Free Motion to Take Deposition - District Court of Delaware - Delaware

Case 1 :04-cv-01266-SLR Document 101 -2 Filed O4/06/2005 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
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In re
Chapter ll
N RPORATION, 1.,
TELEGLOBE COMMUNICATIO S CO ez cz Case No- 02-1 1518 (MFW)
D€btOrs· Jointly Administered
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TELEGLOBE COMMUNICATIONS CORPORATION, et al.,
Plaintiffs, Civ. No. O4-CV-1266 (SLR)
v.
BCE INC., etal.,
I Defendants.
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DECLARATION OF ROBERT J. MALATAK IN SUPPORT OF THE
COMMITTEE’S MOTION FOR A LETTER OF REQUEST FOR ANNA M. COCCIA
ROBERT J. MALATAK, pursuant to Fed. R. Civ. P. ll and 28 U.S.C. § 1746, declares,
under penalty of perjury, the following to be true and correct:
I. I am an associate of the law firm of Hahn & Hessen LLP, attorneys for the
Official Committee of Unsecured Creditors of Teleglobe Communications Corporation, et al.
("Committee"), one of the Plaintiffs in this action, and an attorney duly admitted to practice law
in the State of New York, and admitted pro hac vice to the Delaware District Court for the
purpose of this action.
2. I am fully familiar with the facts and circumstances hereinafter set forth, and
submit this Declaration in support of the Comrnittee’s Motion for an Order granting the issuance
of a Letter of Request to the appropriate authorities in Québec, Canada, directing the attendance
and depositions (videotaped) of and the production of certain documents by Anna M. Coccia
("Coccia").
3. Coccia has documents and infonnation that is material and necessary to the
Committee’s prosecution of its claims, and for which there is no alternative source. Despite the

Case 1:04-cv—O1266-SLR Document 101 -2 Filed O4/06/2005 Page 2 of 4
Committee’s good faith effort to secure Coccia’s voluntary cooperation, she has refused its
request. Because Coccia resides in Canada and, thus, is beyond this Court’s subpoena power, the
Committee seeks a Letter of Request to the appropriate Canadian authorities. This is the basis
for the Motion.
BACKGROUND
4. On May 26, 2004, the Debtorsl and the Committee (collectively, the "Plaintiffs”)
commenced the instant action against BCE Inc. (“BCE"), Michael T. Boychuk, Marc A.
Bouchard, Serge Fortin, Terence J. Jarman, Stewart Verge, Jean C. Monty, Richard J. Currie,
Thomas Kierans, Stephen P. Skinner, and H. Arnold Steinberg (collectively, the "Defendants").
Plaintiffs allege, inter alia, that (1) BCE materially breached its agreement with the Debtors to
. provide the funding necessary to enable the Debtors to meet their cash needs through the
completion of a certain telecommunications system that the Debtors were building (the
"GlobeSystem"); and (2) Defendants breached their fiduciary duties to the Debtors and their
creditors.
COCCIA HAS INFORMATION RELEVANT
TO THE PROSECUTION OF THIS MATTER
5. Plaintiffs assert that during the relevant time period, TI and the Debtors were
insolvent or inthe zone of insolvency. Plaintiffs further allege that the balance sheets of TI and
the Debtors demonstrate the insolvency on its face, once one recognizes that the goodwill TI
carried on its books was grossly overvalued. Moreover, if, as Defendants claim, BCE made no
binding commitment to fund TI’s and the Debtors’ operations, then the Debtors were unable to
1 Debtors collectively refers to Teleglobe Communications Corporation, Teleglobe USA Inc., Optel
Telecommunications, Inc., Teleglobe Holdings (U.S.) Corporation, Teleglobe Marine (U.S.) Inc., Teleglobe Holding
Corp., Teleglobe Telecom Corporation, Teleglobe Investment Corp., Teleglobe Luxembourg LLC, Teleglobe Pueno
Rico Inc., Teleglobe Submarine Inc.
2

Case 1:04-cv—O1266-SLR Document 101 -2 Filed O4/06/2005 Page 3 of 4
meet their debts as they came due. Thus, whether goodwill was properly valued is a material
issue of fact in the case.
6. Coccia is believed to have infomation bearing on this issue as she is the former
Associate Director-Accounting Policies for Bell Canada, a BCE subsidiary. In that capacity,
Coccia is believed to have been responsible for the implementation, for BCE and all of its
subsidiaries, including the Debtors, of Financial Accounting Standards Board 142 (Goodwill and
Other Intangible Assets), and the Canadian Generally Accepted Accounting Principles analogue,
both of which require companies, such as BCE and TI, to test goodwill for impairment annually,
or more frequently if events or changes in circtunstances indicate that the asset might be
impaired. Moreover, in April 2001, Coccia circulated a "Goodwill Impairment Memo" which
stated "We as the management team have decided that there was no goodwill impairment as at
the end of February 2001 ."
7. For the foregoing reasons, the Committee seeks Coccia’s deposition and
production of the relevant documents she has in her possession, custody or control.
THE COMMITTEE MADE A GOOD FAITH
EFFORT TO OBTAIN THE REQUESTED
DISCOVERY FROM COCCIA
8. Plaintiffs have made a good faith effort to obtain the discovery it seeks from
Coccia, but to no avail. In this regard, Richards, Layton & Finger P.A., counsel to the
Committee’s co-Plaintiff, the Debtors, notified BCE’s counsel, Shearman & Sterling LLP
("S&S"), that Plaintiffs, including the Committee, wanted discovery from Coccia, After
conferring with Coccia, S&S advised that she was unwilling to cooperate.
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Case 1 :04-cv-01266-SLR Document 101 -2 Filed O4/06/2005 Page 4 of 4
AFFIRMATIVE REPRESENTATIONS
9. The Committee agrees to tender to the Quebec Superior Court the fees that Coccia
would be entitled to at trial, otherwise known as her expense and conduct money. The
Committee additionally agrees to provide a translator for Coccia should that be deemed
I'lCCCSSE:l1'y.
10. The Committee also offers to tender into the Superior Court of Quebec such sums
as shall (a) be sufiicient to defray the traveling costs of the hearing examiner, and (b) be deemed
necessary by the Superior Court of Quebec pursuant to Article 281.1 of the Quebec Code of
Civil Procedure.
11. The Committee agrees that the proposed oral examination of Coccia would be of
ordinary duration and would be conducted in accordance with the applicable procedural rules of
the Province of Quebec, but requests that the deposition be videotaped.
12. The issuance of the Letter of Request is not contrary to the public policy of
Canadian nor Quebec jurisprudence.
WHEREFORE, the Cormnittee respectfully requests that this Court issue a Letter ot`
Request in the form annexed to the Order Granting the Issuance of a Letter of Request to the
Appropriate Québec Authorities, submitted herewith, in order to permit the Committee to
- conduct the necessary discovery in this case.
Dated: New]York, New York
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1191965.l/R.Il\‘l/585847/007 3/30/2005 _ 4 _