Free Motion for Miscellaneous Relief - 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 MOTION TO SET DEADLINE FOR D S L S R SF O P A N IF ' X E T IC O U E R M L I T F S E P R S OR ALTERNATIVELY FOR OTHER RELIEF Request for Expedited Oral Hearing and Consideration

The Named Goldman Sachs Defendants move, on an expedited basis, for an order setting a a cr ifrh d c sro t i n ts f ln f 'xe wt s stheir expert dt e a o t i l ue fh d ti o p i isepr i es , e tn e so e e ie a tf t n e opinions, and other materials required by Federal Rule 26. In the alternative, the Named Defendants move for an order precluding plaintiffs from offering any expert testimony at the trial on September 21-22, 2005.

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The Named Defendants request a brief oral hearing with the Court in order to expedite the resolution of this motion. In support of this motion, the Named Defendants state: 1. The Court has ordered and scheduled a two-day bench trial on the issue of

arbitrability for September 21-22, 2005. This trial date was re-sto p i is m t n f m e n ln f ' o o,r , a tf i o July 19-20, 2005. (Doc. No. 150.) The parties are to conclude discovery by September 12, 2005. The Court has not set any formal date for the disclosure of expert opinions. 2. On July 11, 2005, the Named Defendants disclosed opinions of their expert The expert

witness, document examiner J. Donald Vacca, Battlement Mesa, Colorado. disclosure was served by hand-delivery that date. 3.

By interrogatories dated June 1, 2005, plaintiffs were required to identify any

experts and furnish a report of such experts to defendants by July 1, 2005. On July 13, 2005, plaintiffs submitted an updated response to certain interrogatories of the Named Defendants, a copy of which is attached at Tab A. In that response, plaintiffs disclosed that they may call at the September trial expert witnesses that fall in two categories: a. Experts to offer [undisclosed] opinions in printing and binding ( ln f ' ae " a tf csp i is in-ci oi os) h fp i " e nn ; b. Experts to rebut the opinions of the Named De nat epr ( ln f ' f dn ' xe s " a tf e s t p i is r u aoi os) e tl p i " bt nn . 4. There is no order of the court that has set a deadline for the disclosure of

p i is epr wt s sadt i oi os T eN m dD f dn hv r us do ln f ' xe i es n h r p i . h a e e nat ae e et f a tf t n e e nn e s q e

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p i is cuslhth pre cnesay e a ed n fr i l ue f ln f ' xe ln f ' one t t a i osnul st dal e o d c sr o p i is epr a tf a e ts l i so a tf t reports, but such communications have failed to reach an agreement. 5. The first category of expert opinion contemplated and disclosed by plaintiffs is in These case-in-chief opinions do not depend on any expert

support of their case-in-chief.

opinions to be offered by the Named Defendants. A date for such disclosures can be set now. 6. The second category of expert opinion contemplated by plaintiffs is to rebut

opinions of defense experts. On July 11, 2005, the Named Defendants disclosed the identity and opinions for trial of J. Donald Vacca, their expert document examiner. Thus, a date for any such r u aoi osrm ay ln f ' xe cn e tl p i f bt n n o n p i isepr a now be set. a tf t 7. At the present time, the Named Defendants do not contemplate calling any

additional expert witness for the September trial. 8. Pa tf m s r et ln f ' ote n proposal for the disclosures of the expert opinions they i is c

intend to offer is unworkable. It fails to set any date certain. It also fails to ensure that the Named Defendants will have sufficient opportunity to review any plaintiff expert disclosures, prepa t r pn t t m adt t edpsi d cvr o aysc epr. Pa tf r o e od o h , n o a eoio i oe f n uh xe s ln f ' e s e k tn s y t i is most recent proposal depends on some further work that Mr. Vacca may perform on documents that are not the subject of his July 11 disclosure and may or may not result in a further disclosure frr l T afr e w r t t . ac m ypr r id cs dm r fl i t " a e o ta htut r ok h MrV ca a e om s i us oe u y n h N m d i. h a f s e l e D f dn 'Mo o t C m e A cs t D cm n frN net cv Iset n ad e nat e s t n o o pl ces o ou et o odsut e npco n i s r i i T sn,dt adfe t s a e a .N nt l sp i isl t rpsl et g a d n id h sm dt oe e s ln f 'a pooaassumes that Mr. i " e l i e h e , a tf s Vacca will supplement his July 11 disclosures (the Named Defendants have not said that he will and do not know because the inspection has been blocked) and thus proposes to set the disclosure

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date for any and all expert opinions to be offered by plaintiffs at 25 days after Mr. Vacca makes the supplemental disclosure that plaintiffs have conveniently assumed will be made. 9. This proposal is unreasonable and unworkable for several reasons. First, there is

no reasn t dl t d c sr o a o p i is epr oi osfra seu t e o o e y h i l ue f l f ln f ' xe p i a e so l a tf t nn o pcli av supplemental disclosure that may or may not be made. Plaintiffs can disclose now their case-inci oi os n ay eu a oi osoMrV ca Jl 1 d c sr There is no reason h f p i ad n r tl p i t . ac' uy 1 i l ue e nn bt nn s so . that these disclosures should be delayed for any supplemental disclosure that Mr. Vacca may make. Second, the Named Defendants have not determined that Mr. Vacca will make any supplemental disclosures, because he has not been allowed to conduct the further inspections and testing that have been requested. Third, plaintiffs themselves are delaying the access that the Named Defendants have requested for Mr. Vacca t cr i dcm n i p i is ps s o o e a ou et n ln f ' os s n tn s a tf ei so that Mr. Vacca can perform the further investigations that would allow the Named Defendants to determine whether there will be any supplemental disclosure from Mr. Vacca, thereby further psi bc t d c sr dal e o p i isoi osfr e pe d i df dn . To uh g ak h i l ue ed n fr ln f ' p i ,ut r r uin e nat n e so i a tf nn h j cg e s date, plaintiffs have denied or failed to permit MrV ca n t N m dD f dn ' . ac ad h a e e nat access to e e s the subject documents. The request of the Named Defendants is now the subject of another expedited motion to the court. If granted, and if Mr. Vacca is allowed access to the documents, his inspections may or may not result in a supplement. 10. In any event, the possibility of such a supplement from Mr. Vacca is no grounds

fr e y g ld c sr o ay p i s f ln f 'xe s Plaintiffs can now disclose their o dl i a i l ue fn oi o o p i isepr. a n l so nn a tf t case-in-chief opinions. Plaintiffs can now disclose their rebuttal opinions in response to Mr. V ca Jl 1 d c sr T e npco t t . ac m ypr r o p i is oi nl ac' u 1 i l ue h i et n h MrV ca a e om n ln f ' r i s y so . s i a f a tf ga

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documents does not affect either of these disclosur b p i is Mr V ca Jl 1 e y ln f . s a tf . ac' u 1 s y disclosure relates to his inspections and testing of certain documents specifically identified in that report. The plaintiff original documents that the Named Defendants seek to have Mr. Vacca inspect are different documents and any further opinions that he may have will relate to those specific documents, not the documents that are the subject of his July 11 disclosure. 11. Therefore, the Named Defendants request an expedited order setting a date certain

for plaintiffs to disclose any case-in-chief opinions they intend to offer and any opinions they intend to offer to rebut the July 11 disclosed opinions of Mr. V ca Pa tf t m e e ac. ln f ' h sl s i is e v proposed a response in 25 days. Using this as a benchmark, the Named Defendants propose that the Court order that plaintiffs disclose all such expert opinions by Wednesday, August 10, 2005, which is more than 25 days from July 11 (which benchmark, by the way, is even more lenient when applied fr ln f 'ae o p i iscs-in-chief opinions). a tf 12. If Mr. Vacca is allowed access to the certain original documents i p i is n ln f ' a tf

ps s o, usatot o e m t n adia ar u o MrV ca i os s n pr n t h t r o o, n f s e l f . ac' n ei u e h i st s spection of those documents the Named Defendants wish to supplement his disclosure, then the dates for such supplementation and any response thereto can be worked out in connection with any resolution of the other motion. The Named Defendants have requested access to these other documents since July 11, 2005, to no avail. 13. In the alternative, because plaintiffs have failed to propose any meaningful

deadline for the disclosure of their expert opinions, including those that have nothing to do with any subsequent inspection by Mr. Vacca, the Named Defendants seek to preclude plaintiffs from calling any expert for opinion testimony at Sp m e ta Pa tf cr n pooait th et brr l ln f ' ur t rpslso e e i. i is e

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make all their expert disclosures due 25 days after any supplemental opinion that Mr. Vacca might issue based on an inspection of plaintiff original documents that plaintiffs have blocked and refused to permit, requiring the Named Defendants to file a motion. Pa tf pooaia ln f ' rpsls i is cynical delaying tactic, not made cooperatively or in good faith. 14. The Named Defendants request expedited oral hearing and consideration of this

motion because there are fewer than 60 days to trial, and disclosures need to be made in a timely manner. 15. Pursuant to D.C.COLO.LCivR 7.1(A), before filing this motion, counsel for

defendants has conferred with counsel for plaintiffs regarding the setting of dates for the Rule 26 d c sr b p i isepr. h e otw r b tehn cne ne n e a, involving i l ue y ln f ' xe s T e f r e ye poe of ec ad m i so s a tf t f s e l r l the undersigned. These efforts failed. Counsel for defendants also attempted to confer with counsel for plaintiffs on July 26, 2005 regarding the request for expedited oral hearing and consideration of this motion. Plaintiffs' counsel responded that he was unavailable at the time to confer regarding such request. As of the time of filing of this motion, counsel for plaintiffs had not yet communicated any further position regarding expedited hearing and consideration of this motion. In any event, the issues presented are common and straight-forward. An expedited response should be easy to submit in writing or present at oral hearing. 16. A proposed form of order granting the relief requested is attached hereto at Tab B

for consideration and entry by the Court.

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DATED: July 26, 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 26, 2005, I electronically filed the foregoing THE NAMED D F N A T ' MO I N T S T D A L N F R D S L S R S F O EE D N S TO O E E D IE O IC O U E R M P A N IF ' X E T O A T R A I E Y FOR OTHER RELIEF with the Clerk L I TF S E P R S R L E N TV L 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