Free Declaration - District Court of Delaware - Delaware

n Case 1:04-cv-01266-SLR Document 120-6 Filed 05/24/2005 Page 1 of 4

" Case 1 :04-cv-01266-SLR Document 120-6 Filed 05/24/2005 Page 2 of 4
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Via Emait and Fax
Russetl C. Siiberglied
Richards, Layton & Finger
One Rodney Square
920 North King Street
Wilmington, Delaware t98{)t
? Re: Telegiobe v. BCE — Discovery Issues
Dear Russeii:
We are in receipt of sour letter dated Aprii 20, 2005 regarding the various issues
we raised concerning the Debtors‘ ef`f`orts to preserve e-data relating to the claims they have
made in this iitigation.
Surplus Comguters
With respect to the four desktops that you claim were assigned to EP empioyees, it
is not at ati self-evident that those machines would not have infomation reiatirtg to the Debtors’
etrorts to preserve documents and computer equipment in 2002. Therefore, we ask that those
machines be searched for such information. we also reiterate our request made two months ago
(and repeatedly since then) that you inform us whether those computers represent the entire
universe of personai computers that were "1e;ftove.r" at the Debtors following Aprii ,24, 2002 (gag
Cooke Tr. at 97), and whether a tog or record was ever prepared regarding such "ieftover”
computers.
_ Your statement that °fit is not known whether there is any data at aIl*’ on the "H`P
Kyak Pentium II" is not sufficient. We ask that you promptiy ascertain whether any such. data.
exists and if it does, conduct a search for any infomation responsive to our discovery requests.
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Sheermnn & Sterling LLP is ¤ limited fiobitiry partnership organized in the United Stores under
the fmvs of the Stun: of Delaware. which laws limit the personal ilability ofpartnenv.
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' Case 1 :04-cv-01266-SLR Document 120-6 Filed 05/24/2005 Page 3 of 4
Russell C. Sitbergiied
April 24. 2005
i Page 2
With respect to the three Deli Pentium II desktop computers that "are betieved to
have been re—im·aged in October of 2002,” piease confirm whether this is in fact what happened,
and if so, please explain why this re—imaging took place aher the Debtors became aware ofthe
existence of possible claims against BCE. Describe with specificity what efforts were made to
preserve any information stored on those machines prior to the redmeging. .
· Finally, it is not sufficient simply to notify us that the five Latitude laptops "can
be searched? Four ofthe individuals to whom those laptops were assigned are key individuals
in this case (i.e. Mongrain, Eakin, Bustamante and Brunette), whose e-data we requested from
you over two mouths ago, and that you had agreed to provide. We request that those laptops be
searched and that we be provided with the responsive e»data of those Four individuals.
Comguters Acquired by Emgloyees
You have not yet responded tothe question of what efforts, if any, were
undertaken by the Debtors to preserve the infomation stored on the computers of"I`elegiobe’s
employees before they were allowed to leave with their computers.
lu your letter, you state that there was certain unspecified *`limited local storage
space" on the hard drives of the custodians, and that they were "genera.ily not given instruction
on how to save data to their local memory, or hard drives." The mere fact that thousands of
E Telegiobe employees elected to acquire those computers for their persona! use demonstrates,
however, that those employees had the ability to store data on those computers and knew bow to
do it. You also state vaguely that the computers were “apparently couiigured" to make saving
locally more difficult. We do not believe that this supposition would render unnecessary s
search for dats on those computers.
Finally, the Fact that the Bankruptcy Court approved the sate of these computers
and that BCE did not object is beside the point. The Debtors were under an obligation to
preserve evidence once they became on notice ofthe existence of their alleged claims against
BCE and others. The Bankruptcy Court did not sbsolve the Debtors of their continuing
obligation.
Servers That Were Sold
You state that the index regarding the servers that the Debtors scid to Cerberus is
unavailable, and you express a “belief" that the index may be at Cerberus. The sate ofthe
Debtors‘ core business to Cerberus occurred months after the Debtors became on notice ofthe
existence of possible claims against BCE. We expect that you wifi obtain a copy of the index
from Cerberus- immediately and produce it.
Outstanding Iliscegegg Issue
In Defendants Second Request for Productions oflbocumeets, we requested that
you produce a copy ofthe transcripts ofthe Ve.rTec arbitration,. all awards and orders issued in
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I Case 1:04-cv-01266-SLR Document 120-6 Filed 05/24/2005 Page 4 of 4
Russell C. Silberglied
April 24, 2005
l Page 3
that arbitration, and all documents submitted to the arbitral tribunal by the parties to the
arbitration. Ori January 26, 2005, you objected to our request on the grounds that the requested
infomation was subject to a Contidentiality Agreement. with Var'l`ec or was otherwise
privileged, and you stated that Var'l`ec may move for a protective order. Those objections no
longer have any basis: (t) VarTee has not moved for a protective order; (2) the documents
sought bythe defendants were shared with the arbitration tribunal and thus are not privileged,
and (3) a confidentiality stipulation is in place in this case. Accordingly, please produce those
documents immediately.
Sincerely. x
4
( Daniel Schimmel
cc: John P. Amato, Esq.
4 Gregory V. Varailo, Esq.
ii C. Malcolm Cochran, IV
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