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 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 MOTION TO SET DATE CERTAIN FOR EXPEDITED HEARING BEFORE THE HONORABLE BOYD N. BOLAND

The Named Defendants move to set a date certain for the hearing on their pending " Motion to Compel Access to Documents for Nondestructive Inspection and Testing" ( t n)fed July 26, 2005 (Doc. # 160). By memorandum, the Motion has been referred to " i" i Mo o , l the Honorable Boyd N. Boland. (Doc. #162.) The Named Defendants respectfully move for a hearing at any of the following dates and times: August 3 at 3:30 p.m. or August 5 at 1:30, 2:30, or 3:30 p.m. As grounds:

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

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1.

The Chambers of Magistrate Judge Boland gave the Named Defendants the

following dates and times for a hearing on the Motion: Monday, August 1: Wednesday, August 3: Friday, August 5: Wednesday, August 10: Tuesday, August 16: 10:00; 11:00; 1:30; 3:30; 4:00. 3:30. 1:30; 2:30; 3:30. 9:30. 8:30.

2.

Chambers asked that the Named Defendants communicate the dates and times to

plaintiffs' counsel to see if a consensual date could be arranged. 3. The Named Defendants communicated this availability to counsel for plaintiffs

four times in an effort to obtain a response: two emails; one telephone voicemail; and one fax letter. These communications are attached at Tab A (except the voicemail, which is referenced in the letter). 4. The Undersigned has a five-day jury trial before The Honorable John Kane,

beginning August 15, 2005. The Named Defendants have also sought access to the subject documents since July 11, 2005, and have yet to receive a meaningful response. Accordingly, the U drge r us dt t . rc, ln f ' one pick an early date, and indicated ne i d e et h MrMe i p i is cusl sn q e a r k a tf , that the dates of August 10 and 16 were unsatisfactory for defendants. 5. Mr Me i ' oe r pnse, to the fourth communication of the Named . rc s n e o rk s

Defendants, selected, naturally, August 10 and 16, the latest possible dates, the ones that create the most problems for the Undersigned, and the dates that delay as long as possible (one month or longer) resolu o o t s i u .MrMe i 'r pnes tce aT b .T e epne t n fh d pt i i s e . rc se os iaahd t a B h r os rk s t s does not claim Mr. Merrick is unavailable on any of the prior dates offered by the Court.

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

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6.

Respectfully, the Named Defendants have been improperly frustrated and delayed

in their efforts to obtain access to documents that have been produced by plaintiffs and thus are concededly relevant. MrMe i ' r pne os o c i uaaait o t ere dt . rc s e os de nt lm nvib i n h a i a s rk s a l ly e lr e and times. No good reason has been stated ­even as of today -- for the failure to make the documents available for nondestructive inspection and testing. In fact, a colleague of Mr.

Me i 'hswc cn c d h U drge aot ps b tp o e df dn ' xe t rc s a ti ot t t ne i d bu a os l r t se e nat epr o rk e ae e sn ie i e s t proceed with the inspection and testing. Mr. Merrick, though, has blocked that trip. And trial is set for September 21-22. 7. Wherefore, the Named Defendants request a setting for the hearing of August 3 or

5 dt adt e aaalo t C ut cl dr It C ut e t gat Merrick his , a s n i s vib n h ors a na fh orw r o r Mr. e m l e e ' e . e e n scheduling wishes, the Named Defendants, alternatively, request August 10. August 16 falls during the trial before Judge Kane.

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

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DATED: July 28, 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 July 28, 2005, I electronically filed the foregoing THE NAMED D F N A T 'MO I N T S T D T C R A N F R E P D T D H A I G EE D N S TO O E AE ETI O X E IE E RN BEFORE THE HONORABLE BOYD N. BOLAND 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