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 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

In re ICG COMMUNICATIONS, INC. SECURITIES LITIGATION

I

Civll Action No: 00-RB-1864 (BNB) (consolidated with Civil Action Nos. 00-RB-1908, (00-RB-1910,OO-RE 1919.00-RB-1945,00-RE-1954,00RB-1957,00-RB-1963,OO-RB-1996, 00-RB-2040.00-RB-2074, OO-RB2149,OO-RB-2243, and 00-RE-2316)

This Document Relates To: All Actions

LEAD PLAINTIFFSyOBJECTIONS AND RESPONSES TO DEFENDANTSyFIRST REOUEST FOR PRODUCTION OF DOCUMENTS

Pursuant to Fed. R. Civ. P. 26 and 33, Lead Plaintie, the Policemen's Annuity and
Benefit Fund, City of Chicago ("Chicago Police"), Retirement Systems of Alabama ( ' S " and 'RA)

akt Strategic M r e Analysis Fund ("Strategic Market") (collectively "'Lead Plaintiffs'? hereby
respond to the First Request for Production of Documents by Defendants J. Shelby Bryan and William S. Beans, Jr. ("Defendants") as follows:

GENERAL OBJECTIONS
1.

Lead Plainti@ have not yet completed their discovery and investigation of tbe

facts pertaining to this action, a review of their own documents, or preparation for trial. Accordingly, a response herein indicating that documents will be produced does not constitute an admission that the documents exist or are in their possession, custody, or control. Lead Plaintiffs reserve the right to supplement or amend their responses and objections under Rule 2qe) as additional information comes to light.
2.

Lead Plaintiffs object to these Requests to the extent that the Requests demand

information protected by the attorney-client privilege, application of the work product doctrine, or any other applicable privilege or immunity. In the event that a privileged or protected

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document is inadvertently produced by the Lead Plaintiffs, such production shall be deemed inadvertent and shall not constitute a waiver of Lead Plaintiffs' right to assert the applicability of any privilege for such document, and Lead Plaintiffs reserve the right to demand the rctm of any such document and all copies thereof. This objection includes, but is not limited to, documents that relate to mental impressions, wnclusions, opinions or legal theories of an attorney or representative of Lead Plaintiff concerning this litigation, as well as documents that were obtained or prepared in anticipation of litigation or trial prepamtion in Ulis litigation.
3.

Lead Plaintiffs object to each and every Instruction and Definition set forth in

Defendants' Requests to the extent such Instruction or Dtfinition imposes requiranents diffrent

h m those in the Federal Rules of Civil Procedure, the Civil Local Rules of the District of
Colorado, or any case law pertaining to such Rdes. In responding to the Requests, Lead Plaintiffs' will follow the instructions required by the Federal Rules of Civil Procedure, the Civil
Local Rules of the District of Colorado, or any c& law pertaining to such Rules.
4.

Lead Plaintiffs object to each and every Request to the extent that they require the

disclosure of information that is a matter of public record, is equally available to Defendants or is
already in Defendants' possession.
5.

Lead Plaintifi object to the definition of "Plaintiffs" as set forth in paragraph 1 of

~efendants'Definitim and Instructions on the grounds that it is overbroad, unduly burdensome and vague and ambiguous. In responding to these Requests, Lead Plainti& will produce documents in the possession of Chicago Police, RSA and Strategic Market.
6 .

Lead Plaintiffsobject to the definition of "Communications," as set forth in

paragraph 3 of the Defendants' Definitions and Instructions, to the extent that the definition

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exceeds the parameters of Rule 34 of the Federal Rults of Civil Procedure aml includes any form of verbal intercourse.
7.

Lead Plaintif% object to Definition and Instruction No. 16 on the grounds that it is

overbroad and unduly burdensome. Lead Plaintiffs production in response to these Requests, as set forth in detail below, will include only documents in the possession of Chicago Police, RSA and Strategic Market. Specifically, Lead Plaintiffs' production will not include documents in the possession of "any partner, accountant, tax advisor, financial planner, financial advisor, financial manager, investment manager, investment banker, arbitrageur, broker, dealer, representative, or

all other Person or entities over which Plaintiffs exercise control, or who exercise control over,
or are in common control with Plaintiffs." Lead Plaintiffs further object to Definition and Instruction No. 16 as overly broad and unduly burdensome because it seeks information h m

"January 1, 1998 through and including the date of production, unless otherwise stated in the
request." In responding to these Requests, unless otherwise indicated, Lead Plaintiff will produce responsive documents from the Class Period.
8.

Lead Plaintiffs object to any Request to the extent it seeks documents h m Lead

Counsels' files on the grounds that such information is protected by the attorney client privilege or other applicable privileges or immunities or by the attorney work product doctrine.
9.

Lead Plaintiffs object to the Requests on the 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.

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10.

Each of these General Objections is inmporated without further reference i each n

of the foIlowing specific responses made by Lead Plaintiff to the specific Requests propounded by Defendants.

REQUEST NO. 1 :
Any and all Documents Relating to the purchase andor sale of my ICG S d t y by Plaintiffs, or for Plaintiffs' benefit, or on Plaintiffs' accounts, including but not S i t e d to any and all Documents Plaintiffs reviewed, relied on or received in connection with the purchase andfor sale of my ICG Security.

RESPONSE TO REQUEST NO. 1:
Lead Plaintifi object to this Request on the p u n d s that it is overbroad, unduly
burdensome, and seeks information protected by the attorneyclient privilege or other applicable

privileges or immunities or by the attorney work product doctrine. Subject to, and without will waiving these objections and the General Objections above, Lead Plaintiff& produce non-. privileged responsive documents in their custody, confml or possession, located by a reasonably diligent search.

REOUEST NO. 2:
Any and all Documents Concerning Communications, whether written or oral, between Plaintiffs and any Person, including but not S i t e d to any ICG shareholder or other investor, or any accountant, tax advisor, financial planner, financial advisor, financial manager,investment manager, investment banker, arbitrageur, broker or dealer, concerning ICG and/or its Securities, financial results, business plans, public d i s c l o m , or any planned or possible acquisition by any Person of ICG Securities.

RESPONSE T O REQUEST NO. 2 :
Lead Plaintiffs object to this Request on the grounds that it is overbroad, unduly burdensome, seeks information protected by the attorney-client privilege or other applicable privileges or immunities or by the attorney work product doctrine. Subject to, and without

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waiving these objections and the General Objections above, Lead Plaintis will produce non-

privileged responsive documents in their custody, control or possession, located by a reasonably diligent search. REOUEST NO. 3: Any and all Documents Plaintiffs have received from ICG,including but not limited to, all comspondtnce, annual reports, quarterly reports, registration statements, prospectuses, proxy statements, hancial statements and letters to shareholders. RESPONSE TO REOUEST NO. 3:
Lead Plaintiffs object to this Request on the grounds that it seeks documents that are a

matter of public record, are equally available to Defendants or are already in Defendants' possession. Subject to, a d without waiving this objection and the G e n d Objections above, Lead Plaintiffi will produce non-privileged responsive documents in their custody, control or possession, located by a reasonably diligent search. REOUEST NO. 4: Any and all Documents Relating to any meetings held by or on behalf of ICG,including etns but not limited to ICG shareholders' m e i g .
RESPONSE TO REQUEST NO. 4:

Lead Plaintiffsobject to this Request on the ground that it is overbroad and seeks information that is neither relevant to the claims or defenses of any party, nor reasonably calculated to lead to the discovery of admissible evidence. Subject to, and without waiving the General Objections above, Lead Plaintiffs will produce non-privileged responsive documents in their custody, control or possession, located by a reasonably diligent search.
REOUEST NO. 5:

Any and all Documents that refer or otherwise Relate to ICG or any ICG Security, including but not limited to newspaper reports, magazines or other publications.

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RESPONSE TO REOUEST NO. 5:

Lead Plaintiffs object to this Request on the grounds that it is overly broad, unduly
burdensome, and seeks information that is neither relevant to the claims or defof any party,

nor reasonably calculated to lead to the discovery of admissible evidence. Lead Plaintifi fiuther object to this Request on the grounds that it is vague and ambiguous as it seeks all documents

that "otherwise Relate to ICG or any ICG Security." Finally, Lead Plaintiffs object to this
Request on the grounds that it seeks documents that are a matter of public record, are equally available to Defendants or arc alrcady in Defendants' possession.
REOUEST NO. 6:

Any and all Documents sufficientto identify all P m n s who w r involved in Plaintiffs' ee decision to purchase, hold or sell any ICG Security.
RESPONSE TO REOUEST NO.6 :

Subject to, and without waiving the General Objections above, Lead Plaintiffs will produce catain relevant non-privileged responsive documents i their possession, custody or n control, located by a reasonably diligent search.
REQUEST NO. 7:

Any and all Documents sufficientto describe the nature, objectives or investment criteria of any account in which securities are or w r held by or on behalf ofPlaintifi, including but ee not limited to whether the account agent was permitted any discretion in making investment decisions.

RESPONSE TO REOUEST NO. 7 :
Lead Plaintiffs object to this Request on the grounds that it is overbroad, unduly
burdensome, and seeks information that is neither relevant to the claims or def'enses of any patty, nor reasonably calculated to lead to the discovery of admissible evidence. Lead PlaintiffsW e r object to this Request to the extent it seeks documents that are protected by the attorney client privilege or other applicable privileges or immunities. Subject to, and without waiving the

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General Objections above, Lead PlaintiffS will produce certain relevant non-privileged
responsive documents in their possession, custody or control, located by a reasonably diligent search.
REOUEST NO. 8:

Any and all Documents Concerning policies, procedures, practices, guidelines, or criteria governing investments or investment decisions made by or on behalf of Plaintiffs, including but not limited to Documents Concerning: (a) Plaintiffs' investment objectives; (b) permissible investments by or on behalf of Plaintiffs; (c) risk analysis or risk evaluation with respect to the purchase, holding, or sale of securities by or on behalf of Plaintiffs; (d) PlaintiW risk tolerance with respect to the purchase, holding, or sale of securities; and [e) the use of risk consultants with respect to the purchase, holding, or sale of securities by or on behalf of Plaintiffs.
RESPONSE TO REOUEST NO. 8:

Lead Plaintie object to this Request on the grounds that it is ovehmad, unduly burdensome, vague and ambiguous, a seeks information that is neither relevant to the claims d or defenses of any party, nor reasonably calculated to lead to the discovery of admissible evidence. Lead Plaintiffs further object to the extent is seeks documents that are protected by the attorney client privilege or other applicable privileges or immunities. Subject to, and without waiving these objections and the General Objections above, Lead Plaintiffs will produce certain relevant non-privileged responsive documents in their possession, custody or control, located by
a reasonably diligent search.

REOUEST NO. 9:

Any and all Documents Relating to investments by Plaintifi, or on Plaintiffs' behalf, in any publicly traded debt or equity securities of any corporation, including but not limited to account statements, monthly, quarterly andlor annual statements, opening account forms, confirmations, prospectuses, annual and periodic reports, or any other summary of investment activities.

RESPONSE TO REQUEST NO. 9:
Lead Plaintiffs object to this Request on the grounds that it is overly broad, unduly burdensome, harassing and seeks information that is neither relevant to the claims or defenses of

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any party, nor reasonably calculated to lead to the discovery of admissible evidence. Specifically,when mad fairly, this Request seeks every single piece of paper generated by two large public pension finds and a large private investment fund over a seven year period. Furthermore, "Documents Relating to" Lead Plaintiffs' investments, other tban those in ICG securities, are not relevant to this Action.
REQUEST NO. 10:

Any and all Documents Relating to the purchase andlor sale of any futures, options, or other derivatives by Plaintiffib, including but not limited to account statements, monthly, quarterly andlor annual statements, opening account forms, confmnetions, prospectuses, annual and periodic reports, or any other summary of investment activities.
RESPONSE TO REOUEST NO. 10:

Lead Plaintiffs object to this Request on the grounds that it is overly broad, unduly burdensome, harassing and seeks information that is neither relevant to the claims or defenses of any party, nor reasonably calculated to lead to the discovery of admissible evidence. Specifically, "Documents Relating to the purcbase andlor sale of any hturcs, options, or other derivatives by Plaintiffs", other than for ICG securities, are w t relevant to this Action. Lead Plaintiffs W e r object to this Request on the grounds that it is vague and ambiguous.

REQUEST NO. 11:
All of Plaintiffs' federal tax returns from 1998 to the prtsent.
RESPONSE TO REQUEST NO. 11:

Lead Plaintiffs object to this Request on the grounds that it seeks information that is

neither relevant to the claims or defenses of any party, nor reasonably calculated to lead to the discovery of admissible evidence and to the extent that it seeks documents that are a matter of public record, are equally available to Defendants or are already in Defendants' possession.

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Any and all Documents setting forth: (a) each Plaintiffs' current net worth, assets, debts, other liabilities and financial status, including but not limited to hmcial statements and loan applications; and @) each Plaintiffs' income for the most recent year for which it has been determined

Lead Plaintif% object to this Request on the grounds that it is overbroad, unduly

burdensome,harassing, and seeks information that is neither relevant to the claims or defenses of
any party, nor reasonably calculated to lead to the discovery of admissible evidence and seeks documents that arc a matter of public record, are equally available to Defendants or are already
in Defendauts' possession. For example, the Request specifically asks for all of Lead Plaintifi'

loan applicationswhich have no relevance to the claims at issue in this Action. Subject to, and without waiving these objections, and the General Objections above, Lead Plaintiffs will produce their most recent year-end financial statements.

REOUEST NO. 13:
Any and all Documents Concerning this action.

Lead Plaintiffs object to this Request on the grounds that it is overbmad and unduly
burdensome.
REOUEST NO. 14:

Any and all Documents Concaning Plaintiffs' past andlor current relationships with liaison counsel and co-lead counsel listed in the Amended Complaint, including but not limited to any business, social or familial relationships.
RESPONSE TO REOUEST NO. 14;
Lead Plaintiffs object to this Request on the grounds that it is harassing, seeks documents

protected by the attorney client privilege or other applicableprivilegesor immunities, and seeks

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information that is neither relevant to the claims or defenses of any party, nor reasonably calculated to lead to the discovery of admissible evidence.

REOUEST NO. 15:
Any and all Documents Conceming Plaintiffs' alleged damages set forth in the Amended Complaint, including but not limited to the method of calculating such damages.

RESPONSE TO REOUEST NO. 15:
Lead Plaintiffs object to this Request on the grounds that it is premature as expert reports are not due in this Action until November 3,2005. At that time, Lead Plaintiffs will comply with Judge Blackburn's Trial Conference Orda ('Trial Order"), dated January 21,2005, by producing the relevant infomation relating to their testifying experts, including any damages experts.

REOUEST NO. 16:
Any and all Documents Concerning any understanding or agreement between Plaintiffs and any Person, including counsel, Relating to the following subjects: (a) The payment of disbursements, costs andlor expenses in this litigation, or

(b)

Any amount that Plaintiffs may receive in the event of a settlement of this Litigation or a judgment in favor of a putative class that will be different from the proportionate share that a plaintiff would receive as a member of such putative class.

RESPONSE TO REOUEST NO. 16:
Lead Plaintiffs object to part (a) of this Request on the grounds that it seeks documents protected by the attorney-client privilege or other applicable privileges or immunities. Subject to, and without waiving this objection, and the General Objections above, Lead Plaintiffs will produce responsive non-privileged documents to part @) of this Request in their possession, custody or control, located by a reasonably diligent search

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REOUEST NO. 17:

Any aud all deposition or trial transcripts, affidavits or written statements of any Plaintiffs in previous or pending lawsuits or adrninistmtiveproceedings, in which any Plaintiff was or is a party, or in which any Plaintiff testified, and all pleadings filed therein.

RESPONSE TO REOUEST NO. 17:
Lead Plaintiffs object to this Request on the grounds that it is overbroad, unduly burdensome, seeks information that is neither relevant to the claims or defenses of any party, nor reasonably calculated to lead to the discovery of admissible evidence and seeks documents that
are a matter of public record, are equally available to Defendants or are already in Defendants'

possession.
REOUEST NO. 18:

Any and d l Documents Concerning any lawsuits, arbitrations or other proceedings, Relating to securities or commodities laws, in which any Plaintiff has been, is, or seeks or sought to be a party or a named repmentative of a class or putative class or a member of a class. including but not limited to Documents Conceming such Plaintiffs past, present, or prospective participation in any such lawsuit, arbitration or other proceeding, or any money received by such Plaintiff in connection with that proceeding.
RESPONSE TO REOUEST NO. 18:

Lead Plaintiffs object to this Request on the grounds that it is overbroad, unduly burdensome, seeks information that is neither relevant to the claims or defenses of any party, nor reasonably calculated to lead to the discovery of admissible evidence and seeks documents that are a matter of public record, are equally available to Defendants or are already in Defendants' possession.

Any and all Documents Conceming Communications between Plaintiffs and any other member of the purported class described in the Amended Complaint Relating to those allegations sustained by the Court's August 24,2004 Order.

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RESPONSE TO REOUEST NO. 19:
Lead Plaintiffs object to this Request on the grounds that it is unduly burdmme, seeks
information that is neither relevant to the claims or defenses of any party, nor reasonably calculated to lead to the discovery of admissible evidence and that is protected by the attorney work product doctrine.

REOUEST NO.2: 0
Any and all Documents Concerning the identity of the mernbm of the alleged class Plaintiffs purport to represent in this litigation, including but not limited to any and all lists of such members or potential members.

RESPONSE TO REQUEST NO. 20: Lead Plaintiffs object to this Request on the grounds that is premature and unduly burdensome.

REQUEST NO. 2 : 1
Any and all motion papers or decisions with respect to class certification filed in other previous or pending lawsuits in which any Plaintiff was or is a party.

RESPONSE TO REOUEST NO. 21:
Lead Plainti& object to this Request on the grounds that it seeks documents that are a
matter of public record, are equally available to Defendants or are already in Defendants' possession. Lead Plaintiffs M e r object to this Request on the grounds that it seeks information
that is neither relevant to the claims or defenses of any party, nor reasonably calculated to lead to

the discovery of admissible evidence.

Any and all Documents Plaintiffs expect to use to support a motion for class certification in this action.

RESPONSE TO REQUEST NO. 22:
Lead Plaintiffs object to this Request to the extent that it seeks documents that are a

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matter of public record, are equally available to Defendants or are already in Defendants' poss&ion and imposes requirements different than those set forth in the Court's Trial Order, Specifically,in campliance with the Court's Trial Order, Lead Plaintiffs filed and served their Motion for Class Certification with supporting documents on February 28,2005.

REOUEST NO. 23:
Any and all Documents describing the qualifications and experience of each Person whose testimony Plaintiffs expect to offer, either through live testimony, declaration, affidavit or otherwise, to support a motion for class certification.

RESPONSE TO REOUEST NO. 23:
Subject to, and without waiving the General Objections, Lead Plainti& will produce
certain responsive documents, to the extent not already provided to Defendants, in their

possession, custody or control, located by a reasonably diligent search.

REOUEST NO. 24:
Any and all work papers, reports or other Documents provided to or prepared by, for, or on behalf of each Person whose testimony Plaintiffs expect to offer, either through live testimony, declaration, affidavit or otherwise, in support of a motion for class catification.

RESPONSE TO REOUEST NO. 24:
Lead Plaintiffs object to this Request on the grounds that it is overly broad, unduly

burdensome, harassing, vague and ambiguous and seeks documents that are neither relevant to
#

the claims or defenses of any party, nor reasonably calculated to lead to the discovery of admissible evidence. Specifically,this Request is ovdroad and unduly burdensome because it seeks "any and all work papers, reports or other Documents"prepared by Plaintiffs' class certification expert regardless of whether the Documents have anything to do with this Action.

REOUEST NO. 25:
Any and all Documents identifying any experts consulted or retained, including but not limited to any engagement or retention letters for experts retained for this action.

13

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RESPONSE TO REQUEST NO. 25:

Lead Plaintiffs object to this Request on the grounds that it is premature, seeks
information that is neither relevant to the claims or defenses of any party, nor reasonably calculated to lead to the discovery of admissible evidence*and attempts to impose discovery
requirements beyond the Federal Rules of Civil Procedure and the Court's Trial Order.

Dated: March 7,2005

Respectfully submitted,

A

GROSSMANN LLP Daniel L. Berger M r Lebovitch ak 1285 Avenue of the Americas New Yo*, NY 10019 (212) 554-1400

BERMAN DeVALERlO PEASE TABACCO BURT & PUCILLO Peter A. Pease Bryan Wood One Liberty Square Boston,MA 02109 (617) 542-8300
Co-Lead Counsel for the Clas's

DYER & SHUMAN, LLP Robert J. Dyer III Kip B. Shurnan J e e y A. Berens 801 East 17th Avenue Denver, CO 80218-1417 (303) 861-3003
Liaison Counsel for tbe Class

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IN THE UNITED STATES DISTRICT COURT FORTHE DISTRICT OF COLORADO
Civil Action No: 00-RB- 1864 (BNB)
I

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

(consolidated with Civil Action Nos. 00-RB- 1908, (00-RB- 1910, 00-RB1919, WRB-1945, 00-RB-1954, 00RB-1957, 00-RB-1x3, 00-RB-1996, 00-RB-2040, 00-RB-2074, WRB2149,OO-RB-2243, and 00-RB-23 16)

CERTIFICATE OF SERVICE
1, M r Lebovitch, hereby certify tbat on March 7,2005, I caused the attached Lead ak Plaintiffs' Objections and Responses to Defendants First Request for Production of Documents,to be delivered BYUS. MAIL upon counsel for Defendants Bryan m Beans d at the fbllowing address:

William J. Sushon, Esq. O'Melveny & M e s U P yr, T m s Square Tower ie 7 Times Square New York,NY 10036