Free Motion to Compel - District Court of Delaware - Delaware

Case 1:04-cv-01494-JJF Document 99-18 Filed 12/15/2006 Page 1 014
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Fried, Frank. Harris, Shrlvar & Jacobson LLP
One New York Plaza “ ‘ "
New York, new York 10004-1980 l till i it ll —\Nii
rei; +1.212.859.8000
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[email protected]
December 4, 2006
VIA ELECTRONIC MAIL
Joseph Pizzuro, Esq.
Curtis, Mallet-Prevost, Colt & Mosle LLP
101 Park Avenue
New York, NY 10178
Re: Magten Asset Management Carp. and Law Debenture Trust
C0. v. Northwestern Corp.; C.A. N0. 04-1494-JJF
Dear Joe:
I am writing about our various outstanding discovery issues. Your letter of
November 27 indicates that we appear to be making some progress in reaching _
agreement on the subjects it addresses. I will follow up on a few of those issues below.
However, this progress is tmfortunately overshadowed by your continuing failure to
even mention the crucial issue of a date for the completion of NorthWestern’s document
production,
With the exception of a small first installment on November 9, almost 4 weeks
ago, you have: (a) not produced documents in response to plaintiffs’ first document
request; (b) refused to provide any sort of commitment as to when the further
production will be made and completed; and (c) failed to provide even a prediction of
when second or further installments of a "rolling" production might be received. This is
simply unacceptable. When we spoke on November 20, you even seemed to imply that
in light of the early May cut—off for fact discovery, there was no pressing need to
complete document production until sometime in April, as long as a week or two was
left for depositions to be taken. We assume that you were being jocular. We cannot
imagine that this is a position you would intend to defend before the special master or
the court.
To review: we served our document request on January 24, over 10 months
ago. Your motion for protective order was denied in its entirety on September 29, over
2 months ago (and, ofcourse, you had 8 months in the interim to prepare to produce
New York · Washington OC · London · Paris • Frankfurt
Fried. Frank. Harris. Shriver 8. Jacobson LLP is a Delaware Limited Liability Partnership

Case 1 :04-cv-01494-JJF Document 99-18 Filed 12/15/2006 Page 3 of 4
Frlad, Frank, Harris, Shriver & Jacobson LLP
December 4, 2006
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those documents which would have been subject to production even if your motion had
been granted). Your response to the document request was due on October 27, over 5
weeks ago. When we spoke on November 20, you said that you were still not in a
position to provide any commitments as to when doctunents would be produced, but
would let us know as soon as you had a better idea. That was two weeks ago, and we
have heard nothing further. Unless we can receive an acceptable response on this issue
by the end of this week, we will have no alternative but to seek appropriate relief for
your failure to comply with your discovery obligations.
Meanwhile, let us make a suggestion that should at least partially expedite
matters. We take it from your client’s public filings that it has provided a substantial
number of documents in response to the SEC ’s investigation. lt would seem that
essentially all of those documents would be relevant to the threshold fraud issues in our
litigation, and presumably nearly all would be responsive to our document request.
Your client presumably has those documents already assembled in a form ready for
production, such that they could be provided to us very quickly, with no need to review
them for privilege concerns. We do not have the infomation necessary to know how
substantial a percentage of your total document production obligations in these cases
would be satisfied by this method, but we expect that it might be significant, and could
be done with minimal burden. Similarly, potentially relevant documents you may have
produced to other government agencies and/or to the McGreevy plaintiffs (especially in
the context of their challenge to the same November 2002 asset transfer) should be easy
for you to provide to us quickly and with minimal burden.
Turning to the issues that were addressed in your November 27 letter, we are
preparing a draft stipulation for your review, so that we can all determine quickly
whether we will be able to limit discovery in the fashion discussed (just to clarify, with
respect to request No. 18, the stipulation would only obviate your obligation to produce
responsive documents concerning or relating to Clark Fork). We should note that it will
be necessary for all of the defendants in all three actions to agree to the stipulation in
order to achieve that goal. We would be interested in your views as to how to take
appropriate account of the support agreements between NorthWestern and Clark Fork.
Do you have a dollar amount to propose as representing the fair market value to Clark
Fork of those agreements as of November l5, 20027
Your letter did not cover request number 8, as to which we had discussed
narrowing the request in return for an agreement to produce documents responsive to
the request as so narrowed. This omission may have been an oversight, but please let us
know immediately whether or not we have an agreement on this point. We take it, by
the way, that your discussion of requests l2, 29, and 30 means that, while retaining your
general objections for the record, you will nonetheless produce responsive documents.
Please let us know immediately if this is not accurate.

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Fried, Frank, Harris, Shriver & Jacobson LLP
December 4, 2006 J
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Finally, we will be sending you shortly a list of potential deposition witnesses
currently or formerly afiiliated with NorthWestem. The process of finalizing the list of
witnesses and reaching agreement on a schedule would be facilitated if you would
advise us promptly of the identity of all ofthe individuals who have received Wells
notices, as stated on pages 2l—22 of NorthWestern’s l0-Q dated November 2, 2006.
Thank you for your prompt attention to these matters.
Si rely,
` /.r
Bonnie Steinga
cc: Gary L. Kaplan, Esquire
John W. Brewer, Esquire
Dale R. Dubé, Esquire
Bijan Amini, Esquire
Steven J. Reisman, Esquire
Jesse H. Austin, Ill, Esquire
Victoria W. Counihan, Esquire
Nancy E. Delaney, Esquire
Karol K. Denniston, Esquire
Dennis E. Glazer, Esquire
Miriam K. Harwood, Esquire
David A. Jenkins, Esquire
Paul Spagnoletti, Esquire
Stanley T. Kaleczyc, Esquire
Kimberly A. Beatty, Esquire
Denise Seastone Kraft, Esquire
Adam G. Landis, Esquire
Dennis A. Meloro, Esquire
Curtis S. Miller, Esquire
Kathleen M. Miller, Esquire
John V. Snellings, Esquire