EXhlblt J
Case 1 :04-cv-01494-JJF Document 99-13 Filed 12/15/2006 Page 2 of 4
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ATTORNEYS AND COUNSELLORS AT Law
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Louoou STAMF<:·1=zo FAcssMii.a 2 l 2697-I 559
Mexico Clrv WAS1-imcsrora, D.C. E—MAu. [email protected]
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November 7, 2006
Bonnie Steingait, Esq.
Fried, Frank, Harris, Shriver & Jacobson LLP
One New York Plaza
New York, NY 10004-1980
Re: Magten Asset Management Corp. and Law
Deberzture Trust Co. it North Western Corp.;
C.A. No. O4~l494-HF
Dear Bonnie:
We write in response to your letter of November 2, 2006, regarding NorthWestern
Co1poration’s Responses and Objections to Plainti;t`t"s First Request for Document Production.
First, NorthWestern will commence its production on Thursday, November 9,
2006. At that time we expect to produce in excess of 20,000 pages of documents. As we have
told you on prior occasions, NorthWestern will continue to produce documents on a rolling basis
as those documents become available and are reviewed. We are not in a position at this time to
provide you with a date upon which production will be completed.
We do not believe that is necessary to produce documents that relate to the time
period subsequent to the date of NoithWestern’s tiling for Chapter ll. For example, in Request
No. l4, Magten has requested documents relating to NorthWestern’s financial condition " at any
time between 2001 and the present? Clearly, NOIThW€St€fH’S financial condition post tiling is
irrelevant to any issue in the case. However, to the extent that non—privileged documents which
are otherwise responsive may have been generated after the tiling date but refer or relate back to
the going~tiat transaction or the financial condition ot`NorthWestern during the relevant time,
our objection would not apply.
With respect to those Requests where No1thWestern has objected to the
production of any documents (Nos. 3, 4, 6, 8, l2, 16, 17, 20, 26, 28-30)], we will withdraw our
complete objection to Request No. 26 and produce responsive documents to the extent any exist,
subject to our general objections. However, many ofthe remaining Requests seek documents
which are completely irrelevant to the remaining issues in this action.
E While your letter refers to a Request 32, there is no such Request.
Case 1 :04-cv-01494-JJF Document 99-13 Filed 12/15/2006 Page 3 of 4
cuurls, M;u..l..e?r—t=Rs:vosr, cotsr 6. Most.; l.1.s=• Bonnie Sl€lHg9l`l, ESC}
ATTCJRNEYS AND COUNSELLORS AT LAW 2 7, V
These Requests deal primarily with issues surrounding the valuation and fairness
of the going—i1at transaction (Nos. 3, 4, 6), the financial condition of Clark Fork (Nos. 16, 17, 18,
20, 28) and compensation paid to outside advisors and Clark Fork officers in connection with,
and since, the going~tlat transaction (Nos. 29, 30). Magten cannot ignore the impact of Judge
Case’s decision which makes clear that the case against NorthWestern is not a fraudulent transfer
action because the QUIPS holders are not creditors of Clark Fork and so have no standing to
assert such a claim. As Judge Farnan recognized in his decision denying NorthWestern’s motion
for a protective order, Judge Case limited the relevant inquiry in this action to whether
NorthWestern knew at the time ofthe going~flat transaction that it could not do that transaction
based on its financial condition and thus discovery should "include [No1thWestern’s] knowledge
and conduct in initiating and completing the Third lndenture." Based on that rationale, Judge
Farnan denied NorthWestern’s blanket request for a protective order. However, he never ruled
that all of Magten’s discovery requests were properly focused to address this one remaining
issue. We believe that NorthWestern’s objections are proper in light of these two decisions and
urge you to reconsider your position on these issues.
The remaining Requests to which NorthWestern has objected in their entirety are
either irrelevant to any issue in the case, or could be narrowed substantially. Request No. 8, "All
documents concerning the QUIPS and/or the QUIPS lndenture" is so broad as to be meaningless.
lf there are specific documents or categories of documents that can be identified by Magten, we
will ofcourse consider such a narrowed request. Request No. l2 relates to a third party and, in
part, to a transaction unrelated to the going-flat transaction. If Magten can explain why
communications with CSFB regarding the going~f1at transaction have anything to do with
Magten’s fraud theory, we would consider such a narrowed request.
As you will recall, in our telephone conference of October 13, 2006, we asked
that Magten articulate its fraud theory with greater particularity than that set forth in the
somewhat skeletal allegations of the amended complaint (paragraph 68) in an effort to streamline
the discovery process. You declined. We still believe that if Magten would be willing clarify its
fraud claim, any dispute relating to the outstanding requests could be narrowed.
Finally, we seek the agreement of Magten that if a particular document is
produced by Northwestern, Hanson or Kindt, it will be deemed to have been produced by all of
those defendants. We understand that most of the documents Hanson and Kindt would have are
in fact NorthWestern documents and therefore this procedure will avoid not only duplication of
production but will simplify the task of analyzing the documents for the assertion of privilege.
Your agreement on this last point will obviate the need to apply to Judge Farnan for a protective
order and will minimize the expense to all of duplicative production.
44 Case 1 :04-cv-01494-JJF Document 99-13 Filed 12/15/2006 Page 4 of 4
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ATTORNEYS AMD C¤uNsEt.1.
letter is an attempt by NorthWestem to resolve these discovery issues without the need for the
Court’s assistance. In the event we are compelled to seek the Court’s assistance or to defend a
motion by Magten, the above is without prejudice to any other and further objections, responses
or arguments we may raise.
Yours truly, 4/)
J eph D.
cc: John E. James, Esq.
Gary L. Kaplan, Esq.
John W. Brewer, Esq.
Bijan Amini, Esq.
Jesse H. Austin, HI, Esq.
Victoria W. Counihan, Esq.
Karol K. Denniston, Esq.
Dennis E. Glazer, Esq.
David A. Jenkins, Esq.
Paul Spagnoletti, Esq.
Denise Seastone Kraft, Esq.
Adam G. Landis, Esq.
Dennis A. Meloro, Esq.
Curtis S. Miller, Esq.
Kathleen M. Miller, Esq.
John V. Snellings, Esq.
Dale R. Dune
Stanley T. Kaleczyc, Esq.
Kimberly A. Beatty, Esq.
azasvisvi t
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