[Reply Brief, Appendix of Unpublished Authorities, and...

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Gibson, Dunn & Crutcher LLP

KEVIN S. ROSEN (SBN 133304) [email protected] DOUGLAS FUCHS (SBN 196371) [email protected] MICHAEL H. DORE (SBN 227442) [email protected] GIBSON, DUNN & CRUTCHER LLP 333 South Grand Avenue Los Angeles, CA 90071-3197 Telephone: (213) 229-7000 Facsimile: (213) 229-7520

Attorneys for Defendant Bryan Cave LLP

UNITED STATES BANKRUPTCY COURT

CENTRAL DISTRICT OF CALIFORNIA

NORTHERN DIVISION

In re

ESTATE FINANCIAL, INC.,

Debtor.

Chapter 11

Case Nos. 9:08-bk-11457-PC, 9:08-bk-11535-PC

Adv. Nos. 9:11-ap-01147-PC, 9:11-ap-01146-PC

Assigned to the Hon. Peter H. Carroll

SUPPLEMENTAL DECLARATION OF MICHAEL DORE IN SUPPORT OF MOTION OF BRYAN CAVE LLP TO COMPEL THE PRODUCTION OF DOCUMENTS

[Reply Brief, Appendix of Unpublished Authorities, and Responses to Objections to the Declaration of Michael Dore filed concurrently]

Hearing: Date: April 13, 2016 Time: 10:00 a.m. Place: Courtroom 201

1415 State Street Santa Barbara, CA

THOMAS P. JEREMIASSEN, chapter 11 Trustee,

Plaintiff,

v.

BRYAN CAVE LLP, a professional limited liability partnership, and KATHERINE M. WINDLER, an individual,

Defendants.

In re

ESTATE FINANCIAL MORTGAGE FUND, LLC,

Debtor.

[JOINT CAPTION CONTINUED ON NEXT PAGE]

Case 9:11-ap-01147-PC Doc 157 Filed 04/06/17 Entered 04/06/17 20:25:38 Desc Main Document of 39

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BRADLEY D. SHARP, CHAPTER 11 TRUSTEE,

Plaintiff,

vs.

BRYAN CAVE LLP, a professional limited liability partnership, and KATHERINE M. WINDLER, an individual,

Defendants.


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SUPPLEMENTAL DECLARATION OF MICHAEL DORE

I, Michael Dore, declare as follows:

1. I am an attorney licensed to practice law in all courts in the State of California and am

admitted to practice before the United States District Court, Central District of California. I am one

of the attorneys responsible for the representation of Defendant Bryan Cave LLP (“Bryan Cave”) in

this matter.

2. I make this supplemental declaration in support of Bryan Cave’s Motion to Compel

the Production of Documents. I make this declaration of my own personal knowledge, except where

otherwise indicated, and if called as a witness, I could and would testify competently to the facts

stated herein.

3. Attached hereto as Exhibit A is a true and correct copy of chain of emails between

myself and Larry Gabriel, Corey R. Weber, John P. Reitman, and Aleksandra Zimonjic, counsel for

the Trustees, which begins with a June 16, 2016 email and ends with a September 28, 2016 email. In

a June 24, 2016 email in this chain, I note that Bryan Cave intended to file a motion asking the Court

to compel the Trustees to produce, among other things, any communications between the Trustee and

EFI/EFMF employees.

4. Attached hereto as Exhibit B is a true and correct copy of an October 5, 2016 email

that I received from Aleksandra Zimonjic, copying John P. Reitman, Larry Gabriel, and Corey

Weber, counsel for the Trustees, which attached the Trustees’ portion of a Stipulation On Disputed

Issues In Bryan Cave’s Motion to Compel Production Of Documents added to Bryan Cave’s portion

of the Stipulation. A finalized version of the Stipulation was filed on March 3, 2017 (9:11-ap-01146

Dkt. 108; 9:11-ap-01147 Dkt. 123) with some changes to the introductory statement per a request

noted in Ms. Zimonjic’s email but no other substantive changes from the version attached to the

October 5, 2016 email.

5. Attached hereto as Exhibit C is a true and correct copy of a document produced in

this litigation, identified with bates number EFI0186226 and including emails dated on or about

August 22, 2008.

6. Attached hereto as Exhibit D is a true and correct copy of a document produced in


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this litigation, identified with bates numbers EFI0353145–EFI0353149 and including emails dated in

or around June and August 2008.

7. Attached hereto as Exhibit E is a true and correct copy of a document produced in

this litigation, identified with bates number EFI0189122 and including emails dated on or about

August 26, 2008.

8. Attached hereto as Exhibit F is a true and correct copy of a document produced in

this litigation, identified with bates numbers EFI0189449–EFI0189450 and including emails dated in

or around August and September 2008.

9. I have reviewed documents apparently produced by the Trustees and located several

emails that post-date the filing date of the EFI bankruptcy petition in June 2008 and the EFMF

bankruptcy petition in July 2008 and appear to include as addressees Laura Paulsen

([email protected]) and/or Shauna Bishop (whose email listing apparently was identified as

[email protected] because in several emails using that email address the signatory is

“Shauna B.”). The Trustees stated on page 11, footnote 6 of their opposition brief to the motion to

compel that Bryan Cave filed on or about March 24, 2017 that Bishop and Paulsen are “former EFI

employees” whom the Trustees retained “to perform work for the EFI and EFMF bankruptcy

estates….”

I declare under penalty of perjury under the laws of the United States of America that the

foregoing is true and correct and that this declaration was executed on the 6th day of April, 2017 in

Los Angeles, California.

/s/ Michael H. Dore

Michael H. Dore


EXHIBIT A

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From: Dore, Michael H. Sent: Wednesday, September 28, 2016 4:56 PMTo: John P. Reitman <[email protected]>; 'Aleksandra Zimonjic' <[email protected]>Cc: Larry Gabriel <[email protected]>; Corey R. Weber <[email protected]>Subject: FW: Production of Documents John,Please see my September 1, 2016 email below, which I am sending again per your request. I addedthe highlight now. Michael Dore

GIBSON DUNNGibson, Dunn & Crutcher LLP333 South Grand Avenue, Los Angeles, CA 90071-3197Tel +1 213.229.7652 • Fax +1 213.229.6652 [email protected] • www.gibsondunn.com

From: Aleksandra Zimonjic [mailto:[email protected]] Sent: Friday, September 9, 2016 11:18 AMTo: Dore, Michael H. <[email protected]>Subject: RE: Production of Documents Michael, I will be sending you the annotated version of Exhibit 1 by the end of next week. The Trustee’s position regarding (i) post-bankruptcy communications and (ii) communications withother attorneys who represented EFI/EFMF (whether or not Windler and/or Puccio were copied onthem), remains unchanged.

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mailto:[email protected]





http://www.gibsondunn.com/



Alex.

From: Dore, Michael H. [mailto:[email protected]] Sent: Thursday, September 01, 2016 5:24 AMTo: Aleksandra ZimonjicCc: John P. Reitman; Larry Gabriel; Corey R. WeberSubject: RE: Production of Documents Alex,Please let us know when you expect to send us an annotated version of Exhibit 1. As I noted in my earlier email, the pre-bankruptcy communications that the Trustees havewithheld from this category are all documents on your various privilege logs that were sent by,to, or copied a Bryan Cave attorney and/or Guy Puccio. There is no need for us to create anew list of these easily identifiable documents from your various privilege logs. The Trustees have produced post-petition documents, but appear to have given noindication that those documents are comprehensive or why the Trustees decided toproduce these documents (several of which post-date July 2008) and not others. Unless you tell us otherwise, we will proceed on the assumption that there areadditional post-petition communications with then-current and former EFI personnel(including Shauna Bishop) that the Trustees have decided not to produce. My understanding of Bryan Cave’s email retention policy is as follows: Individual mailboxusers are generally responsible for retention of email relevant to their client matters, firmbusiness, and other matters. In 2007, Bryan Cave implemented an auto-deletion protocol bywhich email in each user’s In Box would be automatically deleted after 60 days of the latest ofits sent, received, or modified date, unless the user foldered the email item in his or her“Cabinet.” The user also could delete messages, whether foldered or not. Items deleted by theprotocol or by user choice were purged and rendered unrecoverable 21 days after deletion. Aformal written litigation hold/preservation notice was circulated at Bryan Cave on December7, 2009, approximately 5 days after the Trustees sent Bryan Cave a subpoena for materialsincluding documents relating to malpractice insurance coverage. Seven months later, on June11, 2010, the Trustees sent a letter to Bryan Cave and Katherine Windler stating for the firsttime at the Trustees were prepared to file adversary complaints against them. Michael Dore


From: Aleksandra Zimonjic [mailto:[email protected]] Sent: Thursday, July 28, 2016 5:05 PMTo: Dore, Michael H.Cc: John P. Reitman; Larry Gabriel ([email protected]); Corey R. Weber([email protected])

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Subject: RE: Production of Documents Mike, (1) 633 documents identified in “Exhibit 1” to Bryan Cave’s June 26, 2015 correspondenceto the EFMF Trustee.

As mentioned in my email below, we have not knowingly withheld from production any pre-bankruptcy communications that we did not mark as privileged in the Relativity privilege log. We will review the 633 documents currently withheld as privileged and we will annotateExhibit 1 accordingly.

(2) documents including Katherine Windler and/or Guy Puccio which include third partycounsel.

Please identify by August 12, 2016 the pre-bankruptcy communications that the Trusteeshave withheld from this category so we can respond accordingly.

In addition, we believe that the two cases you sent us are inapposite. The Anten caseinvolved a joint representation scenario in which only one of the two clients sued the jointattorney for malpractice. The court prevented the non-suing client from disclosing attorney-client communications made during the joint representation. The National Mortgage caseheld an attorney can waive attorney-client privilege to defend himself against third partyaccusations even though the client did not consent to waiver of the privilege. Neither of thetwo scenarios is analogous to our case.

(3) communications between Karen Guth and Josh Yaguda, on the one hand, and Guthand Yaguda’s personal counsel on the other hand.

As mentioned in my email below, the Trustees are not authorized to waive Guth andYaguda’s attorney-client privilege and will not voluntarily produce any documents from thiscategory.

(4) communications between EFI/EFMF employees (including Guth and/or Yaguda) andthe Trustees.

Your statement that the Trustees are “refusing to produce any post-bankruptcy documentsonly because the Court has not yet ordered [the Trustees] to do so” is inaccurate.

First, the Trustees have voluntarily provided various post-bankruptcy documents to you,although they were not required to do so. See my July 9, 2015 letter to D. Fuchs and theenclosed flash drive containing scans of different post-bankruptcy documents, including theTrustees’ communications with Guth, Yaguda and Windler.

Second, we do not agree with your interpretation of the Court’s order.

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(5) issue of the Trustees’ compliance with Fed. R. Bankr. P. 7034.

The Trustees produced documents in the manner they were turned over to the Trustees andmaintained by the Trustees in the ordinary course of business. Moreover, long before youwere involved in these cases, your firm negotiated for access to the Relativity site knowingthat they would review the emails in the form and order that they were placed on that site. Your dissatisfaction with the way EFI/EFMF documents had been organized prior to theTrustees’ involvement is misdirected.

(6) Windler documents.

Bryan Cave had a duty to preserve information which Bryan Cave should have known maybecome relevant in future lawsuits. You said that Bryan Cave did not have certain “Windlerdocuments” that are in the Trustees’ possession and that are relevant to the Trustee’s claimsagainst Bryan Cave. Please identify all such documents and describe Bryan Cave’s emailretention policy so it can be determined why the documents are now “missing.”

(7) Bryan Cave’s Production

Contrary to your assertion, Rule 34(b)(2)(E)(i) applies to ESI production. See e.g., City ofColton v. Amer. Promotional Events, Inc., 277 F.R.D. 578, 584 (C.D. Cal. 2011) (noting the"broad consensus" among courts that Rule 34(b)(2)(E)(i)'s requirements regardingorganization of discovery productions apply to both hard copy documents and electronicallystored information).

Please send us the additional details about the contents of the June 2015 productionmentioned in your email below. Thank you.Alex.

From: Dore, Michael H. [mailto:[email protected]] Sent: Monday, July 11, 2016 6:59 PMTo: Aleksandra ZimonjicCc: John P. Reitman; Larry Gabriel; 'Corey R. Weber'Subject: RE: Production of Documents Alex, 1) 633 documents identified in “Exhibit 1” to Bryan Cave’s June 26, 2015 correspondence to theEFMF Trustee. Thank you for explaining why you did not produce all 856 documents on your privilege logs that

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contain no assertion of privilege. You say now that you are withholding 633 of those documents asprivileged, and that these documents are interspersed somewhere within 20 privilege logs that youproduced over the course of four months. Your January 29, 2016 letter in response to a letter wesent on November 23, 2015 did not indicate that these documents were identified in your variousprivilege logs, but rather asked us to spend the time figuring out which documents from Exhibit 1you chose not to produce. To our knowledge, the Trustees have never provided an “annotated”Exhibit 1 or otherwise produced a log that identifies those 633 documents and the privilege(s) theTrustees are asserting. Please send us such a log so that we can, hopefully, put this issue to rest. 2) documents including Katherine Windler and/or Guy Puccio which include third party counsel. Every document on your privilege log that was sent by, to, or copied a Bryan Cave attorney and/orGuy Puccio is not privileged and should be produced. The Trustees have conceded that the noprivilege or doctrine applies to justify withholding communications between EFI/EFMF and BryanCave/Puccio; you claim without providing any legal support (which you have refused to providedespite our repeated requests) that having an additional attorney on these communicationssomehow shields them from disclosure to Bryan Cave. That is incorrect under federal law and statelaw. See In re Nat’l Mortg. Equity Corp. Mortg. Pool Certificates, 120 F.R.D. 687, 690 (C.D. Cal. 1988)(applying self-defense exception to communications concerning same subject matter); Anten v.Superior Court, 233 Cal. App. 4th 1254, 1258 (2015) (applying self-defense exception where non-suing client sought to bar production of communications between suing client, non-suing client, andattorney). If Windler remembers a telephone call between EFI, herself, and another lawyer, are yougoing to invoke the attorney-client privilege to prevent her from testifying about it? Your positionmakes no practical sense, is unfair given that this is your lawsuit, and is diametrically opposed to theprinciple that the attorney-client privilege is strictly construed. 3) communications between Karen Guth and Josh Yaguda, on the one hand, and Guth andYaguda’s personal counsel on the other hand. You have conceded that the Trustees have no privilege over these documents, so you lack authorityto have them at all. You have reviewed documents you knew were privileged and the Trustees keptthem for 8 years without returning them to Guth and Yaguda. You are not the stewards of thirdparties’ privilege and withholding these documents shows either that they are not privileged at all orthat you are improperly keeping materials that you should not have in the first place. 4) communications between EFI/EFMF employees (including Guth and/or Yaguda) and theTrustees. You appear to be refusing to produce any post-bankruptcy documents only because the Court hasnot yet ordered you to do so. The Court’s 2015 order denied Bryan Cave’s motion to compel as topost-petition documents because that request was deemed overbroad. Our request here is verynarrow. Your position turns Rule 26 on its head and has no justification. This will be a totallyunnecessary waste of the Court’s time and resources. (5) issue of the Trustees’ compliance with Fed. R. Bankr. P. 7034.

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Your production is rife with irrelevant documents (hundreds of Viagra advertisements and Olive OilCouncil emails among them). Separately, the Trustees have gone on record saying that EFI’s recordswere disorganized. Simply re-producing those disorganized documents does not mean you compliedwith Rule 7034. (6) Windler documents. Please identify the host of issues you believe to have been raised by the possibility that documentswere not retained pursuant to a regular retention policy years before you sent a 2010 letter to BryanCave first threatening litigation, let alone filed your complaint. (7) Bryan Cave’s Production Hopefully, in spending all the time necessary to review 29,000 pages of documents himself,John used the search and sorting tools available through Relativity that would have allowedhim to organize documents by custodian, date, type of document and myriad othercategories. As John made clear on the call, the Trustees’ current counsel were not retaineduntil years after your clients and their previous counsel received the first batch of documentsfrom Bryan Cave. We have no idea how your clients and their previous counsel organized orkept those documents. We also are not sure why you have raised this issue eight years afteryour clients first received documents and at least five years after you filed complaints withmany documents that appear to be from the very production you claim is so difficult tonavigate. As we get additional details about the contents of the productions, we will providethem to you – just like we provided you with the search terms and contents of the 2015production. In the meantime, the Trustees have not shown that Rule 34’s requirements applyto ESI productions. See, e.g., Anderson Living Trust v. WPX Energy Prod., LLC, 298 F.R.D. 514,527 (D.N.M. 2014) (“Rule 34(b)(2)(E)(i) governs hard copy documents, and (E)(ii) governs ESI,with no overlap between.”). Michael Dore


From: Aleksandra Zimonjic [mailto:[email protected]] Sent: Wednesday, July 06, 2016 4:51 PMTo: Dore, Michael H.Cc: John P. Reitman; Larry Gabriel ([email protected]); Corey R. Weber([email protected])Subject: RE: Production of Documents Michael,

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At our meet and confer yesterday, we addressed Bryan Cave’s request for production of the fourcategories of documents identified in your email below. As discussed during the call, the Trustees’position is as follows: (1) 633 documents identified in “Exhibit 1” to Bryan Cave’s June 26, 2015 correspondence to theEFMF Trustee. The Trustees produced 223 of the 856 documents included in Exhibit 1 and withheld the remaining633 as privileged. As John explained to you, (1) we have not withheld from production any pre-bankruptcy communications which he did not personally mark as privileged. In that regard, inresponse to inquiries from your firm the Trustees provided approximately 20 supplemental privilegelogs with respect to the documents identified in 27 exhibits that we received from Doug Fuchsbetween June and October last year; and (2) the information that is available to you on Relativity andin those supplemental privilege logs identifies for each withheld email, the identities of all parties tothe communication, the date and subject matter of each communication and the privilege(s)asserted. It appears to us that the supplemental privilege logs we provided to you betweenSeptember 2015 and January 2016 have not been reviewed. To the extent Bryan Cave contends thatany of the 633 documents are not properly withheld as privileged, identify each such document andthe basis for Bryan Cave’s production request. (2) documents including Katherine Windler and/or Guy Puccio which include third party counsel. The Trustees contend that such communications involving other attorneys who also representedEFI/EFMF are privileged. Since the Trustees identified all privileged documents in the privilege logs,please identify specific documents from this category that Bryan Cave contends are not protectedfrom discovery and we will provide a response with regard to each such document. If you havebinding authority demonstrating that such communications are not privileged, please send the casecitations to us. (3) communications between Karen Guth and Josh Yaguda, on the one hand, and Guth andYaguda’s personal counsel on the other hand. The Trustees lack authorization to waive the attorney-client privilege on Guth and Yaguda’s behalfand will not voluntarily produce any documents from this category. (4) communications between EFI/EFMF employees (including Guth and/or Yaguda) and theTrustees. Based on the Bankruptcy Court’s ruling on Bryan Cave’s motion to compel, the Trustees will notproduce any post-bankruptcy documents. (5) issue of the Trustees’ compliance with Fed. R. Bankr. P. 7034. The Trustees produced documents as they have been maintained in the ordinary course of business.

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During the call yesterday you told us that the Trustees have “Windler documents” that Bryan Cave isnot able to locate. When John and Larry inquired how that was even a possibility, you said thatthere could have been an automatic deletion of emails as a result of email retention policy. Obviously, the question of the missing “Windler documents” raises a host of issues related to BryanCave’s duty to preserve evidence. Please identify each of the “Windler documents” that theTrustees have but Bryan Cave was not able to locate in its files and provide us with Bryan Cave’semail retention policy during the relevant time period or any other explanation Bryan Cave has as towhy the documents are now “missing.” Finally, as John explained to you, he has reviewed the more than 29,000 pages of documents thatBryan Cave has posted on Relativity and they do not appear to be organized in any discernablefashion. They clearly are not organized by date, subject or type of document. That leaves thepossibility that the documents were simply pulled from the working files of various attorneys andproduced in that “order.” If such is the case, the problem is that the purported custodians took nosteps to organize their own files either by date, subject or type of document. You also told us thatthere are no memoranda that describe how those documents are organized. In other words, wehave received no satisfactory explanation for a production that appears calculated to waste theestates time and resources. We await a further response and a satisfactory explanation from you. In the meantime, the Trustees reserve the right to address this issue with the Bankruptcy Court. Alex.

From: Dore, Michael H. [mailto:[email protected]] Sent: Tuesday, June 28, 2016 10:09 AMTo: Aleksandra ZimonjicCc: John P. Reitman; Larry Gabriel ([email protected]); Corey R. Weber([email protected])Subject: RE: Production of Documents Alex,I am available this week if Corey can stand in for Larry. Otherwise, I am available July 5 and July 6. We do not know the scope of EFI’s planned motion to compel; for example, I don’t believe there hasever been discussion of the argument for which Larry cited the Kalani case in his email. SoLarry/Corey, please let us know your availability and we can have a call as to the EFI Trustee’s motionto compel and a group call including counsel for the EFMF Trustee regarding Bryan Cave’s motion tocompel. Thanks. Michael Dore

GIBSON DUNNGibson, Dunn & Crutcher LLP333 South Grand Avenue, Los Angeles, CA 90071-3197

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Tel +1 213.229.7652 • Fax +1 213.229.6652 [email protected] • www.gibsondunn.com

From: Aleksandra Zimonjic [mailto:[email protected]] Sent: Monday, June 27, 2016 4:02 PMTo: Dore, Michael H.Cc: John P. Reitman; Larry Gabriel ([email protected]); Corey R. Weber([email protected])Subject: RE: Production of Documents Michael, If you are planning to file a motion to compel the Trustees to produce documents, we require thatyou meet and confer with us a counsel for the EFMF Trustee. Because your planned motion tocompel implicates the aligned rights of both Trustees, we further require that counsel for the EFITrustee participate in the meeting. While July 5th or 6th and most of the week of July 11th worksfor us, Larry Gabriel is on vacation and we can’t speak for his or Corey Weber’s availability. Please provide us with your available dates to meet and confer regarding the issues identified inyour email. Thank you.Alex.

From: Dore, Michael H. [mailto:[email protected]] Sent: Friday, June 24, 2016 7:49 PMTo: Larry GabrielCc: Corey R. Weber; John P. Reitman; Aleksandra ZimonjicSubject: RE: Production of Documents Larry,Sure. I could do a call at 9:30 am on Monday morning if that works. Please let me know. I’m tryingto find a letter that might fit the bill for what you were referring to, but there obviously has been agreat deal of correspondence between the parties. If you have the letter to which you are referringhandy and could send it to me, I’d appreciate it. Please also note that Bryan Cave currently intends to file a motion asking the Court to compel theTrustees to produce the following. If the Trustees believe further meet and confer on these issues isrequired, please let us know. Otherwise, we will assume that you feel the past telephoneconferences (and Monday’s call) are sufficient to satisfy the requirements of L. Bankr. R. 7026-1(c). (1) 633 documents identified in “Exhibit 1” to Bryan Cave’s June 26, 2015 correspondence to theEFMF Trustee that the Trustees have not produced or claimed to be privileged. The Trustees haveproduced 223 of the 856 total documents in this category and put the onus on Bryan Cave toidentify the remaining 633 non-privileged documents. Bryan Cave’s position is that it is the Trustees’

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responsibility to identify and produce these documents. (2) documents including Katherine Windler and/or Guy Puccio. The Trustees appear to be assertingthat documents including Windler and/or Puccio are not privileged in and of themselves, but areprivileged when they include third party counsel. Our position is that this position is not supportedby law and that the Trustees must produce these documents. (3) communications between Karen Guth and Josh Yaguda, on the one hand, and Guth and Yaguda’s personalcounsel on the other hand. The Trustees have indicated that they are not withholding these “third party”communications—as the Trustees describe them—based on the attorney-client privilege. Rather, they argue thatGuth and Yaguda should have an opportunity to object to the production of these materials already in the Trustees’possession. Bryan Cave’s position is that Guth and Yaguda have waived any applicable attorney-client privilege andthat these documents must be produced. (4) any communications that the Trustees are withholding that are communications betweenEFI/EFMF employees (including Guth and/or Yaguda) and the Trustees. Bryan Cave’s position is thatthese documents are not privileged and that at least the documents dated through July 31, 2008should be produced. (5) revised Trustees’ production that complies with Fed. R. Bankr. P. 7034. We reserve the right to add to or amend this list of issues that we will include in our motion tocompel. Have a good weekend. Michael Dore


From: Larry Gabriel [mailto:[email protected]] Sent: Friday, June 24, 2016 5:45 AMTo: Dore, Michael H.Cc: Corey R. Weber; 'John P. Reitman'; Aleksandra Zimonjic ([email protected])Subject: RE: Production of Documents Michael:Thank you for your letter. I have to disagree regarding your position that we now again need to gothrough another meet and confer process on the issues we have been attempting to address overthe last year – which is the meet and confer process. That letter outlining the issues presented wassent shortly after we received Bryan Cave’s response. We of course will comply with therequirements of relating to the filing of a motion to compel. Is it possible to have a call earlyMonday morning? Larry

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<image002.jpg>

Larry Gabriel, Of Counsel

Brutzkus Gubner Rozansky Seror Weber LLP21650 Oxnard St., Suite 500Woodland Hills, CA 91367-4911www.brutzkusgubner.com

(818) 827-9000 Main(818) 827-9147 Direct(818) 943-8992 Cell(818) 827-9038 [email protected] Please note our new email and website addresses.

The preceding e-mail message is subject to Brutzkus Gubner Rozansky Seror Weber LLP's e-mail policies, which can be found at:http://www.brutzkusgubner.com/disclaimer

From: Dore, Michael H. [mailto:[email protected]] Sent: Thursday, June 23, 2016 11:12 PMTo: Larry GabrielCc: Corey R. Weber; 'John P. Reitman'; Aleksandra Zimonjic ([email protected])Subject: RE: Production of Documents Larry,Refusing to simply agree to your demands -- including after you unilaterally decide to throw awaynear-final, extensively negotiated draft stipulations -- is not “game-playing.” If you intend to pursuea motion to compel, that is your prerogative. But as you know, you are obligated to tell us the termsof the discovery order you seek in writing (which you have not done), to invite a meet and confer onthose issues, and to participate in the preparation of a joint stipulation as to those issues. C.D. L.Bankr. R. 7026-1(c). Failure to do so may result in sanctions and the summary denial of yourmotion. Id. As it stands, your email is not clear. Are you contending that Bryan Cave did not in fact providedocuments to you in 2008 as they were kept in the usual course of business? What basis do youhave for claiming that? As a threshold matter, some cases suggest that ESI productions are notrequired to be produced as they are kept in the regular course of business or to correspond to thecategories in the request. See, e.g., Anderson Living Trust v. WPX Energy Prod., LLC, 298 F.R.D. 514,527 (D.N.M. 2014) (“Rule 34(b)(2)(E)(i) governs hard copy documents, and (E)(ii) governs ESI, with nooverlap between.”). Even if FRCP 34(b)(2)(E)(i) (as made applicable by Fed. R. Bank. P. 7034) applies,we believe the 2008 ESI production reflects those materials as they were kept in the regular courseof business in any event. So you have nothing with which to take issue. In fact, you have had thesematerials for 8 years and apparently attached numerous documents in relation to specific allegationsin the Trustees’ lengthy complaints before all of a sudden threatening a motion to compel on this(still vague) purported issue just this week. As for Bryan Cave’s June 2015 production to the Trustees – which as far as I can tell you have never

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challenged, and in fact needed us to confirm for you its existence – again, it would be moreproductive to just ask me what you are looking for. Below is a breakdown of the contents of BryanCave’s June 2015 production, followed by the list of search terms applied to the referenced emaildocuments. The Trustees have had these materials for a full year, presumably can text search themand organize them by date on Relativity, and the attachments correspond with the given facedocuments. This itself should be sufficient to satisfy Rule 34(b)(2)(E)(i) – again, if it applies at all. See, e.g., Consolidated Rail Corp. v. Grand Trunk W. R.R. Co., 2009 WL 5151745, at *3 (E.D. Mich.Dec. 18, 2009). If you need more information, let me know and I can try to get it. In the same vein, your non-response response to our email regarding your more than 300,000-document production is insufficient. Nothing in Bryan Cave’s first motion to compel addressed theform of the production. If you claim that a certain procedure applies to Bryan Cave’s production,you cannot reasonably argue that a different standard applies to the Trustees. Please explain whyyour document production complies with the rule you claim Bryan Cave has violated. I am not available to discuss these issues with you before 11:30 a.m. tomorrow. I am availableMonday and the rest of next week, but absolutely understand your unavailability (congratulations,by the way). Please send us the required Rule 7026(c)(2) letter setting out the terms of the orderyou are seeking and we will do the same regarding, among other things, the Trustees refusal(without any legal support) to produce communications in its possession that include defendantKatherine Windler.

E-mail documents for the following custodians across date range of August 1,2006 to July 31, 2008.

1. Katherine Windler2. John Amberg3. Randolf Katz4. Bryan Turner5. Jed White6. Cassandra Writz7. Timothy Hayes8. Renee Williams

Documents from Bryan Cave’s eDOCS internal system that were compiledby searching client/matter numbers for the EFI representations.

Internal working files (“Files Retained”) for Katherine Windler, JohnAmberg, and Rennee Williams

Katherine Windler local documents

Bryan Turner loose documents

Timothy Hayes local documents

Randolf Katz single local document

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Privilege Log

· EFI*

· EFMF*

· (Estate Fin*)

· Guth*

· [email protected]

· Yaguda*

· [email protected]

· Puccio*

· Locati OR Locati’s OR Locatis

· Creekside*

· (Stein* w/10 Lubin*)

· (Seid* w/10 Zucker*)

· (Compliance review*)

· (Compliance audit*)

· Jeremiassen*

· Sharp*

· Internal Bryan Cave client/matter numbers for the EFI representations

· Applebaum*

· Fractionalized*

· (First Press)

· (Second Press)

· Pasolivo

· (Heritage Oaks)

Michael Dore

GIBSON DUNNGibson, Dunn & Crutcher LLP333 South Grand Avenue, Los Angeles, CA 90071-3197Tel +1 213.229.7652 • Fax +1 213.229.6652

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[email protected] • www.gibsondunn.com

From: Larry Gabriel [mailto:[email protected]] Sent: Thursday, June 23, 2016 6:09 AMTo: Dore, Michael H.Cc: Corey R. Weber; Aleksandra Zimonjic; John P. ReitmanSubject: RE: Production of Documents Michael: Your understanding is incorrect. There is no stipulation regarding the pre filing production. You -Bryan Cave didn’t identify documents responsive to each request for production as you are requiredto do. You already moved to compel further production of the Trustees documents and I believe lostthat motion. We are dealing with Bryan Cave’s failures, not the Trustees. I’m not interested indiscussing what the Trustees did or didn’t do that you previously have made no objection or werealready presented to the court. I am in the process of preparing the Trustee’s motion to compel, butI assume it won’t be finalized until Monday. We have offered straight forward stipulations and theyare always modified to make them unacceptable. We have requested over and over again, yourformal production of documents but you never even offered a stipulation regarding the previousproduction. What is equally frustrating is that you (Bryan Cave) take legal positions that have nobasis in fact (e.g. Bryan Cave wasn’t’ retained or didn’t perform a compliance audit, notwithstandingthe retention agreement specifically states the services were to be rendered for a compliance review, a report was written and billings were made for the compliance review. ) You and BryanCave have represented that there is no employment manual – however we have recently discoveredthat is a lie. So, while we can discuss things, I’m tired of the game playing and won’t put up with it any longer. I

won’t be in the office next week – vacation celebrating my 45th Wedding Anniversary. I’m in theoffice today, available tonight and tomorrow morning. I’m out after 11:30 a.m. Friday. Larry Sent from Mail for Windows 10 From: Dore, Michael H.Sent: Wednesday, June 22, 2016 6:05 PMTo: Larry GabrielCc: Corey R. Weber; 'John P. Reitman'; Aleksandra Zimonjic ([email protected])Subject: FW: Production of Documents Larry,Our understanding is that Bryan Cave turned over its files in 2008 as they were kept in the ordinarycourse of business. To the extent you contend a year after production that further designation isrequired as to the documents Bryan Cave produced in June 2015, we note that the Trustees produced

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https://go.microsoft.com/fwlink/?LinkId=550986






more than 300,000 documents without the designation you contend is required by the unpublishedslip opinion from the Eastern District of California. That case appears to have involved far fewerdocuments and the complaining party defined the purported “document dump” as including partiallyproduced documents with pages “strewn throughout the overall production”; pages “upside down,face down”; and documents that “looked, quite literally, like they had been thrown in the air andshuffled.” ED Cal. No. 2:13-cv-00061-JAM-CKD, Dkt. 36 at 7. If you would like to discuss eachside’s obligations regarding their respective productions, we are available to do so on Monday (I willbe on the road with limited availability tomorrow and most of Friday). Thanks. Michael Dore


From: Larry Gabriel [mailto:[email protected]] Sent: Tuesday, June 21, 2016 10:17 AMTo: Dore, Michael H.Cc: Corey R. Weber; 'John P. Reitman'; Aleksandra Zimonjic ([email protected])Subject: RE: Production of Documents Michael: Your response is unacceptable. As stated in Kalani v. National Seating & Mobility, Inc., 2013 WL5423489 (Slip Opnion, USDC E.D. Cal, 2013):

With respect to the production of documents, defendant claims all documents havebeen voluntarily produced. It appears defense counsel misapprehends the purposeof formal discovery. Plaintiff is entitled to a formal response to the requests forproduction of documents indicating which documents are responsive to whichrequests. Similarly, defense counsel's informal representation that “expense” wasnot a defense is insufficient to meet defendant's obligations in responding to thediscovery. The response to the request for financial information is woefullydeficient given defendant's insistence on maintaining all the affirmative defensespled in the answer to the amended complaint. The responses to the interrogatoriesare similarly deficient and particularly so in light of the absence of verifications, asrequired under Federal Rule of Civil Procedure 33(b)(3). In sum, the court findsdefendant's responses to the propounded discovery exhibit a slip-shod attitude andfundamental misunderstanding of defendant's discovery obligations under theFederal Rules of Civil Procedure.

Even if we were to consider a stipulation regarding the previous turn-over of documents tothe Trustees as a formal response to our production request, which I don’t believe has beenproffered, your response is legally insufficient, and amounts to nothing more than aninformal “document dump”. As noted by the court in Kalani, it is your obligation to designatewhich documents are responsive to which requests. It is not to say, “oh we have given you

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29,905 documents and you go figure it out.”

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From: Dore, Michael H. [mailto:[email protected]] Sent: Monday, June 20, 2016 11:59 PMTo: Larry GabrielCc: Corey R. Weber; 'John P. Reitman'; Aleksandra Zimonjic ([email protected])Subject: RE: Production of Documents Larry,I believe Bryan Cave provided the Trustees with thousands of documents prior to the Trustees filingtheir respective complaints (as you know, the Trustees’ complaints themselves attached as exhibitsseveral internal Bryan Cave communications you received as part of that production). On or aboutJune 23, 2015, I believe Bryan Cave also produced approximately 29,905 pages of email and otherdocuments (BryanCave0000001-0029905). We do not intend to re-produce documents that wehave already produced. Michael Dore


From: Larry Gabriel [mailto:[email protected]] Sent: Thursday, June 16, 2016 3:46 PMTo: Dore, Michael H.Cc: Corey R. Weber; 'John P. Reitman'; Aleksandra Zimonjic ([email protected])Subject: Production of Documents

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Michael: It is our position that Bryan Cave has not formally produced any documents subject to the documentrequests sent almost a year ago. Please advise if this is incorrect. Further, if we are correct, please advise when you contemplate producing the documents that arenot subject to the disputes we have been addressing.

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This message may contain confidential and privileged information. If it has been sent to you inerror, please reply to advise the sender of the error and then immediately delete this message.

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EXHIBIT B

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From: Aleksandra Zimonjic [mailto:[email protected]] Sent: Wednesday, October 5, 2016 6:12 PMTo: Dore, Michael H. <[email protected]>Cc: John P. Reitman <[email protected]>; Larry Gabriel ([email protected])<[email protected]>; Corey R. Weber ([email protected])<[email protected]>Subject: EFI/EFMF - the Trustees' inserts to Bryan Cave's joint stipulation re motion to compelfurther production of documents Mike, Attached please find the Trustees’ inserts to your joint stipulation re motion to compel furtherproduction of documents. In an effort to avoid having two separate introductory statements, we also provided our suggestedrevisions to your introductory statement, as shown by the highlighted and stricken text. Alex. Aleksandra ZimonjicAttorney

Landau Gottfried & Berger LLP1801 Century Park East, Suite 700Los Angeles, CA 90067Main: 310-557-0050Direct: 310-691-7379Fax: 310-557-0056E-mail: [email protected] Web: www.lgbfirm.com

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http://www.lgbfirm.com/

EXHIBIT C

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EXHIBIT D

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EXHIBIT E

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EXHIBIT F

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