Free Reply to Response to Motion - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Hon. Marcia S. Krieger Civil Action No. 04-MK-1225 (BNB) (consolidated with 04-MK-1226 (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.

REPLY IN SUPPORT OF "MOTION FOR ORDER BARRING USE OF TRANSCRIPT OF EXAMINATION OF MALIK M. HASAN"

COME NOW Plaintiffs, Malik M. Hasan and Seeme G. Hasan (collectively referred to as the "Hasans"), through their undersigned counsel, Senn · Visciano · Kirschenbaum · Merrick P.C., and respectfully submit this Reply in support of their MOTION FOR ORDER BARRING USE OF TRANSCIPT OF EXAMINATION OF MALIK M. HASAN filed with the Court on June 10, 2005 (the "Motion to Bar").

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1.

The Goldman Sachs Defendants' Response to the Motion to

Bar argues that the relief sought in the motion should be denied for three reasons. They assert that: (a) Dr. Hasan's testimony constitutes, in its entirety, an "admission of a party opponent," admissible as non-hearsay under F.R.E. 801(d)(2) and/or as impeachment under F.R.E. 613(b), Response at pp. 4-5, (b) the seven hour limit of C.R.C.P. 30(d)(2) applies only to deposition direct examination, id. at pp. 5-6, and (c) the Hasans were not denied an opportunity to cross-examine Dr. Hasan at his deposition. Id. at 6-10. 2. The context of the Motion to Bar is important because it

reveals the radical nature of the litigation strategy employed by the Goldman Sachs Defendants. One must recall that for purposes of this round of discovery, the only (very narrow) issue is whether the Hasans entered into a binding agreement to arbitrate the disputes alleged in the Second Amended Complaint. 3. The Goldman Sachs Defendants chose to come out of the This

box inflating the litigation tab in numerous, meaningless depositions.1

profligate approach was adopted over the protest of the Hasans' counsel urging that the parties review D.C.COLO.LCivR 30.1B, and discuss the paucity of meaningful evidence held by the targets of the Goldman Sachs Defendants' deposition subpoenas. See Attachment A hereto. Undaunted, the Goldman Sachs Defendants sought to further burden Malik Hasan by subjecting him to a

Prior to deposing Malik Hasan, the Goldman Sachs Defendants insisted on conducting the depositions of office personnel (Cathy Snell and Shelly Mattie) who had worked for Dr. Hasan's previous employer, Dr. Hasan's former personal assistant (Natalie Prince), the Hasans' driver (Perry Allen), the Hasans' accountants (Deloitte & Touche, LLP), and finally Seeme Hasan. In addition, a deposition subpoena duces tecum was served by the Goldman Sachs Defendants' on Health Net, Inc., a successor to Dr. Hasan's prior employer, which deposition has not yet been conducted.

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ponderous video deposition that the Goldman Sachs Defendants concede would have continued on and on had the Hasans' counsel not invoked Fed.R.Civ.P. 30(d)(2).2 4. The Importance of F.R.E. 106. First, the Goldman Sachs

Defendants point to F.R.E. 801(d)(2) and F.R.E. 613(b) for the proposition that the deposition transcript is an admissible "statement" within the meaning of the federal rules of evidence. F.R.E. 801(a) defines a "statement" as an assertion "if it is intended by the person as an assertion."3 Of course, the Goldman Sachs Defendants ignore that the federal rules of evidence also provide, in Rule 106: When a ... recorded statement, or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other recorded statement which ought in fairness to be considered contemporaneously with it. One obvious purpose of Rule 106 is to avoid misleading the finder of fact that a declarant did not contemporaneously clarify, explain or supplement a statement that might otherwise be characterized by a litigation adversary as prejudicial to the declarant. And cross-examination affords the witness an opportunity to

clarify, explain or supplement his/her testimony on direct examination. In this case, however, cross-examination--so that F.R.E. 106 might be invoked at trial-could not be undertaken without subjecting Dr. Hasan to additional protracted

Plaintiffs offer to furnish the Court with a video copy of this incredibly turgid examination if that would aid the Court. And, as the Goldman Sachs Defendants' Response states, "Dr. Hasan's examination ... was effectively terminated by plaintiffs' counsel after seven hours in the middle of a line of examination." Response at p. 8. Absent an opportunity for clarification, explanation or supplementation on crossexamination it cannot be said that a witness intends incomplete testimony (that furnished on direct examination) to be an "assertion" within the meaning of F.R.E. 801(a).
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and wearisome (re-direct) examination by counsel for the Goldman Sachs Defendants. This mocks Fed.R.Civ.P. 30(d)(2). 5. The Seven Hour Limit Is Not Limited to Direct Examination.

Second, the Goldman Sachs Defendants urge that the presumptive seven hour limit contained in Fed.R.Civ.P. 30(d)(2) applies only to deposition direct examination. The Advisory Committee Notes accompanying the 2000

Amendment to Rule 30(d)(2) belie this assertion. The Notes provide, in pertinent part: Paragraph (2) imposes a presumptive durational limitation of one day of seven hours for any deposition. The Committee has been informed that overlong depositions can result in undue costs and delays ... The presumptive duration may be extended ... Absent agreement a court order is required. The party seeking a court order to extend the examination ... is expected to show good cause to justify such an order. [C]ourts asked to order an extension--might consider a variety of factors. For example, ... should the lawyer for the witness want to examine the witness, that may require additional time. Plaintiffs have always sought to accommodate the legitimate interests of all parties. Initially, Plaintiffs proposed either to have Dr. Hasan: (i) submit to oral cross-examination without re-direct, or (ii) provide deposition cross-examination in written affidavit form. See Attachment C to the Motion to Bar. Under either of these alternatives the Goldman Sachs Defendants

preserved their right to petition this Court--upon a good cause showing--for additional deposition time with Dr. Hasan. Both alternatives were flatly rejected by the Goldman Sachs Defendants.

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More recently, the Hasans proposed to dispense with deposition cross-examination of Dr. Hasan provided that the Goldman Sachs Defendants would agree not to argue before this Court in September that Dr. Hasan should have clarified, explained and/or supplemented his deposition testimony on crossexamination. See June 17, 2005 e-mail appended hereto as Attachment B. This proposal was similarly flatly reject by the Goldman Sachs Defendants. 6. Plaintiffs Were Denied the Right of Cross-Examination.

Finally, the Goldman Sachs Defendants argue that the Hasans were not denied the right of deposition cross-examination. This claim is trivial because exercise of the right of cross-examination required the Hasans to relinquish the Fed.R.Civ.P. 30(d)(2) protection against continuing a laborious and oppressive deposition such as that visited upon Dr. Hasan. Retreating, the Goldman Sachs Defendants also argue that the Hasans waived the protections of Fed.R.Civ.P. 30(d)(2) by failing to alert counsel for the Goldman Sachs Defendants during the direct examination of Dr. Hasan Rule 30(d)(2) applied. Response at 8-9. This contention borders on silly. No authority is cited for the proposition that failing to advise an adverse party--during a deposition--that the federal rules of civil procedure governing depositions apply constitutes a waiver. Moreover, even if such a ficticious rule existed (which it does not), the transcript plainly shows that counsel for the Hasans did advise counsel for the Goldman Sachs Defendants during the direct examination that the protection of Rule 30(d)(2) would be invoked. Attachment A (p. 307 of the transcript). See Motion to Bar at

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Most disingenuously, the Goldman Sachs Defendants suggest that the Hasans reneged on an agreement between counsel that the deposition could extend beyond the seven hour limit. Response at 7 & n. 2. The Goldman Sachs Defendants know this to be untrue, and its falsity is readily apparent from the deposition transcript itself. When advised as to the contents of Fed.R.Civ.P. 30(d)(2), the Goldman Sachs Defendants New York counsel (who was conducting the deposition) indicated that he needed to confer with his Denver counsel to determine if there had been an agreement to extend the seven hour limit. Trans. of Depo. of M. Hasan at 307-08, attached hereto as Attachment C. New York counsel was obviously advised that there was no such agreement, and any argument at the deposition that there was an agreement was promptly dropped. New York counsel concluded the deposition after seven hours of

disorganized and duplicative questioning without ever claiming that there had been an agreement for more.

SUMMARY The Motion to Bar was filed (and continues to be pressed) in an effort to preserve the important rights of deposition cross-examination and the "completeness doctrine" encapsulated in F.R.E. 106. Mindful that the Court

instructed that every effort be made to resolve the dispute between counsel several reasonable alternatives have been advanced by the Hasans. Every

alternative has been categorically rejected by the Goldman Sachs Defendants without any counterproposal.

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WHEREFORE, the Hasans respectfully pray that this Court enter an Order directing that the examination of Malik M. Hasan conducted on May 2627, 2005 may not be used in any hearings, trials or other proceedings in this Court. Alternatively, the Hasans pray that this Court direct that the deposition cross-examination of Dr. Hasan be conducted in one of the two methods set forth in Attachment E appended to the Motion to Bar. Respectfully submitted this 21st day of July, 2005.

By: /s/ Glenn W. Merrick Glenn W. Merrick Lee Katherine Goldstein Senn · Visciano · Kirschenbaum · Merrick P.C. Suite 4300, 1801 California Street Denver, Colorado 80202 Telephone: (303) 298-1122 Facsimile: (303) 296-9101 Email: [email protected] Email: [email protected] ATTORNEYS FOR PLAINTIFFS MALIK M. HASAN, M.D. and SEEME G. HASAN

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CERTIFICATE OF SERVICE I hereby certify that on July 21, 2005, I electronically filed the foregoing REPLY IN SUPPORT OF "MOTION FOR ORDER BARRING USE OF TRANSCRIPT OF EXAMINATION OF MALIK M. HASAN" with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Bruce A. Featherstone, Esq. Featherstone DeSisto, LLP Suite 2400, 600 17th Street Denver, Colorado 80202 Max Gitter, Esq. Nancy I. Ruskin, Esq. Cleary, Gottlieb, Steen & Hamilton LLP One Liberty Plaza New York, New York 10006 Malik M. Hasan, M.D. Seeme G. Hasan P.O. Box 7935 Avon, Colorado 81620

By: /s/ Glenn W. Merrick Glenn W. Merrick Lee Katherine Goldstein Senn · Visciano · Kirschenbaum · Merrick P.C. Suite 4300, 1801 California Street Denver, Colorado 80202 Telephone: (303) 298-1122 Facsimile: (303) 296-9101 Email: [email protected] Email: [email protected]

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