Remaining transcription that I could not get loaded in time
• After being given the ability to handpick witnesses and hide key documents,
Debtors further seek to prevent meaningful discovery by not allowing parties in
interest to utilize interrogatories to determine the identity of key witnesses.
Denying the use of such a tool would further limit the ability to identify potential
witnesses or to seek leave of court to take those relevant depositions under
Debtors’ proposed truncated time frame. Simply put, this is one more way the
Debtors seek to continue to hide the ball.
REQUESTS FOR RELIEF
33. The Debtors, like any other litigation party, have a duty to respond to and comply
with discovery requests. See In re Condit, 2003 Bankr. LEXIS 601, *22 (Bankr. N.D. Tex. June
13, 2003) (“. . . compliance with Rule 2004 examinations and discovery are duties of a debtor-inpossession.”);
Goldberg v. Lawrence (In re Lawrence), 227 B.R. 907, 915 (Bankr. S.D. Fla.
1998) (“[t]he Debtor has an affirmative obligation to participate in discovery in an honest, nonevasive
and complete manner.”).
34. Where, as here, a debtor remains in control of significantly all of the information
relevant to the dispute, it is critically important that adverse parties be afforded ample time and
access to conduct discovery. See Harrods Ltd. v. Sixty Internet Domain Names, 302 F.3d 214,
246-247 (4th Cir. Va. 2002) (“Generally speaking, ‘sufficient time for discovery is considered
especially important when the relevant facts are exclusively in the control of the opposing
party.’” quoting 10B Charles A. Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice
& Procedure § 2741, at 419 (3d ed. 1998)).
35. The Debtors are seeking to use the Bankruptcy Code and applicable procedural
rules to, among other things, seek approval of the Plan and global settlement. As such, the
Debtors themselves must follow those same rules – including the applicable provisions of the
Federal Rules of Bankruptcy Procedure governing discovery.
{D0181611.1 }19
36. By their actions to date, including filing the Discovery Limitation Motion, the
Debtors seek to shirk their discovery obligations and deprive parties in interest of the
opportunity to investigate for themselves the reasonableness of the Plan and the settlement that
forms the basis of the Plan. Presumably, if the settlement were fair, reasonable and prudent, and
the Debtors had conducted themselves in a manner consistent with their fiduciary duties in
negotiating its terms, the Debtors would have no reservations about allowing such an
investigation to proceed unobstructed. The Debtors’ actions have cast significant doubt upon
that presumption.
A. The Motion To Compel Should Be Granted Immediately.
37. The Debtors are in default of the document production agreement represented to
the Court at the May 19 Omnibus hearing. The Debtors further remain in default of their pre-
May 19 commitments to the TPS Consortium to produce documents. The Debtors also are in
default of their post-May 19 agreements to “meet and confer” to discuss the TPS Consortium’s
document requests. For all of the reasons stated in the Motion to Compel and herein, the Motion
to Compel should be granted and the Debtors should be directed to produce all documents
responsive to the TPS Consortium’s requests by June 15 (the same date requested by the Equity
Committee in its Motion to Compel).
38. Additionally, the Debtors should be required to provide a privilege log
concurrently with its documents describing the recipients of alleged privileged documents, the
substance of the documents and asserted privilege. Without an informative privilege log, the
TPS Consortium would be further hindered in discovery efforts and prevented from challenging
improper assertions of privilege. The Debtors have delayed long enough, and should not be allowed to drag their feet on a privilege log, further preventing the TPS Consortium from
conducting meaningful discovery.
39. The TPS Consortium has requested documents related to what the Debtors
considered in deciding to relinquish billions of dollars worth of claims and to force parties in
interest to provide releases to numerous third parties, and it is entitled to those documents. In
this regard, Debtors have suggested that the decision to abandon its claims was based, at least in
part, on the analysis and advice of counsel. If Debtors do intend to put forth the advice of its
counsel as a reason for determining that the proposed settlement and the Plan are fair to all
parties, then the parties must be allowed to take discovery on that point.
40. It is fundamental that a party may not use privilege as both a sword and a shield.
In this regard, the Third Circuit has held that where a party:
[Makes] the decision and take[s] the affirmative step in the
litigation to place the advice of [counsel at] issue…. the client has
opened to examination facts relating to that advice…. The advice
of counsel is placed in issue where the client asserts a claim or
defense, and attempts to prove that claim or defense by disclosing
or describing an attorney client communication.
Rhone-Poulenc Rorer Inc. v. The Home Indem. Co., 32 F.3d 851, 863 (3d Cir. 1994);6 see
Glenmede Trust Co. v. B. Ray Thompson, Jr., 56 F.3d 476, 486 (3d Cir. 1995), (plaintiff waived
the attorney-client privilege with respect to communications to and from counsel concerning an
entire transaction when it “raised reliance on the advice of counsel regarding what parties should
be included in the buy-back transaction as an affirmative defense to the . . . claims and
voluntarily produced the Opinion Letter and a draft of it in response to discovery requests.”); In
______________________
6 The court in Rhone-Poulenc ultimately determined that a waiver did not take place. However, Rhone-
Poulenc is distinguishable from the situation here because, in Rhone-Poulenc, the defendants sought the
production of an analysis that was not placed at issue by the insureds with respect to the coverage
{D0181611.1 }21
re G-I Holdings Inc., 218 F.R.D. 428, 431 (D.N.J. 2003) (ordering the production of privileged
documents, because the debtors placed the attorneys’ advice “at issue,” by asserting an
affirmative defense based on privileged documents); Gov’t Guar. Fund of Republic of Finland
v. Hyatt Corp., 177 F.R.D. 336, 342 (D.V.I. 1997) (holding that references to privileged
information in a declaration waived the attorney-client privilege, because “it would be unfair to
allow [defendant’s officer] to use the testimony of one of its officers … and then not allow
plaintiffs to investigate that officer’s contemporaneous and subsequent communications.”).
Therefore, if the Debtors wish to rely on the advice of counsel, thereby putting that advice at
issue in connection with confirmation, then the Debtors cannot assert privilege to prevent the
TPS Consortium from taking discovery about such analysis.
B. The Discovery Limitation Motion Should Be Denied.
41. The Discovery Limitation Motion requests limitations and procedures that border
on outrageous under the facts and circumstances of these cases. The Debtors appear to be
operating under the assumption that, having negotiated the Plan and accompanying settlement
with certain case parties, they have an obligation to pursue approval of that deal at all costs –
even if that means seeking to deprive other parties of the opportunity to conduct full and fair
discovery regarding the deal. The Debtors have it completely wrong. Consistent with this
Court’s prior directives, the Debtors’ discovery duties as litigants before this Court, and the
Debtors’ fiduciary duties to all stakeholders – not just those whom Debtors’ counsel represents
in other matters (i.e. JPMC) – the Debtors should be instructed to simply comply with discovery
requests, as any other debtor or party in interest would be expected to do.
_______________________
dispute at issue in the case. 32 F.3d at 864. Here, the Ad Hoc Consortium is seeking information on
which the Debtors relied on in reaching the judgment to proceed with the settlement with Samsung. 42. As of the date of this filing, only three parties have sought discovery form
Debtors. There is no reason for any special discovery procedures to help manage those requests.
Debtors are represented by three separate law firms, and other parties from whom discovery may
be sought are also represented by competent counsel. Debtors’ request is nothing more than a
thinly veiled attempt to prevent the parties in interest from conducting any meaningful discovery.
Debtors should not be able to hide the facts from the parties by: (1) hand selecting witnesses to
be deposed; (2) unilaterally determining what documents are relevant to the parties’ objections;
or (3) preventing discovery on any issue other than those outlined by the parties who must make
their objections without the benefit of obtaining any information. Instead, the TPS Consortium
and other parties in interest should be allowed to utilize the very same procedures applied in
virtually every other case, which procedures are set forth in the Federal Rules of Civil Procedure
and Rules of Bankruptcy Procedure.
43. If the Court believes that it is necessary to set forth a schedule for conducting
discovery, and assuming that the Court adopts the Debtors’ proposed confirmation objection
deadline of July 19, the TPS Consortium requests the following:
• June 15, 2010 – Debtors to produce all responsive documents and a complete
privilege log
• Week of June 28, 2010 – Depositions to begin
• July 8, 2010 – Status Conference to address concerns related to discovery
(the same date suggested by Debtors for such a conference)
44. If the Debtors insist on a confirmation objection deadline of July 19, then this
proposed schedule will cause the least amount of prejudice to the Debtors and the objecting
parties. First, objecting parties will be allowed approximately two weeks to review produced
documents and prepare for depositions. Second, the parties will have time to try to resolve any
{D0181611.1 }23
disputes amongst themselves, and to the extent the disputes cannot be resolved, they can be
addressed by the Court on July 8 (the date suggested by the Debtors for such a conference.
WHEREFORE, the TPS Consortium respectfully requests that the Court: (a) grant the
Motion to Compel; (b) Order the Debtors to produce by June 15, 2010, all documents responsive
to the TPS Consortium’s request and produce a full privilege log describing the date, recipients,
subject matter and claimed privilege for any withheld documents; (c) deny the Discovery
Limitation Motion; and (d) grant such other and further relief as it deems just and proper.
EXHIBITS A THRU E not able to copy and paste.
GO WAMMMMUUUU
GO SUSMAN
GO EC
GO TPS
Market Data 
Markets 
AI
