Free Letter - District Court of Delaware - Delaware

Case 1 :O4—cv-01256-JJF Document 73 Filed O2/06/2006 Page 1 of 3
BLANK ~ ROMELLP
counselors AT mw
Plume: (302) 425-6467
Fax: (302) 425-6464
Email: [email protected]
February 6, 2006
VIA CMF AND HAND DELIVERY A
The Honorable Joseph J. Farnan, Jr.
United States District Court
for the District of Delaware
844 King Street "
Wilmington, DE 19801
Re: • Magten Asset Management Corp. and Law Debenture Trust C0. v.
Northwestern Corp.; C.A. No. 04-1494-JJF
• Magten Asset Management Corp. v. Paul Hastings Janofsky & Walker,
LLP; C.A. No. 04-1256-JJF
• Magten Asset Management Corp. v. Mike J Hanson and Ernie J Kindt;
C.A. No. 05-0499-JJF
Your Honor:
We write on behalf of plaintiff Magten Asset Management Corporation. On January 25,
2006, the Court entered an order anticipating the appointment of John E. James as Special
Master in the above-referenced actions (the "Actions") and setting a deadline for any objections
to such an appointment. We are pleased to advise the Court that neither Magten nor its co-
plaintiff, Law Debenture Trust Company of New York, have any objection to the appointment of
Mr. James. We respectfully urge the Comt to continn that appointment so that Mr. James can
begin serving in that capacity and assist in moving the Actions forward.
In that regard, we wish to bring to the Court's attention three unresolved threshold issues
related to discovery in the Actions, so that the Court may either rule on them or refer them
expressly to the Special Master for action following confirmation of his appointment.
First, as we have previously advised the Court by letter dated January 9, 2006, D.I. 92 (in
05-499), the defendants in 05-0499 have taken the position that the discovery stay entered in the
District of Montana incident to the transfer of that action to the District of Delaware remains in
effect and that they are thus not obligated to provide any discovery whatsoever. Since then,
these defendants have further taken the position that the Montana stay order somehow exempts
them from any obligation to respond to Rule 45 subpoenas seeking discovery from them as non-
Chase Manhattan Centre 1201 Market Street Suite 800 Wilmington, DE 19801
www.B|ankRome.com
Delaware • Florida • Maryland • New Jersey · New York • Ohio • Pennsylvania • Washington, DC

Case 1:O4—cv-01256-JJF Document 73 Filed O2/06/2006 Page 2 of 3
BLANK— ROMEM
COUNSELORS AT LAW
The Honorable Joseph J. Faman, Jr.
February 6, 2006
Page 2
party witnesses with respect to the other Actions. Since it appears clear that these parties have
no intention of ever providing discovery absent an express directive resolving this issue, we
respectfully renew our request that the Court expressly vacate the stay entered in connection with
the transfer to Delaware or refer that issue to the Special Master for a determination.
As we also noted in the January 9 letter, the parties held their 26(i) conference but could
not reach agreement on an appropriate discovery schedule. We respectfully renew our request
that the Court approve the form of Scheduling Order proposed by plaintiffs, a courtesy copy of
which is attached hereto as Exhibit A.
Finally, on February 2, 2006, defendant Northwestern tiled a motion for protective order,
D.I. 55-56, which seems to seek a stay of virtually all discovery not only in 04-1494, but in the
other two Actions to which it is not a party. Given the futility of the last round of mediation
urged by the defendants, as well as their conduct with respect to discovery in these Actions to
date, we are concerned that this latest motion is simply calculated to interpose further delay. For
now, we note only that Northwestern's latest motion is entirely inconsistent both with its position
on discovery expressed to us during the 26(i) conference and with the written representations it
subsequently made to the Court as to its views on an appropriate discovery schedule. D.I. 38.
We will respond in full to this motion as provided by the applicable local rules on Monday,
February 13, but wanted to draw the Court's attention to the pendency of this motion before that
time so that the Court may determine whether to refer the issue to the Special Master at the same
time it confirms the Special Master's appointment.
Counsel is available by telephone, should Your Honor have any questions.
Respectfully,
Bde ®<»i»L.
Dale R. Dubé (#2863)
DRD/pb
cc: Clerk of Court (via CMF)
Bijan Amini, Esquire (via e-mail)
Elio Battista, Jr., Esquire
Kimberly A. Beatty, Esquire (via e-mail and Federal Express)
John W. Brewer, Esquire
Victoria W. Counihan, Esquire (via e-mail and hand delivery)

Case 1 :04-cv-01256-JJF Document 73 Filed O2/06/2006 Page 3 of 3
BLAN|<— ROMEM
COUNSELORS AT LAW
The Honorable Joseph J. Faman, Jr.
February 6, 2006
Page 3
Amanda Darwin, Esquire (via e-mail and Federal Express)
Robert J. Delmey, Esquire (via e-mail and hand delivery)
Nancy E. Delaney, Esquire (via e-mail and Federal Express)
Dennis E. Glazer, Esquire (via e-mail and Federal Express)
Miriam K. Harwood, Esquire (via e-mail and Federal Express)
David A. Jenkins, Esquire (via e-mail and hand delivery)
Stanley T. Kaleczyc, Esquire (via e-mail and Federal Express)
Gary L. Kaplan, Esquire
Denise Seastone Kraft, Esquire (via e-mail and hand delivery)
Dennis A. Meloro, Esquire (via e-mail and hand delivery)
Curtis S. Miller, Esquire (via e-mail and hand delivery)
Kathleen M. Miller, Esquire (via e-mail and hand delivery)
J ordanna L. Nadritch, Esquire
Joanna I. Palacios, Esquire
Joseph D. Pizzurro, Esquire (via e-mail and Federal Express)
Steven J. Reisman, Esquire (via e-mail and Federal Express)
Avery Samet, Esquire (via e-mail and Federal Express)
John V. Snellings, Esquire (via e-mail and Federal Express)
Paul Spagnoletti, Esquire (via e-mail and Federal Express)
Bonnie Steingart, Esquire