Free Motion to Compel - District Court of Colorado - Colorado

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

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Filed 07/26/2005

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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 ' H A D E E D N S MOTION TO COMPEL ACCESS TO DOCUMENTS FOR NONDESTRUCTIVE INSPECTION AND TESTING Request for Expedited Oral Hearing and Consideration

Pursuant to D.C.COLO.LCivR 7.1(C), the Named Defendants move, on an expedited basis, for an order compelling plaintiffs to allow the Named Defendants to have their retained and experienced document examiner, Mr. Donald J. Vacca, conduct certain nondestructive inspections and testing of certain original dcm n i p i is cs d a Mr V ca ou et n ln f ' ut y t . ac' s a tf o s laboratory and office in Battlement Mesa, Colorado. The Named Defendants request a brief oral hearing with the Court in order to expedite

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the resolution of this motion. Expedited treatment is requested because the parties are within 60 days of trial. In support of this motion, the Named Defendants state: 1. The Court has set a two-day bench trial on arbitrability for September 21-22,

2005. Witness and exhibit lists for trial are due to the Court by September 19, 2005. Discovery is to close by September 12, 2005. (Doc. No. 151.) 2. The Named Defendants have retained and disclosed Don Vacca as an expert

witness at that trial. Mr. Vacca is a long-time and experienced document examiner, who has consulted and/or testified as such in numerous cases and other matters in Colorado. Mr. Vacca was formerly a document examiner for the Denver Police Department. His resume of experience is attached hereto at Tab A and was first poi d bu 3 dy ao o ln f 'o rv e aot0 as g t p i iscunsel. d a tf 3. In this case, Mr. Vacca has already produced a report, dated July 11, 2005,

regarding opinions he has formed as a result of certain inspections of certain documents at issue in the September trial. That report was delivered to plaintiffs on July 11, 2005. That report does not concern the specific documents that are the subject of this motion. 4. In the course of discovery for the September trial, and in response to document

requests from the Named Defendants, plaintiffs produced certain original documents from their files. As a result of the discovery evidence to date, the Named Defendants have determined that they wish to have Mr. Vacca conduct certain nondestructive inspections and testing of 11 such documents. The original documents that are the suj t fh m t n " e uj t ou et ) b co t s o o ( h sb cdcm n " e i i t e s are,r e , ct at of e f ln f 'onei D nead r i n f d follows: o w r l a d th fc o p i iscusln evrn a d ti as eo e e i a tf e e ie A. September 18, 1998 letter from Goldman, Sachs & Co. to Dr. Malik Hasan (HASAN 1472);

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B. Greene Street 1998 Exchange Fund, L.P. Executive Summary (HASAN 02470268); C. Greene Street 1998 Exchange Fund, L.P. Private Placement Memorandum (HASAN 0168-0246); D. Greene Street 1998 Exchange Fund, L.P. Amended And Restated Agreements of Limited Partnership (HASAN 0046-0125; and HASAN 1527-1606); E. Goldman Sachs 1999 Exchange Place Fund, L.P. Private Placement Memorandum (HASAN 0527-0615; and HASAN 0616-0704); F. Goldman Sachs 1999 Exchange Place Fund, L.P. Form of Limited Partnership Agreement (HASAN 0805-0853; and HASAN 0854-0901); and G. Goldman Sachs 1999 Exchange Place Fund, L.P. Subscription Booklet (HASAN 0705-0758; and HASAN 1144-1198). 5. O Jl 1,20,t udrge w o t p i is cuslr usn n u 1 05 h ne i d rt o ln f ' one e et g y e sn e a tf q i

inspection of these original documents. That letter is attached hereto at Tab B. The letter requests access at a mutually convenient date; it requests access for Mr. Vacca to conduct nondestructive inspections and tests at his laboratory/office, using his own equipment; it offers plaintiffs the opportunity to witness the inspections; and it invites plaintiffs to propose any other reasonable terms. 6. Plaintiffs failed to respond to this request for more than one week. Defense

counsel on several occasions has sought a final response. Plaintiffs have to date failed to grant access and have failed to articulate any reasoned basis for denying the Named Defendants the opportunity to have Mr. Vacca inspect and test the specified documents in his laboratory/office with his own equipment. Pa tf inconclusive responses have only further delayed the ln f ' i is

conduct of MrV ca legitimate inspections. . ac' s 7. following: a. Mr. Vacca has equipment in his laboratory/office in Battlement Mesa that he regularly uses and maintains for his document examinations that he wishes to use to inspect the After consultation with Mr. Vacca, the undersigned represents to the Court the

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subject documents. He proposes to use: an indentation materializer from Kinderprint; and a video spectral analyzer. b. Mr. Vacca is trained and experienced in the use of this equipment. His July 11 disclosure describes other documents in this case that he has inspected using this equipment. c. MrV ca equipment cannot be reasonably, safely, or conveniently moved to . ac' s Denver for purpose of the intended inspections. On a prior occasion when Mr. Vacca attempted to move his equipment, it was damaged and had to be shipped to Sweden for repair. d. Mr. Vacca is not aware that he can gain reasonable and timely access to comparable, trustworthy equipment in Denver. Mr. Vacca is aware that the Denver Police Department and the Colorado Bureau of Investigation have or had comparable equipment, but he understands, from prior communications, that such departments will not allow access to their equipment for purpose of private investigations, as is proposed here. e. Mr. Vacca has considerable experience over many years with the equipment he intends to use and the inspections and tests he intends to make of the subject documents. Mr. Vacca advises that the intended inspections and testing are safe and nondestructive. f. Mr. Vacca has procedures he regularly employs to reasonably protect documents entrusted to him for inspection and testing. g. Mr. Vacca has been advised of the importance of preserving the integrity of the subject documents and has acknowledged that he can and will do so. h. It is believed that if the documents are delivered to Mr. Vacca early in the day, the inspections can be concluded in one day. A second day may be required if Mr V ca . ac' s inspections and testing are not started until later in the first day.

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8.

The subject documents are relevant to the ongoing proceeding and most are likely

to be used or referenced in the September trial. The subject documents were produced by plaintiffs in response to discovery limited to the September trial. Mr. Vacca' inspections s require access to the originals produced. He intends to inspect for physical integrity and/or handwriting indentations. The inspections seek discovery of information relevant to the delivery, use, and handling of these documents. Mr. Vacca' proposed inspections can be conducted s reasonably, safely and efficiently, at his laboratory/office, as we have shown. 9. The Named Defendants request expedited consideration at an oral hearing because

there are fewer than 60 days to actual trial. The Named Defendants tried to resolve the matter cooperatively, first by letter, on July 11 but have had no success. 10. Pursuant to D.C.COLO.LCivR 7.1(A), counsel for the Named Defendants has

conferred with counsel for plaintiffs regarding access to the subject documents. Notwithstanding several communications on the topic, plaintiffs have failed to allow access to the documents; have failed to propose any additional reasonable terms of access; and have failed to articulate any way in which the proposed request is unreasonable. By their conduct, plaintiffs have refused addl e t N m dD f dn 'eusfr ces n e yd h a e e nat r eto acs a e e s q .Counsel for defendants also attempted to confer with counsel for plaintiffs on July 26, 2005, regarding the request for expedited oral hearing and consideration o t s o o.Pa tf cusl fh m t n ln f ' oneresponded that he was unavailable i i i is at the time to confer regarding such request. As of the time of filing of this motion, counsel for p i ishd ntytcm ui t p i is ln f a o e o m n a d ln f 'position regarding the requested expedited a tf c e a tf treatment. 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.

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11.

A proposed form of order granting the relief requested is attached hereto at Tab C

for consideration and entry by the Court.

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 DEFENDA T ' MOTION TO COMPEL ACCESS TO DOCUMENTS FOR NS NONDESTRUCTIVE INSPECTION AND TESTING 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