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Case:12-24882-ABC Doc#:419 Filed:09/06/12
Entered:09/06/12 14:06:07 Page1 of 9
UNITED STATES BANKRUPTCY COURT DISTRICT OF COLORADO
In re CORDILLERA GOLF CLUB, LLC dba The Club at Cordillera, Tax ID / EIN: 27-0331317 Debtor.
Case No. 12-24882 ABC Chapter 11
DEBTORS MOTION FOR ENTRY OF PROTECTIVE ORDER REGARDING NOTICED DEPOSITIONS OF MR. ALFRED H. SIEGEL, MR. DANIEL L. FITCHETT, JR., AND THE DESIGNATED REPRESENTATIVE OF DEBTOR CORDILLERA GOLF CLUB, LLC, UNDER F.R.B.P. 30(b)(6), AND RELATED REQUESTS FOR PRODUCTION OF DOCUMENTS The Debtor and Debtor-in-Possession, Cordillera Golf Club, LLC, dba The Club at Cordillera (the Debtor), by its undersigned counsel, files this Motion for a Protective Order to govern discovery pursuant to Federal Rule of Civil Procedure (FRCP) 26(c), made applicable to this proceeding pursuant to Rule 7026 of the Federal Rules of Bankruptcy Procedure. Debtor requests that this Court grant Debtors Motion and thereby: (a) limit the scope and timing of discovery depositions and the production of documents in this matter; and (b) protect the documents being produced. Debtor requests that this Court enter the proposed Order attached hereto, together with the Protective Order attached to the Uetz Decl. at Exhibit 1. In support thereof, the Debtor respectfully states as follows: CERTIFICATION Debtor certifies that pursuant to FRCP 26(c)(1) Debtor has conferred in good faith with counsel for Movants Cheryl M. Foley, Thomas Wilner, Jane Wilner, Charles Jackson, Mary
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Jackson, and Kevin B. Allen (Movants) regarding the relief requested herein, and has been unsuccessful to resolve this dispute. INTRODUCTION 1. Rule 26(c) allows this Court to enter a protective order governing discovery for
good cause shown. Fed. R. Civ. P. 26(c). Good cause exists to limit discovery taken in connection with the Trustee Motion. The document requests issued in connection with the notices of deposition are overbroad and unduly burdensome, and the moving and joining parties seek multi-day depositions which are also overbroad and unduly burdensome to the estate. 2. Entry of a protective order is necessary to protect the personal privacy interests of
non-parties, including but not limited to Debtors current and former members, and Debtors non-public confidential information. The requested relief is further necessary to conserve costs by eliminating duplicative (and multi-day) depositions and document production. The requested relief is also necessary to enforce the protective order previously issued by this Court to prevent parties from circumventing those orders through additional discovery requests. Movants have refused to agree to single day depositions, have refused to limit their document requests as requested by Debtor and have refused to agree to Debtors proposed form of protective order. 3. Debtor submits that good cause exists to limit the scope of the documents which
must be produced in connection with these depositions, and to the extent that confidential documents are produced, they should be subject to a protective order designed to maintain the confidentiality and to limit the use of such documents to this proceeding. See proposed Protective Order attached to the Declaration of Ann Marie Uetz filed in support hereof (Uetz Decl.) at Exhibit 1. In addition, where Mr. Daniel Fitchett (CEO of the Debtor) has been noticed for deposition in his individual capacity, and he will also be the 30(b)(6) witness for the
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Debtor, his deposition should be limited to a single full day, and the matters on which examination is requested should be limited to the facts relevant to the Trustee Motion, as requested herein. Finally, the deposition of Alfred Segal, Debtors Chief Restructuring Officer, should be ordered to take place where Mr. Segal is located, Los Angeles, California, and should be limited to four hours. BACKGROUND AND PROCEDURAL FACTS 4. On August 29, 2012, this Court entered an order granting Debtors motion for a
protective order with respect to Movants first set of document requests. The August 29, 2012 Order protected Debtor from producing to the Movants the same documents that have already been produced in concurrent state court litigation (the Non-Duplication Order). The NonDuplication Order stated, Debtors Motion [for a protective order] is GRANTED in so far as Debtor need not produce the documents in response to Movants discovery request for it to produce all the documents previously produced in the Class Action case. See Non-Duplication Order [Docket #395]; Uetz Decl., 4. The Court did not enter Debtors proposed protective order submitted with its motion, but simply released Debtor from the burden of production. 5. On or about August 24, 2012, Movants served Debtor with the noticed
depositions of Mr. Alfred H. Siegel, Mr. Daniel L. Fitchett, Jr., and the Designated Representative of Debtor Cordillera Golf Club, LLC under F.R.B.P. 30(b)(6). In addition, on or about August 27, 2012, Movants served related requests for production of documents for each noticed deposition. Uetz Decl., 5, at Exhibit 2. Debtor objects to the subject matter of the depositions, as well as to the document requests, in part on the grounds that the scope of such testimony and requests are contrary to the this Courts Non-Duplication Order, in that they seek discovery on issues related to the pending state court cases. As this Court stated at the
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scheduling conference on August 15, 2012, and implicitly reinforced in the Non-Duplication Order, the parties will not litigate the state court issues as part of the trial on the Trustee Motion. Also, the Court stated its desire that the parties work together to narrow the issues. Unfortunately, the parties have been unable to reach any agreement and therefore Debtor seeks relief from the Court. Uetz Decl., 7 & 9. Debtors Objections to the noticed depositions and requests for production of Documents are attached to the Uetz Decl. at Exhibits 3. 6. Due to the notices of deposition and related document requests, as well as the
Movants and joining parties insistence that witnesses be produced for multi-day depositions, Debtor submits that additional protection from this Court is necessary and in the best interest of the estate. Debtor specifically requests that this Court limit each witness to a single day of testimony, that the scope of the matters concerning the 30(b)(6) deposition be limited to those matters relevant to the Trustee Motion (rather than every matter at issue in the state court litigation), and that the document requests be similarly tailored to the Trustee Motion. See this Courts Non-Duplication Order [Docket No. 385] and Debtors Objections to the noticed depositions and related document requests, collectively attached to the Uetz Decl. at Exhibit 3. 7. Furthermore, given the shortened discovery timeframe and the added cost and
expenses for duplicative depositions and document requests, the current scope of the noticed depositions are taking up substantial resources of the Debtor which exacerbates the cost and expense associated with this chapter 11 case.1
The Debtor has separately submitted a motion to vacate the existing trial dates of October 1 through 3, 2012, and to stay discovery and to treat the Trustee Motion as a status conference until the Debtor submits its plan for the consideration by all constituents. This will also permit the parties to engage in a mediation which to date in light of the flurry of discovery and the calendars of the parties is currently not likely to take place until the week of
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8.
Debtor respectfully requests that the Court grant this Motion and enter the
attached Order to limit the scope of the noticed depositions, approve the location for Mr. Siegels deposition to take place in Los Angeles, not Denver, and limit document production consistent with this Courts prior orders and Debtors Objections, as well as enter the proposed protective order related to the document production and use of documents attached to the Uetz Decl. at Exhibit 1. 9. The relief sought is designed to try to stop the hemorrhaging of legal fees in
connection with the Movants overly aggressive discovery plans, and to allow time to focus on an effective mediation between the parties. Initially, the parties hoped to mediate on August 31, 2012. This did not work for various schedules, and the next date of September 5, 2012 was suggested, but not all parties could be in attendance. Mediation is now scheduled for September 12 and 13, 2012. Uetz Decl., 8. 10. As a result, the parties to this action would effectively be trying to take discovery
concerning extremely contentious issues, while simultaneously attempting to resolve these same issues through mediation. This is not a good recipe for success. Moreover, even if there were no mediation to be scheduled, the discovery propounded by Movants is overly broad, unduly burdensome and ought to be limited to the issues identified by this Court for trial in connection with the Trustee Motion. This Court ought not permit the Movants to take discovery here under the guise of the Trustee Motion for an improper purpose which is to bleed the estate dry and/or further their position in the state court litigation.
September 10, 2012. To the extent the Court grants that motion, the Debtor believes the Court can defer ruling on this motion and trail it with the Trustee Motion.
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ARGUMENT 11. A court may enter a protective order to govern discovery and may make any
order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense. Fed. R. Civ. Pro. 26(c). FRCP 26 provides broad discretion for the court to control the disclosure of information sought in discovery and to protect confidential and commercial information. See e.g., Fed. R. Civ. Pro. 26(c)(1)(A)-(H). Protective orders of the type sought by Debtor are routinely approved by courts, and often stipulation of the parties. Gillard v. Boulder Valley Sch. Distr. Re-2, 196 F.R.D. 382, 386 (D. Colo. 2000) ([B]lanket protective orders are essential to the functioning of civil discovery. Absent such orders, discovery would come to a virtual standstill.) (internal citations omitted); see also Seattle Times Co. v. Rhinehart, 467 U.S. 20, 32-36 (1984) (noting that liberal pretrial discovery may seriously implicate privacy interests of litigants and third parties, and holding that courts have broad discretion to issue protective orders to prevent abusive use of information obtained through the discovery process). Whether good cause exists for the protective order depends on each particular case. Direct Sales Tire Co. v. Dist. Court, 686 P.2d 1316, 1319 (Colo. 1984). Good cause exists in this case because this Court has already limited the scope of production of documents, and the subject matter of the noticed depositions and related document requests exceed the Courts Non-Duplication Order. 12. As noted above, the Courts Non-Duplication Order has already limited the scope
of discovery in this case in relation to Movants first document request. As is evident from Movants noticed depositions and further related document requests, as well as Debtors objections to the same -- all attached to the Uetz Decl. at Exhibits 2-3 -- the depositions and related documents seek information and documents that were already prohibited under the Non-
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Duplication Order. It is essential that this Court extend the Non-Duplication Order to cover the noticed depositions and related document requests as part of the Trustee Motion because Movants would otherwise be able to circumvent the Non-Duplication Order by requesting the same protected information and documents via other discovery means. This Court has already found good cause to limit the scope of Debtors document production based on an overbroad, generic request, and this Court should extend that same protection to the noticed depositions and related document production so that Movants cannot circumvent the original Non-Duplication Order. 13. In addition, the information sought between the four noticed depositions is
duplicative, and the cost and expense of such duplicity supports the limitations requested herein. Mr. Siegel is the new Chief Restructuring Officer for Debtor, and given his short tenure with the Debtor and the historical nature of the allegations in the Trustee Motion, likely has little knowledge of facts that are relevant to the Trustee Motion. Moreover, Mr. Siegel is located in Los Angeles and Debtor ought not be forced to incur the fees and costs traveling to Denver for a deposition which the parties could more cost effectively do by having the deposition be telephonic or at least in Los Angeles (note that Debtors counsel is located proximate to Los Angeles and so a deposition there would be especially efficient). 14. The Debtor plans to designated Mr. Fitchett as is 30(b)(6) Designee, and therefore
deposing him as an individual and then again as the Designated Representative is excessive and nonsensical. Instead, Mr. Fitchett should be deposed in one session both as an individual and the Designated Representative because the testimony he would provide would be the same for both noticed depositions.
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15.
Additionally, given the time constraints and need for Mr. Fitchett and Mr. Siegel
to focus on the Debtors plan of reorganization, the Court should limit the number of hours of the depositions to four (4) hours for Mr. Siegel and seven (7) hours for Mr. Fitchett/30(b)(6) combined. PROPOSED ORDER 16. Debtors proposed Order, filed concurrently herewith, includes entry of a
Protective Order (Exhibit 1 to the Uetz Decl.), and will ensure that this Courts prior protective orders in the matter regarding other discovery areas, namely the Non-Duplication Order, is consistent throughout the discovery process regarding the Trustee Motion. The proposed Order extends the Non-Duplication Order to all discovery in these proceedings so that discovery rules are uniform regardless of the type of discovery method used. This will ensure consistency throughout the proceedings and respect for the Courts prior orders on the same or similar matters. It will also reduce the incurrence of administrative expenses. CONCLUSION WHEREFORE, because the law and the equities favor entry of the proposed order to limit the scope and timing of discovery and protect the documents being produced, the Debtor respectfully requests that the Court grant Debtors Motion and enter the proposed Order attached hereto together with the Protective Order attached to the Uetz Decl. at Exhibit 1. Respectfully submitted,
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Dated: September 6, 2012
FOLEY & LARDNER LLP /s/ Ann Marie Uetz Ann Marie Uetz 500 Woodward Avenue, Suite 2700 Detroit, MI 48226 Telephone: 313-234-7100 Facsimile: 313-234-2800 Email: auetz@foley.com Christopher Celentino (CA No. 131688) Mikel Bistrow (CA No. 102978) Dawn A. Messick (CA No. 236941) Admitted Pro Hac Vice 402 West Broadway, Suite 2100 San Diego, CA 92101 Telephone: 619-234-6655 Facsimile: 619-234-3510 Email: ccelentino@foley.com Email: mbistrow@foley.com Email: dmessick@foley.com Counsel for Debtor and Debtor in Possession -andSENDER & WASSERMAN, P.C. Harvey Sender (CO No. 7546) 1660 Lincoln Street, Sutie 2200 Denver, CO 80264 Telephone: 303-296-1999 Facsimile: 303-296-7600 Email: sender@sendwass.com Counsel for Debtor and Debtor in Possession
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Case:12-24882-ABC Doc#:419-1 Filed:09/06/12
Entered:09/06/12 14:06:07 Page1 of 4
DECLARATION OF ANN MARIE UETZ IN SUPPORT OF DEBTORS MOTION FOR ENTRY OF PROTECTIVE ORDER REGARDING NOTICED DEPOSITIONS OF MR. ALFRED H. SIEGEL, MR. DANIEL L. FITCHETT, JR., AND THE DESIGNATED REPRESENTATIVE OF DEBTOR CORDILLERA GOLF CLUB, LLC, UNDER F.R.B.P. 30(b)(6), AND RELATED REQUESTS FOR PRODUCTION OF DOCUMENTS I, Ann Marie Uetz, declare as follows: 1. I am an attorney admitted to practice before this Court. I am a partner at the law
firm Foley & Lardner LLP, counsel for Debtor and Debtor-in-Possession Cordillera Golf Club, LLC, in the above-captioned matter. The facts stated below are personally known to me, except for those matter based upon information and belief, and as to those I believe them to be true. If called as a witness, I could and would competently testify to the truth of such facts. 2. On August 15, 2012, Cheryl M. Foley, Thomas Wilner, Jane Wilner, Charles
Jackson, Mary Jackson and Kevin B. Allen (Movants) served Debtor with their First Request for Production of Documents which included a single document request: Any and all documents which the Debtor has produced to any party in the litigation pending in the District Court for Eagle County, Colorado, case number 2011 CV 552, captioned Plaintiffs: CHERY [sic] M. FOLEY, THOMAS WILNER, JANE WILNER, CHARLES JACKSON, MARY JACKSON and KEVIN B. ALLEN individually and on behalf of all others similarly situated, v. Defendants: CORDILLERA GOLF CLUB, LLC, a Delaware limited liability company; CORDILLERA GOLF HOLDINGS, LLC a Delaware limited liability
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Company; WFP CORDILLERA, LLC a Delaware limited liability Company; WFP INVESTMENTS, LLC, a Delaware limited Liability Company; CGH MANAGER, LLC a Delaware limited Liability Company; DAVID A. WILHELM individually, and PATRICK WILHELM, individually, v. IntervenorDefendant/Counterclaimant and Cross-Claimant: ALPINE BANK.
3.
The parties failed to reach agreement on a protective order and Debtor filed a
motion for protective order. 4. On August 29, 2012, this Court granted Debtors motion and entered a protective
order regarding Movants first document request which provides: Debtors Motion [for a protective order] is GRANTED in so far as Debtor need not produce the documents in response to Movants discovery request for it to produce all the documents previously produced in the Class Action case. The Courts August 29, 2012 protective order is at Docket #395. Since the Courts ruling, we have worked to develop a written protective order and the current version proposed by Debtor is attached to this Declaration as Exhibit 1. 5. While the Courts prior protective order ruling was pending, on August 24, 2012,
Movants noticed the depositions of Mr. Alfred H. Siegel, Mr. Daniel L. Fitchett, Jr. and the Designated Representative of Debtor Cordillera Golf Club, LLC, pursuant to F.R.B.P. 30(b)(6). On August 27, 2012, Movants served requests for production of documents related to each deposition notice. True and correct copies of the Movants discovery is attached hereto as Exhibit 2. 6. I have engaged in a meet and confer with Movants counsel to resolve Debtors
concerns that the scope of the discovery is overbroad and burdensome. I caused written objections to be served with respect to requests for production of documents and objected to the scope of the Rule 30(b)(6) witness testimony, including on the ground that such requests violated the Courts prior protective order limiting the scope of discovery in this action, all as more 2
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particularly set forth in Debtors written objections, copies of which are attached as Exhibit 3 hereto. 7. In a September 5, 2012 meet and confer e-mail to Movants and Joining Parties,
Debtor reiterated its position regarding the scope of discovery and the depositions, the need for a protective order and that discovery by all parties, including Debtor, should be stayed, and the trial on the Trustee Motion vacated in order to allow the parties to meaningfully prepare for the upcoming mediation. A true and correct copy of my September 5, 2012 email is attached as Exhibit 4 hereto. Movants and Joining Parties have not agreed to Debtors proposals. 8. On a parallel path, the parties have also exchanged numerous email
communications regarding efforts to schedule a mediation between the parties. Those email communications have culminated in the scheduling of a mediation for September 12, 2012, which is much later than originally anticipated. 9. My efforts to meet and confer regarding the scope of the discovery requests,
limitations on depositions, and designation and handling of discovery material have been unsuccessful in addressing the Debtors concerns. I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct, except for those matters stated upon information and belief and as to those, I believe them to be true. Executed this 6th day of September, 2012, at Detroit, Michigan.
/s/ Ann Marie Uetz Ann Marie Uetz
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FOLEY & LARDNER LLP /s/ Ann Marie Uetz Ann Marie Uetz 500 Woodward Avenue, Suite 2700 Detroit, MI 48226 Telephone: 313-234-7100 Facsimile: 313-234-2800 Email: auetz@foley.com Christopher Celentino (CA No. 131688) Mikel Bistrow (CA No. 102978) Dawn A. Messick (CA No. 236941) Admitted Pro Hac Vice 402 West Broadway, Suite 2100 San Diego, CA 92101 Telephone: 619-234-6655 Facsimile: 619-234-3510 Email: ccelentino@foley.com Email: mbistrow@foley.com Email: dmessick@foley.com Counsel for Debtor and Debtor in Possession -andSENDER & WASSERMAN, P.C. Harvey Sender (CO No. 7546) 1660 Lincoln Street, Sutie 2200 Denver, CO 80264 Telephone: 303-296-1999 Facsimile: 303-296-7600 Email: sender@sendwass.com Counsel for Debtor and Debtor in Possession
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Case:12-24882-ABC Doc#:419-2 Filed:09/06/12 Exhibit 1
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DEBTORS PROPOSED PROTECTIVE ORDER GOVERNING DESIGNATION AND USE OF CONFIDENTIAL MATERIAL IN REGARD TO MOTION TO APPOINT A CHAPTER 11 TRUSTEE [DOCKET NO. 235] AND THE DEBTORS OBJECTION THERETO [DOCKET NO. 343]
There is good cause for this Protective Order in connection with the Motion to Appoint a Trustee and the Motion to Approve DIP Financing (collectively, the Action) because discovery in this Action will involve the production of confidential and private information concerning, among other topics, trade secrets and other confidential commercial information, information that relates to third-party Club member records of Debtor and Debtor-in-Possession Cordillera Golf Club, LLC (Debtor), including names, addresses, phone numbers, Social Security numbers, dates of birth, and bank account information; and financial information as provided for in Rule 26(c) of the Federal Rules of Civil Procedure, as incorporated in these proceedings by Rule 7026 of the Federal Rules of Bankruptcy Procedure. Special protection of these categories of information from public disclosure and/or from use for any purpose other than prosecuting or defending this proceeding is warranted. Therefore, entry of a protective order pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, as incorporated in proceedings by Rule 7026 of the Federal Rules of Bankruptcy Procedure, is necessary to protect such confidential information. This Protective Order does not confer blanket protections on all disclosures or responses to discovery and the protection it affords extends only to the limited information or items that are entitled under the applicable legal principles to treatment as confidential. WHEREAS, it appearing to the Court that good cause exists for the entry of this protective order in the Action pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, as incorporated in these proceedings by Rule 7026 of the Federal Rules of Bankruptcy Procedure, in order to protect trade secrets and other confidential commercial information as well as provide information on third parties. IT IS HEREBY ORDERED that, pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, as incorporated in these proceedings by Rule 7026 of the Federal Rules of
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Bankruptcy Procedure, the following terms and conditions shall govern the disclosure and use of sensitive and confidential information (including documents, deposition testimony, interrogatory answers, electronic data and other documents and data) produced in the Action. 1. Proceedings and Information Governed. This Protective Order will govern any document, information, or other thing furnished or produced by any party, including thirdparties, to any other party in connection with this Action that might reveal confidential information, including, but not limited to, deposition testimony, discovery responses, or other documents which the Parties or non-parties designate as CONFIDENTIAL (hereinafter Confidential Material) and is provided to one or more Parties in discovery in the Action). The information protected includes, but is not limited to, information contained in responses to requests for production of documents; responses to form or special interrogatories; responses to requests for admissions; deposition testimony and exhibits; and all copies, summaries, memorandum reports and portions of the foregoing. 2. Confidential Information or Material Defined. For purposes of this Protective Order, Confidential Material shall mean documents and information provided by a Producing Party, as defined below, that are not otherwise available: (a) publicly; or (b) from third parties not subject to any obligation to the Producing Party to maintain the confidentiality of the documents and information in their possession. A Producing Party may designate any information it produces during discovery, or otherwise discloses in the Action, as CONFIDENTIAL, if the Producing Party has a good faith belief that such information constitutes its (or that of another person to whom or which the Producing Party owes a duty of confidentiality) commercially sensitive or otherwise confidential information that should be protected from public dissemination and which the Producing Party would normally not reveal or would cause to be maintained in confidence if revealed including, but not limited to: (a) proprietary information, trade secrets or other confidential commercial information; or (b) non public information of a personal or private nature including, but not limited to, employee personnel files and confidential information regarding persons or entities that are not Parties to the Action, or private personal information of club members. Confidential Material may be revealed through: disclosures pursuant to Federal Rules of Civil Procedure 26, 30, 31, 33, 34, 35, 36 or 45made applicable to this Action under the Federal Rules of Bankruptcy Procedure. productions pursuant to the order of a court of competent jurisdiction; or statements in pleadings or other judicial filings that reference any of the foregoing. While a Party may designate previously produced information as Confidential under this provision, the Parties recognize that such materials may already have been disseminated in a manner inconsistent with this Protective Order or may already have been independently provided by the producing/designating Party to a third-party. The Parties shall have no obligation to attempt to locate and retrieve such documents and shall not be found or held to be in violation of this Protective Order as a result of actions that occurred prior to the entry of the Order. Additionally, this Courts Order granting Debtors Motion for Protective Order (Docket Entry _____) shall remain in full force and effect and Debtor shall have no obligation to produce documents as provided for therein. Notwithstanding this, the Parties shall use and treat Confidential Material consistent with this Order following the materials designation as such pursuant to this Order. Confidential Material is entitled to protection under F.R.C.P. 26(c).
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(a) Requesting Party shall mean any Party requesting documents or information pursuant to F.R.C.P. 26(a), conducting a deposition pursuant to F.R.C.P. 30-31, propounding interrogatories pursuant to F.R.C.P. 33, requesting the production of documents pursuant to F.R.C.P. 34 or pursuant to a subpoena duces tecum served upon any person or entity in this proceeding, and/or otherwise seeking discovery herein. (b) Producing Party shall mean any person or entity on whom a discovery request, in whatever form, has been propounded in this action. (c) Party or Parties shall mean the named parties in this proceeding.
3. Use of Confidential Material. Confidential Material shall be used by the Parties to the Action solely in connection with the Action and not for any other purpose. 4. Designation of Confidential Material. In responding to discovery propounded herein, any party may designate any confidential or proprietary document, material, or information of that designating party produced by it as Confidential Material. In the case of documents, such designation shall be made by stamping the phrase Confidential if the document is Confidential Material on all pages of any document so designated, in a conspicuous place. For documents previously produced, a Party may designate the document as Confidential by designating the document in writing to the opposing Party. In such event, the document shall be deemed to be Confidential under this Protective Order from the date that document is designated as Confidential For any documents that have been previously filed with a Court, the Parties shall confer to determine whether such documents or parts of such documents should be treated as confidential. If the Parties agree that Confidential Material was publicly filed in error, the Parties will take steps to remedy such error. In the case of deposition testimony, such designation shall be made by identifying on the record those portions of the transcript designated as Confidential Material. Machine readable media and other nondocumentary material shall be designated as Confidential Material by some suitable and conspicuous means, given the form of the particular embodiment. Inadvertent failure to designate material as Confidential at the time of production may be remedied at any time thereafter by supplemental written notice. The designation of material as Confidential Material, in the manner described hereunder, shall constitute a certification by the attorney making such designation that he or she in good faith believes the material to be entitled to protection under F.R.C.P. 26(c). 5. Documents Previously Produced. With respect to documents already produced in the Action, the Producing Person shall identify by Bates number the documents it is designating as Confidential Material pursuant to this Agreement, and the Receiving Parties and their counsel shall segregate the documents which have been identified by Bates number and take steps necessary to assure compliance with the provisions of this Agreement. 6. Use of Information Designated as CONFIDENTIAL. Except as otherwise provided in this Order, information designated as CONFIDENTIAL may not be given, shown, or disclosed to any person other than: (a) outside counsel for the Receiving Party and all paralegal assistants, stenographic and clerical employees under the direct supervision of such counsel; 3
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(b) any person whose testimony is noticed to be taken, including non-party witnesses for purposes of the Action, provided that: (i) there is a reasonable basis for such disclosure; and (ii) such person may only be shown information designated as Confidential Material during or in preparation for his or her testimony and may not retain any such information; (c) persons who were authors or recipients of the Confidential Material in the ordinary course of business; (d) (e) the Action; (f) experts or consultants retained by the Receiving Party or its counsel to whom it is necessary that Confidential Material be shown for purposes of the Action; (g) providers of litigation support, duplicating, and auxiliary services of a similar nature, routinely engaged by counsel; (h) any person who the Parties agree, in advance and in writing, may receive such protected information, and such agreement shall not be unreasonably withheld; and (i) Parties and current or former employees of any Party, as reasonably necessary for purposes of the Action, for use only in connection with the Action. 7. Challenges to Designations of Confidential Material. Nothing in this Protective Order constitutes a finding or admission that any Confidential Material or information is in fact confidential, proprietary or otherwise not subject to disclosure. Any Party desiring to challenge a designation of Confidential Material under this paragraph may do so by contacting counsel for the designating party in writing, and attempting to resolve any dispute by mutual agreement. In the event that the parties cannot resolve their dispute as to such designation of allegedly confidential material, the Requesting Party may file a motion for disclosure regarding the information within 10 days after communication of the notice from the Requesting Party. If the Requesting Party files such a motion, the Requesting Party shall continue to protect the information until the court rules on the motion. If the Requesting Party fails to file a motion within 10 days of notice, the Requesting Party shall have further obligation to preserve the confidentiality of the information until further order of the Court. While the Requesting Party may file a motion for disclosure, the party designating the material as Confidential shall have the burden of proving that such information is confidential under the laws of Colorado or federal laws. As stated above, this Protective Order does not confer blanket protections on all disclosures or responses to discovery and the protection it affords extends only to the limited information or items that are entitled under the applicable legal principles to treatment as confidential. 8. Treatment of Confidential Material. All documents, material, and information designated as Confidential Material under paragraph 2 shall be treated in accordance with the the court with jurisdiction over the Action; court reporting personnel involved in taking or transcribing testimony in
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provisions of this Order until such designation has been released by the party making it or by order of the Court. 9. Disclosure of Confidential Material. Except as set forth herein, neither the contents nor the substance of Confidential Material may be disclosed to anyone other than the Court provided that such materials are marked Confidential pursuant to this Protective Order and filed under seal, the parties and their current or former employees with disclosure to employees limited to those employees or former employees deemed by counsel reasonably necessary to assist with the lawsuit, the law firms who represent the Parties, vendors retained by the law firms for copying and other similar services, court reporters performing services in connection with this lawsuit, and expert consultants who assist the law firms in their analysis of the evidence and presentation of the case. For purposes of the preceding sentence the Parties does not include members of Plaintiffs class in the Class Action Lawsuit pending in District Court for Eagle County, Colorado, case number 2011 CV 552, other than the Member Representatives who are the Movants on the Trustee Motion. 10. Disclosure of Confidential Material to Outside Experts, Consultants or Former Employees. Upon the good faith determination by an attorney representing a Party or by a Party that he needs to consult former employees or experts or consultants who have been retained for the purpose of this proceeding, Confidential Material may be disclosed to such persons provided, that prior to disclosure of any Confidential Material to such person, such person shall sign a Statement Regarding Confidentiality in the form attached hereto as Exhibit A, stating the signatorys full name, address, and present employer, and acknowledging his or her understanding of the terms of this Protective Order and his or her agreement to be bound by its terms. Each such signed statement shall be retained by the attorney or Party disclosing any Confidential Material pursuant to this paragraph 10. 11. Use of Confidential Material. Any person who receives or is afforded access to any Confidential Material pursuant to the provisions of this Protective Order shall neither use nor disclose said Confidential Material for any purpose other than the purposes of preparation for and conduct of to Action. Nothing contained herein shall preclude any party from using its own documents, material and information in any manner it deems appropriate, nor shall anything contained herein preclude use of documents, material and information already in the possession of a party or that has been previously publicly disclosed. 12. Trial and Public Proceedings. Confidential Materials and the information in them may be used as is reasonably determined to be necessary in any court proceeding in this case, including depositions, hearings and trial, subject to the rules of evidence, the Federal Rules of Civil Procedure, the Federal Rules of Bankruptcy Procedure and any other applicable law. Such information shall not lose its confidential status through such use, and the Parties shall take reasonable steps to protect the confidentiality of such information during its use. Prior to the use of any Confidential Material in a proceeding open to the public, the Party intending to use Confidential Material shall give the Party producing such Confidential Material at least five (5) days notice such that the Parties may reach an agreement upon what actions may be taken to preserve confidentiality of the Confidential Material or the producing Party may object to the publication of the Confidential Material.
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13. Confidential Material quoted in any public filings shall be redacted in the version of the filing filed on the Courts ECF system, and unredacted versions filed with the clerks office as restricted documents without further order of the Court, as provided for in Federal Rule of Civil Procedure 26(c) as incorporated in these proceedings by Rule 7026 of the Federal Rules of Bankruptcy Procedure, and Local Bankruptcy Rule 5005-4. Confidential Material attached as an exhibit to any filing shall be filed under seal in accordance with the procedures set forth under applicable law. 14. Non-Party Demand; Government Investigations. (a) If any Party that receives Confidential Material is: (i) subpoenaed or served with a document request in another action; or (ii) served with a demand in another action to which it is a party by one not a party to the Action, which seeks the discovery of materials designated CONFIDENTIAL by a Producing Person, the Party receiving such demand shall give written notice to the Producing Person. If the Producing Person does not make a written objection to the subpoena or demand within a reasonable period of time of the written notice described above, which in any event is not more than seven (7) days from receipt of the written notice, or does not file a motion for protective order or other relief within ten (10) days from the receipt of the written notice described above, the Party receiving the subpoena or demand will be under no further obligation with respect to the production of the Confidential Material. Nothing herein shall be construed to require any Party to challenge or appeal any order requiring the production of Confidential Material by another Party, or to subject itself to any penalties for non-compliance with any judicial order, or to seek any relief from this Court or any other court. 15. Non-Parties. Any non-party subpoenaed or requested to produce documents and things or information, or to give deposition testimony, shall have the full benefits and protections of this Order, and may designate documents or deposition testimony as CONFIDENTIAL in the manner, and subject to the same protections, as set forth above. 16. Deposition Testimony. Information disclosed at depositions taken in this Action may be designated as Confidential Material by the party disclosing such information by indicating on the record at the deposition that the testimony contains Confidential Material or by providing written notice to opposing counsel of the intent to designate such information as confidential within ten (10) days of receiving the transcript of the deposition. The designated testimony shall be marked as confidential and sealed by the court reporter and treated as Confidential Material under the terms of this Order. 17. Retention of Privilege. Nothing herein shall in any respect constitute a waiver of any attorney-client, work product, or common interest privilege of any party, nor does any provision herein affect the right of any party to contest any assertion or finding of confidentiality or privilege, and/or to appeal any adverse determination of the Court regarding said confidentiality or privilege. 18. Scope of F.R.C.P. 26. Nothing contained herein is intended to broaden the scope of information that would be entitled to protection under F.R.C.P. 26. 19. Modification. Each Party reserves the right to move to modify the terms of this Protective Order for good cause, and the Court can modify the Protective Order at any time. 6
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20. Retained Jurisdiction. The Court retains jurisdiction subsequent to settlement or entry of judgment to enforce the terms of this Order and the terms of this Protective Order shall remain in effect after the termination of this litigation. Each individual who receives any Confidential Material hereby agrees to be subject to the jurisdiction of this Court for the purpose of any proceedings relating to the performance under, compliance with or violation of this Order. 21. Termination of Action. Within forty-five (45) days of termination of this Action, including all appeals, counsel for Parties in possession of Confidential Material shall cause all such Confidential Material produced in this action by an opposing party, including copies, extracts and summaries, to be destroyed or returned to counsel for the Producing Party. Counsel for the Requesting Party or the Requesting Party shall certify to the Producing Party in writing that it has fulfilled the obligations imposed by this paragraph. Notwithstanding this provision, each counsel may keep one set of all documents produced in the litigation as may be required by counsels record retention policy. Documents retained by counsel shall be destroyed as soon as permitted by counsels record retention policy. 22. Inadvertent Disclosure. Any inadvertent disclosure or production of Confidential Material without designating it as Confidential, or of documents protected by the attorney-client privilege, common interest privilege, or work-product protection, will not constitute a waiver of any available privilege or protection by the disclosing party. (a) In the event that the receiving party discovers that it has received Confidential Material that was not designated as Confidential, or attorney-client privileged, common interest privileged, or work-product protected documents, it will bring that fact to the attention of the producing party immediately upon discovery. (b) Upon the request of the producing party, the receiving party will promptly return to the Producing Party any attorney-client privilege, common interest privilege, or workproduct-protected document and any copies that the Receiving Party may have made. (c) Upon discovery of any inadvertent disclosure or production of Confidential Material without it having been designated as Confidential, the producing party shall have the right to designate such documents or information as Confidential by notifying requesting party of the specific information or documents that it is designating as Confidential. After such designation by the Producing Party, all such information later designated as Confidential following any inadvertent disclosure shall be subject to the full protections of this order as if designated Confidential when originally disclosed or produced. (d) Upon the request of the Producing Party, the Receiving Party will promptly disclose the names of any individuals who have read or have had access to the inadvertently disclosed Confidential Material or attorney-client privileged, common interest privileged, or work-product-protected document or information. (e) No such inadvertently produced or disclosed Confidential Information or attorney-client privileged, common interest privileged, or work-product-protected document may be used for any purpose other than Confidential Information being used consistent with this Protective Order or all documents used consistent with any other order of the Court. 7
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(f) If either party must seek judicial enforcement of this agreement, the costs and reasonable attorneys fees of the party seeking enforcement will be paid by the party against whom such enforcement must be sought, but only if the court finds the existence of a valid privilege and grants enforcement of this agreement by ordering the return and non-evidentiary use of the produced document. IT IS SO ORDERED Dated this _____ day of ______________, 2012. BY THE COURT:
____________________________________ United States Bankruptcy Court
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EXHIBIT A I, ______________________________________, state that: 1. 2. 3. 4. My address is _________________________________________________________. My present employer is _________________________________________________. My present occupation or job description is _________________________________. I have received a copy of the Protective Order in In re Cordillera Golf Club, LLC dba
The Club at Cordillera, Case No. 12-24882 ABC in the United States Bankruptcy Court, District of Colorado. 5. I have carefully read and understand the provisions of the Protective Order. I will
comply with all of the provisions, including holding in confidence and not disclosing to any not qualified under the Protective Order, any Confidential Information. 6. I further agree that any documents, materials, or information furnished to me will be used
by me only for the purposes of this litigation and for no other purposes, and will not be used by me in any business affairs of my employer or of my own or be imparted by me to any other person and will be returned to the person who furnished such documents, materials or information to me. 7. I hereby consent to be subject to personal jurisdiction before the above-entitled Court
with respect to any proceeding relative to the enforcement of the Protective Order.
_______________________________________ Signature Date: __________________________________
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UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF COLORADO In re: ) ) CORDILLERA GOLF CLUB, LLC ) dba The Club at Cordillerra, ) ) Debtor. )
Case No. 12-24882 (ABC) Chapter 11
NOTICE OF THE DEPOSITION OF THE DEBTOR THROUGH ITS CHIEF RESTRUCTURING OFFICER ALFRED H. SIEGEL
PLEASE TAKE NOTICE that on September 5, 2012, commencing at 9:00 A.M. MDT or such other time and date as the parties may agree, Cheryl M. Foley, Thomas and Jane Wilner, Charles and Mary Jackson and Kevin B. Allen, as representatives of a certified class in Case Number 11CV552, pending in the District Court of Eagle County, Colorado (collectively, Member Representatives) by and through their counsel, Appel & Lucas, P.C., will take the deposition of Alfred H. Siegel as Chief Restructuring Officer for the above captioned debtor and debtor-in-possession. The Deposition will be continued until completed, before a certified shorthand reporter and notary public, at the offices of Holland & Hart, LLP 555 Seventeenth Street, Suite 3200, Denver, Colorado 80202. The parties have agreed that Mr. Siegel shall voluntarily appear at the time and place of the deposition and he need not be compelled to appear by subpoena. The parties have further agreed that counsel for the Official Committee of Unsecured Creditors as well as counsel for the Cordillera Metropolitan District and the Cordillera Property Owners Association, Inc. may attend the deposition and fully participate therein, including asking questions of the witness.
Dated: August 24, 2012 /s/ Shaun A. Christensen Garry R. Appel, Reg. No. 8883 Shaun A. Christensen, Reg. No. 23131 Appel & Lucas, P.C. 1660 17th Street, Ste 200 Denver, CO 80202 Telephone: 303-297-9800 Appelg@appellucas.com Christensens@appellucas.com
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Attorneys for Cheryl M. Foley, Thomas and Jane Wilner, Charles and Mary Jackson and Kevin B. Allen
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NOTICE OF THE DEPOSITION OF THE DEBTOR THROUGH ITS CHIEF EXECUTIVE OFFICER DANIEL L. FITCHETT, JR.
PLEASE TAKE NOTICE that on September 7, 2012, commencing at 9:00 A.M. MDT or such other time and date as the parties may agree, Cheryl M. Foley, Thomas and Jane Wilner, Charles and Mary Jackson and Kevin B. Allen, as representatives of a certified class in Case Number 11CV552, pending in the District Court of Eagle County, Colorado (collectively, Member Representatives) by and through their counsel, Appel & Lucas, P.C., will take the deposition of Daniel L. Fitchett, Jr. as Chief Executive Officer of the above captioned debtor and debtor-in-possession. The Deposition will be continued until completed, before a certified shorthand reporter and notary public, at the offices of Holland & Hart, LLP 555 Seventeenth Street, Suite 3200, Denver, Colorado 80202. The parties have agreed that Mr. Fitchett shall voluntarily appear at the time and place of the deposition and he need not be compelled to appear by subpoena. The parties have further agreed that counsel for the Official Committee of Unsecured Creditors as well as counsel for the Cordillera Metropolitan District and the Cordillera Property Owners Association, Inc. may attend the deposition and fully participate therein, including asking questions of the witness. Dated: August 24, 2012 /s/ Shaun A. Christensen Garry R. Appel, Reg. No. 8883 Shaun A. Christensen, Reg. No. 23131 Appel & Lucas, P.C. 1660 17th Street, Ste 200 Denver, CO 80202 Telephone: 303-297-9800 Appelg@appellucas.com Christensens@appellucas.com
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NOTICE OF THE DEPOSITION OF THE DESIGNATED REPRESENTATIVE OF THE DEBTOR CORDILLERA GOLF CLUB, LLC PURSUANT TO F.R.B.P. 30(b)(6)
TO ALL PARTIES OF RECORD: PLEASE TAKE NOTICE that in accordance with Federal Rule of Bankruptcy Procedure 7030(b)(6), the undersigned attorneys will take the deposition of Colorado Golf Club, LLC d/b/a The Club at Cordillera (Debtor), the Debtor and debtor-in-possession in the above captioned chapter 11 bankruptcy case, on September 6, 2012, commencing at 9:00 A.M. MDT,or such other time and date as the parties may agree. The Deposition will continue until completed and will be taken before a certified shorthand reporter and notary public, at the offices of Holland & Hart, LLP 555 Seventeenth Street, Suite 3200, Denver, Colorado 80202, or such other place as the parties may agree. The parties have agreed that the Debtors representative shall voluntarily appear at the time and place of the deposition and he need not be compelled to appear by subpoena. The parties have further agreed that counsel for the Official Committee of Unsecured Creditors as well as counsel for the Cordillera Metropolitan District and the Cordillera Property Owners Association, Inc. may attend the deposition andfully participate therein, including asking questions of the witness. The deposition is being taken for discovery, for use at trial upon the motion for appointment of a chapter 11 trustee filed by Cheryl M. Foley, Thomas and Jane Wilner, Charles and Mary Jackson and Kevin B. Allen, as representatives of a certified class in Case Number 11CV552, pending in the District Court of Eagle County, Colorado (collectively, Member Representatives) in the above captioned bankruptcy case, and/or for such other purposes as are permitted by law. Pursuant to Federal Rule of Bankruptcy Procedure 7030(b)(6), the Debtor shall designate one or more officers, directors, managing agents, or other persons who consent to testify on its behalf on the following matters upon which examination is requested:
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1. The allegation made in paragraph 16 of the Debtors Opposition to Motion of Cheryl M. Foley, Thomas Wilner, Jane Wilner, Charles Jackson, Mary Jackson and Kevein Allen Individually and as Representatives of a Certified Class of Members, to Appoint a Chapter 11 Trustee (the Opposition) that Approximately one-half of all property owners within Cordillera are Club Members. 2. The allegation made in paragraph 17 of the Opposition that [t]he primary source of revenue to fund the operation and management of the extensive Club Facilities is derived from membership deposits, initiation fees and annual membership dues. 3. The terms and conditions of the Cordillera Club Membership Plan, as it may have been amended from time to time. 4. All amendments to the terms and conditions of the Cordillera Club Membership Plan from January 1, 2009, to the present, including without limitation, the Debtors obligation to fund operating losses. 5. The allegation made in paragraph 22 of the Opposition that [t]he Membership Plan also grants the Debtor and the Cordillera Club discretion to control the use of Club Facilities. 6 The allegation made in paragraph 23 of the Opposition that [t]he Membership Plan does not obligate the Debtor to make Club Facilities available for use on any given date or during any given hours. 7. The Debtors opinion as to the current market value(s) of the Club Facilities as that term is defined in the Opposition. 8. The nature of the Wind Rose Lodging Club model as defined in the Opposition, and the implementation of that model by the Debtor. 9. The allegation made in paragraph 36 of the Opposition that [i]n furtherance of its vision, the Debtor introduced new categories of membership including the Premier and spent substantial sums of money into [sic] improving the Club Facilities, services and operations for its Club Members. 10. The allegation made in paragraph 27 of the Opposition that [s]tarting in August 2010, a small but vocal minority of current and former Club Members commenced tactical activities that represented an orchestrated and pervasive pattern of conduct and activities designed to create an environment that the Debtor believes was intended to result in a belowmarket transfer of ownership and control of the Cordillera Club and its Club Facilities to those current and former Club Members. 11. The allegation made in paragraph 42 of the Opposition that . . . the damage resulting from this small groups campaign including significant membership cancellations required the Debtor to dramatically cut back its planned operations for 2011.
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12. The allegation made in paragraph 43 of the Opposition that [i]n May 2011, the Club advised the Club Members that the mass exodus of Club Members, coupled with certain Club Members apparent boycott of the Club Facilities, had severely and detrimentally impacted the Cordillera Club, and, as a result, the Cordillera Club had no alternative but to open only one of the four club facilities the Valley Club. This subject area includes, without limitation, the dates of the resignations and/or mass exodus of member described in the paragraph and the date upon which such resignations became or will become effective. 13. The allegation made in paragraph 53 of the Opposition that [b]y mid-2010, it was clear that the Cordillera club lacked the critical mass of Club Members necessary to maintain the high level of services and operations at the Club Facilities. 14. How the employment of a real estate consultant and an investment banker will help cushion the conflict between Wilhelm and certain members of the Cordillera Club who have developed an adversarial relationship with Wilhelm. . . as alleged in paragraph 56 of the Opposition. 15. The allegation made in paragraph 78 of the Opposition that . . . Wilhelm made the representation at the behest of Mr. Wilner, one of the Movants, and the Debtor now believes that Mr. Wilners legal advice to the Debtor to make such a representation was itself wrongful advice, and . . . when Wilhelm sent the letter, he was hopeful that the financial situation of the Debtor would enable it to provide all the amenities, and that the letter was sent with the best of intentions. 16. When, how and in what capacity the Debtor engaged Tom Wilmer as its attorney.
17. The amount and timing of any and all payments made by the Debtor for legal services provided by Tom Wilmer. 18. The allegation made in paragraph 85 of the Opposition that . . . the Cordillera Clubs data show almost eighty percent of the Club members who resigned did so after the Debtor issued the assurances requested by the Club Members, and before there was any change in anticipated services. This subject area includes, without limitation, the number and timing of any and all revocations of such member resignations by the resigning members. 19. The allegation made in footnote 12 of the Opposition that [a]s a result of the pending litigation, both the Member Litigation and the CTC/CPOA Litigation, the Debtor believes that the Members will ultimately not be creditors of the Debtor after the Debtor prevail in both case for the reasons described above. 20. The allegation made in paragraph 95 of the Opposition that . . . the Cordillera Club continues to have 160 active paying members (the Existing Members). The Existing Members represent approximately 25% of the total number of members of the Cordillera Club. While certain of the Existing Members are constantly alleged to be members of the plaintiff class in the Member Litigation case, the evidence will show that they are either unwilling or unwitting members of the Class who thought that their continuing payment of dues and membership in the Club would exclude them from the Class.
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21. The allegation made in paragraph 96 of the Opposition that . . . the Debtor has substantial equity in the five golf courses that form its principal assets. 22. The allegation made in paragraph 98 of the Opposition that . . . the acrimony complained of is beginning to dissipate. 23. The finances of the Cordillera Club between January 1, 2009 and June 26, 2012 (the Petition Date). 24. The finances of the Cordillera Club following the Petition Date.
25. The operations (as identified in the Opposition) of the Cordillera Club between January 1, 2009 and the Petition Date. 26. All changes in the ownership and management of the Debtor from January 1, 2009 through the present. 27. Which Club Facilities have been either open or closed between January 1, 2009 and the present. 28. The number of members and memberships of the Cordillera Club between January 1, 2009 and the present. 29. The number of current members and memberships of the Cordillera Club who receive a discount or other incentive that other members and memberships do not receive. 30. The number of members and memberships of the Cordillera Club who are still listed as members but are not current on their dues. 31. All amounts of money paid to or otherwise transferred by the Debtor directly or indirectly to David Wilhelm or any relative of David Wilhelm or any entity owned or controlled either directly or indirectly by David Wilhelm between January 1, 2009 and the present. 32. The allegation made in paragraph 98 of the Opposition that, "Each day the Debtor is contacted by current and former members interested in working toward a consensual resolution rather than funding ongoing litigation." 33. The allegation made in paragraph 98 of the Opposition that, "The Debtor is confident it will have an impaired consenting class, and that it will demonstrate a fair and reasonable reorganization." 34. Opposition. Any and all other facts raised in, or relating to the matters raised in, the
35. The condition of the Club Facilities other than the Valley Course and all maintenance and improvements performed on such Club Facilities since January 1, 2010.
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Dated: August 24, 2012 /s/ Shaun A. Christensen Garry R. Appel, Reg. No. 8883 Shaun A. Christensen, Reg. No. 23131 Appel & Lucas, P.C. 1660 17th Street, Ste 200 Denver, CO 80202 Telephone: 303-297-9800 Appelg@appellucas.com Christensens@appellucas.com Attorneys for Cheryl M. Foley, Thomas and Jane Wilner, Charles and Mary Jackson and Kevin B. Allen
Case:12-24882-ABC Doc#:419-3 Filed:09/06/12 20
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REQUEST FOR PRODUCTION OF DOCUEMNTS IN CONNECTION WITH NOTICE OF THE DEPOSITION OF THE DESIGNATED REPRESENTATIVE OF THE DEBTOR CORDILLERA GOLF CLUB, LLC PURSUANT TO F.R.B.P. 7030(b)(6)
Cheryl M. Foley, Thomas and Jane Wilner, Charles and Mary Jackson and Kevin B. Allen, as representatives of a certified class in Case Number 11CV552, pending in the District Court of Eagle County, Colorado (collectively, Member Representatives), by their attorneys Appel & Lucas, P.C, pursuant to Rule 7034 of the Federal Rules of Bankruptcy Procedure, hereby submit its Request for Production of Documents to Cordillera Golf Club, LLC d/b/a the Club at Cordillera (the Debtor) in regard to the Notice of the Deposition of the Designated Representative of the Debtor Cordillera Golf Club, LLC Pursuant to F.R.B.P. 7030(b)(6). The Member Representatives requests that the Debtor provide the requested documents within fourteen (14) days in accordance with the modification of Rule 7034(2)(A) entered in this case, at the offices of Appel & Lucas, P.C., 1660 Seventeenth Street, Suite 200, Denver Colorado, 80202. This discovery is deemed continuing until trial and imposes a duty to supplement as set forth in Federal Rule of Bankruptcy Procedure 7026. REQUESTS FOR PRODUCTION OF DOCUMENTS Instructions Applicable to Requests for Production
1. If, at any time, you had possession, custody or control of any documents requested, but such documents have been lost, destroyed or are otherwise unavailable, please describe each document and the date and circumstances surrounding its loss or destruction, and identify all persons having, at any time, possession, custody or control of the document and all persons having any knowledge of the circumstances by which the document became unavailable. 2. If you are unable to produce a document requested, but are aware of its location, identify the person in possession, custody or control of the document and state the location of the document. 3. If any document called for by any request is not produced for any reason (including a claim of privilege, work product or other basis), state the basis of the privilege and
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identify each such document in writing and indicate: (a) the nature and general content of the document; (b) its date; (c) its author(s); (d) the person or persons, if any, who received the original or copy; and (e) the reason(s) for withholding the document from production. Additionally, disclose any other information necessary for the Court and undersigned counsel to independently ascertain the legal sufficiency of any reason(s) asserted for withholding the document. 4. If you believe that a document that has already been produced is responsive to any of the production requests below, please identify the document with particularity and indicate when it has been produced. Request for Production 1. All document supporting or contradicting the allegation made in paragraph 16 of the Debtors Opposition to Motion of Cheryl M. Foley, Thomas Wilner, Jane Wilner, Charles Jackson, Mary Jackson and Kevein Allen Individually and as Representatives of a Certified Class of Members, to Appoint a Chapter 11 Trustee (the Opposition) that Approximately onehalf of all property owners within Cordillera are Club Members. 2. All document supporting or contradicting the allegation made in paragraph 17 of the Opposition that [t]he primary source of revenue to fund the operation and management of the extensive Club Facilities is derived from membership deposits, initiation fees and annual membership dues. 3. time. 4. All amendments to the terms and conditions of the Cordillera Club Membership Plan from January 1, 2009, to the present, including without limitation, the Debtors obligation to fund operating losses. 5. All document supporting or contradicting the allegation made in paragraph 22 of the Opposition that [t]he Membership Plan also grants the Debtor and the Cordillera Club discretion to control the use of Club Facilities, as well as any and all document regarding whether the Debtor has otherwise assumed any such obligations. 6 All document supporting or contradicting the allegation made in paragraph 23 of the Opposition that [t]he Membership Plan does not obligate the Debtor to make Club Facilities available for use on any given date or during any given hours. 7. All document supporting or contradicting the Debtors opinion as to the current market value(s) of the Club Facilities as that term is defined in the Opposition. 8. All document describing the Wind Rose Lodging Club, and the implementation of that model by the Debtor. 9. All document supporting or contradicting the allegation made in paragraph 36 of the Opposition that [i]n furtherance of its vision, the Debtor introduced new categories of
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The Cordillera Club Membership Plan, as it may have been amended from time to
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membership including the Premier and spent substantial sums of money into [sic] improving the Club Facilities, services and operations for its Club Members. 10. All document supporting or contradicting the allegation made in paragraph 27 of the Opposition that [s]tarting in August 2010, a small but vocal minority of current and former Club Members commenced tactical activities that represented an orchestrated and pervasive pattern of conduct and activities designed to create an environment that the Debtor believes was intended to result in a below-market transfer of ownership and control of the Cordillera Club and its Club Facilities to those current and former Club Members. 11. All document supporting or contradicting the allegation made in paragraph 42 of the Opposition that . . . the damage resulting from this small groups campaign including significant membership cancellations required the Debtor to dramatically cut back its planned operations for 2011. 12. All document supporting or contradicting the allegation made in paragraph 43 of the Opposition that [i]n May 2011, the Club advised the Club Members that the mass exodus of Club Members, coupled with certain Club Members apparent boycott of the Club Facilities, had severely and detrimentally impacted the Cordillera Club, and, as a result, the Cordillera Club had no alternative but to open only one of the four club facilities the Valley Club. This subject area includes, without limitation, the dates of the resignations and/or mass exodus of member described in the paragraph and the date upon which such resignations became or will become effective. 13. All document supporting or contradicting the allegation made in paragraph 53 of the Opposition that [b]y mid-2010, it was clear that the Cordillera club lacked the critical mass of Club Members necessary to maintain the high level of services and operations at the Club Facilities. 14. All document supporting or contradicting the allegation that the employment of a real estate consultant and an investment banker will help cushion the conflict between Wilhelm and certain members of the Cordillera Club who have developed an adversarial relationship with Wilhelm. . . as alleged in paragraph 56 of the Opposition. 15. All document supporting or contradicting the allegation made in paragraph 78 of the Opposition that . . . Wilhelm made the representation at the behest of Mr. Wilner, one of the Movants, and the Debtor now believes that Mr. Wilners legal advice to the Debtor to make such a representation was itself wrongful advice, and . . . when Wilhelm sent the letter, he was hopeful that the financial situation of the Debtor would enable it to provide all the amenities, and that the letter was sent with the best of intentions. 16. All document describing or identifying when, how and in what capacity the Debtor engaged Tom Wilmer as its attorney. 17. All document describing or identifying the amount and timing of any and all payments made by the Debtor for legal services provided by Tom Wilmer.
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18. All document supporting or contradicting the allegation made in paragraph 85 of the Opposition that . . . the Cordillera Clubs data show almost eighty percent of the Club members who resigned did so after the Debtor issued the assurances requested by the Club Members, and before there was any change in anticipated services. This subject area includes, without limitation, the number and timing of any and all revocations of such member resignations by the resigning members. 19. All document supporting or contradicting the allegation made in footnote 12 of the Opposition that [a]s a result of the pending litigation, both the Member Litigation and the CTC/CPOA Litigation, the Debtor believes that the Members will ultimately not be creditors of the Debtor after the Debtor prevail in both case for the reasons described above. 20. All document supporting or contradicting the the allegation made in paragraph 95 of the Opposition that . . . the Cordillera Club continues to have 160 active paying members (the Existing Members). The Existing Members represent approximately 25% of the total number of members of the Cordillera Club. While certain of the Existing Members are constantly alleged to be members of the plaintiff class in the Member Litigation case, the evidence will show that they are either unwilling or unwitting members of the Class who thought that their continuing payment of dues and membership in the Club would exclude them from the Class. 21. All document supporting or contradicting the allegation made in paragraph 96 of the Opposition that . . . the Debtor has substantial equity in the five golf courses that form its principal assets. 22. All document supporting or contradicting the allegation made in paragraph 98 of the Opposition that . . . the acrimony complained of is beginning to dissipate. 23. All document describing or identifying the finances of the Cordillera Club between January 1, 2009 and June 26, 2012 (the Petition Date). 24. All document describing or identifying the finances of the Cordillera Club following the Petition Date. 25. All document describing or identifying the operations (as identified in the Opposition) of the Cordillera Club between January 1, 2009 and the Petition Date. 26. All document describing or identifying all changes in the ownership and/or management of the Debtor from January 1, 2009 through the present. 27. All document describing or identifying which Club Facilities have been either open or closed between January 1, 2009 and the present. 28. All document describing or identifying the number of members and memberships of the Cordillera Club between January 1, 2009 and the present.
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29. All document describing or identifying the number of current members and memberships of the Cordillera Club who receive a discount or other incentive that other members and memberships do not receive. 30. All document describing or identifying the number of members and memberships of the Cordillera Club who are still listed as members but are not current on their dues. 31. All document describing or identifying all amounts of money paid to or otherwise transferred by the Debtor directly or indirectly to David Wilhelm or any relative of David Wilhelm or any entity owned or controlled either directly or indirectly by David Wilhelm between January 1, 2009 and the present. 32. All document supporting or contradicting the allegation made in paragraph 98 of the Opposition that, "Each day the Debtor is contacted by current and former members interested in working toward a consensual resolution rather than funding ongoing litigation." 33. All document supporting or contradicting the the allegation made in paragraph 98 of the Opposition that, "The Debtor is confident it will have an impaired consenting class, and that it will demonstrate a fair and reasonable reorganization." 34. All document supporting or contradicting any and all other facts raised in, or relating to the matters raised in, the Opposition. 35. All document describing or identifying the condition of the Club Facilities other than the Valley Course and all maintenance and improvements performed on such Club Facilities since January 1, 2010. 36. All appraisals or valuations of all or any portion of the Debtors assets from January 1, 2009 through the present.
Dated: August 27, 2012 /s/ Shaun A. Christensen Garry R. Appel, Reg. No. 8883 Shaun A. Christensen, Reg. No. 23131 Appel & Lucas, P.C. 1660 17th Street, Ste 200 Denver, CO 80202 Telephone: 303-297-9800 Appelg@appellucas.com Christensens@appellucas.com Attorneys for Cheryl M. Foley, Thomas and Jane Wilner, Charles and Mary Jackson and Kevin B. Allen
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REQUEST FOR PRODUCTION OF DOCUEMNTS IN CONNECTION WITH NOTICE OF THE DEPOSITION OF THE DEBTOR THROUGH ITS CHIEF RESTRUCTURING OFFICER ALFRED H. SIEGEL
Cheryl M. Foley, Thomas and Jane Wilner, Charles and Mary Jackson and Kevin B. Allen, as representatives of a certified class in Case Number 11CV552, pending in the District Court of Eagle County, Colorado (collectively, Member Representatives), by their attorneys Appel & Lucas, P.C, pursuant to Rule 7034 of the Federal Rules of Bankruptcy Procedure, hereby submit its Request for Production of Documents to Cordillera Golf Club, LLC d/b/a the Club at Cordillera (the Debtor) in regard to the Notice of Deposition of the Debtor Through its Chief Restructuring Officer Alfred H. Siegel. The Member Representatives requests that the Debtor provide the requested documents within fourteen (14) days in accordance with the modification of Rule 7034(2)(A) entered in this case, at the offices of Appel & Lucas, P.C., 1660 Seventeenth Street, Suite 200, Denver Colorado, 80202. This discovery is deemed continuing until trial and imposes a duty to supplement as set forth in Federal Rule of Bankruptcy Procedure 7026. REQUESTS FOR PRODUCTION OF DOCUMENTS Instructions Applicable to Requests for Production
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identify each such document in writing and indicate: (a) the nature and general content of the document; (b) its date; (c) its author(s); (d) the person or persons, if any, who received the original or copy; and (e) the reason(s) for withholding the document from production. Additionally, disclose any other information necessary for the Court and undersigned counsel to independently ascertain the legal sufficiency of any reason(s) asserted for withholding the document. 4. If you believe that a document that has already been produced is responsive to any of the production requests below, please identify the document with particularity and indicate when it has been produced. Request for Production 1. All documents related to any claim of fraud or mismanagement made against Mr. Siegel at any time. 2. All documents related to any contact or negotiations Mr. Siegel has engaged in with any of the Debtors current or former Club Members. 3. Debtor. All documents setting forth Mr. Siegels authority and duties to and from the
4. All document which set forth or discuss the Debtors post bankruptcy operation losses, gross or net revenues or net cash flows. 5. All correspondence discussing strategic and/or senior operational management decisions of and for the Debtor since January 1, 2012. 6. All documents setting forth or discussing any and all prospective strategic and operational management initiatives to bring the Debtor to profitability. 7. All documents relating to any strategic and/or operational management disputes among David Wilhelm and the Debtor, or any officers, agents or representatives of the Debtor.
Dated: August 27, 2012 /s/ Shaun A. Christensen Garry R. Appel, Reg. No. 8883 Shaun A. Christensen, Reg. No. 23131 Appel & Lucas, P.C. 1660 17th Street, Ste 200 Denver, CO 80202 Telephone: 303-297-9800 Appelg@appellucas.com Christensens@appellucas.com
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REQUEST FOR PRODUCTION OF DOCUEMNTS IN CONNECTION WITH NOTICE OF THE DEPOSITION OF THE DEBTOR THROUGH ITS CHIEF EXECUTIVE OFFICER DANIEL L. FITCHETT, JR.
Cheryl M. Foley, Thomas and Jane Wilner, Charles and Mary Jackson and Kevin B. Allen, as representatives of a certified class in Case Number 11CV552, pending in the District Court of Eagle County, Colorado (collectively, Member Representatives), by their attorneys Appel & Lucas, P.C, pursuant to Rule 7034 of the Federal Rules of Bankruptcy Procedure, hereby submit its Request for Production of Documents to Cordillera Golf Club, LLC d/b/a the Club at Cordillera (the Debtor) in regard to the Notice of Deposition of the Debtor Through its Chief Executive Officer Daniel L. Fitchett, Jr. The Member Representatives requests that the Debtor provide the requested documents within fourteen (14) days in accordance with the modification of Rule 7034(2)(A) entered in this case, at the offices of Appel & Lucas, P.C., 1660 Seventeenth Street, Suite 200, Denver Colorado, 80202. This discovery is deemed continuing until trial and imposes a duty to supplement as set forth in Federal Rule of Bankruptcy Procedure 7026. REQUESTS FOR PRODUCTION OF DOCUMENTS Instructions Applicable to Requests for Production
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identify each such document in writing and indicate: (a) the nature and general content of the document; (b) its date; (c) its author(s); (d) the person or persons, if any, who received the original or copy; and (e) the reason(s) for withholding the document from production. Additionally, disclose any other information necessary for the Court and undersigned counsel to independently ascertain the legal sufficiency of any reason(s) asserted for withholding the document. 4. If you believe that a document that has already been produced is responsive to any of the production requests below, please identify the document with particularity and indicate when it has been produced. Request for Production 1. All documents related to any claim of fraud or mismanagement made against Mr. Fitchett at any time. 2. All documents related to any contact or negotiations Mr. Fitchett has engaged in with any of the Debtors current or former Club Members. 3. Debtor. All documents setting forth Mr. Fitchetts authority and duties to and from the
4. All document which set forth or discuss the Debtors post bankruptcy operation losses, gross or net revenues or net cash flows. 5. All correspondence discussing strategic and/or senior operational management decisions of and for the Debtor since January 1, 2012. 6. All documents setting forth or discussing any and all prospective strategic and operational management initiatives to bring the Debtor to profitability. 7. All documents relating to any prospect or consideration of David Wilhelm ceding any managerial position, control, or equity interest in the Debtor since January 1, 2011. 8. All documents relating to any strategic and/or operational management disputes among David Wilhelm and the Debtor, or any officers, agents or representatives of the Debtor. Dated: August 27, 2012 /s/ Shaun A. Christensen Garry R. Appel, Reg. No. 8883 Shaun A. Christensen, Reg. No. 23131 Appel & Lucas, P.C. 1660 17th Street, Ste 200 Denver, CO 80202 Telephone: 303-297-9800 Appelg@appellucas.com Christensens@appellucas.com
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UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF COLORADO
In re Case No. 12-24882 ABC
CORDILLERA GOLF CLUB, LLC dba The Club Chapter 11 at Cordillera, Tax ID / EIN: 27-0331317
Debtor.
DEBTORS OBJECTIONS TO NOTICE OF THE DEPOSITION OF THE DESIGNATED REPRESENTATIVE OF THE DEBTOR CORDILLERA GOLF CLUB, LLC, PURSUANT TO F.R.B.P. 7030(b)(6) ______________________________________________________________________________ Pursuant to Federal Rules of Civil Procedure 34 and Federal Rule of Bankruptcy Procedure 7034, Debtor and Debtor-in-Possession, Cordillera Golf Club, LLC, dba The Club at Cordillera (the Responding Party), by and through its undersigned counsel, hereby objects to the following deposition matters outlined in the Notice of the Deposition of the Designated Representative of the Debtor Cordillera Golf Club, LLC, Pursuant to F.R.B.P. 7030(b)(6) propounded by Cheryl M. Foley, Thomas and Jane Wilner, Charles and Mary Jackson and Kevin B. Allen, as representatives of a certified class in Case No. 11CV552, pending in the District Court of Eagle County, Colorado (collectively Member Representatives or Propounding Parties).
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DEPOSITION MATTER NO. 3 The terms and conditions of the Cordillera Club Membership Plan, as it may have been amended from time to time. RESPONSE TO DEPOSITION MATTER NO. 3 The Cordillera Club Membership Plan, its terms and amendments thereto, speaks for itself and is the best evidence of its terms. DEPOSITION MATTER NO. 4 All amendments to the terms and conditions of the Cordillera Club Membership Plan from January 1, 2009, to the present, including without limitation, the Debtors obligation to fund operating losses. RESPONSE TO DEPOSITION MATTER NO. 4 The Cordillera Club Membership Plan, its terms and amendments thereto, speaks for itself and is the best evidence of its terms. DEPOSITION MATTER NO. 7 The Debtors opinion as to the current market value(s) of the Club Facilities as that term is defined in the Opposition. RESPONSE TO DEPOSITION MATTER NO. 7 The Debtor has not yet determined whether it will utilize a valuation expert in this matter.
2
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DEPOSITION MATTER NO. 8 The nature of the Wind Rose Lodging Club model as defined in the Opposition, and the implementation of that model by the Debtor. RESPONSE TO DEPOSITION MATTER NO. 8 This matter is inappropriate to the extent that it seeks testimony, information, or documents in violation of Judge Campbells August 29, 2012 Protective Order in this case. Further, this matter seeks testimony, information, or documents related to the pending state court proceedings, and is not relevant to the current bankruptcy proceeding or Movants request for the appointment of a trustee. DEPOSITION MATTER NO. 9 The allegation made in paragraph 36 of the Opposition that [i]n furtherance of its vision, the Debtor introduced new categories of membership - including the Premier - and spent substantial sums of money into [sic] improving the Club Facilities, services and operations for its Club Members. RESPONSE TO DEPOSITION MATTER NO. 9 This matter is inappropriate to the extent that it seeks testimony, information, or documents in violation of Judge Campbells August 29, 2012 Protective Order in this case. Further, this matter seeks testimony, information, or documents related to the pending state court proceedings, and is not relevant to the current bankruptcy proceeding or Movants request for the appointment of a trustee.
3
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DEPOSITION MATTER NO. 10 The allegation made in paragraph 27 of the Opposition that [s]tarting in August 2010, a small but vocal minority of current and former Club Members commenced tactical activities that represented an orchestrated and pervasive pattern of conduct and activities designed to create an environment that the Debtor believes was intended to result in a below-market transfer of ownership and control of the Cordillera Club and its Club Facilities to those current and former Club Members. RESPONSE TO DEPOSITION MATTER NO. 10 This matter is inappropriate to the extent that it seeks testimony, information, or documents in violation of Judge Campbells August 29, 2012 Protective Order in this case. Further, this matter seeks testimony, information, or documents related to the pending state court proceedings, and is not relevant to the current bankruptcy proceeding or Movants request for the appointment of a trustee. DEPOSITION MATTER NO. 11 The allegation made in paragraph 42 of the Opposition that ... the damage resulting from this small group's campaign including significant membership cancellations - required the Debtor to dramatically cut back its planned operations for 2011. RESPONSE TO DEPOSITION MATTER NO. 11 This matter is inappropriate to the extent that it seeks testimony, information, or documents in violation of Judge Campbells August 29, 2012 Protective Order in this case. Further, this matter seeks testimony, information, or documents related to the pending state court proceedings, and is not relevant to the current bankruptcy proceeding or Movants request for the appointment of a trustee. 4
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DEPOSITION MATTER NO. 12 The allegation made in paragraph 43 of the Opposition that [i]n May 2011, the Club advised the Club Members that the mass exodus of Club Members, coupled with certain Club Members' apparent boycott of the Club Facilities, had severely and detrimentally impacted the Cordillera Club, and, as a result, the Cordillera Club had no alternative but to open only one of the four club facilities - the Valley Club. This subject area includes, without limitation, the dates of the resignations and/or mass exodus of member described in the paragraph and the date upon which such resignations became or will become effective. RESPONSE TO DEPOSITION MATTER NO. 12 This matter is inappropriate to the extent that it seeks testimony, information, or documents in violation of Judge Campbells August 29, 2012 Protective Order in this case. Further, this matter seeks testimony, information, or documents related to the pending state court proceedings, and is not relevant to the current bankruptcy proceeding or Movants request for the appointment of a trustee. In addition, this matter seeks private or confidential information, including information or documents related to former or current Club Members. DEPOSITION MATTER NO. 13 The allegation made in paragraph 53 of the Opposition that [b]y mid-2010, it was clear that the Cordillera club lacked the critical mass of Club Members necessary to maintain the high level of services and operations at the Club Facilities. RESPONSE TO DEPOSITION MATTER NO. 13 This matter is inappropriate to the extent that it seeks testimony, information, or documents in violation of Judge Campbells August 29, 2012 Protective Order in this case. Further, this matter seeks testimony, information, or documents related to the pending state court 5
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proceedings, and is not relevant to the current bankruptcy proceeding or Movants request for the appointment of a trustee. DEPOSITION MATTER NO. 15 The allegation made in paragraph 78 of the Opposition that ... Wilhelm made the representation at the behest of Mr. Wilner, one of the Movants, and the Debtor now believes that Mr. Wilners legal advice to the Debtor to make such a representation was itself wrongful advice, and ... when Wilhelm sent the letter, he was hopeful that the financial situation of the Debtor would enable it to provide all the amenities, and that the letter was sent with the best of intentions. RESPONSE TO DEPOSITION MATTER NO. 15 This matter is inappropriate to the extent that it seeks testimony, information, or documents in violation of Judge Campbells August 29, 2012 Protective Order in this case. Further, this matter seeks testimony, information, or documents related to the pending state court proceedings, and is not relevant to the current bankruptcy proceeding or Movants request for the appointment of a trustee. DEPOSITION MATTER NO. 16 When, how and in what capacity the Debtor engaged Tom Wilmer as its attorney. RESPONSE TO DEPOSITION MATTER NO. 16 This matter is inappropriate to the extent that it seeks testimony, information, or documents in violation of Judge Campbells August 29, 2012 Protective Order in this case. Further, this matter seeks testimony, information, or documents related to the pending state court proceedings, and is not relevant to the current bankruptcy proceeding or Movants request for the appointment of a trustee. Moreover, the matter seeks testimony, information, or documents 6
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protected by the attorney-client privilege and/or attorney work product doctrine in that it seeks information between the Debtor and its prior counsel. DEPOSITION MATTER NO. 17 The amount and timing of any and all payments made by the Debtor for legal services provided by Tom Wilmer. RESPONSE TO DEPOSITION MATTER NO. 17 This matter is inappropriate to the extent that it seeks testimony, information, or documents in violation of Judge Campbells August 29, 2012 Protective Order in this case. Further, this matter seeks testimony, information, or documents related to the pending state court proceedings, and is not relevant to the current bankruptcy proceeding or Movants request for the appointment of a trustee. Moreover, the matter seeks information protected by the attorneyclient privilege and/or attorney work product doctrine in that it seeks testimony, information, or documents between the Debtor and its prior counsel. DEPOSITION MATTER NO. 18 The allegation made in paragraph 85 of the Opposition that ... the Cordillera Club's data show almost eighty percent of the Club members who resigned did so after the Debtor issued the assurances requested by the Club Members, and before there was any change in anticipated services. This subject area includes, without limitation, the number and timing of any and all revocations of such member resignations by the resigning members. RESPONSE TO DEPOSITION MATTER NO. 18 This matter is inappropriate to the extent that it seeks testimony, information, or documents in violation of Judge Campbells August 29, 2012 Protective Order in this case. Further, this matter seeks testimony, information, or documents related to the pending state court 7
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proceedings, and is not relevant to the current bankruptcy proceeding or Movants request for the appointment of a trustee. In addition, this matter seeks private, confidential, proprietary, and/or privileged information, including but not limited to testimony, information, and documents related to current and former Club Members. DEPOSITION MATTER NO. 19 The allegation made in footnote 12 of the Opposition that [a]s a result of the pending litigation, both the Member Litigation and the CTC/CPOA Litigation, the Debtor believes that the Members will ultimately not be creditors of the Debtor after the Debtor prevail in both case for the reasons described above. RESPONSE TO DEPOSITION MATTER NO. 19 This matter is inappropriate to the extent that it seeks testimony, information, or documents in violation of Judge Campbells August 29, 2012 Protective Order in this case. Further, this matter seeks testimony, information, or documents related to the pending state court proceedings, and is not relevant to the current bankruptcy proceeding or Movants request for the appointment of a trustee. This is the subject of pending litigation and the Debtor has listed their creditors as disputed in its schedules and statements of financial affairs. DEPOSITION MATTER NO. 20 The allegation made in paragraph 95 of the Opposition that ... the Cordillera Club continues to have 160 active paying members (the Existing Members). The Existing Members represent approximately 25% of the total number of members of the Cordillera Club. While certain of the Existing Members are constantly alleged to be members of the plaintiff class in the Member Litigation case, the evidence will show that they are either unwilling or unwitting members of the Class who thought that their continuing payment of dues and membership in the Club would exclude them from the Class. 8
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RESPONSE TO DEPOSITION MATTER NO. 20 This matter is inappropriate to the extent that it seeks testimony, information, or documents in violation of Judge Campbells August 29, 2012 Protective Order in this case. Further, this matter seeks testimony, information, or documents related to the pending state court proceedings, and is not relevant to the current bankruptcy proceeding or Movants request for the appointment of a trustee. In addition, this matter seeks private, confidential, proprietary, and/or privileged information, including but not limited to testimony, information, and documents related to current and former Club Members. DEPOSITION MATTER NO. 23 The finances of the Cordillera Club between January 1, 2009 and June 26, 2012 (the Petition Date). RESPONSE TO DEPOSITION MATTER NO. 23 This request is overbroad, undefined and unduly burdensome. Additionally, Debtor has made disclosures concerning its finances. DEPOSITION MATTER NO. 27 Which Club Facilities have been either open or closed between January 1, 2009 and the present. RESPONSE TO DEPOSITION MATTER NO. 27 This matter is inappropriate to the extent that it seeks testimony, information, or documents in violation of Judge Campbells August 29, 2012 Protective Order in this case. Further, this matter seeks testimony, information, or documents related to the pending state court
9
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proceedings, and is not relevant to the current bankruptcy proceeding or Movants request for the appointment of a trustee. DEPOSITION MATTER NO. 32 The allegation made in paragraph 98 of the Opposition that, Each day the Debtor is contacted by current and former members interested in working toward a consensual resolution rather than funding ongoing litigation. RESPONSE TO DEPOSITION MATTER NO. 32 This matter is inappropriate to the extent that it seeks testimony, information, or documents in violation of Judge Campbells August 29, 2012 Protective Order in this case. Further, this matter seeks testimony, information, or documents related to the pending state court proceedings, and is not relevant to the current bankruptcy proceeding or Movants request for the appointment of a trustee. In addition, this matter seeks private, confidential, proprietary, and/or privileged information, including but not limited to private testimony, information, documents, and communications with current or former Club Members. DEPOSITION MATTER NO. 33 The allegation made in paragraph 98 of the Opposition that, The Debtor is confident it will have an impaired consenting class, and that it will demonstrate a fair and reasonable reorganization. RESPONSE TO DEPOSITION MATTER NO. 33 This matter is inappropriate to the extent that it seeks testimony, information, or documents in violation of Judge Campbells August 29, 2012 Protective Order in this case. Further, this matter seeks testimony, information, or documents related to the pending state court
10
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proceedings, and is not relevant to the current bankruptcy proceeding or Movants request for the appointment of a trustee. DEPOSITION MATTER NO. 34 Any and all other facts raised in, or relating to the matters raised in, the Opposition. RESPONSE TO DEPOSITION MATTER NO. 34 This matter is inappropriate to the extent that it seeks testimony, information, or documents in violation of Judge Campbells August 29, 2012 Protective Order in this case. Further, this matter seeks testimony, information, or documents related to the pending state court proceedings, and is not relevant to the current bankruptcy proceeding or Movants request for the appointment of a trustee. In addition, this requests seeks private, confidential, proprietary, and/or privileged information, including but not limited to secret or sensitive financial information, or communications with attorneys, consultants, advisors, and/or brokers, or testimony, information, or documents about current or former Club Members. DEPOSITION MATTER NO. 35 The condition of the Club Facilities other than the Valley Course and all maintenance and improvements performed on such Club Facilities since January 1, 2010. RESPONSE TO DEPOSITION MATTER NO. 35 This matter is inappropriate to the extent that it seeks testimony, information, or documents in violation of Judge Campbells August 29, 2012 Protective Order in this case. Further, this matter seeks testimony, information, or documents related to the pending state court proceedings, and is not relevant to the current bankruptcy proceeding or Movants request for the appointment of a trustee.
11
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SENDER & WASSERMAN, P.C. /s/ Harvey Sender Harvey Sender, #7546 1660 Lincoln Street, Suite 2200 Denver, CO 80264 Telephone: 303-296-1999 Facsimile: 303-296-7600 Email: sender@sendwass.com Counsel for Debtor and Debtor-in-Possession -andFOLEY & LARDNER LLP Christopher Celentino (CA No. 131688) Mikel Bistrow (CA No. 102978) Dawn A. Messick (CA No. 236941) Admitted Pro Hac Vice 402 West Broadway, Suite 2100 San Diego, CA 92101 Telephone: 619-234-6655 Facsimile: 619-234-3510 Email: ccelentino@foley.com Email: mbistrow@foley.com Email: dmessick@foley.com Ann Marie Uetz 500 Woodward Avenue, Suite 2700 Detroit, MI 48226 Telephone: 313-234-7100 Facsimile: 313-234-2800 Email: auetz@foley.com Counsel for Debtor and Debtorin-Possession
12
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Debtor.
DEBTORS RESPONSES AND OBJECTIONS TO REQUEST FOR PRODUCTION OF DOCUMENTS IN CONNECTION WITH NOTICE OF THE DEPOSITION OF THE DESIGNATED REPRESENTATIVE OF THE DEBTOR CORDILLERA GOLF CLUB, LLC, PURSUANT TO F.R.B.P. 7030(b)(6) ______________________________________________________________________________ Pursuant to Federal Rules of Civil Procedure 34 and Federal Rule of Bankruptcy Procedure 7034, Debtor and Debtor-in-Possession, Cordillera Golf Club, LLC, dba The Club at Cordillera (the Responding Party), by and through its undersigned counsel, hereby respectfully submits the following Responses and Objections to the Request for Production of Documents in Connection with Notice of the Deposition of the Designated Representative of the Debtor Cordillera Golf Club, LLC, Pursuant to F.R.B.P. 7030(b)(6) propounded by Cheryl M. Foley, Thomas and Jane Wilner, Charles and Mary Jackson and Kevin B. Allen, as representatives of a certified class in Case No. 11CV552, pending in the District Court of Eagle County, Colorado (collectively Member Representatives or Propounding Parties).
GENERAL OBJECTIONS 1. Responding Partys investigation and discovery in this case are ongoing.
Responding Party provides the following responses and objections without prejudice to its rights to present further information, documents, evidence and/or analysis not yet obtained.
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2.
Responding Party objects to each request for production to the extent it is vague
and ambiguous and makes a response impossible without speculation. 3. Responding Party objects to each request for production to the extent it fails to
describe the document or category of documents requested with reasonable particularly as required by FRCP 34(b). 4. Responding Party objects to each request for production to the extent it seeks
documents or information protected by the attorney-client privilege, the attorney work production doctrine, or any other applicable privilege or protection. 5. Responding Party objects to each request for production to the extent it requests
information or documents that may violate, impair, or abrogate the privacy rights of any individual or entity, including without limitation any constitutional, statutory, or common law privacy interest of Responding Party, or any current or former employee or representative of Responding Party, or of any other person or entity. 6. Responding Party objects to each request for production to the extent it seeks
information or documents protected as trade secrets, or confidential or proprietary information. To the extent that Responding Party has agreed to produce any information or documents that contain trade secret or proprietary information, any such production will be made only after the entry of an appropriate protective order. 7. Responding Party objects to each request for production to the extent it seeks
documents or information protected by a self-evaluation or self-analysis privilege. 8. Responding Party objects to each request for production to the extent it seeks
documents or information not within Responding Partys possession, custody, or control, or to the extent such information or documents are equally available to the Propounding Parties. 9. Responding Party objects to each request for production to the extent it seeks
documents or information that are neither relevant nor reasonably likely to lead to the discovery of admissible evidence.
2
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10.
Responding Party objects to each request for production to the extent it seeks
legal contentions or conclusions. 11. Responding Party objects to each request for production to the extent it seeks
documents or information that is outside the time period at issue in the case and/or has no relationship to actions taken or statements made relative to this case. 12. Responding Party objects to each request for production to the extent it is overly
broad, burdensome, and/or oppressive. 13. Responding Party objects to each request for production to the extent it assumes
facts that are incorrect or do not exist. 14. Responding Party objects to each request for production to the extent it seeks
information related to the case pending in the District Court for Eagle County, Colorado, case number 2011 CV 552, captioned Plaintiffs: CHERYL M. FOLEY, THOMAS WILNER, JANE WILNER, CHARLES JACKSON, MARY JACKSON and KEVIN B. ALLEN individually and on behalf of all others similarly situated, v. Defendants: CORDILLERA GOLF CLUB, LLC, a Delaware limited liability company; CORDILLERA GOLF HOLDINGS, LLC, a Delaware limited liability company; WFP CORDILLERA, LLC, a Delaware limited liability company; WFP INVESTMENTS, LLC, a Delaware limited liability company; CGH MANAGER, LLC, a Delaware limited liability company; DAVID A. WILHELM individually; and PATRICK WILHELM, individually, v. Intervenor-Defendant/Counterclaimant and Cross-Claimant: ALPINE BANK, which action has been stayed as to the Debtor. 15. Responding Party objects to each request for production to the extent it seeks
information related to the case pending in the District Court for Eagle County, Colorado, case number 2011 CV 456, styled Cordillera Golf Club, LLC, et al. v. Cordillera Transition Corporation, Inc., et al. 16. Responding Party objects to each request for production to the extent it seeks
information or documents in violation of the protective order of August 29, 2012 by Judge Campbell in this case [Docket #395]. 3
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17.
Each response herein that states that certain information or documents will be
provided or produced is not and should not be construed as an admission or representation that such information or documents in fact exist. The responses herein are solely made for the purpose of this action. Each response is subject to all objections as to competence, relevance, materiality, and admissibility, or other objections if statements were offered in court, all of which objections and grounds are expressly reserved by Responding Party. Each of these General Objections is incorporated by this reference into each of the responses below. By asserting an objection, Responding Party does not concede that it possesses documents responsive to any particular request. REQUEST FOR PRODUCTION OF DOCUMENTS NO. 1 All document supporting or contradicting the allegation made in paragraph 16 of he Debtor's Opposition to Motion of Cheryl M. Foley, Thomas Wilner, Jane Wilner, Charles Jackson, Mary Jackson and Kevein [sic] Allen Individually and as Representatives of a Certified Class of Members, to Appoint a Chapter 11 Trustee (the Opposition) that Approximately onehalf of all property owners within Cordillera are Club Members. RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS NO. 1 Responding Party incorporates herein by reference all general objections stated above. Moreover, this request is inappropriate to the extent that it seeks documents and information in violation of Judge Campbells Protective Order in this case, which prevents the Propounding Parties from seeking information or documents that have already been produced by Responding Party in concurrent state court proceedings. Further, this requests seeks information and or documents that may contain private information of third parties, including information related to current or former members of the Club. Subject to the foregoing objections, Responding Party shall produce all non-privileged documents subject to an acceptable protective order. 4
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REQUEST FOR PRODUCTION OF DOCUMENTS NO. 2 All document supporting or contradicting the allegation made in paragraph 17 of the Opposition that [t]he primary source of revenue to fund the operation and management of the extensive Club Facilities is derived from membership deposits, initiation fees and annual membership dues. RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS NO. 2 Responding Party incorporates herein by reference all general objections stated above. Moreover, this request is inappropriate to the extent that it seeks documents and information in violation of Judge Campbells Protective Order in this case, which prevents the Propounding Parties from seeking information or documents that have already been produced by Responding Party in concurrent state court proceedings. The request is compound. Further, this requests seeks information and or documents that may contain private, proprietary, or privileged information of third parties, including information related to current or former members of the Club. Subject to the foregoing objections, Responding Party shall produce all non-privileged documents subject to an acceptable protective order. REQUEST FOR PRODUCTION OF DOCUMENTS NO. 3 The Cordillera Club Membership Plan, as it may have been amended from time to time. RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS NO. 3 Responding Party incorporates herein by reference all general objections stated above. Moreover, this request is inappropriate to the extent that it seeks documents and information in violation of Judge Campbells Protective Order in this case, which prevents the Propounding Parties from seeking information or documents that have already been produced by Responding Party in concurrent state court proceedings. Further, the term Cordillera Club Membership 5
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Plan is not defined, and therefore this request is vague, ambiguous, and unintelligible, and Responding Party cannot respond to this request without speculating at to the terms meaning. Moreover, this request lacks any definite time frame, and therefore is overbroad, burdensome, and/or oppressive because it may include documents that pre-date or are irrelevant to this litigation. Finally, the request is burdensome and harassing given that the requested documents are equally available to the Propounding Parties. REQUEST FOR PRODUCTION OF DOCUMENTS NO. 4 All amendments to the terms and conditions of the Cordillera Club Membership Plan from January 1, 2009, to the present, including without limitation, the Debtor's obligation to fund operating losses. RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS NO. 4 Responding Party incorporates herein by reference all general objections stated above. Moreover, this request is inappropriate to the extent that it seeks documents and information in violation of Judge Campbells Protective Order in this case, which prevents the Propounding Parties from seeking information or documents that have already been produced by Responding Party in concurrent state court proceedings. Further, the term Cordillera Club Membership Plan is not defined, and therefore this request is vague, ambiguous, and unintelligible, and Responding Party cannot respond to this request without speculating at to the terms meaning. The request also assumes facts not in evidence. Moreover, this request lacks any definite time frame, and therefore is overbroad, burdensome, and/or oppressive because it may include documents that pre-date or are irrelevant to this litigation. Finally, the request is burdensome and harassing given that the requested documents are equally available to the Propounding Parties.
6
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REQUEST FOR PRODUCTION OF DOCUMENTS NO. 5 All document supporting or contradicting the allegation made in paragraph 22 of the Opposition that [t]he Membership Plan also grants the Debtor and the Cordillera Club discretion to control the use of Club Facilities, as well as any and all document regarding whether the Debtor has otherwise assumed any such obligations. RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS NO. 5 Responding Party incorporates herein by reference all general objections stated above. Moreover, this request is inappropriate to the extent that it seeks documents and information in violation of Judge Campbells Protective Order in this case, which prevents the Propounding Parties from seeking information or documents that have already been produced by Responding Party in concurrent state court proceedings. The request is compound. Further, the request is overbroad, burdensome, and /or oppressive in that it includes [a]ll document[s] supporting or contradicting Debtors allegations in its Opposition, and any and all document[s] regarding Debtors obligations regarding control and use of the facilities, which may include documents related to the day-to-day business operations of the Cordillera Golf Club beyond the scope of this litigation. Subject to the foregoing objections, all non-privileged documents will be produced. REQUEST FOR PRODUCTION OF DOCUMENTS NO. 6 All document supporting or contradicting the allegation made in paragraph 23 of the Opposition that [t]he Membership Plan does not obligate the Debtor to make Club Facilities available for use on any given date or during any given hours. RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS NO. 6 Responding Party incorporates herein by reference all general objections stated above. Moreover, this request is inappropriate to the extent that it seeks documents and information in 7
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violation of Judge Campbells Protective Order in this case, which prevents the Propounding Parties from seeking information or documents that have already been produced by Responding Party in concurrent state court proceedings. The request is compound. Further, the request is overbroad, burdensome, and /or oppressive in that it includes [a]ll document[s] supporting or contradicting Debtors allegations in its Opposition, which may include documents related to the day-to-day business operations of the Cordillera Golf Club beyond the scope of this litigation. Subject to the foregoing objections, all non-privileged documents will be produced. REQUEST FOR PRODUCTION OF DOCUMENTS NO. 7 All document supporting or contradicting the Debtor's opinion as to the current market value(s) of the Club Facilities as that term is defined in the Opposition. RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS NO. 7 Responding Party incorporates herein by reference all general objections stated above. Moreover, this request is inappropriate to the extent that it seeks documents and information in violation of Judge Campbells Protective Order in this case, which prevents the Propounding Parties from seeking information or documents that have already been produced by Responding Party in concurrent state court proceedings. The request is compound. Further, the request is overbroad, burdensome, and /or oppressive in that it includes [a]ll document[s] supporting or contradicting Debtors opinion as to current market value, which may include documents related to the day-to-day business operations of the Cordillera Golf Club beyond the scope of this litigation. Moreover, this request asks for information protected by self-appraisal or selfevaluation privileges. In addition, this request seeks information that may be proprietary or privileged, including but not limited to confidential or privileged communications with attorneys, consultants, and/or appraisers. Subject to the foregoing objections, all non-privileged documents will be produced.
8
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REQUEST FOR PRODUCTION OF DOCUMENTS NO. 8 All document describing the Wind Rose Lodging Club, and the implementation of that model by the Debtor. RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS NO. 8 Responding Party incorporates herein by reference all general objections stated above. Moreover, this request is inappropriate to the extent that it seeks documents and information in violation of Judge Campbells Protective Order in this case, which prevents the Propounding Parties from seeking information or documents that have already been produced by Responding Party in concurrent state court proceedings. The request is compound. Further, the request is overbroad, burdensome, and /or oppressive in that it includes [a]ll document[s] describing the Wind Rose Lodging Club, which may include documents related to the day-to-day business operations of the Cordillera Golf Club beyond the scope of this litigation. In addition, the term Wind Rose Lodging Club is not qualitatively defined or quantified, and therefore the request is vague, ambiguous, and unintelligible, and Responding Party cannot respond to this request without speculating as to the terms meaning. In addition, this request seeks information that may be proprietary or privileged, including but not limited to confidential or privileged communications with attorneys, consultants, and/or appraisers. Subject to the foregoing objections, all non-privileged documents will be produced. REQUEST FOR PRODUCTION OF DOCUMENTS NO. 9 All document supporting or contradicting the allegation made in paragraph 36 of the Opposition that [i]n furtherance of its vision, the Debtor introduced new categories of membership - including the Premier - and spent substantial sums of money into [sic] improving the Club Facilities, services and operations for its Club Members.
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RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS NO. 9 Responding Party incorporates herein by reference all general objections stated above. Moreover, this request is inappropriate to the extent that it seeks documents and information in violation of Judge Campbells Protective Order in this case, which prevents the Propounding Parties from seeking information or documents that have already been produced by Responding Party in concurrent state court proceedings. The request is compound. Further, the request is overbroad, burdensome, and /or oppressive in that it includes [a]ll document[s] supporting or contradicting Debtors allegations in its Opposition, which may include documents related to the day-to-day business operations of the Cordillera Golf Club beyond the scope of this litigation. In addition, this request seeks information that may be proprietary or privileged, including but not limited to confidential or privileged communications with attorneys, consultants, and/or appraisers. Subject to the foregoing objections, all non-privileged documents will be produced. REQUEST FOR PRODUCTION OF DOCUMENTS NO. 10 All document supporting or contradicting the allegation made in paragraph 27 of the Opposition that [s]tarting in August 2010, a small but vocal minority of current and former Club Members commenced tactical activities that represented an orchestrated and pervasive pattern of conduct and activities designed to create an environment that the Debtor believes was intended to result in a below-market transfer of ownership and control of the Cordillera Club and its Club Facilities to those current and former Club Members. RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS NO. 10 Responding Party incorporates herein by reference all general objections stated above. Moreover, this request is inappropriate to the extent that it seeks documents and information in violation of Judge Campbells Protective Order in this case, which prevents the Propounding 10
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Parties from seeking information or documents that have already been produced by Responding Party in concurrent state court proceedings. The request is compound. Further, the request is overbroad, burdensome, and /or oppressive in that it includes [a]ll document[s] supporting or contradicting Debtors allegations in its Opposition, which may include documents related to the day-to-day business operations of the Cordillera Golf Club beyond the scope of this litigation. In addition, this request seeks information that may be proprietary or privileged, including but not limited to confidential or privileged communications with attorneys, consultants, and/or appraisers. The request is also harassing given the requested documents include documents already in the Propounding Parties possession or equally available to the Propounding Party. REQUEST FOR PRODUCTION OF DOCUMENTS NO. 11 All document supporting or contradicting the allegation made in paragraph 42 of the Opposition that ... the damage resulting from this small group's campaign including significant membership cancellations - required the Debtor to dramatically cut back its planned operations for 2011. RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS NO. 11 Responding Party incorporates herein by reference all general objections stated above. Moreover, this request is inappropriate to the extent that it seeks documents and information in violation of Judge Campbells Protective Order in this case, which prevents the Propounding Parties from seeking information or documents that have already been produced by Responding Party in concurrent state court proceedings. The request is compound. Further, the request is overbroad, burdensome, and /or oppressive in that it includes [a]ll document[s] supporting or contradicting Debtors allegations in its Opposition, which may include documents related to the day-to-day business operations of the Cordillera Golf Club beyond the scope of this litigation. In addition, this request seeks information that may be proprietary or privileged, 11
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including but not limited to confidential or privileged communications with attorneys, consultants, and/or appraisers. The request is also harassing given the requested documents include documents already in the Propounding Parties possession or equally available to the Propounding Party. REQUEST FOR PRODUCTION OF DOCUMENTS NO. 12 All document supporting or contradicting the allegation made in paragraph 43 of the Opposition that [i]n May 2011, the Club advised the Club Members that the mass exodus of Club Members, coupled with certain Club Members' apparent boycott of the Club Facilities, had severely and detrimentally impacted the Cordillera Club, and, as a result, the Cordillera Club had no alternative but to open only one of the four club facilities - the Valley Club. This subject area includes, without limitation, the dates of the resignations and/or mass exodus of member described in the paragraph and the date upon which such resignations became or will become effective. RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS NO. 12 Responding Party incorporates herein by reference all general objections stated above. Moreover, this request is inappropriate to the extent that it seeks documents and information in violation of Judge Campbells Protective Order in this case, which prevents the Propounding Parties from seeking information or documents that have already been produced by Responding Party in concurrent state court proceedings. The request is compound. Further, the request is overbroad, burdensome, and /or oppressive in that it includes [a]ll document[s] supporting or contradicting Debtors allegations in its Opposition, which may include documents related to the day-to-day business operations of the Cordillera Golf Club beyond the scope of this litigation. In addition, this request seeks private or confidential information, including information or documents related to former or current Club Members. In addition, this request seeks information that may be proprietary or privileged, including but not limited to confidential 12
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or privileged communications with attorneys, consultants, and/or appraisers. The request is also harassing given the requested documents include documents already in the Propounding Parties possession or equally available to the Propounding Party. REQUEST FOR PRODUCTION OF DOCUMENTS NO. 13 All document supporting or contradicting the allegation made in paragraph 53 of the Opposition that [b]y mid-2010, it was clear that the Cordillera club lacked the critical mass of Club Members necessary to maintain the high level of services and operations at the Club Facilities. RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS NO. 13 Responding Party incorporates herein by reference all general objections stated above. Moreover, this request is inappropriate to the extent that it seeks documents and information in violation of Judge Campbells Protective Order in this case, which prevents the Propounding Parties from seeking information or documents that have already been produced by Responding Party in concurrent state court proceedings. The request is compound. Further, the request is overbroad, burdensome, and /or oppressive in that it includes [a]ll document[s] supporting or contradicting Debtors allegations in its Opposition, which may include documents related to the day-to-day business operations of the Cordillera Golf Club beyond the scope of this litigation. In addition, this request seeks information that may be proprietary or privileged, including but not limited to confidential or privileged communications with attorneys, consultants, and/or appraisers. The request is also harassing given the requested documents include documents already in the Propounding Parties possession or equally available to the Propounding Party.
13
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REQUEST FOR PRODUCTION OF DOCUMENTS NO. 14 All document supporting or contradicting the allegation that the employment of a real estate consultant and an investment banker will help cushion the conflict between Wilhelm and certain members of the Cordillera Club who have developed an adversarial relationship with Wilhelm... as alleged in paragraph 56 of the Opposition. RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS NO. 14 Responding Party incorporates herein by reference all general objections stated above. Moreover, this request is inappropriate to the extent that it seeks documents and information in violation of Judge Campbells Protective Order in this case, which prevents the Propounding Parties from seeking information or documents that have already been produced by Responding Party in concurrent state court proceedings. The request is compound. Further, the request is overbroad, burdensome, and /or oppressive in that it includes [a]ll document[s] supporting or contradicting Debtors allegations in its Opposition, which may include documents related to the day-to-day business operations of the Cordillera Golf Club beyond the scope of this litigation. In addition, this requests seeks information that may be private, confidential, proprietary, or privileged, including but not limited to communications with attorneys, consultants, or brokers. REQUEST FOR PRODUCTION OF DOCUMENTS NO. 15 All document supporting or contradicting the allegation made in paragraph 78 of the Opposition that ... Wilhelm made the representation at the behest of Mr. Wilner, one of the Movants, and the Debtor now believes that Mr. Wilners legal advice to the Debtor to make such a representation was itself wrongful advice, and ... when Wilhelm sent the letter, he was hopeful that the financial situation of the Debtor would enable it to provide all the amenities, and that the letter was sent with the best of intentions. 14
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RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS NO. 15 Responding Party incorporates herein by reference all general objections stated above. Moreover, this request is inappropriate to the extent that it seeks documents and information in violation of Judge Campbells Protective Order in this case, which prevents the Propounding Parties from seeking information or documents that have already been produced by Responding Party in concurrent state court proceedings. The request is compound. Further, the request is overbroad, burdensome, and /or oppressive in that it includes [a]ll document[s] supporting or contradicting Debtors allegations in its Opposition, which may include documents related to the day-to-day business operations of the Cordillera Golf Club beyond the scope of this litigation. In addition, this request seeks information that may be proprietary or privileged, including but not limited to confidential or privileged communications with attorneys, consultants, and/or appraisers. The request is also harassing given the requested documents include documents already in the Propounding Parties possession or equally available to the Propounding Party. REQUEST FOR PRODUCTION OF DOCUMENTS NO. 16 All document describing or identifying when, how and in what capacity the Debtor engaged Tom Wilmer as its attorney. RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS NO. 16 Responding Party incorporates herein by reference all general objections stated above. Moreover, this request is inappropriate to the extent that it seeks documents and information in violation of Judge Campbells Protective Order in this case, which prevents the Propounding Parties from seeking information or documents that have already been produced by Responding Party in concurrent state court proceedings. The request is compound. Further, the request seeks information protected by the attorney-client privilege and/or attorney work product doctrine in 15
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that it seeks information between the Debtor and its prior counsel. In addition, this request seeks information that may be proprietary or privileged, including but not limited to confidential or privileged communications with attorneys, consultants, and/or appraisers. The request is also harassing given the requested documents include documents already in the Propounding Parties possession or equally available to the Propounding Party. REQUEST FOR PRODUCTION OF DOCUMENTS NO. 17 All document describing or identifying the amount and timing of any and all payments made by the Debtor for legal services provided by Tom Wilmer. RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS NO. 17 Responding Party incorporates herein by reference all general objections stated above. Moreover, this request is inappropriate to the extent that it seeks documents and information in violation of Judge Campbells Protective Order in this case, which prevents the Propounding Parties from seeking information or documents that have already been produced by Responding Party in concurrent state court proceedings. The request is compound. Further, the request seeks information protected by the attorney-client privilege and/or attorney work product doctrine in that it seeks information between the Debtor and its prior counsel. In addition, this request seeks information that may be proprietary or privileged, including but not limited to confidential or privileged communications with attorneys, consultants, and/or appraisers. The request is also harassing given the requested documents include documents already in the Propounding Parties possession or equally available to the Propounding Party. REQUEST FOR PRODUCTION OF DOCUMENTS NO. 18 All document supporting or contradicting the allegation made in paragraph 85 of the Opposition that ... the Cordillera Club's data show almost eighty percent of the Club members who resigned did so after the Debtor issued the assurances requested by the Club Members, and 16
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before there was any change in anticipated services. This subject area includes, without limitation, the number and timing of any and all revocations of such member resignations by the resigning members. RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS NO. 18 Responding Party incorporates herein by reference all general objections stated above. Moreover, this request is inappropriate to the extent that it seeks documents and information in violation of Judge Campbells Protective Order in this case, which prevents the Propounding Parties from seeking information or documents that have already been produced by Responding Party in concurrent state court proceedings. The request is compound. Further, the request is overbroad, burdensome, and /or oppressive in that it includes [a]ll document[s] supporting or contradicting Debtors allegations in its Opposition, which may include documents related to the day-to-day business operations of the Cordillera Golf Club beyond the scope of this litigation. In addition, this requests seeks private, confidential, proprietary, and/or privileged information, including but not limited to information and documents related to current and former Club Members. Subject to the foregoing objections, Responding Party shall produce all non-privileged documents subject to an acceptable protective order. REQUEST FOR PRODUCTION OF DOCUMENTS NO. 19 All document supporting or contradicting the allegation made in footnote 12 of the Opposition that [a]s a result of the pending litigation, both the Member Litigation and the CTC/CPOA Litigation, the Debtor believes that the Members will ultimately not be creditors of the Debtor after the Debtor prevail in both case for the reasons described above. RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS NO. 19 Responding Party incorporates herein by reference all general objections stated above. Moreover, this request is inappropriate to the extent that it seeks documents and information in 17
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violation of Judge Campbells Protective Order in this case, which prevents the Propounding Parties from seeking information or documents that have already been produced by Responding Party in concurrent state court proceedings. The request is compound. Further, the request is overbroad, burdensome, and /or oppressive in that it includes [a]ll document[s] supporting or contradicting Debtors allegations in its Opposition, which may include documents related to the day-to-day business operations of the Cordillera Golf Club beyond the scope of this litigation. In addition, this request seeks information that may be proprietary or privileged, including but not limited to confidential or privileged communications with attorneys, consultants, and/or appraisers. The request is also harassing given the requested documents include documents already in the Propounding Parties possession or equally available to the Propounding Party. REQUEST FOR PRODUCTION OF DOCUMENTS NO. 20 All document supporting or contradicting the the [sic] allegation made in paragraph 95 of the Opposition that ... the Cordillera Club continues to have 160 active paying members (the Existing Members). The Existing Members represent approximately 25% of the total number of members of the Cordillera Club. While certain of the Existing Members are constantly alleged to be members of the plaintiff class in the Member Litigation case, the evidence will show that they are either unwilling or unwitting members of the Class who thought that their continuing payment of dues and membership in the Club would exclude them from the Class. RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS NO. 20 Responding Party incorporates herein by reference all general objections stated above. Moreover, this request is inappropriate to the extent that it seeks documents and information in violation of Judge Campbells Protective Order in this case, which prevents the Propounding
18
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Parties from seeking information or documents that have already been produced by Responding Party in concurrent state court proceedings. The request is compound. Further, the request is overbroad, burdensome, and /or oppressive in that it includes [a]ll document[s] supporting or contradicting Debtors allegations in its Opposition, which may include documents related to the day-to-day business operations of the Cordillera Golf Club beyond the scope of this litigation. In addition, this requests seeks private, confidential, proprietary, and/or privileged information, including but not limited to information and documents related to current and former Club Members. Subject to the foregoing objections, Responding Party shall produce all non-privileged documents subject to an acceptable protective order. REQUEST FOR PRODUCTION OF DOCUMENTS NO. 21 All document supporting or contradicting the allegation made in paragraph 96 of the Opposition that ... the Debtor has substantial equity in the five golf courses that form its principal assets. RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS NO. 21 Responding Party incorporates herein by reference all general objections stated above. Moreover, this request is inappropriate to the extent that it seeks documents and information in violation of Judge Campbells Protective Order in this case, which prevents the Propounding Parties from seeking information or documents that have already been produced by Responding Party in concurrent state court proceedings. The request is compound. Further, the request is overbroad, burdensome, and /or oppressive in that it includes [a]ll document[s] supporting or contradicting Debtors allegations in its Opposition, which may include documents related to the day-to-day business operations of the Cordillera Golf Club beyond the scope of this litigation. In addition, this requests seeks private, confidential, proprietary, and/or privileged information, including but not limited to secret or sensitive financial information. In addition, this request seeks information that may be proprietary or privileged, including but not limited to 19
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confidential or privileged communications with attorneys, consultants, and/or appraisers. The request is also harassing given the requested documents include documents already in the Propounding Parties possession or equally available to the Propounding Party. REQUEST FOR PRODUCTION OF DOCUMENTS NO. 22 All document supporting or contradicting the allegation made in paragraph 98 of the Opposition that ... the acrimony complained of is beginning to dissipate. RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS NO. 22 Responding Party incorporates herein by reference all general objections stated above. Moreover, this request is inappropriate to the extent that it seeks documents and information in violation of Judge Campbells Protective Order in this case, which prevents the Propounding Parties from seeking information or documents that have already been produced by Responding Party in concurrent state court proceedings. The request is compound. Further, the request is overbroad, burdensome, and /or oppressive in that it includes [a]ll document[s] supporting or contradicting Debtors allegations in its Opposition, which may include documents related to the day-to-day business operations of the Cordillera Golf Club beyond the scope of this litigation. In addition, this requests seeks private, confidential, proprietary, and/or privileged information, including but not limited to information and documents related to current and former Club Members, creditors, or other entities. REQUEST FOR PRODUCTION OF DOCUMENTS NO. 23 All document describing or identifying the finances of the Cordillera Club between January 1, 2009 and June 26, 2012 (the Petition Date).
20
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RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS NO. 23 Responding Party incorporates herein by reference all general objections stated above. Moreover, this request is inappropriate to the extent that it seeks documents and information in violation of Judge Campbells Protective Order in this case, which prevents the Propounding Parties from seeking information or documents that have already been produced by Responding Party in concurrent state court proceedings. The request is compound. Further, the request is overbroad, burdensome, and /or oppressive in that it includes [a]ll document[s] describing or identifying finances, which may include documents related to the day-to-day business operations of the Cordillera Golf Club beyond the scope of this litigation. In addition, this requests seeks private, confidential, proprietary, and/or privileged information, including but not limited to communications with attorneys, consultants, advisors, and/or brokers. Finally, the term Cordillera Club is not qualitatively defined or quantified, and therefore Responding Party cannot adequately respond to this request without speculating as to the terms meaning. Subject to the foregoing objections, Responding Party shall produce all non-privileged documents subject to an acceptable protective order. REQUEST FOR PRODUCTION OF DOCUMENTS NO. 24 All document describing or identifying the finances of the Cordillera Club following the Petition Date. RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS NO. 24 Responding Party incorporates herein by reference all general objections stated above. Moreover, this request is inappropriate to the extent that it seeks documents and information in violation of Judge Campbells Protective Order in this case, which prevents the Propounding Parties from seeking information or documents that have already been produced by Responding Party in concurrent state court proceedings. The request is compound. Further, the request is 21
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overbroad, burdensome, and /or oppressive in that it includes [a]ll document[s] describing or identifying finances, which may include documents related to the day-to-day business operations of the Cordillera Golf Club beyond the scope of this litigation. In addition, this requests seeks private, confidential, proprietary, and/or privileged information, including but not limited to communications with attorneys, consultants, advisors, and/or brokers. Finally, the term Cordillera Club is not qualitatively defined or quantified, and therefore Responding Party cannot adequately respond to this request without speculating as to the terms meaning. Subject to the foregoing objections, Responding Party shall produce all non-privileged documents subject to an acceptable protective order. REQUEST FOR PRODUCTION OF DOCUMENTS NO. 25 All document describing or identifying the operations (as identified in the Opposition) of the Cordillera Club between January 1, 2009 and the Petition Date. RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS NO. 25 Responding Party incorporates herein by reference all general objections stated above. Moreover, this request is inappropriate to the extent that it seeks documents and information in violation of Judge Campbells Protective Order in this case, which prevents the Propounding Parties from seeking information or documents that have already been produced by Responding Party in concurrent state court proceedings. The request is compound. Further, the request is overbroad, burdensome, and /or oppressive in that it includes [a]ll document[s] describing or identifying operations of the Cordillera Golf Club, which may include documents related to the day-to-day business operations of the Cordillera Golf Club beyond the scope of this litigation. Subject to the foregoing objections, Responding Party shall produce all non-privileged documents subject to an acceptable protective order.
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REQUEST FOR PRODUCTION OF DOCUMENTS NO. 26 All document describing or identifying all changes in the ownership and/or management of the Debtor from January 1, 2009 through the present. RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS NO. 26 Responding Party incorporates herein by reference all general objections stated above. Moreover, this request is inappropriate to the extent that it seeks documents and information in violation of Judge Campbells Protective Order in this case, which prevents the Propounding Parties from seeking information or documents that have already been produced by Responding Party in concurrent state court proceedings. The request is compound. Further, the request is overbroad, burdensome, and /or oppressive in that it includes [a]ll document[s] describing or identifying changes in ownership or management, which may include documents related to the day-to-day business operations of the Cordillera Golf Club beyond the scope of this litigation. In addition, this requests seeks private, confidential, proprietary, and/or privileged information, including but not limited to communications with attorneys, consultants, advisors, and/or brokers. Subject to the foregoing objections, Responding Party shall produce all non-privileged documents subject to an acceptable protective order. REQUEST FOR PRODUCTION OF DOCUMENTS NO. 27 All document describing or identifying which Club Facilities have been either open or closed between January 1, 2009 and the present. RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS NO. 27 Responding Party incorporates herein by reference all general objections stated above. Moreover, this request is inappropriate to the extent that it seeks documents and information in violation of Judge Campbells Protective Order in this case, which prevents the Propounding 23
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Parties from seeking information or documents that have already been produced by Responding Party in concurrent state court proceedings. The request is compound. Further, the request is overbroad, burdensome, and /or oppressive in that it includes [a]ll document[s] describing or identifying when club facilities were open or closed, which may include documents related to the day-to-day business operations of the Cordillera Golf Club beyond the scope of this litigation. Finally, the term Club Facilities is not qualitatively defined or quantified, and therefore Responding Party cannot adequately respond to this request without speculating as to the terms meaning. REQUEST FOR PRODUCTION OF DOCUMENTS NO. 28 All document describing or identifying the number of members and memberships of the Cordillera Club between January 1, 2009 and the present. RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS NO. 28 Responding Party incorporates herein by reference all general objections stated above. Moreover, this request is inappropriate to the extent that it seeks documents and information in violation of Judge Campbells Protective Order in this case, which prevents the Propounding Parties from seeking information or documents that have already been produced by Responding Party in concurrent state court proceedings. Further, the request is overbroad, burdensome, and /or oppressive in that it includes [a]ll document[s] describing or identifying the number of members and memberships, which may include documents related to the day-to-day business operations of the Cordillera Golf Club beyond the scope of this litigation. In addition, this requests seeks private, confidential, proprietary, and/or privileged information, including but not private information or documents related to current and past Club Members. Finally, the term Cordillera Club is not qualitatively defined or quantified, and therefore Responding Party cannot adequately respond to this request without speculating as to the terms meaning. Subject
24
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to the foregoing objections, Responding Party shall produce all non-privileged documents subject to an acceptable protective order. REQUEST FOR PRODUCTION OF DOCUMENTS NO. 29 All document describing or identifying the number of current members and memberships of the Cordillera Club who receive a discount or other incentive that other members and memberships do not receive. RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS NO. 29 Responding Party incorporates herein by reference all general objections stated above. Moreover, this request is inappropriate to the extent that it seeks documents and information in violation of Judge Campbells Protective Order in this case, which prevents the Propounding Parties from seeking information or documents that have already been produced by Responding Party in concurrent state court proceedings. The request is compound. Further, the request is overbroad, burdensome, and /or oppressive in that it includes [a]ll document[s] describing or identifying members and memberships that receive discounts or other incentives, which may include documents related to the day-to-day business operations of the Cordillera Golf Club beyond the scope of this litigation. In addition, this requests seeks private, confidential, proprietary, and/or privileged information, including but not limited to communications with attorneys, consultants, advisors, and/or brokers, or private information or documents related to current and former Club Members. Finally, the term Cordillera Club is not qualitatively defined or quantified, and therefore Responding Party cannot adequately respond to this request without speculating as to the terms meaning. Subject to the foregoing objections, Responding Party shall produce all non-privileged documents subject to an acceptable protective order.
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REQUEST FOR PRODUCTION OF DOCUMENTS NO. 30 All document describing or identifying the number of members and memberships of the Cordillera Club who are still listed as members but are not current on their dues. RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS NO. 30 Responding Party incorporates herein by reference all general objections stated above. Moreover, this request is inappropriate to the extent that it seeks documents and information in violation of Judge Campbells Protective Order in this case, which prevents the Propounding Parties from seeking information or documents that have already been produced by Responding Party in concurrent state court proceedings. The request is compound. Further, the request is overbroad, burdensome, and /or oppressive in that it includes [a]ll document[s] describing or identifying members or memberships that are not up-to-date on dues, which may include documents related to the day-to-day business operations of the Cordillera Golf Club beyond the scope of this litigation. In addition, this requests seeks private, confidential, proprietary, and/or privileged information, including but not limited to private information or documents related to current and former Club Members. Finally, the term Cordillera Club is not qualitatively defined or quantified, and therefore Responding Party cannot adequately respond to this request without speculating as to the terms meaning. Subject to the foregoing objections, Responding Party shall produce all non-privileged documents subject to an acceptable protective order. REQUEST FOR PRODUCTION OF DOCUMENTS NO. 31 All document describing or identifying all amounts of money paid to or otherwise transferred by the Debtor directly or indirectly to David Wilhelm or any relative of David Wilhelm or any entity owned or controlled either directly or indirectly by David Wilhelm between January 1, 2009 and the present.
26
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RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS NO. 31 Responding Party incorporates herein by reference all general objections stated above. Moreover, this request is inappropriate to the extent that it seeks documents and information in violation of Judge Campbells Protective Order in this case, which prevents the Propounding Parties from seeking information or documents that have already been produced by Responding Party in concurrent state court proceedings. The request is compound. Further, the request is overbroad, burdensome, and /or oppressive in that it includes [a]ll document[s] describing or identifying amounts transferred from Debtor to David Wilhelm or and of David Wilhelms associates or relatives, which may include documents related to the day-to-day business operations of the Cordillera Golf Club beyond the scope of this litigation. In addition, this requests seeks private, confidential, proprietary, and/or privileged information, including but not limited to communications with attorneys, consultants, advisors, and/or brokers, or private information related to third parties not involved in this litigation. Subject to the foregoing objections, Responding Party shall produce all non-privileged documents subject to an acceptable protective order. REQUEST FOR PRODUCTION OF DOCUMENTS NO. 32 All document supporting or contradicting the allegation made in paragraph 98 of the Opposition that, Each day the Debtor is contacted by current and former members interested in working toward a consensual resolution rather than funding ongoing litigation. RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS NO. 32 Responding Party incorporates herein by reference all general objections stated above. Moreover, this request is inappropriate to the extent that it seeks documents and information in violation of Judge Campbells Protective Order in this case, which prevents the Propounding Parties from seeking information or documents that have already been produced by Responding 27
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Party in concurrent state court proceedings. The request is compound. Further, the request is overbroad, burdensome, and /or oppressive in that it includes [a]ll document[s] supporting or contradicting Debtors allegations in its Opposition, which may include documents related to the day-to-day business operations of the Cordillera Golf Club beyond the scope of this litigation. In addition, this requests seeks private, confidential, proprietary, and/or privileged information, including but not limited to private information, documents, and communications with current or former Club Members. REQUEST FOR PRODUCTION OF DOCUMENTS NO. 33 All document supporting or contradicting the the [sic] allegation made in paragraph 98 of the Opposition that, The Debtor is confident it will have an impaired consenting class, and that it will demonstrate a fair and reasonable reorganization. RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS NO. 33 Responding Party incorporates herein by reference all general objections stated above. Moreover, this request is inappropriate to the extent that it seeks documents and information in violation of Judge Campbells Protective Order in this case, which prevents the Propounding Parties from seeking information or documents that have already been produced by Responding Party in concurrent state court proceedings. The request is compound. Further, the request is overbroad, burdensome, and /or oppressive in that it includes [a]ll document[s] supporting or contradicting Debtors allegations in its Opposition, which may include documents related to the day-to-day business operations of the Cordillera Golf Club beyond the scope of this litigation. REQUEST FOR PRODUCTION OF DOCUMENTS NO. 34 All document supporting or contradicting any and all other facts raised in, or relating to the matters raised in, the Opposition. 28
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RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS NO. 34 Responding Party incorporates herein by reference all general objections stated above. Moreover, this request is inappropriate to the extent that it seeks documents and information in violation of Judge Campbells Protective Order in this case, which prevents the Propounding Parties from seeking information or documents that have already been produced by Responding Party in concurrent state court proceedings. The request is compound. Further, the request is overbroad, burdensome, and /or oppressive in that it includes [a]ll document[s] supporting or contradicting any facts or matters raised in Debtors Opposition, which is vast and may include documents beyond the scope of this litigation. In addition, this requests seeks private, confidential, proprietary, and/or privileged information, including but not limited to communications with attorneys, consultants, advisors, and/or brokers. REQUEST FOR PRODUCTION OF DOCUMENTS NO. 35 All document describing or identifying the condition of the Club Facilities other than the Valley Course and all maintenance and improvements performed on such Club Facilities since January 1, 2010. RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS NO. 35 Responding Party incorporates herein by reference all general objections stated above. Moreover, this request is inappropriate to the extent that it seeks documents and information in violation of Judge Campbells Protective Order in this case, which prevents the Propounding Parties from seeking information or documents that have already been produced by Responding Party in concurrent state court proceedings. The request is compound. Further, the request is overbroad, burdensome, and /or oppressive in that it includes [a]ll document[s] describing or identifying the condition of club facilities and their maintenance and improvements, which may include documents related to the day-to-day business operations of the Cordillera Golf Club 29
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beyond the scope of this litigation. Finally, the term Club Facilities is not qualitatively defined or quantified, and therefore Responding Party cannot adequately respond to this request without speculating as to the terms meaning. In addition, this request seeks information that may be proprietary or privileged, including but not limited to confidential or privileged communications with attorneys, consultants, and/or appraisers. The request is also harassing given the requested documents include documents already in the Propounding Parties possession or equally available to the Propounding Party. REQUEST FOR PRODUCTION OF DOCUMENTS NO. 36 All appraisals or valuations of all or any portion of the Debtor's assets from January 1, 2009 through the present. RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS NO. 36 Responding Party incorporates herein by reference all general objections stated above. Moreover, this request is inappropriate to the extent that it seeks documents and information in violation of Judge Campbells Protective Order in this case, which prevents the Propounding Parties from seeking information or documents that have already been produced by Responding Party in concurrent state court proceedings. The request is compound. Further, the request is overbroad, burdensome, and /or oppressive in that it includes [a]ll appraisals or valuations of Debtors assets, which may include documents related to the day-to-day business operations of the Cordillera Golf Club beyond the scope of this litigation. In addition, this requests seeks private, confidential, proprietary, and/or privileged information, including but not limited to communications with attorneys, consultants, advisors, and/or brokers, and any information protected under a self-evaluation privilege.
30
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31
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Debtor.
DEBTORS RESPONSES AND OBJECTIONS TO REQUEST FOR PRODUCTION OF DOCUMENTS IN CONNECTION WITH NOTICE OF THE DEPOSITION OF THE DEBTOR THROUGH ITS CHIEF EXECUTIVE OFFICER DANIEL L. FITCHETT, JR. ______________________________________________________________________________ Pursuant to Federal Rules of Civil Procedure 34 and Federal Rule of Bankruptcy Procedure 7034, Debtor and Debtor-in-Possession, Cordillera Golf Club, LLC, dba The Club at Cordillera (the Responding Party), by and through its undersigned counsel, hereby respectfully submits the following Responses and Objections to the Request for Production of Documents in Connection with Notice of the Deposition of the Debtor Through Its Chief Executive Officer Daniel L. Fitchett, Jr. propounded by Cheryl M. Foley, Thomas and Jane Wilner, Charles and Mary Jackson and Kevin B. Allen, as representatives of a certified class in Case No. 11CV552, pending in the District Court of Eagle County, Colorado (collectively Member Representatives or Propounding Parties). GENERAL OBJECTIONS 1. Responding Partys investigation and discovery in this case are ongoing.
Responding Party provides the following responses and objections without prejudice to its rights to present further information, documents, evidence and/or analysis not yet obtained. 2. Responding Party objects to each request for production to the extent it is vague
and ambiguous and makes a response impossible without speculation.
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3.
Responding Party objects to each request for production to the extent it fails to
documents or information that are neither relevant nor reasonably likely to lead to the discovery of admissible evidence. 10. Responding Party objects to each request for production to the extent it seeks
legal contentions or conclusions.
2
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11.
information or documents in violation of the protective order of August 29, 2012 by Judge Campbell in this case [Docket #395].
3
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17.
provided or produced is not and should not be construed as an admission or representation that such information or documents in fact exist. The responses herein are solely made for the purpose of this action. Each response is subject to all objections as to competence, relevance, materiality, and admissibility, or other objections if statements were offered in court, all of which objections and grounds are expressly reserved by Responding Party. Each of these General Objections is incorporated by this reference into each of the responses below. By asserting an objection, Responding Party does not concede that it possesses documents responsive to any particular request. REQUEST FOR PRODUCTION OF DOCUMENTS NO. 1 All documents related to any claim of fraud or mismanagement made against Mr. Fitchett at any time. RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS NO. 1 Responding Party incorporates herein by reference all general objections stated above. Furthermore, the request is overbroad, burdensome, and includes documents not relevant to this case nor likely to lead to discovery of relevant information because it seeks documents related to any claim of fraud made at any time against Mr. Fitchett, which may include documents beyond the scope of litigation. The request is compound. Moreover, the request is not limited to proven claims but seeks documents as to claims that were never substantiated or proven. The request may include documents of public record, which are equally accessible to the propounding parties. In addition, the documents may contain privileged information, including but not limited to communications with attorneys.
4
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Finally, this request is inappropriate to the extent that it seeks documents and information in violation of Judge Campbells Protective Order in this case, which prevents the Propounding Parties from seeking information or documents that have already been produced by Responding Party in concurrent state court proceedings. REQUEST FOR PRODUCTION OF DOCUMENTS NO. 2 All documents related to any contact or negotiations Mr. Fitchett has engaged in with any of the Debtors current or former Club Members. RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS NO. 2 Responding Party incorporates herein by reference all general objections stated above. Furthermore, the request is overbroad, burdensome, and includes documents not relevant to this case nor likely to lead to discovery of relevant information because it seeks documents related to any contact or negotiations between Mr. Fitchett and current or former Club Members, which may include documents beyond the scope of litigation. The request is compound. Moreover, the term Club Members is not qualitatively defined or quantified anywhere in the request, and therefore the request is vague, ambiguous, and unintelligible, and Responding Party cannot produce non-privileged responsive documents without speculating as to the terms meaning. In addition, the documents may contain proprietary or privileged information. Finally, this request is inappropriate to the extent that it seeks documents and information in violation of Judge Campbells Protective Order in this case, which prevents the Propounding Parties from seeking information or documents that have already been produced by Responding Party in concurrent state court proceedings. Subject to the foregoing objections, non-privileged documents will be produced.
5
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REQUEST FOR PRODUCTION OF DOCUMENTS NO. 3 All documents setting forth Mr. Fitchetts authority and duties to and from the Debtor. RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS NO. 3 Responding Party incorporates herein by reference all general objections stated above. The request is compound. Subject to the foregoing objections, all non-privileged documents will be produced. REQUEST FOR PRODUCTION OF DOCUMENTS NO. 4 All documents which set forth or discuss the Debtors post bankruptcy operation losses, gross or net revenues or net cash flows. RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS NO. 4 Responding Party incorporates herein by reference all general objections stated above. Furthermore, the documents may contain proprietary or privileged information, including but not limited to communications with attorneys or consultants regarding post-bankruptcy plans. Furthermore, the request is overbroad and burdensome. The request is compound. The Debtor has provided financial information in connection with its monthly Operating Reports. The Operating Reports are equally available to the parties and will not be reproduced in connection with this request. Subject to the foregoing objections, all non-privileged documents will be produced. REQUEST FOR PRODUCTION OF DOCUMENTS NO. 5 All correspondence discussing strategic and/or senior operational management decisions of and for the Debtor since January 1, 2012.
6
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RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS NO. 5 Responding Party incorporates herein by reference all general objections stated above. The request is compound. Furthermore, the request is overbroad, burdensome, and includes documents not relevant to this case nor likely to lead to discovery of relevant information because it seeks documents related to all correspondence related to strategic and/or senior operational management decisions, which may include documents beyond the scope of litigation, including but not limited to day-to-day business operations not the subject of this litigation. In addition, the documents may contain proprietary or privileged information, including but not limited to communications with attorneys or consultants regarding strategic decisions. Moreover, the term strategic and/or senior operational management decisions is not qualitatively defined or quantified, and therefore the request is vague, ambiguous, and unintelligible, and Responding Party cannot produce non-privileged responsive documents without speculating as to the terms meaning. This request is inappropriate to the extent that it seeks documents and information in violation of Judge Campbells Protective Order in this case, which prevents the Propounding Parties from seeking information or documents that have already been produced by Responding Party in concurrent state court proceedings. Subject to the foregoing objections, all non-privileged documents will be produced. REQUEST FOR PRODUCTION OF DOCUMENTS NO. 6 All documents setting forth or discussing any and all prospective strategic and operational management initiatives to bring the Debtor to profitability. RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS NO. 6 Responding Party incorporates herein by reference all general objections stated above. The request is compound. Furthermore, the request is overbroad, burdensome, and includes documents not relevant to this case nor likely to lead to discovery of relevant information 7
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because it seeks documents related to all documents related to any and all prospective strategic and operational management initiatives, which may include documents beyond the scope of litigation, including but not limited to day-to-day business operations not the subject of this litigation. In addition, the documents may contain proprietary or privileged information, including but not limited to communications with attorneys or consultants regarding strategic decisions. Moreover, the term strategic and operational management initiatives is not qualitatively defined or quantified, and therefore the request is vague, ambiguous, and unintelligible, and Responding Party cannot produce non-privileged responsive documents without speculating as to the terms meaning. This request is inappropriate to the extent that it seeks documents and information in violation of Judge Campbells Protective Order in this case, which prevents the Propounding Parties from seeking information or documents that have already been produced by Responding Party in concurrent state court proceedings. Subject to the foregoing objections, all non-privileged documents will be produced. REQUEST FOR PRODUCTION OF DOCUMENTS NO. 7 All documents relating to any prospect or consideration of David Wilhelm ceding any managerial position, control, or equity interest in the Debtor since January 1, 2011. RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS NO. 7 Responding Party incorporates herein by reference all general objections stated above. The request is compound. Furthermore, the request is overbroad, burdensome, and includes documents not relevant to this case nor likely to lead to discovery of relevant information because it seeks documents related to all documents related to any prospect or consideration of David Wilhelm ceding any managerial position, control, or equity interest in Debtor, which may include documents beyond the scope of litigation. In addition, the documents may contain proprietary or privileged information, including but not limited to communications with attorneys or consultants. Moreover, the term any prospect or consideration is not qualitatively 8
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defined or quantified, and therefore the request is vague, ambiguous, and unintelligible, and Responding Party cannot produce non-privileged responsive documents without speculating as to the terms meaning. Responding Party further objects that the request seeks documents and information that are irrelevant to this litigation because it seeks information regarding internal business decisions, and it is not reasonably calculated to lead to the discovery of information or documents relevant to the underlying causes of action. This request is inappropriate to the extent that it seeks documents and information in violation of Judge Campbells Protective Order in this case, which prevents the Propounding Parties from seeking information or documents that have already been produced by Responding Party in concurrent state court proceedings. Subject to the foregoing objections, all non-privileged documents will be produced. REQUEST FOR PRODUCTION OF DOCUMENTS NO. 8 All documents relating to any strategic and/or operational management disputes among David Wilhelm and the Debtor, or any officers, agents or representatives of the Debtor. RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS NO. 8 Responding Party incorporates herein by reference all general objections stated above. The request is compound. Furthermore, the request is overbroad, burdensome, and includes documents not relevant to this case nor likely to lead to discovery of relevant information because it seeks documents related to all documents related to any strategic and/or operational management disputes among David Wilhelm, the Debtor, and the Debtors officers, agents, or representatives, which may include documents beyond the scope of litigation, including but not limited to day-to-day business operations not the subject of this litigation. In addition, the documents may contain proprietary or privileged information, including but not limited to communications with attorneys or consultants. Moreover, the term strategic and/or operational management disputes is not qualitatively defined or quantified, and therefore the request is vague, ambiguous, and unintelligible, and Responding Party cannot produce non9
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privileged responsive documents without speculating as to the terms meaning. Responding Party further objections that the request seeks documents and information that are irrelevant to this litigation because it seeks information regarding internal management and employment disputes, and it is not reasonably calculated to lead to the discovery of information or documents relevant to the underlying causes of action. This request is inappropriate to the extent that it seeks documents and information in violation of Judge Campbells Protective Order in this case, which prevents the Propounding Parties from seeking information or documents that have already been produced by Responding Party in concurrent state court proceedings. Subject to the foregoing objections, all non-privileged documents will be produced.
SENDER & WASSERMAN, P.C. /s/ Harvey Sender Harvey Sender, #7546 1660 Lincoln Street, Suite 2200 Denver, CO 80264 Telephone: 303-296-1999 Facsimile: 303-296-7600 Email: sender@sendwass.com Counsel for Debtor and Debtor-in-Possession -and-
10
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FOLEY & LARDNER LLP Christopher Celentino (CA No. 131688) Mikel Bistrow (CA No. 102978) Dawn A. Messick (CA No. 236941) Admitted Pro Hac Vice 402 West Broadway, Suite 2100 San Diego, CA 92101 Telephone: 619-234-6655 Facsimile: 619-234-3510 Email: ccelentino@foley.com Email: mbistrow@foley.com Email: dmessick@foley.com Ann Marie Uetz 500 Woodward Avenue, Suite 2700 Detroit, MI 48226 Telephone: 313-234-7100 Facsimile: 313-234-2800 Email: auetz@foley.com Counsel for Debtor and Debtorin-Possession
11
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Debtor.
DEBTORS RESPONSES AND OBJECTIONS TO REQUEST FOR PRODUCTION OF DOCUMENTS IN CONNECTION WITH NOTICE OF THE DEPOSITION OF THE DEBTOR THROUGH ITS CHIEF RESTRUCTURING OFFICER ALFRED H. SIEGEL ______________________________________________________________________________
Pursuant to Federal Rules of Civil Procedure 34 and Federal Rule of Bankruptcy Procedure 7034, Debtor and Debtor-in-Possession, Cordillera Golf Club, LLC, dba The Club at Cordillera (the Responding Party), by and through its undersigned counsel, hereby respectfully submits the following Responses and Objections to the Request for Production of Documents in Connection with Notice of the Deposition of the Debtor Through Its Chief Restructuring Officer Alfred H. Siegel propounded by Cheryl M. Foley, Thomas and Jane Wilner, Charles and Mary Jackson and Kevin B. Allen, as representatives of a certified class in Case No. 11CV552, pending in the District Court of Eagle County, Colorado (collectively Member Representatives or Propounding Parties). GENERAL OBJECTIONS 1. Responding Partys investigation and discovery in this case are ongoing.
Responding Party provides the following responses and objections without prejudice to its rights to present further information, documents, evidence and/or analysis not yet obtained.
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2.
Responding Party objects to each request for production to the extent it is vague
and ambiguous and makes a response impossible without speculation. 3. Responding Party objects to each request for production to the extent it fails to
documents or information that are neither relevant nor reasonably likely to lead to the discovery of admissible evidence.
2
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10.
legal contentions or conclusions. 11. Responding Party objects to each request for production to the extent it seeks
information or documents in violation of the protective order of August 29, 2012 by Judge Campbell in this case [Docket #395]. 3
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17.
provided or produced is not and should not be construed as an admission or representation that such information or documents in fact exist. The responses herein are solely made for the purpose of this action. Each response is subject to all objections as to competence, relevance, materiality, and admissibility, or other objections if statements were offered in court, all of which objections and grounds are expressly reserved by Responding Party. Each of these General Objections is incorporated by this reference into each of the responses below. By asserting an objection, Responding Party does not concede that it possesses documents responsive to any particular request. REQUEST FOR PRODUCTION OF DOCUMENTS NO. 1 All documents related to any claim of fraud or mismanagement made against Mr. Siegel at any time. RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS NO. 1 Responding Party incorporates herein by reference all general objections stated above. Furthermore, the request is overbroad, burdensome, and includes documents not relevant to this case nor likely to lead to discovery of relevant information because it seeks documents related to any claim of fraud made at any time against Mr. Siegel, which may include documents beyond the scope of litigation. The request is compound. Moreover, the request is not limited to proven claims but seeks documents as to claims that were never substantiated or proven. The request may include documents of public record, which are equally accessible to the propounding parties. In addition, the documents may contain privileged information, including but not limited to communications with attorneys.
4
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Finally, this request is inappropriate to the extent that it seeks documents and information in violation of Judge Campbells Protective Order in this case, which prevents the Propounding Parties from seeking information or documents that have already been produced by Responding Party in concurrent state court proceedings. REQUEST FOR PRODUCTION OF DOCUMENTS NO. 2 All documents related to any contact or negotiations Mr. Siegel has engaged in with any of the Debtors current or former Club Members. RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS NO. 2 Responding Party incorporates herein by reference all general objections stated above. Furthermore, the request is overbroad, burdensome, and includes documents not relevant to this case nor likely to lead to discovery of relevant information because it seeks documents related to any contact or negotiations between Mr. Siegel and current or former Club Members, which may include documents beyond the scope of litigation. The request is compound. Moreover, the term Club Members is not qualitatively defined or quantified anywhere in the request, and therefore the request is vague, ambiguous, and unintelligible, and Responding Party cannot produce non-privileged responsive documents without speculating as to the terms meaning. In addition, the documents may contain proprietary or privileged information. Finally, this request is inappropriate to the extent that it seeks documents and information in violation of Judge Campbells Protective Order in this case, which prevents the Propounding Parties from seeking information or documents that have already been produced by Responding Party in concurrent state court proceedings. Subject to the foregoing objections, non-privileged documents will be produced.
5
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REQUEST FOR PRODUCTION OF DOCUMENTS NO. 3 All documents setting forth Mr. Siegels authority and duties to and from the Debtor. RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS NO. 3 Responding Party incorporates herein by reference all general objections stated above. The request is compound. Subject to the foregoing objections, all non-privileged documents will be produced. REQUEST FOR PRODUCTION OF DOCUMENTS NO. 4 All documents which set forth or discuss the Debtors post bankruptcy operation losses, gross or net revenues or net cash flows. RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS NO. 4 Responding Party incorporates herein by reference all general objections stated above. Furthermore, the documents may contain proprietary or privileged information, including but not limited to communications with attorneys or consultants regarding post-bankruptcy plans. Furthermore, the request is overbroad and burdensome. The request is compound. The Debtor has provided financial information in connection with its monthly Operating Reports. The Operating Reports are equally available to the parties and will not be reproduced in connection with this request. Subject to the foregoing objections, all non-privileged documents will be produced. REQUEST FOR PRODUCTION OF DOCUMENTS NO. 5 All correspondence discussing strategic and/or senior operational management decisions of and for the Debtor since January 1, 2012.
6
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RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS NO. 5 Responding Party incorporates herein by reference all general objections stated above. The request is compound. Furthermore, the request is overbroad, burdensome, and includes documents not relevant to this case nor likely to lead to discovery of relevant information because it seeks documents related to all correspondence related to strategic and/or senior operational management decisions, which may include documents beyond the scope of litigation, including but not limited to day-to-day business operations not the subject of this litigation. In addition, the documents may contain proprietary or privileged information, including but not limited to communications with attorneys or consultants regarding strategic decisions. Moreover, the term strategic and/or senior operational management decisions is not qualitatively defined or quantified, and therefore the request is vague, ambiguous, and unintelligible, and Responding Party cannot produce non-privileged responsive documents without speculating as to the terms meaning. This request is inappropriate to the extent that it seeks documents and information in violation of Judge Campbells Protective Order in this case, which prevents the Propounding Parties from seeking information or documents that have already been produced by Responding Party in concurrent state court proceedings. Subject to the foregoing objections, all non-privileged documents will be produced. REQUEST FOR PRODUCTION OF DOCUMENTS NO. 6 All documents setting forth or discussing any and all prospective strategic and operational management initiatives to bring the Debtor to profitability. RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS NO. 6 Responding Party incorporates herein by reference all general objections stated above. The request is compound. Furthermore, the request is overbroad, burdensome, and includes documents not relevant to this case nor likely to lead to discovery of relevant information 7
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because it seeks documents related to all documents related to any and all prospective strategic and operational management initiatives, which may include documents beyond the scope of litigation, including but not limited to day-to-day business operations not the subject of this litigation. In addition, the documents may contain proprietary or privileged information, including but not limited to communications with attorneys or consultants regarding strategic decisions. Moreover, the term strategic and operational management initiatives is not qualitatively defined or quantified, and therefore the request is vague, ambiguous, and unintelligible, and Responding Party cannot produce non-privileged responsive documents without speculating as to the terms meaning. This request is inappropriate to the extent that it seeks documents and information in violation of Judge Campbells Protective Order in this case, which prevents the Propounding Parties from seeking information or documents that have already been produced by Responding Party in concurrent state court proceedings. Subject to the foregoing objections, all non-privileged documents will be produced. REQUEST FOR PRODUCTION OF DOCUMENTS NO. 7 All documents relating to any strategic and/or operational management disputes among David Wilhelm and the Debtor, or any officers, agents or representatives of the Debtor. RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS NO. 7 Responding Party incorporates herein by reference all general objections stated above. The request is compound. Furthermore, the request is overbroad, burdensome, and includes documents not relevant to this case nor likely to lead to discovery of relevant information because it seeks documents related to all documents related to any strategic and/or operational management disputes among David Wilhelm, the Debtor, and the Debtors officers, agents, or representatives, which may include documents beyond the scope of litigation, including but not limited to day-to-day business operations not the subject of this litigation. In addition, the documents may contain proprietary or privileged information, including but not 8
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limited to communications with attorneys or consultants. Moreover, the term strategic and/or operational management disputes is not qualitatively defined or quantified, and therefore the request is vague, ambiguous, and unintelligible, and Responding Party cannot produce nonprivileged responsive documents without speculating as to the terms meaning. Responding Party further objections that the request seeks documents and information that are irrelevant to this litigation because it seeks information regarding internal management and employment disputes, and it is not reasonably calculated to lead to the discovery of information or documents relevant to the underlying causes of action. This request is inappropriate to the extent that it seeks documents and information in violation of Judge Campbells Protective Order in this case, which prevents the Propounding Parties from seeking information or documents that have already been produced by Responding Party in concurrent state court proceedings. Subject to the foregoing objections, all non-privileged documents will be produced.
SENDER & WASSERMAN, P.C. /s/ Harvey Sender Harvey Sender, #7546 1660 Lincoln Street, Suite 2200 Denver, CO 80264 Telephone: 303-296-1999 Facsimile: 303-296-7600 Email: sender@sendwass.com Counsel for Debtor and Debtor-in-Possession -and-
9
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FOLEY & LARDNER LLP Christopher Celentino (CA No. 131688) Mikel Bistrow (CA No. 102978) Dawn A. Messick (CA No. 236941) Admitted Pro Hac Vice 402 West Broadway, Suite 2100 San Diego, CA 92101 Telephone: 619-234-6655 Facsimile: 619-234-3510 Email: ccelentino@foley.com Email: mbistrow@foley.com Email: dmessick@foley.com Ann Marie Uetz 500 Woodward Avenue, Suite 2700 Detroit, MI 48226 Telephone: 313-234-7100 Facsimile: 313-234-2800 Email: auetz@foley.com Counsel for Debtor and Debtorin-Possession
10
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Debtor.
DEBTORS RESPONSES AND OBJECTIONS TO REQUEST FOR PRODUCTION OF DOCUMENTS IN CONNECTION WITH NOTICE OF THE DEPOSITION OF DAVID WILHELM ______________________________________________________________________________
Pursuant to Federal Rules of Civil Procedure 34 and Federal Rule of Bankruptcy Procedure 7034, Debtor and Debtor-in-Possession, Cordillera Golf Club, LLC, dba The Club at Cordillera (the Responding Party), by and through its undersigned counsel, hereby respectfully submits the following Responses and Objections to the Request for Production of Documents in Connection with Notice of the Deposition of David Wilhelm propounded by Cheryl M. Foley, Thomas and Jane Wilner, Charles and Mary Jackson and Kevin B. Allen, as representatives of a certified class in Case No. 11CV552, pending in the District Court of Eagle County, Colorado (collectively Member Representatives or Propounding Parties). GENERAL OBJECTIONS 1. Responding Partys investigation and discovery in this case are ongoing.
Responding Party provides the following responses and objections without prejudice to its rights to present further information, documents, evidence and/or analysis not yet obtained. 2. Responding Party objects to each request for production to the extent it is vague
and ambiguous and makes a response impossible without speculation.
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3.
Responding Party objects to each request for production to the extent it fails to
documents or information that are neither relevant nor reasonably likely to lead to the discovery of admissible evidence. 10. Responding Party objects to each request for production to the extent it seeks
legal contentions or conclusions.
2
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11.
information or documents in violation of the protective order of August 29, 2012 by Judge Campbell in this case [Docket #395].
3
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17.
provided or produced is not and should not be construed as an admission or representation that such information or documents in fact exist. The responses herein are solely made for the purpose of this action. Each response is subject to all objections as to competence, relevance, materiality, and admissibility, or other objections if statements were offered in court, all of which objections and grounds are expressly reserved by Responding Party. Each of these General Objections is incorporated by this reference into each of the responses below. By asserting an objection, Responding Party does not concede that it possesses documents responsive to any particular request. REQUEST FOR PRODUCTION OF DOCUMENTS NO. 1 All documents related to any claim of fraud or mismanagement made against Mr. Wilhelm at any time. RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS NO. 1 Responding Party incorporates herein by reference all general objections stated above. Furthermore, the request is overbroad, burdensome, and includes documents not relevant to this case nor likely to lead to discovery of relevant information because it seeks documents related to any claim of fraud made at any time against Mr. Wilhelm, which may include documents beyond the scope of litigation. The request is compound. Moreover, the request is not limited to proven claims but seeks documents as to claims that were never substantiated or proven. The request may include documents of public record, which are equally accessible to the propounding parties. In addition, the documents may contain privileged information, including but not limited to communications with attorneys.
4
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Finally, this request is inappropriate to the extent that it seeks documents and information in violation of Judge Campbells Protective Order in this case, which prevents the Propounding Parties from seeking information or documents that have already been produced by Responding Party in concurrent state court proceedings. REQUEST FOR PRODUCTION OF DOCUMENTS NO. 2 All documents related to any transfers from the Debtor of money or property either directly or indirectly to Mr. Wilhelm or any member of Mr. Wilhelms family or Mr. Wilhelms friends or any entity owned or controlled either directly or indirectly by Mr. Wilhelm. RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS NO. 2 Responding Party incorporates herein by reference all general objections stated above. The request is compound. Furthermore, the request is overbroad, burdensome, and includes documents not relevant to this case nor likely to lead to discovery of relevant information because it seeks documents related to any transfers from the Debtor of money, or property either directly or indirectly is vague as to time. Finally, this request is inappropriate to the extent that it seeks documents and information in violation of Judge Campbells Protective Order in this case, which prevents the Propounding Parties from seeking information or documents that have already been produced by Responding Party in concurrent state court proceedings. Subject to the foregoing objections, non-privileged documents will be produced. REQUEST FOR PRODUCTION OF DOCUMENTS NO. 3 All documents related to any contact or negotiations Mr. Wilhelm has engaged in with any of the Debtors current or former Club Members.
5
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RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS NO. 3 Responding Party incorporates herein by reference all general objections stated above. The request is compound. Furthermore, the request is overbroad, burdensome, and includes documents not relevant to this case nor likely to lead to discovery of relevant information because it seeks documents related to any contact or negotiations between Mr. Wilhelm and current or former Club Members, which may include documents beyond the scope of litigation. Moreover, the term Club Members is not qualitatively defined or quantified anywhere in the request, and therefore the request is vague, ambiguous, and unintelligible, and Responding Party cannot produce non-privileged responsive documents without speculating as to the terms meaning. In addition, the documents may contain proprietary or privileged information. Finally, this request is inappropriate to the extent that it seeks documents and information in violation of Judge Campbells Protective Order in this case, which prevents the Propounding Parties from seeking information or documents that have already been produced by Responding Party in concurrent state court proceedings. REQUEST FOR PRODUCTION OF DOCUMENTS NO. 4 All documents setting forth Mr. Wilhelms authority and duties to and from the Debtor. RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS NO. 4 Responding Party incorporates herein by reference all general objections stated above. The request is compound. REQUEST FOR PRODUCTION OF DOCUMENTS NO. 5 All correspondence discussing strategic and/or senior operational management decisions of and for the Debtor since January 1, 2012.
6
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RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS NO. 5 Responding Party incorporates herein by reference all general objections stated above. The request is compound. Furthermore, the request is overbroad, burdensome, and includes documents not relevant to this case nor likely to lead to discovery of relevant information because it seeks documents related to all correspondence related to strategic and/or senior operational management decisions, which may include documents beyond the scope of litigation, including but not limited to day-to-day business operations not the subject of this litigation. In addition, the documents may contain proprietary or privileged information, including but not limited to communications with attorneys or consultants regarding strategic decisions. Moreover, the term strategic and/or senior operational management decisions is not qualitatively defined or quantified, and therefore the request is vague, ambiguous, and unintelligible, and Responding Party cannot produce non-privileged responsive documents without speculating as to the terms meaning. This request is inappropriate to the extent that it seeks documents and information in violation of Judge Campbells Protective Order in this case, which prevents the Propounding Parties from seeking information or documents that have already been produced by Responding Party in concurrent state court proceedings. REQUEST FOR PRODUCTION OF DOCUMENTS NO. 6 All documents setting forth or discussing any and all prospective strategic and operational management initiatives to bring the Debtor to profitability and/or plans to exit chapter 11 bankruptcy. RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS NO. 6 Responding Party incorporates herein by reference all general objections stated above. The request is compound. Furthermore, the request is overbroad, burdensome, and includes documents not relevant to this case nor likely to lead to discovery of relevant information 7
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because it seeks documents related to all documents related to any and all prospective strategic and operational management initiatives, which may include documents beyond the scope of litigation, including but not limited to day-to-day business operations not the subject of this litigation. In addition, the documents may contain proprietary or privileged information, including but not limited to communications with attorneys or consultants regarding strategic decisions. Moreover, the term strategic and operational management initiatives is not qualitatively defined or quantified, and therefore the request is vague, ambiguous, and unintelligible, and Responding Party cannot produce non-privileged responsive documents without speculating as to the terms meaning. This request is inappropriate to the extent that it seeks documents and information in violation of Judge Campbells Protective Order in this case, which prevents the Propounding Parties from seeking information or documents that have already been produced by Responding Party in concurrent state court proceedings. REQUEST FOR PRODUCTION OF DOCUMENTS NO. 7 All documents relating to the Rush and Wilhelm correspondence letters to members as set forth in paragraphs 15 17 of the Joinder of the Official Committee of Unsecured Creditors to Motion of Cheryl M. Foley, Thomas Wilner, Jane Wilner, Charles Jackson, Mary Jackson and Kevin B. Allen, individually and As Representatives of a Certified Class of Members, to Appoint Chapter 11 Trustee. [Docket No. 341] RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS NO. 7 Responding Party incorporates herein by reference all general objections stated above. Furthermore, the documents may contain proprietary or privileged information, including but not limited to communications with attorneys or consultants. Furthermore, the request is overbroad and burdensome. Subject to the foregoing objections, all non-privileged documents will be produced.
8
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REQUEST FOR PRODUCTION OF DOCUMENTS NO. 8 All documents relating to any strategic and/or operational management disputes among Mr. Wilhelm and the Debtor, or any officers, agents or representatives of the Debtor. RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS NO. 8 Responding Party incorporates herein by reference all general objections stated above. Furthermore, the request is overbroad, burdensome, and includes documents not relevant to this case nor likely to lead to discovery of relevant information because it seeks documents related to all documents related to any strategic and/or operational management disputes among Mr. Wilhelm, the Debtor, and the Debtors officers, agents, or representatives, which may include documents beyond the scope of litigation, including but not limited to day-to-day business operations not the subject of this litigation. In addition, the documents may contain proprietary or privileged information, including but not limited to communications with attorneys or consultants. Moreover, the term strategic and/or operational management disputes is not qualitatively defined or quantified, and therefore the request is vague, ambiguous, and unintelligible, and Responding Party cannot produce non-privileged responsive documents without speculating as to the terms meaning. Responding Party further objections that the request seeks documents and information that are irrelevant to this litigation because it seeks information regarding internal management and employment disputes, and it is not reasonably calculated to lead to the discovery of information or documents relevant to the underlying causes of action. This request is inappropriate to the extent that it seeks documents and information in violation of Judge Campbells Protective Order in this case, which prevents the Propounding Parties from seeking information or documents that have already been produced by Responding Party in concurrent state court proceedings. Subject to the foregoing objections, all nonprivileged documents will be produced.
9
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Case:12-24882-ABC Doc#:419-5 Filed:09/06/12 Morris, Benjamin J.

From: Sent: To: Cc: Subject: Uetz, Ann Marie Wednesday, September 05, 2012 2:47 PM
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Exhibit 4
ChristensenS@appellucas.com; Peter A. Cal; jong@munsch.com; tseelman@gordonrees.com Celentino, Christopher; Bistrow, Mikel R.; Catherwood, Kathryn M.S.; Goroff, David B.; Morris, Benjamin J.; Day, Renee A. Cordillera: Further Meet and Confer Regarding Discovery and Trial Date
Attachments: Responses and Objections re Wilhelm.pdf; ATT00001.htm; CORDILLERA Debtor's Proposed Protective Order re All Discovery.doc; ATT00002.htm; Objections re CGC Dep.pdf; ATT00003.htm; Responses and Objections re Fitchett.pdf; ATT00004.htm; Responses and Objections re RFP re CGC.pdf; ATT00005.htm; Responses and Objections re Siegel.pdf; ATT00006.htm
Dear Counsel: Attached on behalf of Debtor are Debtor's responses/objections to the notices of deposition and second request for production served on Debtor and its representatives in this case, as well as a draft proposed protective order. The overriding objection is that we believe that the requests improperly seek discovery on the issues being litigated in the state court action and are not relevant to the trustee motion. However, there exist additional important objections as outlined in the documents. In addition, we reiterate our position that discovery by all parties (including Debtors) ought to be stayed, and the trial date vacated, at this time. Judge has made clear that he will not try the state court issues as part of the Trustee motion, and has also made clear that the Debtor has the right to propose a plan and we have declined to terminate exclusivity because we believe that a trustee ought not be appointed and that Debtor will propose a confirmable plan. It appears that the parties have agreed to mediate September 12, while at the same time all parties are engaged or will be engaged in document production and depositions. Debtor served its discovery requests only because it was forced to do so in order to effectively respond to that of the moving and joining parties. Please review the objections, and consider my request, to wit: that discovery by all parties be stayed and that the trial date be vacated and serve instead as a status conference, to increase the chance for a successful and effective mediation on September 12. If you will not agree to that, then we will file a motion for stay and to vacate in the bankruptcy court, and will seek immediate consideration of same. Further, if you will not agree to stay discovery and to vacate the trial date, then please review the attached proposed protective order and provide your comments concerning same. Also, please review the objections in toto, and also consider the following request and provide your response: The deposition of the CRO should take place in LA and be limited to four hours; and the deposition of Mr. Fitchett should overlap with the 30(b)(6) deposition and be limited to a single day, since it would be for a single witness, and the matters on which examination is requested should be limited as set forth in the objection. Again, please let us know your view on these requests in the event that you will not agree to stay discovery and to vacate the trial date. Finally, in the event that you will not agree to stay discovery and vacate the trial date, then I suggest the parties circulate a master deposition calendar so that we are all clear on who will be produced for deposition when, and where. There has been a flurry of scheduling emails and I respectfully suggest that all parties and their counsel would benefit from clarity on the basic schedule for the depositions. Thank you for your consideration. AM Ann Marie Uetz 313.384.3322 (c)
9/5/2012
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Begin forwarded message: From: "Komisarz, Christine" <CKomisarz@foley.com> Date: September 5, 2012 5:18:42 PM EDT To: "Uetz, Ann Marie" <AUetz@foley.com> Debtor's Responses and Objections to Request for Production of Documents in Connection with Notice of the Deposition of David Wilhelm Debtor's Objections to Notice of the Deposition of the Designated Representative of the Debtor Cordillera Golf Club, LLC, Pursuant to F.R.B.P. 7030(b)(6) Debtor's Responses and Objections to Request for Production of Documents in Connection with Notice of the Deposition of the Debtor Through Its Chief Executive Officer Daniel L. Fitchett, Jr. Debtor's Responses and Objections to Request for Production of Documents in Connection with Notice of the Deposition of the Designated Representative of the Debtor Cordillera Golf Club, LLC, Pursuant to F.R.B.P. 76030(b)(6) Debtor's Responses and Objections to Request for Production of Documents in Connection with Notice of the Deposition of the Debtor Through Its Chief Restructuring Officer Alfred H. Siegel Debtors Proposed Protective Order Governing Designation and Use of Confidential Material in Regard to Motion to Appoint a Chapter 11 Trustee [Docket No. 235] and the Debtors Objection Thereto [Docket No. 343]
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ORDER GRANTING MOTION FOR ENTRY OF PROTECTIVE ORDER REGARDING NOTICED DEPOSITIONS OF MR. ALFRED H. SIEGEL, MR. DANIEL L. FITCHETT, JR., AND THE DESIGNATED REPRESENTATIVE OF DEBTOR CORDILLERA GOLF CLUB, LLC, UNDER F.R.B.P. 30(b)(6), AND RELATED REQUESTS FOR PRODUCTION OF DOCUMENTS
This matter comes before the Court on the Motion for Entry of Protective Order Regarding Noticed Depositions of Mr. Alfred H. Siegel, Mr. Daniel L. Fitchett, Jr., and the Designated Representative of Debtor Cordillera Golf Club, LLC, under F.R.B.P. 30(b)(6); and Related Requests for Production of Documents (the Motion for Protective Order). The Court having reviewed the Motion for Protective Order, and finding that good cause exists for granting the relief requested therein, and that no further notice of the Motion for Protective Order is necessary or appropriate, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED THAT: 1. Debtors Motion for Protective Order is GRANTED. 2. The protective order attached as Exhibit 1 to the Declaration of Ann Marie Uetz in Support of Debtors Motion for Protective Order shall be entered forthwith and govern the requests for production of documents. 3. The deposition of Mr. Siegel shall be limited to four (4) hours and shall take place in Los Angeles. 4. The depositions of Mr. Fitchett and the Debtors 30(b)(6) representative shall be combined into a single deposition and shall not exceed seven (7) hours.
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5. All of Debtors objections to the document requests and to the scope of 30(b)(6), submitted with the Debtors Motion for Protective Order are upheld. Dated this ______ day of _______________, 2012. BY THE COURT: _____________________________________ United States Bankruptcy Court

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Case:12-24882-ABC Doc#:419 Filed:09/06/12

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UNITED STATES BANKRUPTCY COURT DISTRICT OF COLORADO

Case No. 12-24882 ABC Chapter 11

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Dated: September 6, 2012

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UNITED STATES BANKRUPTCY COURT DISTRICT OF COLORADO

Case No. 12-24882 ABC Chapter 11

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/s/ Ann Marie Uetz Ann Marie Uetz

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Dated: September 6, 2012

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UNITED STATES BANKRUPTCY COURT DISTRICT OF COLORADO

Case No. 12-24882 ABC Chapter 11

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____________________________________ United States Bankruptcy Court

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_______________________________________ Signature Date: __________________________________

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Case No. 12-24882 (ABC) Chapter 11

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Case No. 12-24882 (ABC) Chapter 11

_____ Signature Date: