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Case 1:04-cv-01225-MSK-BNB

Document 198-4

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Malik M. Hasan, M.D., et al. v. Goldman Sachs 1998 Exchange Place Fund, LP, et al.

EXHIBIT C T EN ME D F N A T ' H A D E E D N S OPPOSITION TO P A N IF ' TO T C MP L L I TF S MO I N O O E GARY GIGLIO DEPOSITION EXCERPTS

EXHIBIT C 04-cv-1225-MSK-BNB

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M

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ----------------------------- X MALIK M. HASAN, M.D., an individual; and SEEME 0. HASAN, an individual, )

Plaintiffs,
-vs -

) ) ) )
NO. 04-MK-l225(BNB) ) (Consolidated

GOLDMAN SACHS 1998 EXCHANGE PLACE FUND, L.P, a Delaware limited partnership; GOLDMAN SACHS 1999 EXCHANGE PLACE FUND, L.P, a Delaware limited partnership; GOLDMAN SACHS MANAGEMENT PARTNERS, L.P, a Delaware limited partnership; THE GOLDMAN SACHS GROUP, INC., a Delaware corporation; GOLDMAN SACKS & CO., a New York limited partnership; JOHN DOES 1-100, individual persons whose true identities are unknown; and LENDER PARTIES 1-100, business entities whose true identities are unknown.

)with
04-MK-1226(BNB)

Defendants. -------------------------------------- X JUNE 10, 2005 9:15 A.M. Deposition of GARY GIGLIO held at One Liberty Plaza, New York, New York, pursuant to Notice, before Hope Menaker, a Shorthand Reporter and Notary Public of the State of New York.

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Q. Do you know whether or not there had been discussions with Malik Hasan or Seeme Hasan or any representative of the Hasans about an investment in the exchange funds by the close of August of 1998? A. We had discussions with Dr. Hasan about exchange funds, certainly pnior to the date here, August 31, 1998. Q. By August 31of '98, was there an exchange fund that was available at Goldman Sachs? A. When you say it was available, what does that mean? Q. Was it open for investment? A. I'm confused about the question. Open for investment? Q. Before, you told us in response to questions that there was not an investment opportunity in the exchange fund available at the time that you met with him, for example, in July of 1998. Do you recall that testimony? A. Yes. Q. I'm asking a similar question, only later in time, putting it at August 31 of 1998. Was there an opportunity for investment
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Exhibit 5? A. Yes. Q. Who else did you sign? A. Looks like Robert Mueller only. Q. Did you have permission to sign Robert Mueller's name to this document? A. Yes. Q. From whom did you get that permission? A. We had a team informnal agreement that we could sign letters on behalf of the other teammates because, as you could appreciate, team members are out and about and letters need to go out, so, we trusted each other to have proxy for one another. Q. I see here that this letter is dated September 18, correct? A. Correct. Q. This letter reflects in the first line of the letter that, as a holder of concentrated stock position, Dr. Hasan may be interested in our exchange fund. Do you see that? A. Yes. Q. Does this refresh your recollection with respect to when you more -- when you introduced the exchange fund with more specificity to Dr. Hasan?
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in an exchange fund as of August 31, 1998? A. I don't remember one, when we launched it. I mean, with -- we had obviously launched the exchange or knew we were going to have one in either August or September, for close sometime in the fall. I don't know if on this date that information was out. Q. In any event, there's not an investment reflected in the portfolio statement dated Exhibit 48, correct? A. Correct. Q. Let me hand you a document that's been marked for purposes of identification as Exhibit 5. Do you recognize that document? A. I do. Q. What is Exhibit 5? A. It is a letter to Dr. Hasan from our team. Q. That's the same team that's identified on Exhibit 11 that you sent along the resumes for, correct? A. Yes. Q. Did you sign Exhibit 5? A. I did, yes. Q. Did you sign any other names on
J.

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A.

Q. Would this letter be that step up in
specificity with respect to the availability of an investment in the 1998 Exchange Fund? A. This letter was a cover letter that was sent out with the Private Placement Memorandum for the 1998 Exchange Fund. Q. Well, I understand that that's your testimony. Can you tell me from looking at this document what the enclosure is? A. I'm certain it's the Private Placement Memorandum. Q. Well, does it say that on the document anywhere? MR. GITTER: The document says what it says. Q. Does it say that on the document anywhere, Mr. Giglio? NMR. GITTER: Objection. A. No, it doesn't say Pnivate Placement Memorandum, but that's what it is. Q. Well, how do you know that? A. 'Cause that's the only enclosure that would go out with this letter. Q. Was any other enclosure included, other 25 (Pages 94 to 97)

Yes.

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than the Private Placement Memorandum? A. The executive summary. Q. This document reflects a single enclosure, doesn't it? MR. GITTER: Objection. A. They were rubber banded together I believe. Q. How do you know that? A. That's the way we always sent them out. Q. Did you send these out? A. Yes. Q. Did you physically put this letter together and place it the mail? in A. I did not stuff the envelope, no. Q. Other than signing this letter, did you do anything with respect to the transmission of the letter or any enclosures with the letter? A. I believe I drafted the letter from a template. Q. Other than the drafting of the letter and the signing of the letter, did you do anything, personally, with respect to transmitting the letter or any enclosures with the letter? A. Can you clarify. Did I do anything personally?
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enclosures with this letter? A. Did I do anything else with the transmissions or disclosure? Is that -Q. And enclosure -- enclosure of the letter? A. No. Q. Do you have any personal knowledge that this letter or the any enclosures that may have been included with this letter were actually mailed? A. Yes. Q. How do you have personal knowledge of that? A. Because Dr. Hasan signed in the 1998 -he signed the subscription booklet that said he received the Private Placement Memorandum. So that's how I know the letter and the Private Placement Memorandum went out. Q. Well, other than his signature in the subscription booklet, do you have any personal knowledge that the Private Placement Memorandum was transmitted to him? A. Had a conversation with him after he received the Private Placement Memorandum, sometime, that -- sometime after September here
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1 Q. Did you do anything else other than 2 draft the letter and sign it? A. There was -- around this letter there 3 4 was a conversation with our compliance officer 5 'cause the original letter that we made, he did not 6 approve and this was the approved letter. 7 Q. So you had a discussion about the approved letter with the compliance officer? 8 9 A. Yes. Q. You drafted the letter and you signed 10 I11the letter, correct? 12 A. Correct. Q. Did you do anything else with respect to 13 14 the transmission of this document or any enclosures 15 with the document? 16 A. This letter wasn't sent out on September 17 18 because I remember going back and forth with 18 compliance on the first formn letter which was 19 drafted on the 18th, but no letters went out to 20 include Hasan until around September 20, a week 21 later, days later. 22 Q. I understand you looked at documents. I 23 get that. But my question for you wasn't that. My 24 question was whether you did anything else with 25 respect to the transmission of this letter or any

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where we talked about it. Q. You had a conversation with Dr. Hasan in 1998 about the Private Placement Memorandum he had received? A. Yes. Q. We'll get to that in a second. If I understand your testimony about Exhibit 5, which is before you, your contribution to Exhibit 5 was a discussion with a compliance officer about its contents, signing the letter and drafting the original letter and perhaps a revision; is that fair? A. Yes. Q. You didn't have any role in putting the letter or any enclosures in any envelopes did you? A. No, that would be our support staff that would do that. Q. Did you watch the support staff place this letter and any enclosures in any envelope? A. No. Q. Did you have any role in placing the envelope in the mail, if in fact this letter and any enclosures were placed in the mail? A. No. Q. Did you watch anyone mail any envelopes 26 (Pages 98 to 101)

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------------------------- x MALIK M. HASAN, M.D., an individual;

and SEEME G. HASAN, an individual, Plaintiffs, No.
-

04-MK-

against

-

1225 (BNB) (Consolidated with 04 -MK1226 (BNB) GOLDMAN a THE a

GOLDMAN SACHS 1998 EXCHANGE PLACE FUND, L.P., partnership; a Delaware limited GOLDMAN SACHS 1999 L.P., a

EXCHANGE PLACE FUND,

Delaware limited partnership; Delaware limited partnership; GOLDMAN SACHS GROUP, corporation; 1-100, INC.,

SACHS MANAGEMENT PARTNERS, L.P.,

a Delaware JOHN DOES

GOLDMAN SACHS & CO.,

New York limited partnership; identities are unknown;

individual persons whose true and LENDER

PARTIES 1-100, business entities whose true identities are unknown, Defendants. ------------------------------------September 9, 2005 GARY GIGLIO x

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Giglio on the 7th? Just a minute ago you told us you couldn't be sure. A. Were we not talking about which letter was sent? Which version, because you had said there was a revised version? Q. I asked you whether or not you could tell that a letter was sent on the 7th of July 1998, and you said you couldn't be sure. Do you recall that testimony? A. I don't recall that testimony. I don't know what I said. If you would like to go back, we can go back and listen to it. Q. Do you know whether a letter was sent on July 7, 1998 to Dr. Hasan? A. I believe a letter was sent, yes.

Q. Do you know?
A. What do you mean by do you know?

Q. Do you know whether the July 7,
1998 letter was mailed to Dr. Hasan? A. It says a letter was sent. Q. I know what the document says. I am asking a different question, sir. I am asking you whether you know whether or not the July 7, 1998 letter was sent to Dr. Hasan?
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Gigijo Yes. MR. MERRICK: Let's take a bathroom break for you, then. THE WITNESS: Thank you. MR. MERRICK: You are welcome. (Recess taken) BY MR. MERRICK: Q. M~r. Giglio, inviting your attention to September 18, 1998, I think you said that some letter was sent to the Hasans on or after September 18, 1998, correct? A. Correct. (Whereupon, cover letter for pnivate placement memorandum dated September 18, 1998 marked Exhibit 88 for identification, as of this date.) Q. I am handing you a document that has been marked for purposes of identification as Exhibit 88. Do you recognize that document? A. Yes. Q. What is Exhibit 88? A. It is a letter, a cover letter that goes with the private placement memorandum. Q. Did you prepare Exhibit 88? A.
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1 Giglio A. I don't know. I assume it was 2 3 sent. 4 Q. You can't tell from looking at 5 Exhibit 47 whether in fact it was sent, can you? A. I feel like this is all about word 6 7 semantics here. 8 MR. GITTER: Why don't we take a break here, since you and the witness 9 10 are obviously not on the same I11 wavelength. 12 MR. MERRICK: I think we are on the same wavelength. 13 14 MR. GITTER: Let's take a short 15 break here. 16 MR. MERRICK: Let the record 17 reflect that Mr. Gitter would like a break about 20 minutes into the 18 19 deposition to speak to the client. 20 MR. GITTER: Have you seen me 21 speak to the client yet? I have just 22 called for a short break. 23 Q. Are you fatigued, Mr. Giglio? A. I could go to the bathroom. 24 25 Q. Would you like a bathroom break?
--

1 Giglio 2 A. Yes. 3 MR. GITTER: For the record, this letter has no signatures on it. 4 MR. MvERRICK: We can note lots of 5 things about the letter, but, if you 6 have an objection to form, let me know. 7 NMR. GITTER: I would like the 8 9 record to reflect what the document is. MR. MERRICK: Mr. Gitter, please. 10 11 You know how this goes. MR. GITTER: Actually, no, I'm not 12 13 used to an examination in which exhibits are marked without a description of what 14 the exhibit is, but you go ahead. 15 MR. MERRICK: Thank you. 16 Q. Did you prepare Exhibit 88 from a 17 18 template? 19 A. Yes. 20 Q. Who prepared the template 21 document? 22 A. I did. 23 Q. When did you prepare the template 24 document? 25 A. I don't remember when.
L -____________________________________________________________________________________

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Giglio MR. GITTER: Asked and answered just in the previous question. Q. Was this letter sent to the compliance officer for approval? MR. GITTER: Asked and answered. A. The contents of what is in this exhibit was sent to the compliance officer for approval.

Q. When?
A. On or around September 18, 1998.

Q. Was the letter that was addressed
to Dr. Hasan sent to the compliance officer for approval? A. I don't remember because there is two ways we could do it. We could send a form and send that to compliance, a form template letter saying we would like to send this to all of our clients for approval, or we would send an actual letter to a client for approval. I don't remember in this case which one of those two methods we utilized for compliance approval. Q. Is it fair to say that, once you had the form approved, that you could use it
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Giglio to the second part of it was asked and answered, and the first part of it makes the question misleading, so I object to the form as well as the fact that it was asked and answered. Q. You can answver the question, Mr. Giglio. A. You asked two questions in one, so could you repeat the question. Q. Sure. I think you testified that, once the form was approved by the compliance officer, you could use the form thereafter with respect to the clients of Goldman Sachs, correct? A. Yes. Q. So, given the fact that this is printed on September 18, 1998, is it fair to assume that either the compliance officer had approved this form prior to September 18, 1998, or alternatively, that you would have sent this form to the compliance officer on or about September 18, 1998? A. I would have sent this form to the compliance officer on or about the date of
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Giglio with respect to other clients thereafter? A. Yes. Q. So, if you had printed this letter on September 18, 1998, it is fair to say that either this content had been approved earlier than September 18, 1998 or this is the letter that you sent to the compliance officer? MR. GITTER: Objection to form.

Q. Correct?
MR. GITTER: Objection to form. He has answered the second part of this question twice. MR. MERRICK: Mr. Gitter, please. MR. GITTER: I'm not pleased. I am objecting to it. It is asked and answered, and to the extent your question -MR. MERRICK: Are you instructing him not to answer? MR. GITTER: No. MR. MERRICK: Then, Mr. Gitter, you have an objection to form. NMR. GITTfER: I not only have an objection to form, I have an objection

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Giglio September 18 for approval. Q. Now, prior to Septemberl18, 1998, had there been clients of Goldman Sachs who had received copies of the private placement memorandum? MR. GITTER: From his office? MR. MERRICK: Yes. A. Is the question prior to September 18, 1998 did clients receive copies of the private placement memorandum?

Q. Yes.
A. It is possible. I don't know if they did before or after. Q. Let me ask it this way. Was Dr. Hasan the first client that you sent a private placement memorandum to with respect to the 1998 exchange fund? A. I don't know who the first client was. Q. You don't recall who your first client was with respect to the 1998 fund? MR. GITTER: You just asked that, and he said no. You are going to ask him again just because you are going to 10 (Pages 186 to 189)

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Gigijo A. It would include the body of the information in Exhibit 49 with the exception of the first paragraph. That is okay for prospects. Q. Isn't it a fact that the letter that you sent to Dr. Hasan as Exhibit 89 was a letter trying to solicit him to get off the fence and become an investor in the exchange fund? A. No. Q. I see here that we have Exhibit 49 which Mr. Featherstone has handed me with the blocked-out investor name whoever the addressee is. I have an agreement with Mr. Featherstone not to look at whoever the addressee is. Do you know whether the addressee of Exhibit 49 is the same investor as Exhibit 52? I have already asked Mr. Featherstone in advance of today's deposition to check, so I'm sure you guys know. MR. FEATHERSTONE: You want me to answer the question that you put to M~r. Giglio? The addressees are different.
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1 Giglio 2 MR. FEATHERSTONE: No, that is correct. Let me put it a little bit 3 4 differently. I haven't located the 5 original of Exhibit 49. I don't know whether it exists at this point or not, 6 7 but I have tried to find the original, 8 and what I have been able to find is what we have been using as the original. 9 10 MR. GITTER: The most original. MR. MERRICK: I am just asking 11 whether or not Goldman Sachs has located 12 the original of Exhibit 49, and I am 13 14 hearing at this stage not yet. MR. FEATHERSTONE: Correct. 15 Q. Do you know where the original of 16 17 Exhibit 49 is, M~r. Giglio? 18 A. No. 19 Q. Did you destroy the original of 20 Exhibit 49? 21 A. No. 22 Q. Did you discard it? 23 A. No. 24 Q. Should the original be in the 25 compliance records of Goldman Sachs?
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1 Giglio MR. MERRICK: The addressees of 2 3 Exhibit 49 and 52 are different 4 addressees? 5 MR. FEATHERSTONE: Correct. MR. GITTER: Do you mind if I 6 explain to him why the tape is here? 7 MR. MERRICK: I am sure he can see 8 that the tape is over the addressee's 9 10 name and address. I11 Q. Now, what Mr. Featherstone has 12 given me as the original of Exhibit 49 is simply 13 a photocopy of the original. Would you agree? 14 MR. GITTER: Wait a minute. You 15 are asking him to look at this document from a distance across a triple table 16 17 and to tell you the answer to that 18 question? 19 MR. MERRICK: Mr. Gitter and Mr. 20 Featherstone have already discussed this, and Mr. Featherstone has advised 21 22 me that he can't locate the original of 23 Exhibit 49. 24 Have I nmsspoken, Mr. 25 Featherstone?

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Giglio A. I don't believe. I don't know their procedures, but I don't believe they kept originals of rejected letters. Q. Take a look at Exhibit 49. Do you know whose initials are at the top right-hand corner of that document? A. I don't know who those are. Probably the compliance officer. Q. Would the compliance officer generally keep or was it the practice for the compliance officer to keep copies of documents that he had rejected so that there would be a record of that? A. Yes. Q. Therefore, I would assume that the original of this document should be at Goldman Sachs compliance, correct? MR. GITTER: That is a different question than you just put. It contradicts what you just said and the witness's answer to your previous question. You said copies in the previous question. Q. Is it the practice for Goldman 15 (Pages 206 to 209)

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