Free Remark - District Court of Delaware - Delaware

Case 1 :04-cv-01264-SLR Document 346 Filed 12/16/2005 Page 1 of 2
E-Mail Request for Emergency Relief
1. Case Number: O4 -cv-1264:-SLR
` 2. Check the box that applies:
Requesting a teleconference with the parties and the court
Requesting an in-person conference with the parties and the court
Requesting either of the above listed options at the court's determination
3. BRIEFLY describe the reason for this emergency request: ,
Paragraph 1 of the Court's 12-2-05 order (D.I. 324) (the "Order") requires plaintiffs to
produce hundreds of highly sensitive privileged documents by this Monday,
12-19-05. The Court issued the Order without awaiting the results of the factual
investigation that we were given permission to undertake in order to show that the
production should not be required. We have Hled a motion (D.I. 336) which attaches
the results of that now-completed investigation, and asks that the Court: (i) consider
those facts and revise its Order, and (ii) stay paragraph 1 of the Order until the Court
has an opportunity to decide our motion. We respectfully request that the Court
decide by tomorrow, 12-16-05, whether it will stay Monday's production deadline
pending resolution of our motion, so that time will remain to seek emergency
appellate relief in the event Your Honor is unwilling to issue a stay.
*Any text added beyond the limits of this space will be disregarded by the court.
4. Name of opposing counsel contacted about this request: See # 5, below.
5. Response of opposing co_unseI to thisrequest: _ _ _ A _
John F. Luman, III, Esq. (Overstock) has refused to agree to a stay of the production
deadline to allow the Court time to decide the motion. Kristin L. Cleveland, Esq.
(Amazon) has not yet responded, but time seemed too short to await her response.
6. Name of local counsel making this request: Steven J. Balick
7. Today's Date: December 15, 2005 _ _
For court use only:
[I A teleconference will be held on to be coordinated and
initiated by
[I An in-person discovery conference will be held on:
El Other:

Case 1:04-cv-01264-SLR Document 346 Filed 12/16/2005 Page 2 of 2
Opposing Counse|'s Response to E-Mail Request for Emergency Relief
1. Case Number; 04 -cv- 1264 —SLR
2. BRIEFLY state your response to the emergency request made by opposing counsel:
On 11/2/05, the Court directed the parties to submit letters on the "Alacritude
privilege issue" by 11/15/05. Defendants briefed the issue on 11/15/05; BTG did not.
On 12/2/05 the Court ordered the Alacritude documents produced by 12/19/05. Now,
a month after the 11/15 deadline, BTG has completed its "investigatlon," which only
includes (1) three afhdavits of employees of Plaintiffs BTG and Tucows (two of whom
were deposed on this issue), (2) a single affidavit from an Alacritude employee, (3)
an unsigned agreement between Alacritude and Tucows, and (4) an admission that
an Alacritude employee reviewed the documents and at least 16 had access to them.
Neither BTG's inexcusable delay nor its purported "facts" remedy its waiver, and the
documents should be produced as ordered. Further, the resulting delay from staying
this issue may require extension of remaining dates on the Court's Scheduling Order.
*Any text added to beyond the limits of this space will be disregarded by the court.
3. Name of local counsel submitting this response: Karen E. Keller (No. 4489)
4. Today’s Date: December 15, 2005