Free Motion to Compel - District Court of Colorado - Colorado

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

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

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IN THE UNTI'ED STATES DISTRICT COURT FOR THE .DISTRICTOF COLORADO

Civil Action No. 00-RB-1864 (BNB) (consolidated with Civil Action Nos.00-RB-1908, 00-RB-1910,OO-RB-I 919,00-RB-1945,00-R.E1954,00-RB-1957,00-RB-1963,OO-RB-1996, 00-RB-2040,00-RB-2074,00-RB-2149,00-RB2243, 00-RB-2316) and
In re ICG COMMUNICATIONS, INC. SECURITIES LITIGATION This Document Relates To: AU Actions.

DEFENDANTS' SECOND REQUEST FOR PRODUCTION OF DOCUMENTS Pursuant to Rules 26 and 34 of the Federal Rules of Civil Rocedm, Defendants J. Shelby Bryan and William S. Beans, Ir. ("Defendants"), by and through their attorneys,
/

O'Melveny & Myers LLP, hereby q u e s t that Plaintiffs serve written responses and pennit Defendants to inspect and copy the documents requested below (the "Document Requests") on

M r h 18,2005, at the offices of Brownstein Hyatt & Farber, P C ,410 17" ac ..
Denver, Colorado 80202-4437. DEFINITIONS AND INSTRUCTIONS

Street, 22Dd Floor,

Defendants hereby incorporate by reference the Definitions and Instructions f o rm Defendants' Fkst Request for Production of Documents, dated February 4,2005, and add the following Definition to the Document Requests: 1.
"August 24 Order" refers to the Court's August 24,2004, Order Granting in Part

and Denying in Part Defendants' Motion to Dismiss the Amended Complaint.

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1.

Any and all Docuznents that Plaintiffs or their counsel used, reviewed, r e f i ,

cited or relied on in drafting the Amended Complaint.
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 t : o

i.

allegations that Plaintiffs sustained "damages" caused by "defendants' violations of federal d t i e s laws," as described in paragraphs 1 and 24 of the Amended Complaint. allegations in paragraph 3 of the Amended Complaint that "ICG repmmtcd itself to be one of the largest and fastest growing competitive local exchange caniers ('CLECs') in the United States" and that "ICG's success w s a m a u e by the number of lines the Company had installed, and the revenues esrd repnted by ICG f o those lines." rm the allegation in paragraph 7 of the Amended Complaint that on August 10, 2000, "ihe Company partially disclosed the fact that ICG's business was not operating as successfidly as previously represented" allegations that Defendants and ICG 'Imowingly or extremely recklessly reported ICG's inflated line counts and revenues throughout the C a s ls Period," as described in pmgmphs 12,5 8 and 59 of the Amended Complaint. allegations in paragraphs 13 a d 79 of the Amended Complaint that "[p]efsons 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 w s only about 25% of the represented figures." a the allegation in paragraph 13 of the Amended Complaint that "the Company's statement. of revenue and earnings were wildly inflated" because ICG's line count was purportedly lower than represented. 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 "[dJuring the Class Period, Strategic Market purchased 1,902,700 shares of ICG common stock in the open market and 150,000 sham of preferred stock."

ii.

iii.

iv.

v.

vi.

vii.

viii.

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ix.

the allegation in paragraph 22 of the Amended Complaint that "[dluring the Class Period, Alabama Retirement Systems pmhased 412,500 shares of ICG common stock in thc 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 akt" in the open m r e . the allegation in paragraph 45 of the Amended Complaint that "[alccording to a fonner ICG hfrastmture Program Manager, ICG decided to press ahead with the switch site connections, even though in nearly all cases, ICG did not have interconnect a r e e t . gemns" 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 RBOC/ILECs for reciprocal compensation. In this way, ICG's line counts d reported revenues could be dramatically increased, even though payment was uncertain."

X.

xi.

the allegation in paragraph 46 of the Amended Complaint that "[a]ccording to the former Vice President of Governmental A& and a fomer Jnhstzucture Program Manager, it became increasingly apparent that no reciprocal compensation payments were forthcoming because ICG did not enter into 'intenxmect agreements' with the given RBOCmEC prior to connecting the Company's switch sites, and the RBOCLlLECs were refusing to pay ICG's unauthorized bills."

xiv.

the December 9,1999 conference call described in panrgraph 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 "[a]ctual collections f o tbe ILECs totaled only about 5% of what ICG had billed rm 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

xv.

xvi.
xvii.

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extremely unlikely that the reciprocal compensation revenue would be collected." xix.

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) (-ding fourth quarter of 1999) of the Amended Complaint.

xx.

the

xxi.
3.

the allegations in paragraphs 145,146,147,148,149,150 and 154 of the Amended Complaint.

Any and all Documents that Plaintif?% used, reviewed, referenced, cited or relied

d upon in any investigation performed, whether f or informal, before, during or after the

o Amended Complaint's drafting, including but not limited t the "investigation" described in

paragraph 2 of the Amended Complaint.
4.

To the extent not already requested, any and all Documents Relating to any

Communication between any one or more of Plaintiffs (including but not limited to partners,
directors, investors, shareholders, officers, employees, agents, assigns or any predecessors or

niy successors in interest, or any Person or e t t over which Plainti6 exercises 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 CouTt sustained in its August 24 Order, including but not limited to reports,oorrespondenct, memoranda, notes andlor recordings of any such Communication.
5.

To the extent not already requested, any and all desk calendars, appointment

books, datebooks, diaries, business journals, business notebooks and notes Relating to the Amended Complaint's allegations against Defendants that the C u t sustained in its August 24 or Order.

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6.

To the extent not a l d y requested, any and all Documents, not previously

produced, that Plaintiffs have reason to believe they may introduce into evidence or nfer to at
the trial of this matter.
7.

To the extent not a l d y requested, my and all Documents identified in Lead

Plaintiffs' Amended Initial Disclosure Statement P m m t to Federal Rule of Civil Procedure

26(a)(l) and any amendments thereto.
8.

Any and all Documents Relating to any fict witntss(es) that P l a i n t s expect to

call at trial, including but not limited to reports, correspondence, memoranda, notes andfor

recordings of any Communication with those fact witness(es).
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@)and the resume

and/or curriculum vitae of such expert@).

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Dated: February 16,2005 New Y r ,New York ok

Respectfully submitted,

O'MELVENY & MYERS LLP
By: Bradley J. Butwin ' Jonathan Rosenberg
William J. Sushon 7 T i e s Square

New York,New Y r 10036 ok
(2 12) 3262000

BROWNSTEIN HYA'IT & FARBER,P.C. Timoth R Beyer 410 17f Street, 22" Floor Denver, CO 80202-4437
(303) 223-1100

Attorneys for Defendants

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CERTIFICATE OF SERVICE I, Benjamin D. Bianco, hereby certify that on this 16th day of February, 2005, a hue and correct copy of DEFEIWANTS' SECOND REQUEST FOR PRODUCTION OF DOCUMENTS w s served by Federal Express to the following: a

'

Robert J. Dyer, 1 1 Esq. 1, Kip B. Shuman, Esq. JeA. Berens, Esq. Dyer & Shuman, LLP 801 E. 1 7 Avenue ~ Denver, CO 80218

Peter A. Pease, Esq. Sara A. Davis, Esq. Berman DeValerio Pease Tobacco Burt & Pucillo One Liberty Square Boston, MA 02109 Timothy R Beyer, Esq. Browmein Hyatt & Farber, P.C. 4 10 1 Street, 22"6Floor Denver, Colorado 80202

Daniel L. Berger, Esq. Mark Lebovitch, Esq. B d i n Litowitz Berger & Grossmann, LLP 1285 Avenue of the Americas New Yak, NY 10019 Charles W. Lilley, Esq. Lilley & Garcia LLP 1600 Stout Street, Suite 1100 Denver,CO 80202

Patrick D Vellone, Esq. . Allen & Vellone, P.C. 1600 Stout Street, Swte 1100 Deover, CO 80202

John B. Moorhead, Esq.

Baker & Hostetla LLP 303 E. 17" Ave., Suite 1100
Denver, CO 80203

Murielle J. Steven Walsh, Esq. Pomerantz Haudek Block Grossman & Gross LLP 100Park Avenue, 26' Flmr New York, NY 1001 Samuel H. Rudman, Esq. Jonathan M. Stein,Esq. Geller Rudman LLC 197 South Federal Hwy., Suite 200 Boca Raton, FL 33432

Steven G. Schulman, Esq. Milberg Weiss Bershad & Schulman LLP One Pennslyvania Plaza, 4 Floor p New York, NY 10119

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F. James Domelly, Esq. Law Office of F. James Donnelly 6076 S. Chester Way Greenwood Village, CO 80111

Aaton L. Brody, Esq.

Stull, Stull& Brody 6 E s 45' Street, 5 Floor at ' New York, NY 10017

M r A. Topaz, Esq. ac S c h i f i & Bmway, LLP Three Plaza East, Suite 400 Bala Cynwyd, PA 19004
David Jaroslawicz, Esq. Jaroslawicz & Jaros 150 Williams Street, lgmFloor New York, NY 10038 Patrick F. Morris, Esq. Jacqueline L. G e n re Monis And Morris 1105 N. M r e Street, Suite 1600 akt Wilmington, DE 19801 Leo W. Desmond, E q s. The Law Offices of Leo W. Desmond tet 13 Main S r e ,Suite #4 Sparfa, New Jersey 07871 Mark W. McNair, Esq. Law Offices Of Mark McNair 1101 30' Street N.W., Suite 500 Washington, D.C. 20007

Batban A. PodeU, Esq Savett Frutkin Podell & Ryan,P.C. 325 Chestnut Street, Suite 700 Philadelphia, PA 19106

Arnold Levin, Esq. Levin, Fishbeih, Sedran & Bennan, P.C. 510 Walnut Sfmet., Suite 500 Philadelphia, PA 19106

Fred Taylor Isquith, Esq. Wolf Haldenstein Adler Freemen & Hen, LLP 270 Madison Avenue New York, NY 100116

Lam M. Perrone. E q s. The Law Offices of L u a M.P m n e , PLLC ar 60 East 42nd Street, 47* Floor New York, NY 10165
Andrew M. Schatz, Esq. Jefsey S. Nobel, Esq. Schatz & Nobel an 330 M i Street Hartford, CT 06106
Charles J. Piven, Esq. Law Offices Of Charles J. Piven 401 E. Pratt Street. Suite 2525 Baltimore, MD 21202-3003

James V. Bashian, Esq. Law Offices Of James V. Bashian 500 5 Avenue, Suite 2700 '

New York, NY 10110-2799

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Joshua M.LiWtz, Esq. Peter D. Bull, Esq. Bull & Lifshik, LLP 18 East 41" Street, 11" ~ New York, W 10017

1 0 0 ~

James S. Bailey, Esq. Bailey & Peterson 1660 L i l a Streef Suite 175 Denvu, CO 80264