietary information. Lead Plaintiffs are prepared to produce documents subject to the parties' entry of an appropriate confidentiality agreement.
8.

In providing responses to the Requests, 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 Requests, Lead Plaintiffs' responses and their subject matter, (b) All rights to object on any ground to the use of any of Lead Plaintiffs'

responses to the Requests, 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 Requests; (d) prior to trial; and The right to supplement Lead Plaintiffs' responses to the Requests

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(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 Requests 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 Request, Lead Plaintiffs do not waive, and expressly preserve, any stated objections.

DOCUMENT REQUESTS
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 Request, Lead Plaintiffs respond as follows:

Document Request No. 1: Any and all Documents that Plaintiffs or their counsel used, reviewed, referenced, cited or relied on in drafting the Amended Complaint.
Response to Document Request No. 1: Lead Plaintiffs object to Document Request

No. 1 to the extent the documents andtor information sought is protected from 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 from discovery. Lead Plaintiffs further object to this request to the extent that it is overbroad, harassing and unduly burdensome. Lead Plaintiffs further object to this request to the extent that it seeks documents and/or information that are publicly available and the production of which would place an undue burden on Lead Plaintiffs.

Document Request No. 2: Any and all Documents Relating to, supporting or rebutting the allegations sustained by the Court's August 24 Order, including but not limited to any and all Documents Relating to:
L.

allegations that Plaintiffs sustained "damages" caused by "defendants'

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violations of federal securities laws," as described in paragraphs 1 and 24 of the Amended Complaint. allegations in paragraph 3 of the Amended Complaint that "ICG represented itself to be one of the largest and fastest growing competitive local exchange carriers ('CLECs') in the United States" and that "ICG's success was measured by the number of lines the Company had installed, and the revenues reported by ICG from those lines."
111.

...

the allegation in paragraph 7 of the Amended Complaint that on August 10, 2000, "the Company partially disclosed the fact that ICG's business was not operating as successfully as previously rep-resented." 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 "[plersons 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.

iv.

v.

vii. viii.

the allegation in paragraph 14 of the Amended Complaint that ICG's common stock traded "at artificially inflated prices throughout the Class Period." the allegation in paragraph 21 of the Amended Complaint that "[dluring the Class Period, Strategic Market purchased 1,902,700 shares of ICG common stock in the open market and 150,000 shares of preferred stock." the allegation in paragraph 22 of the Amended Complaint that "[dluring the Class Period, Alabama Retirement Systems purchased 412,500 shares of ICG common stock in the open market." the allegation in paragraph 23 of the Amended Complaint that "[dluring the Class Period, Chicago Police purchased 423,500 shares of ICG common stock in the open market."

ix.

xi.

the allegation in paragraph 45 of the Amended Complaint that "[a]ccording to a former ICG Infrastructure 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 pursuing the RBOCALECs

xii.

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for reciprocal compensation, In this way, ICG's line counts and reported revenues could be dramatically increased, even though payment was uncertain." xiii. the allegation in paragraph 46 of the Amended Complaint that "[a]ccording 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 RBOCIILEC prior to connecting the Company's switch sites, and the RBOClU3Cs were refusing to pay ICG's unauthorized bills." the December 9, 1999 conference call described in paragraph 54 of the Amended Complaint, including but not limited to any analyst reports discussing or describing the conference call. the "published analysts' reports" described in paragraph 56 of the Amended Complaint. the January 7,2000 Morgan Stanley Dean Witter report described in paragraph 61 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 exeemely unlikely that the reciprocal compensation revenue would be collected." the August 10,2000 conference call for analysts and investors described in paragraph 136 of the Amended Complaint, including but not limited to any analyst reports discussing or describing the conference call. 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, 147,148,149,150and 154 of the Amended Complaint.

xiv.

xv.
xvi. xvii.

xviii.

xix.

xx.

xxi.

Response to Document Request No. 2: Lead Plaintiffs object to Document Request
No. 2 to the extent the documents andfor information sought is protected from disclosure by the attorney-client privilege, the attorney work-product protection. Rule 26(b)(3) of the

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Federal Rules of Civil Procedure relating to trial preparation materials, or any other applicable privilege or protection, or is otherwise immune from discovery. Lead Plaintiffs further object to this request to the extent that it seeks documents andor information that are publicly available and the production of which would place an undue burden on Lead Plaintiffs. Document Request No. 3: Any and all documents that Plaintiffs, used, reviewed, referenced, cited or relied upon in any investigation performed, whether formal or informal, before. during or after the Amended Complaint's drafting, including but not limited to the "investigation" described in paragraph 2 of the Amended Complaint. Response to Document Request No. 3: Lead Plaintiffs object to Document Request No. 3 to the extent the documents a & n information sought is protected from 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 from discovery. Lead Plaintiffs further object to this request to the extent that it is overbroad, harassing and unduly burdensome. Lead Plaintiffs further object to this request to the extent that it seeks documents andor information that are publicly available and the production of which would place an undue burden on Lead Plaintiffs. Document Request No. 4: To the extent not already requested, any and all Documents Relating to any Communication between any m e or more of Plaintiffs (including by not limited to partners, directors, investors, shareholders, officers, employees, agents, assigns or any predecessors or successors in interest, or any Person or entity over which Plaintiffs exercises (sic) control, or who exercises control over, or is in common control with them) on the one hand and anyone else on the other Relating to the Amended Complaint's allegations against Defendants that the Court sustained in its August 24 Order, including but not limited to reports, correspondence, memoranda, notes andor recordings of any such Communication. Response to Document Request No. 4: Lead Plaintiffs object to Document Request
No. 4 to the extent the documents andlor information sought is protected from disclosure by

. '. . .

*

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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 from discovery. Lead Plaintiffs further object to this requests to the extent that it is overbroad, harassing and unduly burdensome.

Document Request No. 5: To the extent not already requested, any and all desk calendars, appointment books, business journals, business notebooks and notes Relating to the Amended Complaint's allegations against Defendants that the Court sustained in its August 24 Order. Response to Document Request No. 5: Lead Plaintiffs object to Document Request
No. 5 on grounds that it is vague and ambiguous in its entirety. Lead Plaintiffs further object to this request to the extent the documents and/or information sought is protected from disclosure by the attorney-client 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 protections, or is otherwise immune from discovery.

Document Request No. 6: To the extent not already requested, any and all Documents, not previously produced, that Plaintiffs have reason to believe they may introduce into evidence or refer to at the trial of this matter. Response to Document Request No. 6: Lead Plaintiffs object to Document Request
No. 6 to the extent the documents and/or information sought is protected from disclosure by

the attorney-client 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 protections, or is otherwise immune from discovery. Lead Plaintiffs' further object to this request on the ground that it is premature under the Court's Scheduling Order dated January 21,2005 ("Scheduling Order").

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Subject to, and without waiving, the foregoing objections, Lead Plaintiffs state that, at this early stage of discovery, they have not determined which documents they may have reason to believe they may introduce into evidence or refer to at the trial of this matter. Lead Plaintiffs reserve the right to supplement their response to this request at the appropriate time.

Document Request No. 7: To the extent not already requested, any and all Documents identified in Lead Plaintiffs' Amended Initial Disclosure Statement Pursuant to Federal Rule of Civil Procedure %(a)( 1) and any amendments thereto.
Subject to, and without waiving, the foregoing objections. Lead Plaintiffs will produce all responsive, non-privileged and non-publicly available documents in thek possession, custody or control.

Document Request No. 8: Any and all Documents Relating to any fact witness(es) that Plaintiffs expect to call at trial, including but not limited to reports, correspondence. memoranda, notes andfor recordings of any Communication with those fact witness(es).
Response to Document Request No. 8: Lead Plaintiffs object to Document Request

No. 6 to the extent the documents and/or information sought is protected from 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 from discovery. Lead Plaintiffs' further object to this request on the ground that it is premature under the Scheduling Order. Subject to, and without waiving, the foregoing objections, Lead Plaintiffs state that, at this early stage of discovery, they have not determined which witness(es) they expect to call at trial. Lead Plaintiffs reserve the right to supplement their response to this request at the appropriate time.

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Document Request No. 9: Any and all Documents Relating to any expert witness(es) that Plaintiffs expect to call at trial, including but not limited to any reports prepared by such expert(s) and the resume andor cumculum vitae of such expert(s). Response to Document Request No. 9: Lead Plaintiffs' object to Document Request No. 9 on the ground that it is premature under the Scheduling Order. Subject to, and without waiving, the foregoing objections, Lead Plaintiffs state that, at this early stage of discovery, they have not determined which expert witness(es), if any, they expect to call at trial. Lead Plaintiffs reserve the right to supplement their response to this request at the appropriate time. Dated: March 21,2005 BERMAN DeVALERIO PEASE TABACCO BURT & PUCILLO

Boston, MA 02 109 Tel: (617) 542-8300 Fax: (617)542-1194

- and BERNSTEM LITOWITZ BERGER & GROSSMANN LLP DANIEL L. BERGER MARK LEBOVITCH 1285 Avenue of the Americas New York, NY 10019 Tel: (212) 554-1400 Fax: (212) 554-1444 Co-Lead Counsel for the Class

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DYER & SHUMAN, LLP ROBERT I. DneR III KIP B. SHUMAN JEFFREY A.BERENS 801 E s 17" Avenue at Denver, CO 80218-1417 Tel: (303)861-3003 Fax: (303)830-6920

Liaison Counsel for the Class

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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-RB1996,00-RB-2040.00-RB-2074,00-RB-2149,00-RB-2243,and 00-RB-2316)

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

CERTIFICATE OF SERVICE
I, Sandra F. Melloul, hereby certify that true copies of Lead Plaintiffs' Objections and Responses to Defendants' Second Request for Production of Documents and Lead Plaintiffs' Objections and Responses to Defendants' First Set of Interrogatories, were served upon all counsel listed below, via United States Mail, First Class, Postage PrePaid.
Date: March 21,2005

Williarn J. Sushon, Esq. O'MELVENY & MYERS LLP Times Square Tower 7 Times Square New York,NY 10036 Timothy R. Beyer, Esq. BROWNSTEIN HYATT & FARBER, P.C. Twenty-Second Floor 410 Seventeenth Street Denver, CO 80202-4437