Free Motion to Expedite - District Court of Colorado - Colorado

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

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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 ' H A D E E D N S EXPEDITED MOTION REGARDING DEPOSITION OF KATHLEEN ESKOLA Forthwith Hearing And/Or Consideration Requested

Pursuant to D.C.COLO.LCivR 7.1(C), the Named Defendants move, on an expedited basis, for resolution of p i is oj t nt the deposition of Kathleen Eskola of Houston ln f ' b co o a tf ei Texas, which has been timely and properly noticed. For this purpose, the Named Defendants move for: A. Referral of this Motion to Magistrate Judge Boland for expedited and forthwith consideration and resolution, if the earlier referral orders do not include the

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instant Motion. B. Forthwith hearing and/or consideration of the instant Motion at the earliest possible date before the September 12 date noticed for Ms. Ekl s so 'deposition. a C. Upon consideration, entry of an Order allowing the deposition of Ms. Eskola to proceed on September 12, 2005, without threat of a motion for protective order from plaintiffs. D. Such other relief as the Court may find fair and just from the record and argument. In support of this motion, the Named Defendants state: A. The Deposition Is Timely And Properly Noticed. 1. The Named Defendants have noticed the deposition of Ms. Eskola, as evidenced

by Attachment A. The deposition is timely noticed for September 12, 2005, before the close of fact discovery for the two-day bench trial on arbitrability scheduled for September 21-22, 2005. (Doc. No. 151.) The deposition notice was issued on August 30, 2005, more than 11 days prior to the scheduled date for the deposition as required by Local Rule 30.1A. 2. Before issuing the subject deposition notice, the Named Defendants conferred

with plaintiffs about the setting of the deposition, as required by Local Rule 30.1A. Plaintiffs have objected to the deposition, claiming, without factual basis, that it should have been scheduled in early June. Plaintiffs have stated that they will file a motion for protective order, which, by Local Rule 30.2, will automatically stay the discovery pending resolution of the Motion. The communications relating to the scheduling of the deposition are set forth in

Attachment B.

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3.

T e a e D f dn bi t s t nfr r o t no p i is spoe h N m d e nat r g h Mo o o a e l i f ln f ' upsd e s n i i s uo a tf

objections so that the deposition will not be frustrated by plaintiffs t et e m t n The 'h a nd o o. r e i Named Defendants further address below t acst n o p i iscusl h cuaos f ln f 'one e i a tf . B. The Witness Has Relevant Knowledge. 4. Ms. Eskola is a resident of the Houston, Texas area. She was employed by

Goldman, Sachs & Co. from 1998-2001, but is no longer employed by any of the Named Defendants. 5. Plaintiffs have raised during discovery an issue regarding the identity of the

author of certain printing and handwriting in the subscription booklet for their investment in the 1998 Exchange Fund, which has been previously marked as Exhibit 10A. This Exhibit is an important document in these proceedings, and will be a subject of testimony at the September hearing. Various handprinting in Exhibit 10A is not identified by the author on the face of the document. The Named Defendants recently determined that Ms. Eskola is the likely source of certain of the previously unidentified handwriting in Exhibit 10A. 6. Ms Ekl r i sotd o t r c o t C ut sbon pw r n i . so e d u i fh e h f h ors upea o e ad s a se se e a e '

unwilling to attend the trial in this matter. The Named Defendants wish to depose Ms. Eskola to preserve and present her testimony for trial. Ms. Eskola does not oppose her deposition being scheduled for the date and time stated in the Notice (Exhibit A). C. The Opposition. 7. Pursuant to D.C.COLO.LCivR 7.1(A), counsel for the Named Defendants has

cne e wt p i iscuslw oopssh dpsi .Pa tf cusl a s t h of r i ln f ' one h poe t eoio ln f ' onehs te e r d h a tf , e tn i is ad will file a motion for protective order against the deposition, which by Local Rule 30.2

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automatically stays the discovery pending hearing. Because of the short remaining time frame, the Named Defendants bring this motion to reduce any further delay. 8. Pa tf cuslhsi p e t tatp t H ut frt dpsi i ln f ' one a m ld h i is i a r o os n o h eoio s i o e tn

burdensom . T e ne i e hs f r t ao p i iscusloaed n prc a e h U drg d a of e o l w ln f ' onet tn ad a ipt sn ed l a tf t ti e by telephone. This offer has been refused. 9. Pa tf cusl a c i e t th N m dD f dn sol hv nte ln f ' one hs lm d h t a e e nat hu ae o cd i is a a e e s d i

the deposition in early June, when plaintiffs took depositions in this matter in Houston and New York City. Setting aside whether the deposition could have been conducted at that time, given the other depositions scheduled for that week1, the Undersigned represents to the Court that he did not know of Ms. Eskola or her involvement at that time. The Undersigned has advised p i is cusl fh f tbthter eti hs o cue p i is ocag t i ln f ' one o t s a , u t r e n t n a nt asd ln f t hne h r a tf i c a p s ao a tf e position. 10. Pa tf cusl let hrei t th U drge "nw o s ln f ' one s a s ca s h t ne i d ke r hould have i is ' t g a e sn

ko n o MsEklat t e fh dpsi sn a y ueahuhn f t l aifor nw " f . so th i o t eoio i er Jn,l og o a u bs a em e tn l t ca s that claim has been asserted. The Undersigned represents to the Court that he made diligent, good faith inquiry over several months seeking to determine the identities of the authors of the handwriting in Exhibit 10A. Notwithstanding such efforts, defense counsel did not confirm that Ms. Eskola was the likely author of certain of the hand-printing on Exhibit 10A until earlier this month (August), well after the June depositions. Upon confirmation, the Named Defendants spl et df dn ' up m n d e nat interrogatory responses (on August 17, 2005). e e e s
1

Pla tf cusl eoe fu wt s sn os nT xs n ue -7, 2005, and six witnesses in New York i is onedpsd or i es iH ut , ea o Jn 6 nf' n e o City on June 9-10, 2005. June 8 was a travel and preparation day. The Undersigned participated in the defense and/or cross-examination of all 10 witnesses, in both cities. Not all of the New York City depositions have concluded.

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11.

The Undersigned advises the Court that discovery has shown that the p i is ln f ' a tf

investment in the 1998 Exchange Fund was arranged by Team 041 at the Goldman, Sachs Houston office and that the subscription booklet (Exhibit 10A) for that investment was processed for acceptance by the Goldman, Sachs New York office. Plaintiffs subscribed for the investment in the fall of 1998, almost 7 years ago. The handwritten entries in or on Exhibit 10A appear to have been made by multiple individuals, and the authorship of many of the notations is not noted o t dcm n T eU drge' i et ao i o e cn cn,e n h ou et h ne i ds n sgt n n l d ot t g ither directly or e . sn v i i vv ai through other members of the defense team, numerous current and former employees from both the Houston and New York offices. The investigation of the hand-printing on a document seven years later was both difficult and time-consuming. The Undersigned was able to identify the author of some of the hand-printing by early June, but the Undersigned was not then able to determine the authorship of all of it, and certainly not the hand-printing that the Undersigned now believes is Ms. Eskola' s . 12. By way of example of the difficulties involved, the 041 team from the Houston

office that served plaintiffs departed Goldman Sachs for Morgan Stanley in year 2000. Several m m e o t t em w r dpsdb p i is cusl n w r ual t i n the e br f h t s a a e eoe y ln f ' one ad e nb o d t e a tf e e e ify author(s) of various hand-printing in Exhibit 10A; the Undersigned had previously made the same inquiries with the same results. The Undersigned also represents to the Court that he made inquiry of several other individuals, most of whom are no longer employed by Goldman, Sachs, who worked with Team 041 at or near the relevant time, seeking the identities of various team members and assistants and whether these individuals recognized the hand-printing. These efforts occurred over several months, and finally resulted in an identification of Ms. Eskola, who

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was a clerical assistant for Team 041 for a brief period of time, and confirmation of her i o e eti A gs C n a t t bsl s aeao b p i is cusl t n l m n n uut vv . ot r o h ae s lgt n y ln f ' one h ry e e l i a tf , e Undersigned represents that he investigated the matter in good faith. D. The Request For Forthwith Hearing. 12. The Chambers of Magistrate Judge Boland has offered the following dates and

times for hearing before the noticed date and time for deposition: September 1 (afternoon); September 7 at 3:00 p.m.; and September 9 at 3:30 or 4:00 p.m. As the email in Attachment B so st s dt ad i e w rcm ui t tp i iscusl rm t a er e t hw , ee a s n t s e o m n a d o ln f 'one po p y f re i . h e m e ce a tf , l t cp 13. T ee a t fcwt p i is cusl hw t t ln f 'l t e sl o h m i r f i ln f ' one so s h p i is a r ua t l a i h a tf a a tf s f

cooperate in the scheduling of the deposition of Ms. Eskola was communicated at 3:48 p.m. on August 30. Fourteen (14) minutes later, at 4:02 p.m. that day, the Undersigned communicated the availability for hearing provided by JudeB l dsca br No response has been g o n' hm e . a s received from plaintiffs as of the time for filing of the Motion. 14. As plaintiffs know, Judge Boland will not schedule a hearing, without a written

motion, unless both parties agree. Plaintiffs have refused to respond, thereby frustrating the scheduling of a hearing and the resolution of this matter. WHEREFORE, the Named Defendants seek the following: A. Referral of this Motion to Magistrate Judge Boland for expedited and forthwith

consideration and resolution, if the earlier referral orders do not include the instant Motion. B. Forthwith hearing and consideration of the instant Motion at the earliest possible

dtbfrt Sp m e1 dtnte fr . so 'dpsi . a e eh et br 2 a o cd o MsEkl s eoio e o e e e i a tn

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C.

Upon consideration, entry of an Order allowing the deposition of Ms. Eskola to

proceed on September 12, 2005, without threat of a motion for protective order from plaintiffs. D. argument. Such other relief as the Court may find just and appropriate given the record and

DATED: August 31, 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 August 31, 2005, I electronically filed the foregoing THE N ME D F N A T ' X E I E MO I NR G R I GD P ST O O A D E E D N SE P DT D TO E A D N E O II N F KATHLEEN ESKOLA 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