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 TRE 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-1%3,00-RB-1996, 00-RB-2WO,OO-RB-2074,00-RB-2149,0O-RB-2243, and 00--16)

In re ICG COMMUMCATIONS, INC. SECURJTIES LlTIGATION

Thia Document Relates To: A11 Actions.

DEFENDANTS' FLRST REQUEST FOR PRODUCTION OF DOCUMENTS
Pursuant to Rules 26 and 34 of the Federal Rules of Civil Ibcedllre, Defendants J.
Shelby Bryan and William S. Beans, Jr. ("~efendants"'), by and through their attorneys, O'Melveny & Myers LLP, hereby request that Plaintiffs serve written responses and permit Defendants to inspect and copy the dwurnents requested below (ttre UDocument Rquestsn)on

March 7,2005, at the offices of Brownstein Hyatt & Farber, P.C., 410 17" S r e , 22d Floor, tet

Denver, Colorado 802024437.
DEFWIIONS AND INSTRUCTIONS
As used in the Document Requests, the following terms shall have the meanings set forth

below:
1.

"Plaintiffs" ref= t lead plaintiffi Strategic M r e Analysis Fund, Alabama o akt

Retirement Systems, and Policeman's Annuity and B a ~ f iFund, City of Chicago, and to each t
1

The Court's August 24,2004, Order Gmnting in Part and Denying in Pr Dehdauts' Motion to Dismiss at the Consolidated and Amended Complaint (the uAugust24 Order") dismiesed all c l a d @nsl H m y R Herbst. See August 24 Ordm nt 23.

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and every one of them, as well as all pmons or entities acting for or on their behalf, including
but not l i i t e d to their employees, attorneys or other qmscntatives.
2.

"Document" is used herein in the broadest possible sense and includes, without

limitation, all originals, copies (ithe originals are wt available), non-identical copies (whether

different from the original because of underlhbg, editing marks, notes made on or attached to

such, or otherwise) and drafts of the following items, whether printed or recorded (through a
sound, video, computer, digital, optical or magnetic recording system) or by hand:

namely contracts,agrecmerrts,communications, writings, correspondence, telegrams, facsimiles, memoranda, records, reports, books, s d e s or records of telephone conversations,

summaries or records of personal conversations or interviews, M e ,forecasts, statistid
statements, work papers, emails, web-pages, electronic bulletin boards and messages, ledgers,

drafts, graphs, charts, accounts, analytical records, m i n W or records of m d n g s or

conf-

consultants' reports, appraisals, records, reports or s m a i s of qptiations, umre

brochures, pamphlets, circulars, trade letters, press releases, notes, marginal notations, bills,
invoices, checks, photographs, tape recordings, microfilm, microfiche, floppy diskettes, lists, journals, advertisements, file folders, computer tapes and hard drives, source code,object code or other computer language or recotding, and any other writing of whatever description, however produced or reproduced, within PlaMiW possession, custody or control.
3.

LTommunication" means the t a s i t lof infomtion (ii the form of facts, rnmta

ideas, inquiries or otherwise) by any means,including but not limited to in-person meet&¶,

telephone conversations, memoranda, letters, facsimiles, and electronic mail.

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4,

"Draft" means any earlier, preliminary, pqaratory or tentative version of all o r

part of a Document, wfiether or not such draft was superseded by a later draft and whether or not

the terms of the draft are the same as or difkent f o the term of the final Document rm
5.

"Including" m a s "includingw t o t limitation" or "d en ihu i *

but not limited

to."
6.

"Person" or "Pczsons" means any natural person, sole proprietorship, pwtmdip,

joint ventun, corporation, association, t u t organization, pvernmental agency o any other rs, r

kind of entity.
7.

"Relaten or "Relating to" shall be construed as to include relating to, indicating,

refening to, mentioning, reflecting, pertaining to, evidencing, involving, wmmhg, describing,

. discussing, responding to, suppohg, contradicting, constituting in wholc or in part, and being a
Draft, copy or summary of in whole o in part r
8.

"Amended Complaint" refers to Plaintiffs' Consolidated and Ammded

Complaint. dated February 15,2002.
9.

"ICGwdm to ICG Communications, Inc, and its partness, dbctom,

shareholders, officers, employtes, agents, essigns or any predecessors or successon in intescst, or any Person or entity over which ICG Communications, Inc. exmises control, or who

exercises control over, or is in common wntrol with i t
10.
-a1

"ICG Security'' or "ICO Securities" refer to all securities, investments and

contracts (including but not limited to stocks, options,bonds, convertibles, derivatives,

private securities a d direct investments) with, issued by or in ICG.

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11.

The term "Concudng," in addition to its customary meaning, shall mean Related

to, r e f d g to, describing, evidencing, constituting or brrving any logical or h t w d c o d o n

with the matter^^.
12.

"And" aa WU as "of shall be construed either disjunctively or conjunctively as

necessary to bring within the scope of the request, response, instruction, or d e e t i o n that which
might otherwise be construedto be outside the swpe of same.
13.

"AU" shall be construed to include the word "any" and "any" shall be construed to

include the w r "all." od
14.

The use of a verb in any tense shall be conseued as the use of the verb in all other

tenses, wherever necessary to bring within the scope of thc request, response, htrwtion, or definition that which might otherwise be constmd to be outside the scope of same.
15.

The singular includes the plural and the plural includes the singular; the

conjunctive includes the disjunctive and the disjunctive includes the conjunctive.
16.

Each request contained herein actends to any Documents in Plaintif&' possession,

or custody, or cont.1~1, in the possession, custody or control of any partner, accountant, tax advisor, h n c i a l planner, financial advisor, financial manager, investment manager, investment

banker, arbitrageur, broker, dealer, representative, or all other Persons or entities over which
Plaintiffi exercise control, or who exercise control over, or are in colnmon control with Plaintiffs, which were generated or received or that otherwise came into existence or were

utilized during the p i frorn January 1,1998 through and including the date of produdion, ad
unless otherwise stated in the request A Document is deemed to be in Plaintiffs' possession,
custody, or control (or in the possession, custody or control of any Person or entity over which

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Plaintiffs exercise control, or who exercises control over, or is in common control with Plaintiffs),if it is in theii physical custody, or if it is in the physical custody of any other Person and m y of Plainti&: (i) own such Docstatute, or o h w i s e to use, ins-

in whole or in part; (ii) have a right by con-

examine, or copy such D c m n on any terns; (ii) have an ouet

undcrstandihg, express or implied, that one or more of Plaintiffs may use, iaspect, examine or

wpy such Document on any terms; or (iv) have, a s a practical matter, been able to use, inspect,
examine, or copy such D c m n whm any of Plain= ouet
have sought to do so.

17.

A request for a Document shall be deemed to include a request for any and all

transmittal sheets, cover letters, exhibits, enclosures, or attachments to the Document, in addition
t the Document itself. o 18.
Documents should be produced either as they are kept in the usual course of

business, or organized and labeled to correspond with the cate80ries in this request,
19.

Documents stored in electronic form or format of any kind arc to kproduced in

their original aud native fonnat, including all "metadatan or other electronic components of the information Relating to or comprising such Documents, and these Documents shall not be converted to any other form, such as paper, TIF" or 'TDF" images.
20.

If any Document or thing requested was at one time in existence, but has been

10% discarded or destroyed, identi* each such Document or thing by date, type and subject

mdescribe the cinmstancw under which the Document was lost, discarded or destmyed, ,
and identify each Person with knowledge of its subject matter aud of the circumstances under

which it w s lost, d i d e d or destroyed. a

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21.

If any request herein is deemed to call for tht production of privileged m t r a s aeil,

and such privilege is asserted, provide a privilege log identifying and describing those materials,
the sender and recipient of those materials, the nature of t e privilege asserted, and all other h

items required by the Federal Rules of Civil Prodwe.
22.

If a portion of an otherwise responsive Document contains information subject to

a claim of privilege, those portions of the Document subject to the claixn of privilege shall be
redactedh m the Document and the rest of the Document shall be produced.

23.

All Documents that respond, in whole or in p r , to any portion of any of the at

Document Requests shall be produced in their entirety, including ail attachments and enclosures.

24.

The Document Requests shall be deemed to be continuing so as to require prompt,

furtherand supplemental production if Plaintiffs locate or obtain possession, custody or control
ra. of additional responsive Rocumcnts at any time prim to til

1.

Any and al Documents Relating to the purchase andlor sale of any ICG Security l

TS
.

.

.

,

by Plaintiffs,or for Plaintiffs' benefit, or on Pbtiffs' accomts, including but not limited to any
and ail Documents Plaintiffs reviewed, relied on or received in 001mectionwith the purchase

and/orsale of any ICO Security.
2.

Any and all Documents Concerning Communiuitions, whether written or oral,
and any Person, including but not limited to any ICG shareholder or other

between Plain=

investor, or any accountant, tax advisor, financial planner, financial advisor, financial manager, investment manager, investment banker, arbitrageur, broker or dealer, Cwceming ICG and/or its

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Secwities, financial results, business plans, public disclosures, or any piauncd or possible acquisition by any Person of ICG Securities.
3.

Any and all Documents Plaintiffs have received from ICQ including but not

limited to, all correspondence, annual reports, quartaly q, mghtration statcmeats, prospectuses, proxy statements, h c i a l s a e e t and letters to shareholders. ttmns
4.

Any and all Documents Relating t any meetings held by or on behalf of ICG, o

including but not limited to ICG shareholders' meetings.
5.

Any and all Documents that refer or otherwise Relate to ICG or any ICG Security,

including but not limited to newspaper report., magazine8 or other publications.
6.

Any and all Documents sufficient to identify all Pasons who were involved in

Plaintiffs' decision ta purchase, hold or sell any ICG S d t y .
7.
Any and all Documents sufficient t U o

b e the nature, objcctiva or investment

criteria of any account in which securities are or were held by or on behalf of Plaintiilk including but not limited to whether the account agent was perrni#ed any discretion in making investment decisions.
8.

Any and all Documents Concerning policies, procedures, practices, gul'delines, or

criteria governing investments or investment decisions made by or on behalf of Plainti&,

including but not Limitedto Documents Concerning: (a) Plaintiffkginvestment objectiws; (b) pennissibk investments by or on behalf of Plainm, (c) risk analysis or risk evaluation with
rerespect the purchase, holding, or sale of securities by or on behalf of Plaintif%; (d) Plab.&%' to

risk tolerance withrespect to the purchase, holding, or sale of securities; and (e) the use of risk

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consultants wt mpect to the purchase, holding, or sale of securities by or on behalf of ih
PLaintiffs.
9.

Any and all Documents Relating to invcslmentsby Plaintiffs, or on PIahtSi'

behalf, in any publicly traded debt or equity securities of any corporation, including but nat
limited to account s a e e t ,monthly, quarterly and/or annual statements, opening account ttmns

forms, confirmations, prospectuses, annual and periodic reports, or any other summary of investment activities. 1. 0
Any and a l Documents Relating to the purchase andlor sale of any f w , l

options, or other derivatives by Plain=,

including but not limited to account s a e e t , ttmns

monthly, quarterly andtor annual statements, opening account foms, con6rmations,
prospectuses, annual and periodic reports, o any other summary of investment activities. r

11.
12.

MofPlaintiffs'federaltaxretumshm1998tothepI.esent. Any and all Documents setting forth: (a) each Plaintiffs' current net worth,

assets, debts, other liabilities and h c i a l status, including but not limited to fiaancial

statements and loan applications; and (b) each Plaintiffs' income for the most recent year for
whichithasban&&&d. 13. 14.

AnyandallDocumentsConcuningthisaction.
Any and all Documents Concerning Plaintif%' past andlor curreat relationships

with liaison counsel and co-lead counsel l i d in the Amended Complaint, including but not

limited to any b u s i i s , social or familial relationships.
15.
Any and all D c m n s Concerning P l a i n W alleged damages set forthin the ouet

Amended Complaint,including b t not limited to the method of dculating such damages. u

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16.

Any and all Documents Concerning any understanding or apaxmt between

Plaintiffs end any Person,including counsel, Relating to the following subjacts: (a)
(b)

The payment of disbursements, costs andlor expenses in this litigation, or
Any ambunt that Plainti.ffs may receive in the event of a settlementof this

litigation o a judgment in favor of a putative class that will be different r

from the proportionate share that a plaintiff would teccive as a member of
such putative class.

17.

Any and all deposition or trial transuipts, &davits or written statements of any

Plaintiff in previous or pending lawsuits or aclministrativc proceedings, hwhich any Plaintiff

w s or is a party, or in which any Plaintifftedfied, and all pleadings filed therein a
18.

Any and all Documents Concerning any lawsuits, arbitrations or other

proceedings, Relating to semities or commodities laws, in which any Plaintiff has been, is, or seeks or sought to be a party or a named representative of a class or putative class or a member of a class, including but not l i i t # l to Douiments Concerning such PlainWs past, pmmt, or prospective pdcipation in any such lawsuit, arbitration or other proceeding, or any money received by such plaintiff i connectionwith that proceeding. n
19.

Any and all D c m n s Concerning Communicatiom between Plaintiffs and any ouet

other member of the putported class d k b e d in the Amended Complaint Relating to those allegations sustained by the Court's August 24,2004 Order.
20.

Any and all Documents Concerning the identity of the membas of the alleged

class Plaintiffs purport t represent in t i litigation,.including.but limited t any and all lists o hs not o of such members or potential members.

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21.

Any and all motion papers or decisions with resptct to class d f i c a t i o n filed in

other previous or pending lawsuits in which any Plaintiff w s or is a party. a
22.

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

&cation
23.

Any and all Documents describing the qualifications and experience of each

Person whose testimony Plaintif%expect to offer, either through live testimony, declaration,
affidavit otherwise, to suppott a motion for class d f i c a t i o n or
24.

Any and a11 work papers, reports, or other Documentsprovided to or prepared by,

for, or on behalf of each Person whose testimony PIaintiffi expect to offer, either through live testimony, declamian, affidavit or otherwise, in support of a motion for class certification.
25.

Any and all Documents identifying any experts consulted or retained, inchding

but not limited to any engagement or =tention letters far experts retained for this action.

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Datad: February 4,2005 Denver, Colorado

O'MELVENY & MYERS LLP By:
JO& Rosenberg William J. Sushon 7 Times Square New York, New York 10036 (212) 326-2000

BROWNSTEIN HYAlT & FARBER, P.C. Timoth R Beyer i t 410 17! Street,22MFloor 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 ti 4th day of February, 22005, a true and hs correct copy of Defadants' F i Request for Production of Documents was served by Federal
Express to the following:

Robert J. Dyer, m,Esg. Kip B. Shuman, Esq. Jeffrey A. Berens, Esq. Dyer gt Shurnan, LLP 801 E. 17' Avenue Denver, CO 80218

Petm A. Pease, Esq. Sara A Davis, Esq. Berman DeValerio Pease Tobacco Burt & Puc'ilo One L b r y Square iet Boston, MA 02109 Timothy R Be~er, Esq. Brownstein Hyatt & Farber, P.C. 410 1 9 Stmt, ~2~Floor . Denver, Colorado 80202 Patrick D. Vellone, Esq. Allen & Vellone, P.C. 1600 Stout Street, Suite 1100 Denver, CO 80202

Daniel L. Jkger, Esq. Bemstein Litowitz Berger & Grossmaan, LLP 1285 Avenue of the Americas New York, NY 10019 Charles W.L i i , Esq, Lilley & Garcia LLP 1600Staut Streq Suite 1100 Denver, CO 80202

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

Murielle J. Steven Walsh, Esq. Pomcrantz Haudek Block Grossman & Gross LLP 100 Park Avenue, 26h Floor New York, ?a 1001 Samuel H. Rudman, Esq. Jonathan U Stein, Esq. Gcller Rudman U C 197 South Federal Hwy., Suite 200 Boca Raton, FL 33432

Steven G. SchEsq. M i l k g Weiss B a h a d & Schulman LLP One Pennslyvauia Plaze, 49' Floor New York, NY I0119

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F. James Donnelly, Eq. Law Office of F.James Donnelly 6076 S. Chesta Way Greenwood VlaeCO 80111 ilg,

Aaron L. Brody, Esq. S u l Stull& Brody tl, 6 East 4sn Street, 5' Floor
New York, NY 10017

Marc A. Topaz,Esq. SchifBn & Bmway, LLP Three Plaza East, Suite 400 Bala Cynwyd, PA 19004 David Jaroslawicz, Esq. Jamslawin & Jams 150 Williams S r e , 19" Floor tet New York, NY 10038 Patrick F. Morris, Esq. Jacqueline L. Green Moms And Moms 1105N. W e t Street, Suite 1600 Wilmington, DE 19801 Leo W. Desmond, Esq. The Law OfficesOf Leo W. Desmond 2161 Palm Beach Lakes Blvd., Suite 204 Ws Palm Beach, FL 33409 et

Barbara A. Podell, Esq Savett Frutkb Podell & Ryan, P.C. 325 Chestnut Street, Suite 700 Philadelphia, PA 19106 Amold Levin, Esq. Levin, Fishbein, S e d m & Bennan, P.C. 510 Walnut Street,S i e SO0 ut Philadelphia, PA 19106

Fred Taylor Isquith, Esq. Wolf Haldensteh Adler Fmmen & Hen, LLP 270 Madison A m w New York, NY 10016

~arvey~reenfi~id,~sq.. . Law Fkm of Harvey Greenfield 60 E s 42* Street, Suite 2001. at New York, NY 10165
A m h u M. Schatz, Esq. Je&y S. Nobel, Esq. Schatz &.Nobel 330 Main Street Hartford, CT 06106

Mark W. McNair, Esq.

Law Offices Of Mark McNair 1101 30" Street N.W., S i e 500 ut
Wadhgton, D.C. 20007

James V. Bashian, Esq. Law OfficesOf James V. Bashian 500 5" Avenue, Suite 2700 New York, NY 10110-2799

Charles J. Piven, Esq. Law Ofices Of Charles J. Piven 401 E. Pmtt Street.S i e 2525 ut Baltirnm, MD 2 1202-3003

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Joshua M. U t z , E3q. Peter D.Bull, Esq. Bull & L i f M q LLP 18 East 416 Street, 11" Floor New Yo& NY 10017

James S. Bailey, Esq. Bailey & Peterson 1660 Lincoln Street, Suite 175

Denver,CO 80264