Free Motion in Limine - District Court of Delaware - Delaware

Case 1:04-cv-01266-SLR Document 265-15 Filed 05/23/2006 Page 1 013

Case 1:04-cv-01266-SLR Document 265-15 Filed 05/23/2006 Page 2 of 3
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ATTORNEYS
Robert I. Malatak Direct Dial: (212) 478-73 i6
Email.- nm:/[email protected]
January I2, 2005
Via Facsimile and
First Class Mail
Daniel Schimmel, Esq.
Shearman 8; Sterling _
599 Lexington Avenue
New York, NY 10022-6069 _ ‘
Re: Teleglobe Communications Corp., et al. v. BCE Inc., et at'.
C.A. No. 04-CV-1266
Dear Mr. Schimmel:
As you know, we served subpoenas on the New York offices of Deloitte & Touche LLP
‘ (“Deloitte”’) and Osler, Hoskin & Harcourt LLP ("Osler") demanding their respective depositions
and the production of certain documents. Both Deloitte and Osler have objected to the
subpoenas on the grounds that the documents and information plaintiffs seek is not within their
possession, custody or control, but rather, within the possession, custody or control of their
respective Canadian affiliates.
We believe that Deloitte’s and Osler’s objections are without merit, and were raised
solely to obstruct the discovery to which plaintiffs are entitled, and we intend to directly address
the issue in due course. In the interim, we request that BCE contact Deloitte and Osler in the
United States and/or Canada to facilitate the discovery plaintiffs seek. As you are aware,
I Deloitte was BCE?s auditor during the relevant time period, and was, therefore, BCE’s agent.
Osler similarly acted as BCE’s agent in connection with its legal counsel concerning a March 7,
2002 request for a certain advance income tax ruling. In light of BCE principal/agency
relationship with Deloitte and Osler, BCE has the authority to direct them to comply, in all
respects, with the Committee’s subpoenas. The Committee hereby requests that BCE exercise __
said authority forthwith. We suggest that you contact the following, with whom we
communicated: Ken Fredeen, Esq., Deloitte’s General Counsel, at 1-416-874-3940, and George
I Wailand, Esq., of Cahill Gordon & Reindell LLP, Osler’s outside attorneys, at 212-701-3212.
The documents the Committee seeks from Deloitte and Osler are, in any event, subsumed
by the document requests -set forth in the Debtors’ First Request for Production of Documents
I . Directed to Defendant BCE, Inc., dated August 30, 2004 (the "Debtors’ Discovery Demands").
488 Madison Avenue •New York, NK I0022 •Ph0ne (212} 736-1000 • (212) 478-7200
. Fax (212) 478-7400 •Emczi/.· the/[email protected]

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Moreover, the Debtors’ Discovery Demands, as amplified by Brock E. Czeschirfs, of Richards,
Layton & Finger ("RLF"), November 9, 2004 letter to George Wade, of your office, broadly
defined "BCE" to include its "agents and representatives, and all persons acting or who have
acted on their behalf“, which necessarily includes Deloitte and Osler. Moreover, the Debtors’
Discovery Demands require BCE to produce all documents in its possession, custody or control,
which is defined as "actual possession by [BCE], actual possession by [BCE] with another or
constructive possession by [BCE] in that [BCE is] legally entitled or able to obtain actual
possession from another person,” for example, Deloitte and Osler. Thus, in responding to the
Debtors’ Discovery Demands, BCE should have produced responsive documents tirom Deloitte’s
. and Osler’s tiles. Please confirm whether BCE has indeed produced such documents. lf not, we
request that you immediately do so.
We also request that you provide us with infomation conceming the whereabouts of the
Canadian repository for Arthur Anderson LLP’s ("AA") files, and that you similarly direct the
administrator ofthe repository to produce, or otherwise make available to us, documents
responsive to the request set forth on the rider to the attached subpoena. As you know, AA was
Telegl0be`s auditor prior to Deloitte’s taking over the engagement in 2001.
l Please call me if you should have any questions.
Sincerel
. alatak [
RJM/asm
cc; Gregory V. Varallo, Esq.