Free Motion to Intervene - District Court of Delaware - Delaware

Case 1:04-cv—O1266-SLR Document 109 Filed 05/O9/2005 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
IN RE: §
§
TELEGLOBE COMMUNICATIONS § CASE NO. 02-11518 (MFW)
CORPORATION, ET AL., § (Jointly Administered)
§
DEBTORS. §

§
Teleglube USA Inc. et al., §
§
Plaintiff, §
§ CIV. ACTION NO. 04-1266 (SLR)
v. §
§
BCE Inc. et al., §
§
Defendants. §
NON-PARTY VARTEC TELECOM, INC.’S MOTION TO INTERVENE
FOR LIMITED PURPOSE AND APPLICATION FOR ORAL ARGUMENT
Pursuant to Federal Rule of Civil Procedure 24(ln), Non—Party VarTec Telecom, Inc.
("VarTec”), in support of its Motion to Intervene for Limited Purpose and Application for Oral
Argument, states the following:
I. BACKGROUND
l. On December 22, 2004, Defendants ("BCE") served Debtors ("Teleglobe") with
Defendants’ Second Request for Production of Documents and Directed to the Debtors (the
"Request"). The Request sought production from Teleglobe of numerous documents related to
an arbitration proceeding styled Teleglobe Telecom Corporation, et ol. v. Vr1rTec Telecom, Inc.,
et ol., No. 50 T 153 00025 04 (the "Arbitration"), including: ‘°(a) all arbitration awards and
orders issued by the arbitral tribunal, (b) the transcripts from all the arbitration hearings, (c) the
transcripts of all depositions of witnesses conducted in connection with the arbitration
$1.1 s29s0sv111ssv4.001

Case 1 :04-cv—01266-SLR Document 109 Filed 05/09/2005 Page 2 of 4
proceeding, (d) all exhibits introduced or marked at such depositions or at the arbitration
hearings, and (e) the pleadings, briefs, memorials, letters, or other documents submitted to the
arbitration tribunal by the parties to the arbitration proceeding?]
2. The vast majority of documents identified in the Request are subject to a
Confidentiality Agreement between VarTec and Teleglobe, and a large portion of the documents
are VarTec’s privileged and/or highly confidential documents produced under a finding of
common interest inthe Arbitration.
3. VarTec has an adversarial relationship with both patties to the litigation before
this Court. ln addition to VarTec’s arbitration proceeding against Teleglobe, VarTec and BCE
are currently adverse in a securities fraud litigation matter pending the United States District
Court for the District of Columbia.
4. Pursuant to the terms of the Confidentiality Agreement, Teleglobe sent VarTec a
copy of the Request on or around January ll, 2005. By letter dated January 18, 2005, VarTec
refused to consent to Teleglobe’s production of the documents identified in the Request.2
Teleglobe seryed its Response to Defendants’ Second Request for Production of Documents on
January 24, 2005, objecting to the Request in its entirety.3
5. VarTec has leamed from Teleglobe that the Court held a discovery conference in
this matter on April 25, 2005, in which the parties discussed the Request with the Court.
According to an April 26, 2005 letter from Teleglobe’s counsel to VarTec’s counsel, the Court
1 See Defendants’ Second Request for Production of Documents and Directed to the Debtors, attached as Exhibit 1
to the Affidavit of Beth W. Bivans in Support of Non-Party VarTec’s Motion to intervene for Limited Purpose (the
"Bivans Affidavit"), at APP-A008-09.
2 See Letter from Beth W. Bivans to Randall Miller and Pauline K. Morgan, dated January 18, 2005, attached as
Exhibit 2 to the Bivans Affidavit, at APP—A0l0—l2.
3 See The Debtors’ Response to Defendants’ Second Request for Production of Documents, attached as Exhibit 3 to
the Bivans Affidavit, at APP-A0l3-l 9.
Page 1
sti ss9s0sv111ss74.001

Case 1 :04-cv—01266-SLR Document 109 Filed 05/09/2005 Page 3 of 4
has ordered Teleglobe to comply with the Request on May 9, 2005, absent an earlier—filed
Motion for Protective Order.4
6. In accordance with the Court’s directive, VarTec moves to intervene in this
proceeding for the limited purpose of seeking a protective order covering the documents sought
by the Request.
II. AUTHORITY
7. Federal Rule of Civil Procedure 24(b) allows a non-party to intervene in a
proceeding "(l) when a statute of the United States confers a conditional right to intervene; or (2)
when an applicant’s claim or defense and the main action have a question of law or fact in
co1nmon."
8. The requirement of a common question of law or fact is relaxed when the would-
be intervenor does not seek to become a party to the litigation. US. v. Dentsply [nfl, Inc., 187
F.R.D. 152, 157 (D. Del. 1999) (citing Pansy v. Borough of Stroudsburg, 23 F.3d 772, 778 (3d
Cir. 1994)). “There is no reason to require such a strong nexus of fact or law when a party seeks
to intervene only for the purpose of modifying a protective order." Id
9. VarTec seeks to intervene for the limited purpose of seeking a protective order
over its privileged and confidential information bearing no relevance to this proceeding-
Because of its adversarial relationship with both parties to this proceeding, VarTec must
intervene to protect against the wholesale disclosure of its privileged and confidential
inforrnation. VarTec does not seek to become a party to the litigation pending before this Court.
10. VarTec’s Motion for Protective Order will be submitted to the Court by separate
filing on this day.
4 See Letter from Russell C. Silbergld to Beth W. Bivans, dated April 26, 2005, attached as Exhibit 4 to the
Bivans Affidavit, ar APP-A02 0-21.
Page 2
SLI ssasosvirissmioi .

Case 1 :04-cv—O1266-SLR Document 109 Filed 05/O9/2005 Page 4 of 4
III. REQUEST FOR ORAL ARGUMENT AND WAIVER OF OPENING BRIEF
11. VarTec hereby requests oral argtunent on VarTec’s Motion to Intervene for
Limited Purpose. The legal principles relied upon here are not complex and are fully set forth in
this Motion. Vartec waives its right to tile a brief, but reserves its right to file a reply in further
support of its position.
IV. PRAYER FOR RELIEF
WHEREF ORE, Non-Party VarTec Telecom, Inc. respectfully requests that the Court
GRANT its Motion to Intervene for the limited purpose of seeking a protective order.
Respectfully submitted,
I ` STEVENS & LEE P.C.
Joseph H. Huston, Jr. (State Bar No. 4035)
Thomas G. Whalen, Jr. (State Bar No. 4034)
1105 North Market Street, 7th Floor
Wilmington, DE 19801
Telephone: (302) 654-5180
Telecopy: (302) 654-5181
AND A
HUGHES & LUCE L.L.P.
Craig W. Budner
Beth W. Bivans
1717 Main Street, Ste. 2800
. Dallas, Texas 75201
Telephone: (214) 939-5500
Telecopy: (214) 939-5849
ATTORNEYS FOR NON—PARTIES
VARTEC TELECOM, INC. AND
VARTEC TELECOM HOLDING
COMPANY
Page 3
su 539308vl/1 0514.001 _