Free Declaration - District Court of Delaware - Delaware

Case 1:04-cv-01494-JJF Document 178 Filed 05/O2/2007 Page 1 of 4 ,
IN THE UNITED STATES DISTRICT COURT ii
FOR THE DISTRICT OF DELAWARE Q

MAGTEN ASSET MANAGEMENT CORP. )
and LAW DEBENTURE TRUST COMPANY OF NEW ) i
YORK, )
Plaintiffs, )
v. ) Civil Action No. 04-1494-JJF l
)
NORTHWESTERN CORPORATION, ) 1
)
Defendant. )
)
) E
MAGTEN ASSET MANAGEMENT CORP., ) i
) T
Plaintiff, )
v. ) Civil Action No. 05-499-JJF
)
MIKE J. HANSON and ERNIE J. KINDT, )
) z
Defendants. )
E
DECLARATION OF JOHN W. BREWER
JOHN W. BREWER declares as follows:
l. I am a member of the bar of the United States District Court for the
Southern District of New York, admitted pro hac vice to the Bar of this Court, and $
Special Counsel with the firm of Fried, Frank, Harris, Shriver & Jacobson LLP, counsel
to Plaintiff Magten Asset Management Corporation ("Magten") in connection with the
above captioned action. I submit this declaration (the "Declaration") in support of
Plaintiffs’ Motion for Amendment of Scheduling Order.
2. Attached hereto as Exhibit l is a true and correct copy of a subpoena dated
May 1, 2007, directed to Merle Lewis, along with a cover letter to his counsel.
3. Attached hereto as Exhibit 2 is a true and correct copy of a Complaint
filed on April 25, 2007 in the United States District Court for the District of South
Dakota by the federal Securities and Exchange Commission against Merle Lewis.

Case 1:04-cv-01494-JJF Document 178 Filed 05/O2/2007 Page 2 of 4
4. Attached hereto as Exhibit 3 is a true and correct copy of the Consent of
Merle Lewis filed on April 25, 2007 in the United States District Court for the District of
South Dakota.
5. Attached hereto as Exhibit 4 is a true and correct copy of the Final
Judgment as to Defendant Merle Lewis filed on April 25, 2007 in the United States
District Court for the District of South Dakota.
6. Attached hereto as Exhibit 5 is a true and correct copy of a subpoena dated
May 1, 2007 (with a corrected first page faxed to his counsel on 5/2/07), directed to Eric
Jacobsen, along with a cover letter to his counsel. i
7. It is my understanding that although most of the issues raised by this
Motion have been under discussion between the parties for some time, the parties have (
been unable to reach agreement, including in a final attempt to reach agreement this p
morning at a deposition at which counsel for all parties were present.
8. Beginning in early April, I had numerous discussions with in-house
counsel for American Appraisal Associates ("AAA") regarding the production of
documents and scheduling of a deposition. During the initial discussions, in-house
counsel indicated to me that he thought the production of docrunents on or around April
10 (as requested in our subpoena) would not be a problem. After our initial
conversations, in-house counsel for AAA learned that the only copies of virtually all of
AAA’s responsive files had been produced to the SEC in connection with the SEC’s
ongoing investigation of NorthWestem. AAA was ultimately able to retrieve these files
from the SEC (after some delay) but NorthWestem then exercised its contractual right to
review these documents (causing further delay) before permitting them to be produced to
us. As a result, we did not receive these documents until April 30.
9. I had earlier discussed with AAA’s in-house corursel May 3 or May 4 as
possible dates that a witness could be made available. However, these dates became
impractical after we received their production, consisting of over 15,000 pages, on April
2 i

Case 1:04-cv-01494-JJF Document 178 Filed 05/O2/2007 Page 3 of 4 .
30. I have been advised that AAA’s witness will not be available until the week of May i
21 and we are now in the process oftrying to confirm a specific date, with May 25 as a l
date suggested by AAA’s in-house counsel.
l0. While I have not been personally involved in discussions with Deloitte & (
Touche’s ("Deloitte") in-house counsel, I have been kept informed by my colleagues and
co-counsel, who have had direct conversations with De1oitte’s in-house and outside
counsel. Pursuant to a March 26, 2007 renewed subpoena (D.I. 125) (issued after A
Deloitte indicated it did not wish to respond to a previously issued subpoena with the
caption of a now-dismissed case which had been consolidated with these cases for
discovery), Deloitte was supposed to produce documents to us by April 4 and a 30(b)(6)
designee was to be deposed in New York on April 18. However, Deloitte was ultimately I
not able to produce its documents to us until April 13.
ll. After earlier discussions which contemplated the deposition in New York,
Deloitte’s in-house counsel informed us comparatively recently that it was now taking the
position that the deposition should take place in Minneapolis, which is the location of the
Deloitte office that conducted the audit work of NorthWestern. In addition, Deloitte
recently told us that two of the three individuals with the greatest involvement in the j
work done for NorthWestern at the relevant time have apparently left the fimi, making (
scheduling even more difficult (especially as Deloitte suggested producing a fourth
individual who appeared to us to have much less contemporaneous involvement in the
relevant work). We have since engaged in discussions with De1oitte’s Minneapolis
outside counsel regarding the date for the deposition and the identity of the appropriate 7
30(b)(6) designee and are hoping to reach agreement soon on a date during the week of
May 14 orMay21.
12. In early April, we decided to adjourn taking the deposition of Merle Lewis I
because of unresolved document disputes and the hope that certain other witnesses’ E
testimony might make Mr. Lewis’ testimony unnecessarily cumulative. At the time, we
_

Case 1:04-cv-01494-JJF Document 178 Filed 05/O2/2007 Page 4 of 4
CERTIFICATE OF SERVICE
I hereby certify that on this 2“d day of May, 2007, I served by hand delivery the
DECLARATION OF JOHN W. BREWER, using CM/ECF which will send notification of such
filing to the following:
BY EMAIL AND HAND DELIVERY
Denise Seastone Kraft, Esquire Victoria Watson Counihan, Esquire
Edwards Angell Palmer & Dodge LLP Dennis A. Meloro, Esquire
919 North Market Street, 15th Floor Greenberg Traurig LLP
Wilmington, DE 19801 The Nemours Building
1007 North Orange Street, Suite 1200
Wilmington, DE 19801
I also certify that, on this 2"d day of May, 2007, I served the aforementioned document,
by e-mail and Federal Express, upon the following participants:
BY EMAIL AND FEDERAL EXPRESS
Stanley T. Kaleczyc, Esquire Steven J. Reisman, Esquire
Kimberly A. Beatty, Esquire Joseph D. Pizzurro, Esquire
Browning, Kaleczyc, Berry & Hoven, P.C. Nancy E. Delaney, Esquire
139 North Last Chance Gulch Miriam K. Harwood, Esquire
P.O. Box 1697 Curtis, Mallet-Prevost, Colt & Mosle LLP
Helena, Mt 59624 101 Park Avenue
New York, New York 10178-0061
Dale R. Dubé (No. 2863)
120087.01600/40168311v.l