Free Motion for Leave to File - District Court of Delaware - Delaware

Case 1:04-cv-01339-SLR Document 138 Filed O3/23/2007 Page 1 ot 3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
I
IN RE ALH HOLDTNGS, LLC ) Consol. C.A. No. 04—l339 — SLR
)
PLAINTIFFS’ MOTION TO SUPPLEMENT THE RECORD WITH DEPOSITION
TESTIMONY TAKEN AFTER THE CLOSE OF BRIEFING ON PLAINTIFFS’
MOTION TO COMPEL THE CLASS B PARTIES TO PRODUCE
DOCUMENTS CLAEMED AS PRIVILEGED OR FOR IN CAMERA INSPECTION
ANI) TO CONTINUE CERTAIN DEPOSITIONS
Plaintiffs hereby move to supplement the record with deposition testimony taken
after the close of briefing on PEaintiff’s Motion to Compel the Class B Parties to Produce
Documents Claims as Privileged or F or ln»Camera Inspection and to Continue Certain
Depositions (D.I. I I6, the "Motion").
On March I2, 2007, the parties completed briefing on the Motion. On March 13,
2007, plaintiffs took the deposition of Isaac M. Neuberger, whose communications are the
subject ofthe Motion.
Relevant excerpts of Mr. Neubergefs deposition are attached hereto as Exhibit A.
Plaintiffs submit that the attached excerpts from Mr. Neubergefs deposition speak for
themselves and supplement the evidence and arguments provided in support of the Motion that
Defendants and Shalom E. Lamm may not assert privilege over their communications with Mr.
Neuberger because Mr. Neuberger was the individual responsible for the decisions of Class B
Member SELK, LLC ("SELK") and because his communications with Mr. Lamm were not in
Mr. Lamm ’s capacity as managing member of SELK, as Mr. Lamm (according to Mr.
Neuberger) was not authorized to make decisions for SELK and because Mr. Neuberger was
rendering advice at times when there was no decision to be made by SELK.

Case 1:04-cv-01339-SLR Document 138 Filed O3/23/2007 Page 2 ot 3
Defendants have now also supplemented their privilege logs (yet again) and have
included documents that, on their face, are not privileged. See Exhibit B.
WHEREFORE, Blaintiffs request leave to supplement the record on the Motion
and that the Court consider the designations from Mr. Neuberger’s deposition attached hereto as
Exhibit A and the supplemental privilege logs attached hereto as Exhibit B in connection with
the Motion.
MORRIS, NICHOLS, ARSHT TUNNELL LLP
____,,. v » - l
__,,=_ . _ . _,
A l i t Spatksjlll (#467)
S. Mark Hurd (#3297)
Samuel T. Hirzel (#4415)
E20} N. Market Street
P.O. Box 1347
Wilmington, DE 198991347
(302) 658-9200
Attorneys for Plaintiws &
Coumerclaim Defendants
March 23, 2007
v6s$¤w.;z
2

Case 1:04-cv-01339-SLR Document 138 Filed O3/23/2007 Page 3 of 3
CERTIF1CA'I`E OF SERVICE
1 hereby certify that on March 23, 2007, 1 electronicaliy tiled the foregoing
document with the Clerk of Court using CM/ECP, which will send notification of such
tiling to the following:
Sean J. Bellew
David A. Felice
Cozen O’Connor
Chase Manhattan Centre
1201 North Market Street, Suite 1400
Wilmington, DE 19801
/s/ Samuel T Hirzef
Samuel T. Hirzei (#4415)