Free Motion for Leave - District Court of Colorado - Colorado

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

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Filed 07/26/2005

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Malik M. Hasan, M.D., et al. v. Goldman Sachs 1998 Exchange Place Fund, LP, et al.

EXHIBIT A to T EN ME D F N A T ' H A D EE D N S MOTION FOR LEAVE TO FILE SURREPLY

T e a d e n a t S relt Pa tf Moi f Order h N me D f d ns urpy o l nis t n or e ' i f' o Barring Use of Transcript of Examination of Malik M. Hasan

EXHIBIT A 04-cv-1225-MSK-BNB (Consolidated with 04-cv-1226-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 SURREPLY T P A N IF ' T O F RO D R O L I T F S MO I N O R E BARRING USE OF TRANSCRIPT OF EXAMINATION OF MALIK M. HASAN The Named Defendants respectfully submit this brief surreply to plaintiffs' R py In " el S pot fMo o fr re B rn U e f r sr t f xm nt no MakM. aa' uprO ` t n o O dr a i s o Ta c p o E a i i f l i rg n i ao i H sn" ( el ) " py (Doc. No. 158) t cr cdl e ty ied g te eto p i iscusl R " o or t ebr e m s ai s t n f ln f ' oneand e i al l n am s a tf address new argument. 1. Plaintiffs mislead the Court about the Nam dD f dn ' epnet the meet e e nat r os o e s s

and confer request concerning depositions. Plaintiffs attach email to their Reply to falsely accuse the Named Defendants of failing the meet and confer requirements of D.C.COLO.LCivR

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30.1(B). (See Reply Att. A.) However, the Named Defendants advise the Court that they not only conducted a meet and confer by email, but the undersigned personally met face-to-face with p i is cuslt d cs dpsi sa t cnl i o t 4-minute Perry Allen ln f ' one o i us eoio t h oc s n f h 5 a tf s tn e uo e deposition on May 17, 2005. The Named Defendants attach hereto at Tab A their responsive emails showing compliance with the meet and confer requirement. We also note that the entire issue raised by plaintiffs is a charade that has nothing to do with the ability to use rH sns D . aa' deposition admissions. 2. Plaintiffs assert (Reply ¶ 6) that the parties must not have agreed to extend the

seven-hour limit for Dr. Hasan because the Named Defendants did not seek to enforce any such agreement during the deposition. An agreement and the decision whether to enforce it are two different things. The emails say what they say, and they indisputably show an agreement to allow for more than seven hours. Plaintiffs do not contend otherwise. Instead, pln f ' a tf i is counsel speculates about what the private conversation among defense counsel may have been w e p i is cusl rc anucdt t eadh cet e w l n ot the hn ln f ' one Me i none h h n i ln w r a i u of a tf rk a s i e kg deposition after seven hours; he guesses wrong, of course. What occurred is this: The

Undersigned persuaded Mr. Gitter that it was not worth the time and inconvenience to defense counsel and others to try to a u r i ay i t iaoapsi o p i iscusln r e ao l wt h r t nl oio f ln f ' onead g tn l h e ri tn a tf to seek a forthwith hearing with the Court on a Friday afternoon before the Memorial Day weekend (which is when p i iscuslhet e t w l ot We simply chose to finish ln f ' onet a nd o a u a tf r e k ). the examination. The broader showing made by the pre-deposition emails i t t ln f ' s h p i is a a tf counsel, having agreed to more than seven hours as the email shows, deliberately chose not to cross as a tactical ploy and now seeks to cover it up.

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3.

Attempting a substantive argument in favor of excluding Dr. H snset oy aa' t i n, sm

plaintiffs argue in their Reply, for the first time without legal support, that FRE 106 requires the Court to disregard the deposition transcript at trial. (Reply at ¶ 4.) Rule 106 states the rule of completeness; it allows for the presentation and admission of anything from a document that is needed to fairly present that which was read or offered from the document. The point is that the material offered by way of Rule 106 has to be in the document, or here the transcript. The rule of completeness cannot be used to keep out the contents of a document or a transcript because some other party wished that the document or transcript contained something more or different. Think of the complications if that were possible. Dr. Hasan can try to explain his testimonial admissions at trial. 4. Plaintiffs baldly assert in their Reply that the Named Defendants engaged in

" d a ad"neesr" igt nb deposing certain former employees and agents of Dr. r i l n uncs y li i y ac" a t ao Hasan for trial on arbitration. (Reply at ¶¶ 2-3.) None of this is relevant to the issue presented by the Motion and or the legal propositions that the Court noted at the June 16 hearing would apply to the Motion.Iiytnt r f ln f ' ha so .Iicm so h , e a so ts eao e o p i iscep ht fto e t t sw cn hw h a tf s i that each of the witnesses deposed by the Named Defendants was listed by plaintiffs in their disclosures and in response to a prior motion to change venue, and each was represented to be a person with knowledge. If there is fault, it is plaintiffs who misled the Court and the defendants with overbroad, vague, and meaningless disclosures. In any event, the undersigned personally took these depositions, and all of them were conducted quickly. 5. We o ,nc s g t t ln f ' one f l t adesh C ut epes nt i l i ,h p i is cuslae o dr t ors xr e o n a a tf id s e ' s

observation at the June 16 conference t t rH sns eoio t t h D . aa'dpsi e i a t n smony contains admissions

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that may be offered. Pa tf failure to acknowledge and address this legal proposition ­and ln f ' i is their focus on absolutely unrelated, collateral, and misleading claims ­warrants the sanctions requested earlier in the response. Wea ont t tdsi a t b s r bu D . aa' l o h , ep e l h l t aot rH sns s e a t l e ue "pot i " o"or t t deposition record, the time has come and gone for Dr. Hasan to opr n y t cr c h ut e" e make any amendments or corrections. His 30-days to do so expired no later than July 6, 2005. Dr. Hasan submitted no corrections and made no request to extend the time period. By operation of the Federal Rules, the transcript of D . aa'dpsi t t oys o de e cr cas rH sns eoio e i n inw em d or t t n sm e recorded, and apparently he agrees, notwithstanding his cusl c ims to the contrary. one s l ' a

DATED: July 26, 2005

Respectfully submitted,

s/Bruce A. Featherstone Bruce A. Featherstone Matthew D. Collins Kenneth B. Thomson 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] 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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TAB A

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