Free Brief in Opposition to Motion - District Court of Colorado - Colorado

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

Document 183

Filed 09/01/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Honorable Marcia S. Krieger Case No. 04-cv-1225-MSK-BNB (Consolidated with 04-cv-1226-MSK-BNB)

MALIK M. HASAN, M.D., an individual; and SEEME G. HASAN, an individual, Plaintiffs, v. 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; GOLDMAN SACHS MANAGEMENT, INC., a Delaware corporation; THE GOLDMAN SACHS GROUP, INC., a Delaware corporation; GOLDMAN, SACHS & 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, Defendants. T EN ME D F N A T ' P O I I NT H A D E E D N S O P ST O O MOTION FOR PROTECTIVE ORDER AND RELATED MOTIONS Forthwith Consideration and/or Hearing Requested T e a e D f dn hr y um thiopsi t Pa tf Motion for Protective h N m d e nat e b sb it r poio o ln f ' e s e e tn i is Order, filed September 1, 2005, relating to the deposition of Ms. Kathleen Eskola (Doc. #182), in particular to address certain factually false statements therein. The Named Defendants note that plaintiffs have made no effort to expedite consideration of their motion for protective order. Accordingly, the Named Defendants move for consolidated adepd e cni r i o si m t nwt " h N m dD f dn ' n xeid os e t n f a o o i T e a e e nat Expedited Motion t d ao d i h e s

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

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Regarding D psi o K t enEkl" idA gs31, 2005 (Doc. #180), which has been eoio f a l tn h e so ,fe uut a l referred to Magistrate Judge Boland. Pa tf m t n a e claims at Paragraph 6 that the Named Defendants failed to confer ln f ' o o f sl i is i l y with plaintiffs before noticing the deposition of Ms. Eskola for September 12, by notice dated August 31, 2005.A t e asnl e wt D f dn ' t n( o. 10 c a yso , sh m i i u d i e nat Mo o D c #8) l r hw e l cd h e s i el four emails passed between counsel for the parties relative to a deposition on September 12 before the close of business on August 30, 2005. These emails are attached at Exhibit B to Doc. #180. These emails conclusively refute the allegation o p i is cuslthat Named f ln f ' one a tf

Defendants did not consult. Mr. Merrick signed plaintiffs' o o m t nand he was the recipient of i two of the four emails, and the author of the other two. Pa tf m t nc i s ht . rc i uaaal o Sp m e 1, 05 a t ln f ' o o lm t MrMe i s nvib n et br 2 20, th i is i a a rk l e e e time of the proposed deposition of Ms. Eskola. The Named Defendants have no way of

confirming that claim. However, in the emails that were transmitted concerning the deposition, Mr. Merrick never claimed that he was unavailable on September 12, which was the date proposed by the Named Defendants in the very first of the four emails (dated August 29, 2005) about deposition scheduling. Pa tf psi was that the deposition was burdensome, not ln f ' oion i is t that it conflicted with another claimed professional obligation. In any event, if unavailability is nwt c i ,hnehro en e e rm p i iscusla aed o e l yrf m o h lm t i e sm oe l f e a e t s o ln f ' onecn tn (t ra e r a tf t h w so that law office have handled other matters in this case, including the most recent hearing before Judge Boland) or the deposition can be scheduled to a mutually convenient date, with leave of Court.

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Finally, while the Court set September 10, 2005, as the discovery cutoff date, that date falls on a Saturday and, by the rules, the next business day, Monday September 12, becomes the operative date. As Magistrate Judge Boland will recall, counsel for both parties agreed at hearing on August 29 that September 12 is the d cvr ct f a . Pa tf asro o i oe u f dt ln f ' s t n f s y o e i is e i September 10 as a bar ii or ts m tr fa adhs en a e b p i iscusl sn r ca a ae o l n a be w i d y ln f ' one c e t w v a tf at hearing. Moreover, to accommodate plaintiffs, other discovery has been allowed on

September 13-14, 2005. T e a e D f dn blv t tlo e m tri p i ism t nw r ati t h N m d e nat eeeh a t r ae n ln f ' o o e n c a d e s i a lh ts a tf i e ip e in their Motion at Doc. #180, and that submission is incorporated by reference. T eU drge crf st tt m tro t pooe dpsi ad p i is h ne i d e ie h h ae f h rpsd eoio n ln f ' sn ti a e t e tn a tf opposition thereto has been discussed with counsel for plaintiffs, as shown in the Motion filed at Doc. #180.

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

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DATED: September 1, 2005

Respectfully submitted,

s/ Bruce Featherstone Bruce A. Featherstone Matthew D. Collins FEATHERSTONE DESISTO LLP 600 17th Street, Suite 2400 Denver, Colorado 80202 Telephone: (303) 626-7100 Facsimile: (303) 626-7101 E-mail: [email protected] E-mail: [email protected] Max Gitter Nancy I. Ruskin CLEARY GOTTLIEB STEEN & HAMILTON LLP One Liberty Plaza New York, New York 10006 Telephone: (212) 225-2000 E-mail: [email protected] ATTORNEYS FOR THE NAMED DEFENDANTS

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CERTIFICATE OF MAILING I hereby certify that on September 1, 2005, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which will send notification of such filing to the following e-mail addresses: Glenn W. Merrick SENN VISCIANO KIRSCHENBAUM MERRICK P.C. [email protected] Lee Katherine Goldstein SENN VISCIANO KIRSCHENBAUM MERRICK P.C. [email protected] Max Gitter CLEARY GOTTLIEB STEEN & HAMILTON LLP [email protected] and I hereby certify that I have mailed or served the same on the following non-CM/ECF participant by placing same in the U.S. Mail, postage prepaid addressed to: Nancy I. Ruskin Cleary, Gottlieb, Steen, & Hamilton-New York One Liberty Plaza New York, NY 10006

s/ Bruce Featherstone Bruce A. Featherstone FEATHERSTONE DESISTO LLP 600 17th Street, Suite 2400 Denver, Colorado 80202 Telephone: (303) 626-7100 Facsimile: (303) 626-7101 E-mail: [email protected] ATTORNEYS FOR THE NAMED DEFENDANTS