Free Motion to Compel - District Court of Colorado - Colorado

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

Document 165-11

Filed 08/10/2005

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

Document 165-11

Filed 08/10/2005

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May 27,2005

OUR FILENUMBEI 0~7p170-0001

VIA FACSIMILE
Mark Lebovitch, Esq. Bemstein Litowitz Berger & Grossmann LLP 1285 Avenue of the Americas New York, New York 10019
Re:
Dear Mark:
WITER'S CMAlL ADDRESS

kyaff~omm.com

Im re ICG Communfcations I n c Secwities Liti~&n

This responds to your letter dated May 23,2005, which we did not receive, for some undisclosed msog until late Wednesday evening, May 25,2005. Your self-serving letter yet again demomtmtes wby all communications between you and our frrm should be in writing. Far from stating that the call's purpose was "for Lead Plaintis to restate or modify their positions," we told you that we were seeking responsesto our April 15,2005 letter, to which Lead Plaintiffs had not offered any substantive response for nearly a month. As with any effort at good faith negotiation, it is impossible to reach any agmment until the parties address and resolve all their disputes; accordingly, we told you tbat we needed to understand your positions before reaching any agreements. While you have criticized us for not having authority to reach agreements during the call, you yourself repeatedly told us that you had to "check with" your clients on various issues. Plaintiffs are now compounding their dilatory conduct by writing that they cauuot c o n f i before May 3 1 whether they are withholding documents based on their objections. It has been more than six weeks since we wrote Plaintiffs concerning these issues and two weeks since you promised to "confumn for us Plaintiffs' positions, yet you have offend no explanation for why you cannot articulate a position. As you know, the discovery requests target class certification issues and Defendants will have only 30 days after disposition of the motion for leave to file a second amended complaint to respond to the class certification brief. This is precisely the sort of conduct that prejudices Defendants' ability to respond to Plaintis' class certification motion and defeats the good faith meet and confer process's purpose. To avoid further delay, please ensure that you provide us with definitive responses on Tuesday.

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

Document 165-11

Filed 08/10/2005

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General Matters

Privilege Logs: While we disagree with your position that Plaintif% have adequately preserved their privileges and reject your effort to belatedly "re-assert" them, we will a p e to exchange privilege logs that include all assertedly privileged documents created through February 15, 2002. We are prepared to exchange logs on June 3,2005. Please note that Defendants reserve the right to assert that (i) any and all documents on Plaintif%' privilege log art not privileged andfor (ii) PlaintifFs bave waived any or all privileges (including through their failure to timely produce a log). Strategic UruRet Analysis Fund Donunents: Our May 19 letter quested written c o d h a t i o n that Stmtegic Market Analysis Fund has no other responsive, non-privileged documents or, alternatively, identification of the requests for which it is withholding documents based on its objections. In response, Plaintifi confirm that "Strategic Market Analysis Fund has no other non-privileged relevunt documents.. ." Because Strategic Market Analysis Fund has raised relevance es an objection, your response is ambiguous. Please let us know, as part of your May 31 response, whether Strategic Msrket Analysis Fund is withholding any documents based on any of its objections, including (but not limited to) relevance.
First Request for Production of Documents

General Objection Nos.5 and 7: Plaintiffs assert in concIusary fashion that documents in their investment managers' possession are beyond Plaintiffs' control, In view of your admission that Plaintifi' investment managers are their agents, we do not understand the basis for this assertion. Please explain to us, as part of your May 3 1 response, how these responsive documents are not in Plaintiffs' control. Request Nos. 1-8: Plaintiffs state they will verify whaber they are withholding any nonprivileged documents responsive to Request Nos. 2,3,5,6 and 7-8. Pease also confinn whether Plaintiffi are withholding documents responsive to Request Nos. 1 and 4. Request Nos. %lo: T e e requests seek documents concerning Plaintiffs' trading in hs other securities, including futures and options. You asked us to propose a more namw request because you believe they are overbroad. Having considered the m t e ,we declined to do so. atr The requests are appropriately tailored to seek relevant information regarding Plaintiffs' risk tolerance and reliance, which reflects on their adequacy and typicality as proposed class representatives. See, e.g., Roseman Profir Sharing Plan v. W r t s Rec., 165 F.RD. 108,112 @4. D.Fle. 1996); In re Harcowf Bruce Jovmvich, Inc. Sec. Litig., 838 F. Supp. 109 (S.D.N.Y. 1993). As these requests' scopes are proper, we have no obligation to narrow them. If you have not withdrawn your objections by May 3 1, we will move to compel production in response to these requests. Request No. 11: This request seeks P l a i n W tax returns, which contain relevant information concerning (among other things) Plaintiffs' ability to finance the action's prosecution. That two pension funds are involved in this litigation and producing anuual reports

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Madr Lebmitch, May 27.2005 Page 3

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(to the extent they exist) does not eliminate Defendants' right to discover relevant infixmation

h m tax returns. Nor does the involvement of a largc investment W. Indeed, this large investment fund claims to have M y no responsive records and has produced no financial data to date. Plaintiffs' additional reliance on theh fee ammgcment with counsel is odd, as Plaintie refbse to produce those agmments. In the interest of good faith compromise, Defendants will hold this request in abeyance if Plaintifi produce their fee agreement with counsel.
Request No. 13: Plainobject to this request, which seeks all documents concaning this action. While Defendants have objected to this request, they are differently positioned h m Plaintiffs, as Defendants were involved in events underlying this lawsuif and Plaintiff&w r not. ee In my event, Plaintiffs suggested during the diswvery confaence that they may have produced all mponsive documents in response to other requests. To avoid a potentially unnecessary motion to compel, please let us know if this is the case by May 3 1. Request No. 14: Plaintiffs refuse to produce documents concerning any relationship between Plaintiffs and Lead counsel. Accordingly, we will move to compel production in response to this request Request No. I S : This request seeks documents related to each of the Plaintiffs' individual uig damages. D r n the discovery conference, you noted Plaintiffs' trading records had been produced and asked what more we were seeking. While we referenced the possibility of a unique investment strategy, this was merely exemplary (as was our reference to any documents analyzing Plaintiffs' damages). Again, Defendants an entitled to all documents concerning Plaintiffs' damages to the extent they exist and we therefore stand by this request Without knowing what documents Plaintiffs have, Defendants obviously canuot provide other concrete examples. Please let us know in writing by May 3 1 whether Plaintiffs will continue to refuse to produce additional documents in response to this request. Request No. 16: Plaintiffs continue to refuse to produce their retainer agreement with their attorneys because, tbey claim, it is privileged and irrelevant. But retainer agreements are not generally considered privileged and, even if they w r ,Plaintiffs' reliance on their fee ee arrangement to avoid discovery of financial information completely undermines these objections. Please let us know in writing by May 3 1 wfiether Plaintiffs continue to stand by their objections to this request. Request Nos. 17-18: Courts routinely order parties to produce documents relating to prior cases in which Plaintiffs have been parties, sought to serve as class representatives or members, or testified. See, e.g., Roseman Profit Sharing Plan v. Sports Rec., 165 F.RD. 108, 111 (M. D. Fla. 1996); In re Harcowr Brace Jovanovich, Inc. Sec. Litig., 838 F. Supp. 109, 1 14 (S.D.N.Y. 1993). In the intenst of good faith compromise, Defendants will limit the requests to securities cases. Please Let us know, as part of your May 3 1 response, whether Plaintiffs agree to produce documents in response to these narrowed requests. Request Nos. 19-21: We await your response.

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Mark tebovitc4 May 27.2005 Page 4

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Reguest No. 22: This request seeks all documents Plaintiffs intend to use to support their class certification motion While class certification briefing has been stayed, class dismvay is clearly on-going. Plaintiffs should produce documents they may include in their reply submission so that Defendants can examine witnesses about tbose documents at deposition

Request No. 23: This request seeks all documents concaning the qualifications of anyone who may testify to support Plainti£&' class certification motion. While Plain= state thcy will inform us on May 31 whedw they will produce any documents concerning the qualifications of William F. Kelly, Jr., John J. Gallagher, Jr., and Yomi Rodrjg, thcy do not inse address our request for codinnation concerning the w t e s s upon whom they intend to rely to support thtu class certification motion Please do so by May 31. Request No. 24: Defendants previously agreed to n r o this request to documents arw relating to this Action and/or any surviving allegation in the Amended Complaint provided to or prepared by, for or on behalf of each person whose testimony Plaintiffk expect to offer, either through live testimony, declaration, affidavit or otherwise, in support of a motion for class certification. While Piaintiffs agreed to produce documents responsive to this narrowed request if Defendants agreed to reciprocate, PLaintiffs now state they will only product documents provided to the expert by Lead Counsel and claim the onIy documents provided by Lead Counsel were the amended complaint and the Court's August 24,2004 Order. But the Atulya Sarin declaration lists many other documents, including (but not iimited to) ICG press releases and analyst reports. If PlaintifE do not agree by May 31 to produce these documents, we will move to compel.
Request No. 25: This request seeks documents that iden* Plaintiffs' experts in this action (including, but not limited to, engagement or -tion letters). Although Dr. Sarin's declaration contains information on his compensation, Defendants are entitled to all his engagement letter's terms. Please iet us know by May 31 whether Plaintiffs will produce Dr. Sarin's engagement letter as well as documents that identify any other experts Plaintiffs intend to use in support of their motion for class certification.

Second Recluest for Production of Documents

Request Nos. 1-3: These requests seek (i) documents 'used. reviewed, referenced, cited or relied on in Qafting the Amended Complaint," (i) documents relating to, supporting or rebutting the Amended Complaint's surviving allegations, and (iii) documents "used, reviewed, referenced, cited or relied upon" in any investigation performed in connection with this action. Plaintiffs offer to produce 'hon-privileged documents, if any, in Lead Plaintiffs' possession" is no compromise, as Plaintiffs have asserted privilege and work product over all such documents. Unless Plaintiffs reconsider their position by May 31, we will move to compel production of these documents. Request No. 5: While Plaintiffs state they will confirm by May 3 1 whether they will produce any responsive journals, notebooks or notes, Plainti&' position regarding the remainder

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M r Lebovitch, M y 27,2005 -Page5 ak a

of this request is cut off from your letter. Please provide Plaintif&' position regarding the entire
q u e s t by May 31.

First Set of Intem~storiu

Response to Interrogatory Nos. 1-5: T e e interrogatoriesseek the identity of (i) hs witnesses with knowledge concuning specific surviving allegations in the Amended Complaint and (ii)people Defendant B~eans allegedly hhuckd to "create lines" in the fourth quarter 1999. Plaintiff&'offer to identify the sources relied on to support the sunriving allegations in the Amended Complaint does not adequately respond to these interrogatories. Contrary to your suggestion, we do not seek impermissibly to compel Plaintiflk to meal confidential somes, merely to identify w t e s s with knowledge concerning specific allegations in the Amended inse Complaint, an obligation supported by Rule 2qa). Please let us know by May 3 1 whether Plaintiffs will do so.
We look forward to hearing from you by May 3 1. If your response does not adequately address the outstanding issues to our satkktion, we will move to compel discovery on these issues as well. Sincerely,

cc:

Daniel L. Berger, Esq. Noman Bennan, Esq. Bryan Wood, Esq. Kip B. Shuman,Esq.

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

Document 165-11

Filed 08/10/2005

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Daniel Berger, Esq. and Mark (212) 554-1444 Lebovitch, Esq.- Bermkin, Litowitz, Berger & Grossman LLP Norman Berman, Esq. and Bryan (6 17) 542- 1194 Wood,Esq. - Berman DeValerio . Pease Tabacco Burt & Pucillo

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Case 1:00-cv-01864-REB-BNB
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Document 165-11

Filed 08/10/2005

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