In re LDK Solar Securities Litigation

Filing 260

ORDER - STIPULATION AND ORDER RE: PLAINTIFF'S SUBPOENA ON NON-PARTY SIMPSON THACHER & BARTLETT. Signed by Judge Bernard Zimmerman on May 28, 2009. (bzsec, COURT STAFF) (Filed on 5/28/2009)

1 JAMES G. KREISSMAN (Bar No. 206740) [e-mail] m 2 SIMPSON THACHER & BARTLETT LLP 2550 Hanover Street 3 Palo Alto, California 94304 Telephone: [phone] Facsimile: [phone] Attorneys for Non-Party 5 SIMPSON THACHER & BARTLETT LLP 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
STIPULATION AND [PROPOSED] ORDER RE: SIMPSON THACHER & BARTLETT SUBPOENA

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA ) ) ) ) ) ) ) ) ) ) ) ) ) ) Master File No. C-07-05182-WHA (BZ)

In re LDK SOLAR SECURITIES LITIGATION

____________________________________ This Document Relates To: ALL ACTIONS.

STIPULATION AND [PROPOSED] ORDER RE: PLAINTIFF'S SUBPOENA ON NON-PARTY SIMPSON THACHER & BARTLETT LLP

MASTER FILE NO. C-07-05182-WHA

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WHEREAS, Lead Plaintiff Shahpour Javidzad ("Plaintiff") served non-party

2 Simpson Thacher & Bartlett LLP ("Simpson Thacher") with a subpoena (the "Subpoena") in 3 this matter on July 16, 2008 seeking the production of documents in the custody or control 4 of Simpson Thacher relating to Simpson Thacher's representation of the independent 5 directors of the Audit Committee of LDK Solar Co., Ltd. (the "Audit Committee") in 6 connection with an investigation into certain allegations made by former LDK Solar Co., 7 Ltd. employee Mr. Charley Situ (the "Investigation"); 8 WHEREAS, Simpson Thacher and those persons and/or entities retained by

9 Simpson Thacher during the course of the Investigation (including, without limitation, 10 Deloitte & Touche Financial Advisory Services Ltd., Professor Yi Tan, Ron Sinton and Ted 11 Ciszek (collectively, the "Consultants")) created numerous documents during the course of 12 the Investigation which Simpson Thacher contends are protected by the attorney-client 13 and/or work product privileges (the "Investigation Work Product"); 14 WHEREAS, Simpson Thacher contends that it has fully complied with the

15 Subpoena and produced to Plaintiff all documents that are both non-privileged and 16 responsive to the Subpoena; 17 WHEREAS, Plaintiff contends that Simpson Thacher is required to produce

18 certain additional documents pursuant to the Subpoena; 19 WHEREAS, Simpson Thacher and Plaintiff have met and conferred and

20 agree that, in order to preserve judicial resources and in the interests of compromise, 21 Simpson Thacher will produce certain additional documents to Plaintiff and Plaintiff will 22 forgo its efforts to obtain any other documents from Simpson Thacher or the Consultants or 23 otherwise obtain Investigation Work Product, except as provided for in this Stipulation; 24 NOW, THEREFORE, it is hereby stipulated and agreed by and between

25 Plaintiff, defendants LDK Solar Co., Ltd. ("LDK"), LDK Solar USA, Inc., Xiaofeng Peng, 26 Xingxue Tong, Jack Lai, Qiqiang Yao, Liangbao Zhu, Yonggang Shao and Gang Wang 27 (collectively, "Defendants'), and Simpson Thacher, through their respective counsel of 28 record, as follows:
STIPULATION AND [PROPOSED] ORDER RE: SIMPSON THACHER & BARTLETT SUBPOENA

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MASTER FILE NO. C-07-05182-WHA

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1.

Simpson Thacher shall produce a copy of the Microsoft PowerPoint

2 presentation utilized by Simpson Thacher during Simpson Thacher's December 18, 2007 3 presentation to the Securities and Exchange Commission (the "PowerPoint"). 4 2. Simpson Thacher shall produce those documents created by LDK in

5 the ordinary course of its business that are referenced or alluded to in the PowerPoint (the 6 "Referenced Documents"). The parties to this stipulation agree that the Referenced 7 Documents shall be limited to only those categories of documents set forth on Schedule A 8 hereto. For avoidance of doubt, no Investigation Work Product, including, without 9 limitation, the Test Results, shall constitute part of the Referenced Documents. 10 3. Simpson Thacher shall produce a copy of all reports, test results, and

11 supporting data that were created by Professor Yi Tan, Ron Sinton and Ted Ciszek during 12 the course of the Investigation relating to the testing of the quality of polysilicon ingots (the 13 "Test Results"). 14 4. Defendant LDK Solar Co., Ltd. certifies that it retained and continues

15 to retain copies of all LDK Solar Co., Ltd. documents collected by Simpson Thacher or the 16 Consultants during the course of the Investigation (the "Underlying Documents"). Based on 17 this certification, Plaintiff agrees that he will not seek production of the Underlying 18 Documents from Simpson Thacher or the Consultants. Simpson Thacher agrees that it will 19 not argue that the Underlying Documents are themselves protected as work product. 20 5. Plaint iff agrees that any production made by Simpson Thacher

21 pursuant to this stipulation shall not constitute a waiver of any attorney-client or work 22 product privilege held by the Audit Committee, Simpson Thacher, or the Consultants with 23 respect to any document other than the PowerPoint, the Test Results and the Referenced 24 Documents. Plaintiff further agrees that it shall not assert before any court for any reason 25 that Simpson Thacher's production to it of the PowerPoint, the Test Results, and/or the 26 Referenced Documents provides the Plaintiff with any basis to claim that it is entitled to any 27 additional Investigation Work Product. 28 6. Plaint iff shall not seek and shall not be entitled to receive any
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1 Invest igat ion Work Product or other documents from Simpson Thacher or the Consultants 2 other than the PowerPoint, the Test Results and the Referenced Documents for any reason 3 except as set forth in Paragraph 7. Plaintiff shall also withdraw any subpoenas currently 4 outstanding that seek documents from the Consultants. 5 7. Plaint iff may assert, as the sole reason for asking the court to order

6 Simpson Thacher or the Consultants to produce any Investigation Work Product that a 7 defendant or their counsel has (i) made a statement or taken an action in this litigation; (ii) 8 that statement has been made or that action has been taken after the date that this stipulation 9 has been executed by all parties hereto; and (iii) that statement or action constitutes a waiver 10 of the attorney-client or work product privileges of the Audit Committee, Simpson Thacher 11 and/or the Consultants. 12 8. Plaint iff may also assert, as the sole remaining reasons for asking the

13 court to order a defendant to produce any Investigation Work Product that (a) the criteria of 14 Paragraph 7(i), (ii), and (iii) are satisfied; or (b) work product and/or attorney-client 15 privilege protection for a particular document in the possession of an LDK emplo yee other 16 than Louis Hsieh or Xiang Bing, the Audit Committee members who conducted the Audit 17 Committee investigation (an "Other Employee"), has been waived solely by virtue of its 18 possession by the Other Emplo yee. 19 9 Other than as set forth in Paragraphs 7 and 8 above, Plaintiff shall not

20 seek and shall not be entitled to receive any Investigation Work Product from any person or 21 entity for any reason. Plaintiff shall also notify non-parties KPMG International, KPMG 22 LLP, Deloitte & Touche LLP, Deloitte Consulting LLP and Deloitte Touche Tohmatsu that 23 he no longer seeks from either of them the production of any Investigation Work Product. 24 10. Simpson Thacher's production of the PowerPoint, the Test Results,

25 and the Referenced Documents shall not constitute a waiver of any attorney-client or work 26 product privilege held by the Audit Committee, Simpson Thacher, or the Consultants in any 27 other federal or state proceeding pursuant to Federal Rule of Evidence 502(d), with respect 28 to any document other than the PowerPoint, the Test Results and the Referenced
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1 Documents. Neither Simpson Thacher nor defendants waive their respective rights to 2 oppose any argument by Plaint iff with respect to paragraphs 7 and 8. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 [PROPOSED] ORDER Dated: May 27, 2009 By: ________/s/_________________ COHEN MILSTEIN SELLERS & TOLL PLLC Matthew B. Kaplan 1100 New York Avenue, NW Suite 500 West Washington, DC 20005 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiffs Dated: May 27, 2009 By:_____________/s/__________________ SIMPSON THACHER & BARTLETT LLP James G. Kreissman 2550 Hanover Street Palo Alto, CA 94304 Telephone: [phone] Facsimile: [phone] Attorneys for Non-Party Simpson Thacher & Bartlett LLP Dated: May 27, 2009 By: ____________/s/___________________ LATHAM & WATKINS LLP James J. Farrell 355 South Grand Avenue Los Angeles, CA 90071-1560 Telephone: [phone] Facsimile: [phone] Attorneys for Defendants.

19 PURSUANT TO STIPULATION, IT IS SO ORDERED. 20 May 28, 2009 21 Dated:____________ 22 23 24 25 26 27 28
STIPULATION AND [PROPOSED] ORDER RE: SIMPSON THACHER & BARTLETT SUBPOENA

________________________________________ Honorable Bernard Zimmerman United States District Court Magistrate Judge

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SCHEDULE A Emails from inventory or finance personnel regarding usability o f various types of inventory, as referenced on page 59 of the PowerPoint. Emails related to ERP implementation, as referenced on page 59 of the PowerPoint. Documents relating to return of raw materials to warehouse from production department, as referenced on page 59 of the PowerPoint. Emails from manufacturing department or customers regarding specific instances of finished product quality issues, as referenced on page 59 of the PowerPoint. Emails from production department noting dwindling supply of feedstock located in production area but never unavailability, as referenced on page 60 of the PowerPoint. Documents relating to occasional short term reduction of size of certain ingots produced from 270 Kg to 240 Kg or smaller sizes, as referenced on page 60 of the PowerPoint.

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CASE NO. C-07-05182-WHA