Free Motion to Compel - District Court of Delaware - Delaware

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Case 1:04-cv-01494-JJF Document 99-8 Filed 12/15/2006 Page1 014
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up Case 1 :04-cv-01494-JJF Document 99-8 Filed 12/15/2006 Page 2 of 4
October 17, 2006
The Honorable Joseph J. Farnan, Jr.
United States District Court
District of Delaware
844 King Street
Wilmington, DE 19801
Re: Magten Asset Management Corp., et aL v. North Western Corp.,
C.A. No. 04-1494-JJF ALBANY
Magten Asset Management Corp. it Paul Hastings Janofsky & AMSTERDAM
Walker; LLB C.A. No. 04-1256-JJF ATLANTA
Magten Asset Management Corp. v. Mike .L Hanson and Ernie .L we ¤»-r¤~
Kindt, CA. N0. 05-0499-JJF ¤csrc>~
Dear Judge Farnan: CMCAGO
This is firm is co—counsel to NorthWestern Corporation ("NorthWestern"), ZQLSARE
along with the firm of Curtis, Mallet-Prevost, Colt & Mosle LLP ("Curtis") in connection l
with C.A. No. O4-1494-JJF, referenced above. We write in response to the letter dated DENVER
October 16, 2006 sent to Your Honor by counsel for plaintiffs, Magten Asset Management FORT °`U°m"LE
Corporation ("Magten”) and Law Debenture Trust (collectively, "Plaintiffs"). HOUSTON
As is apparent from that letter, there is substantial disagreement between the L¤~¤¤~‘
parties regarding the scheduling of discovery in these three consolidated actions. ln order to t¤SA~¤¤t$
resolve these differences, NorthWestern respectively requests that the Court schedule a MM
conference with the parties pursuant to Fed.R.Civ.P. 16. MlLAN'
The Defendants in the three consolidated actions have conferred and have
jointly agreed on a proposed Scheduling Order for discovery and other pre-trial matters in ORANGE www
the consolidated actions, which is enclosed herewith, and which Defendants respectively ORLANDO
request be approved by the Court. Defendants’ proposed Scheduling Order provides, inter PHILADELPHIA
alia, for completion of fact discovery within twelve months following the Rule 16 PHOENIX Q
Conference, and an additional two months for completion of expert discovery. my
Plaintiffs have proposed that fact discovery in all three consolidated actions SACRAMENTO
be completed in approximately four and a half months. Such a timetable is manifestly $‘“°°'“ VALLEY
unreasonable for a number of reasons. First, this case involves three separate actions, one of TAMHASSEE
which is against NorthWestern’s attomeys. Not only have the Plaintiffs served discovery r¤· requests which call for literally hundreds of thousands, if not millions of pages of documents, ns¤~s c<>¤~t¤
but many of these documents will necessarily involve attomey-client communications which WASHNGTON, Dr.
must carefully be reviewed for privilege. Second, the schedule proposed by the Defendants war PALM amen
Greenberg Tmurig, LLP {Attorneys at Law [The Nemours Building I 1007 North Orange Street I Suite 1200 lwilmington. DE 1980l .mW. .....¤m]SUmgK..Amam
Tel 302.661.7000 l Fax 302.661.7360 www,
sissossvi g

Case 1 :04-cv-01494-JJF Document 99-8 Filed 12/15/2006 Page 3 of 4
The Honorable Joseph J. Farnan, Jr.
Page 2 October 17, 2006 g
is entirely reasonable in light of the discovery schedule Plaintiffs previously agreed to in one
of the three consolidated actions, the action against Defendants Hanson and Kindt. There,
the Plaintiffs agreed to a discovery schedule of thirteen months — eight months of fact
discovery and five additional months for expert discovery. Clearly, completion of discovery
in the three consolidated actions ca.nnot be relegated to a shorter time period than that which
was previously agreed to for one of the actions standing alone.
Finally, discovery in these actions is made more difficult because ofthe
Plaintiffs’ refiisal to define the contours of their claim. The Court stated in the decision
denying Defendants’ Motion for a Protective Order that Judge Case noted that the essence of
Plaintiffs’ fraud claim is that No1thWestern “engaged in a knowing and conscious fraudulent
scheme.” The problem is the Plaintiffs have never pled what that fraudulent scheme was,
what the obj ect of the fraud was, what fraudulent statements were made, who relied on those
statements and how the fraudulent scheme related specifically to the “going flat transaction"
which is the transaction at the core of the Plaintiffs’ complaint. Answers to these questions
will eliminate some of Plaintiffs’ discovery requests and permit agreement on a discovery
schedule which, while not as accelerated as that demanded by Plaintiffs, maybe somewhat
shorter than that which the Defendants believe is necessary in light of the discovery presently
requested. Discussions of these issues is appropriate at the Rule 16 Conference. See
Fed.R.Civ.P. l6(c)(l) and (2).
As Plaintiffs’ counsel was informed at our October conference, NorthWestem
is prepared to begin shortly production of documents on a rolling basis. The schedule
proposed by Defendants is not interposed for obstruction or delay but is, we believe,
reasonably necessary in order to complete discovery in light of the overwhelming amount of
materials presently demanded by the Plaintiffs.
If Your Honor has any questions with regard to the foregoing, please feel free
to contact me or Joseph D. Pizzurro of the Curtis firm at 212-696-6196.
Respectfully submitted,
Victoria Coun
cc: Clerk of Court (Via ECP)
Dale R. Dube, Esq. (Wa E-Mail: [email protected])
Bonnie Steingart, Esq. (Via E-Mail: [email protected])
Gary L. Kaplan, Esq. (Via E-Mail: [email protected])
Kathleen M. Miller, Esq. (Via E-Mail: [email protected])
Bijan Amini, Esq. (Via E-Mail: [email protected])
Amanda Darwin, Esq. (Via E-Mail: [email protected])
3189088vl Greenberg Traurig, LLP

, Case 1 :04-cv-01494-JJF Document 99-8 Filed 12/15/2006 Page 4 of 4
The Honorable Joseph J. Farnan, Jr.
Page 3 October 17, 2006
John V. Snellings, Esq. (Via E-Mail: [email protected])
Stanley T. Kaleczyc, Esq. (Via E-Mail: [email protected])
Kimberly Beatty, Esq. (Via E-Mail: [email protected])
Denise Seastone Kraft, Esq. (Via E-Mail: [email protected])
Paul Spagnoletti, Esq. (Via E-Mail: [email protected])
Joseph D. Pizzurro, Esq. (Via e·Mail: [email protected])
Steven J. Reisman, Esq. (Via E-Mail: [email protected])
David A. Jenkins, Esq. (Via E-Mail: [email protected])
Robert J. Dehney, Esq. (Via E-Mail: [email protected])
Curtis S. Miller, Esq. (Via E·Mai1: [email protected])
Jesse H. Austin, HI, Esq. (Via E—Mail: [email protected])
Karol K. Denniston, Esq. (Wa E-Mail: [email protected])
Joseph D. Pizzurro, Esq. (Via E-Mail: jpizzu1·[email protected]—
Steven J. Reisman, Esq. (Via E-Mail: [email protected]·
Miriam K. Harwood, Esq. (Via E-Mail: [email protected])
Kerri K. Mumford, Esq. (Via E-Mail: [email protected])
Philip Bentley, Esq. (Via E·Mail: [email protected]om)
Bonnie Fatell, Esq. (Via E-Mail: [email protected])
Jolm‘E. James, Esq. (Via E—Mail: [email protected])
Greenberg Traurig. LLP