Avenue CLO Fund, Ltd. et al v. Bank of America, N.A., et al

Filing 79

CERTIFIED REMAND ORDER. MDL No. 2106. Signed by MDL (FLSD) on 1/14/14. (Attachments: # 1 Transmittal from FLSD, # 2 1 09-md-02106 Designation of Record, # 3 1 09-md-02106 Dkt. Sheet - flsd, # 4 09-MD-2106 DE 1, 2, 4-30, # 5 0 9-MD-2106 DE 32-36, # 6 09-MD-2106 DE 37 part 1 of 3, # 7 09-MD-2106 DE 37 part 2 of 3, # 8 09-MD-2106 DE 37 part 3 of 3, # 9 09-MD-2106 DE 38, 39, 41-47, 49, 50, # 10 09-MD-2106 DE 51, # 11 09-MD-2106 DE 52-59, 61-65, 68, 70, 72-76, # (1 2) 09-MD-2106 DE 78-84, 86-91, # 13 09-MD-2106 DE 93, 95-103, 106-108, # 14 09-MD-2106 DE 110-115, # 15 09-MD-2106 DE 116-125, 127-129, 132-134, # 16 09-MD-2106 DE 136-140, 142-158, # 17 09-MD-2106 DE 160-162, 164-167, 170-175, 177-190, # ( 18) 09-MD-2106 DE 191-199, 201-215, # 19 09-MD-2106 DE 217-229, 232-247, # 20 09-MD-2106 DE 248, # 21 09-MD-2106 DE 249 part 1 of 2, # 22 09-MD-2106 DE 249 part 2 of 2, # 23 09-MD-2106 DE 251-253, 262-266, 284-287, 300, 301, 310, 319, 326-3 31, # 24 09-MD-2106 DE 335, 336, 338-344, 346-349, # 25 09-MD-2106 DE 350, # 26 09-MD-2106 DE 351-358, # 27 09-MD-2106 DE 360-366, 368-374, # 28 09-MD-2106 DE 375 part 1 of 3, # 29 09-MD-2106 DE 375 part 2 of 3, # 30 09-MD-2106 DE 375 p art 3 of 3, # 31 09-MD-2106 DE 376 part 1, # 32 09-MD-2106 DE 376 part 2, # 33 09-MD-2106 DE 376 part 3, # 34 09-MD-2106 DE 376 part 4, # 35 09-MD-2106 DE 376 part 5, # 36 09-MD-2106 DE 376 part 6, # 37 09-MD-2106 DE 376 part 7, # 38 09-MD-2106 DE 376 part 8, # 39 09-MD-2106 DE 376 part 9, # 40 09-MD-2106 DE 377 part 1, # 41 09-MD-2106 DE 377 part 2, # 42 09-MD-2106 DE 378, # 43 09-MD-2106 DE 379, # 44 09-MD-2106 DE 380, # 45 09-MD-2106 DE 381 part 1, # 46 09-MD-2 106 DE 381 part 2, # 47 09-MD-2106 DE 382 part 1, # 48 09-MD-2106 DE 382 part 2, # 49 09-MD-2106 DE 382 part 3, # 50 09-MD-2106 DE 382 part 4, # 51 09-MD-2106 DE 383 part 1, # 52 09-MD-2106 DE 383 part 2, # 53 09-MD-2106 DE 383 part 3, # 54 09-MD-2106 DE 383 part 4, # 55 09-MD-2106 DE 383 part 5, # 56 09-MD-2106 DE 383 part 6, # 57 09-MD-2106 DE 383 part 7, # 58 09-MD-2106 DE 383 part 8, # 59 09-MD-2106 DE 383 part 9, # 60 09-MD-2106 DE 383 part 10, # 61 09-MD-2106 DE 383 part 11, # 62 09-MD-2106 DE 384 part 1, # 63 09-MD-2106 DE 384 part 2, # 64 09-MD-2106 DE 384 part 3, # 65 09-MD-2106 DE 384 part 4, # 66 09-MD-2106 DE 384 part 5, # 67 09-MD-2106 DE 384 part 6, # 68 09-MD-2106 DE 384 part 7, # ( 69) 09-MD-2106 DE 384 part 8, # 70 09-MD-2106 DE 384 part 9, # 71 09-MD-2106 DE 384 part 10, # 72 09-MD-2106 DE 384 part 11, # 73 09-MD-2106 DE 385 part 1, # 74 09-MD-2106 DE 385 part 2, # 75 09-MD-2106 DE 386 part 1, # 76 09-MD-2106 DE 386 part 2, # 77 09-MD-2106 DE 386 part 3, # 78 09-MD-2106 DE 386 part 4, # 79 09-MD-2106 DE 386 part 5, # 80 09-MD-2106 DE 386 part 6, # 81 09-MD-2106 DE 386 part 7, # 82 09-MD-2106 DE 387 part 1, # 83 09-MD-2106 DE 387 part 2, # 84 09-MD-2106 DE 388, # 85 09-MD-2106 DE 389 part 1, # 86 09-MD-2106 DE 389 part 2, # 87 09-MD-2106 DE 389 part 3, # 88 09-MD-2106 DE 389 part 4, # 89 09-MD-2106 DE 390, 392-394, # 90 1 10-cv-20236 Dkt. Sheet - flsd, # 91 10cv20236 DE #1-27, 29-31, 45, 53, 60-65, 67-70, 73, # 92 1 09-cv-23835 Dkt. Sheet - flsd, # 93 09cv23835 DE 112, 115-126, # 94 09cv23835 DE 130, 134, 135 and 145)(Copies have been distributed pursuant to the NEF - MMM)

Case 1:09-md-02106-ASG Document 191 Entered on FLSD Docket 12/01/2010 Page 1 of 2

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO 09-MD-02106-CIV-GOLD/GOODMAN
IN RE: FONTAINEBLEAU LAS VEGAS
CONTRACT LITIGATION
MDL No. 2106
This document applies to:
Case No. 09-CV-23835-ASG.
Case No. 10-CV-20236-ASG.
_________________________________/
MDL ORDER NUMBER 41; RESETTING ORAL ARGUMENT
THIS CAUSE is before the Court sua sponte. Having determined that a conflict
exists with the Court’s calendar, it is hereby
ORDERED AND ADJUDGED that:
1.

Oral argument on Plaintiff Term Lenders’ Joint Motion for Partial Final Judgment
(“Motion”) [ECF No. 151] previously set before the Honorable Alan S. Gold, at the
United States District Courthouse, Courtroom 11-1, Eleventh Floor, 400 North Miami
Avenue, Miami, Florida, 33128 on Friday, December 17, 2010 at 11:00 a.m. is
hereby RESET to Friday, January 7, 2011 at 10:00 a.m. Please notify the Court
immediately at [phone] of any disposition or settlement of this case or
resolution of the scheduled Motion.

2.

The Court’s prior MDL Order No. 39 (requiring the parties to deliver to the
undersigned’s Chambers a Joint Binder containing tabbed and indexed courtesy
copies of the motion and any responses, replies, exhibits, and memoranda of law
related to the motions by Wednesday, December 1, 2010 at 5:00 p.m.) remains
in effect. The courtesy copies shall include a table of contents and shall indicate the
docket entry number of each document contained therein.

Case 1:09-md-02106-ASG Document 191 Entered on FLSD Docket 12/01/2010 Page 2 of 2

DONE and ORDERED in Chambers in Miami, Florida, this 30th day of November,
2010.
______________________________
THE HONORABLE ALAN S. GOLD
UNITED STATES DISTRICT JUDGE

cc:

U.S. Magistrate Judge Jonathan Goodman
Counsel of record

Case 1:09-md-02106-ASG Document 192 Entered on FLSD Docket 12/06/2010 Page 1 of 11

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO 09-MD-02106-CIV-GOLD/GOODMAN

IN RE: FONTAINEBLEAU LAS VEGAS
CONTRACT LITIGATION
MDL No. 2106
This document relates to all actions.
/
TERM LENDERS’ MOTION FOR DETERMINATION OF
FONTAINEBLEAU RESORT’S WAIVER OF PRIVILEGE;
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF
Pursuant to the Court’s Order on Motion for Sanctions, Plaintiffs in Avenue CLO Fund,
Ltd., et al. v. Bank of America, et al., Case No. 09-CV-23835-ASG (S.D. Fla.) and ACP Master,
Ltd., et al. v. Bank of America, N.A., et al., Case No. 10-CV-20236-ASG (S.D. Fla.) (the “Term
Lenders”), by and through their undersigned counsel, move this Court for an order determining
that Fontainebleau Resorts, LLC (“FBR”) waived all applicable privileges when it knowingly
produced hundreds of thousands of documents to the Term Lenders without conducting any
review or taking any other steps to prevent the disclosure of privileged documents.
I.

INTRODUCTION
After repeated orders, FBR finally produced electronic documents in response to the

Term Lenders’ subpoena. FBR made no effort to limit its production to responsive documents.
Instead, it produced its entire document server, more than 600,000 documents, including
hundreds of thousands of documents having nothing to do with any of the topics set forth in the
Term Lenders’ subpoena. Nor did FBR take any steps (much less the “reasonable steps”
required by Rule 502(b)) to ensure that its document dump did not include privileged documents.
Not surprisingly, it does; tens of thousands of them. FBR’s voluntary production constitutes a

Case 1:09-md-02106-ASG Document 192 Entered on FLSD Docket 12/06/2010 Page 2 of 11

waiver of all otherwise applicable privileges. The Term Lenders bring this motion for such a
determination.
II.

BACKGROUND
The Term Lenders’ tortured efforts to obtain documents from FBR are set forth in the

various orders this Court has issued in connection with the Term Lenders’ Motion to Compel and
Motion for Sanctions. (DE## 123, 153, 180, 182, 187.)
FBR eventually produced documents, including a copy of its entire document server.
The server contains approximately 800 gigabytes of data, nearly 600,000 documents estimated at
over 20 million pages. (Declaration of Kirk Dillman, hereinafter “Dillman Decl.”, ¶ 2.) FBR’s
counsel has acknowledged that FBR took no steps to review this data for responsiveness or for
privilege. (Id. at ¶ 5.)
Not surprisingly, FBR’s production includes hundreds of thousands of obviously nonresponsive documents. For example, a search of the server’s electronic index reveals that more
than 80,000 documents relate to Fontainebleau’s project in Miami. (Id. at ¶ 4.) Thousands more
relate to personnel and operations matters unrelated to any of the topics in the Term Lenders
subpoena. (Id.)
FBR’s production also contains tens of thousands of documents that were or may have
been privileged but for FBR’s production of them. For example, a search of the electronic index
reveals that more than 18,000 documents contain the term “*legal*” in either their file location
or file name. (Id.) More than 5,093 documents are located in the folder of FBR’s former general
counsel, Whitney Their, which contains, among other things, privileged communications
between Ms. Their and others at FBR and/or Ms. Their’s attorney work product. (Id.) It is
virtually certain that there are large numbers of other privileged documents in other files and
folders throughout the millions of pages of FBR’s production.

-2-

Case 1:09-md-02106-ASG Document 192 Entered on FLSD Docket 12/06/2010 Page 3 of 11

It would cost the Term Lenders between $150,000 and $200,000 to have the data from
the hard drive processed in a manner that would permit them to efficiently locate both responsive
and potentially privileged documents. (Id. at ¶ 3.) FBR, of course, could have achieved this
result without incurring these substantial costs. This is FBR’s server. It knows how the server
was architected and maintained, and it knows where to look for responsive and/or privileged
documents. It elected not to.
FBR’s decision to produce its documents without any review places a substantial and
unfair burden on the Term Lenders (and the other banks who have received FBR’s document
server)1. Absent relief from this Court, FBR may argue that the Term Lenders have an ethical
obligation to inform FBR of the existence of any document that may be privileged, and, if FBR
determines that it is in fact privileged, remove it from any place it has been stored and retrieve it
from anyone to whom it may have been given. Given the enormous universe of potentially
privileged documents, this cumbersome process will substantially complicate and slow the Term
Lenders’ efforts to review FBR’s documents. FBR’s extended failures to produce documents
already has stalled deposition discovery in this action for months. FBR should not be permitted
to impose additional delays by failing to review the documents it finally did produce.
III.

FBR WAIVED ALL APPLICABLE PRIVILEGES WHEN IT KNOWINGLY
PRODUCED MILLIONS OF PAGES OF DOCUMENTS WITHOUT ANY
PRIVILEGE REVIEW.
“As with all evidentiary privileges, the burden of proving that the attorney-client

privilege applies [and has not been waived] rests not with the party contesting the privilege, but

1 Bank of America as well as the other Revolving Lenders in these coordinated MDL

proceedings also subpoenaed documents from FBR and received the same document server as a
part of FBR’s production. (Id. at ¶ 6.)
-3-

Case 1:09-md-02106-ASG Document 192 Entered on FLSD Docket 12/06/2010 Page 4 of 11

with the party asserting it.”2 “Any disclosure inconsistent with maintaining the confidential
nature of the attorney-client relationship waives the privilege.”3 In particular, the privilege is
waived by a voluntary disclosure of privileged information.4
FBR production was voluntary. It elected to dump on the Term Lenders its entire
document server, knowing that it contained privileged documents. But even if FBR’s production
somehow were deemed to be involuntary, FBR nonetheless waived the privilege by failing to
conduct any review. Although FBR had more than six months to take steps to ensure that the
documents it produced did not contain privileged materials, it did nothing. Federal Rule of
Evidence 502(b) provides that an inadvertent disclosure waives the privilege unless “the holder
of the privilege or protection took reasonable steps to prevent disclosure” and “the holder
promptly took reasonable steps to rectify the error….” FBR did neither.
FBR conceded that it never conducted any privilege review prior to production.5 Given
the massive volume of its production, FBR had a heightened obligation to do so.6 Nor did FBR

2 Weil v. Investment/Indicators, Research & Mgmt., Inc., 647 F.2d 18, 25 (9th Cir. 1981).
3 Pensacola Firefighters' Relief Pension Fund Bd. of Trs. v. Merrill Lynch Pierce Fenner &

Smith, Inc., 265 F.R.D. 589, 596 (N.D. Fla. 2010) quoting United States v. Jones, 696 F.2d 1069,
1072 (4th Cir. 1982).
4 See United States v. Suarez, 820 F.2d 1158, 1160 (11th Cir. 1987) (“[A]t the point where

attorney-client communications are no longer confidential, i.e., where there has been a disclosure
of a privileged communication, there is no justification for retaining the privilege . . ..”); Restat.
of the Law, Third, The Law Governing Lawyers, § 79 (“The attorney-client privilege is waived if
the client, the client's lawyer, or another authorized agent of the client voluntarily discloses the
communication in a non-privileged communication.”).
5 Ciba-Geigy Corp. v. Sandoz Ltd., 916 F. Supp. 404, 412 (D.N.J. 1995) (“[T]o preserve a claim

of privilege, [parties] must conduct a privilege review prior to any document production”); SEC
v. Cassano, 189 F.R.D. 83, 86 (S.D.N.Y. 1999) (attorney-client privilege waived where “[a]
deliberate decision was made to produce [a document] without looking at it”). See also United
States Fid. & Guar. Co. v. Liberty Surplus Ins. Corp., 630 F. Supp. 2d 1332 (M.D. Fla. 2007)
-4-

Case 1:09-md-02106-ASG Document 192 Entered on FLSD Docket 12/06/2010 Page 5 of 11

“promptly take reasonable steps to rectify the error” once it was discovered. In the three weeks
since the Term Lenders notified the Court that the hard drive contained privileged materials
(DE# 182), FBR has done nothing to seek to identify and/or retrieve privileged materials.
(Dillman Decl., ¶ 7.)
IV.

CONCLUSION
For the reasons set forth above, the Term Lenders respectfully request an order

determining that FBR waived any and all otherwise applicable privileges and protections when it
produced its document server without conducting any review.

Respectfully submitted on December 6, 2010,

(privilege waived where attorney who ultimately sent out the production did not review the
documents).
6 See New Bank of New England v. Marine Midland Realty Corp., 138 F.R.D. 479, 483 (E.D. Va.

1991) (“As the number of documents grows, so too must the level of effort increase to avoid an
inadvertent disclosure. Failure to meet this level of effort invites the inference of waiver.”)
-5-

Case 1:09-md-02106-ASG Document 192 Entered on FLSD Docket 12/06/2010 Page 6 of 11

Brett Amron, Esq.
BAST AMRON
SunTrust International Center
One Southeast Third Ave., Suite 1440
Miami, FL 33131
Telephone: [phone]
Facsimile: [phone]

By: /s/ Lorenz Michel Prüss
Lorenz Michel Prüss, Esq.
Fla. Bar No.: 581305
David A. Rothstein, Esq.
Fla. Bar No.: 056881
DIMOND KAPLAN & ROTHSTEIN PA
2665 S. Bayshore Dr., PH-2B
Coconut Grove, FL 33133
Telephone: [phone]
Facsimile: [phone]

-and-

-andJ. Michael Hennigan, Esq. (admitted pro hac vice)
Kirk D. Dillman, Esq. (admitted pro hac vice)
HENNIGAN, BENNETT & DORMAN LLP
865 S. Figueroa St., Suite 2900
Los Angeles, CA 90017
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiffs Avenue CLO Fund, LTD.,
et al.

-6-

James B. Heaton, III, Esq.
Steven J. Nachtwey, Esq.
John D. Byars, Esq.
Vincent S. J. Buccola, Esq.
BARTLIT BECK HERMAN PALENCHAR
& SCOTT LLP
54 West Hubbard Street, Suite 300
Chicago, IL 60654
Telephone: [phone]
Facsimile: [phone]

Attorneys for Plaintiffs ACP Master, Ltd. and
Aurelius Capital Master, Ltd.

Case 1:09-md-02106-ASG Document 192 Entered on FLSD Docket 12/06/2010 Page 7 of 11

CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy of the foregoing document was filed with
the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served
this day on all counsel of record or pro se parties identified on the attached Service List in the
manner specified either via transmission of Notices of Electronic Filing generated by CM/ECF
or in some other authorized manner for those counsel or parties who are not authorized to receive
electronically the Notice of Electronic Filing.

Dated: December 6, 2010.

/s/ Lorenz Michael Prüss ________________

Case 1:09-md-02106-ASG Document 192 Entered on FLSD Docket 12/06/2010 Page 8 of 11

SERVICE LIST

Attorneys:

Representing:

Bradley J. Butwin, Esq.
Daniel L. Cantor, Esq.
Jonathan Rosenberg, Esq.
William J. Sushon, Esq.
O’MELVENY & MYERS LLP
Times Square Tower
7 Times Square
New York, NY 10036
Tele: [phone]
Fax: [phone]

Defendants
Bank of America, N.A.
Merrill Lynch Capital Corporation

Craig V. Rasile, Esq.
Kevin Michael Eckhardt, Esq.
HUNTON & WILLIAMS
1111 Brickell Avenue
Suite 2500
Miami, FL 33131
Tele: [phone]
Fax: [phone]

Defendants
Bank of America, N.A.
Merrill Lynch Capital Corporation
JP Morgan Chase Bank, N.A.
Barclays Bank PLC
Deutsche Bank Trust Company Americas
The Royal Bank of Scotland PLC
HSH Nordbank AG, New York Branch
Bank of Scotland plc

David J. Woll, Esq.
Justin S. Stern, Esq.
Lisa H. Rubin, Esq.
Thomas C. Rice, Esq.
Steven S. Fitzgerald
SIMPSON THACHER & BARTLETT LLP
425 Lexington Avenue
New York, NY 10017-3954
Tele: [phone]
Fax: [phone]

Defendants
JP Morgan Chase Bank, N.A.
Barclays Bank PLC
Deutsche Bank Trust Company Americas
The Royal Bank of Scotland PLC
Bank of Scotland plc

John Blair Hutton III, Esq,
Mark D. Bloom, Esq.
GREENBERG TAURIG
1221 Brickell Avenue
Miami, FL 33131
Tele: [phone]
Fax: [phone]

Defendants
JP Morgan Chase Bank, N.A.
Barclays Bank PLC
Deutsche Bank Trust Company Americas
The Royal Bank of Scotland PLC

-8-

Case 1:09-md-02106-ASG Document 192 Entered on FLSD Docket 12/06/2010 Page 9 of 11

Attorneys:

Representing:

Sarah A. Harmon, Esq.
BAILEY KENNEDY
8984 Spanish Ridge Avenue
Las Vegas, NV 89148
Tele: [phone]
Fax: [phone]

Defendant
JP Morgan Chase Bank, N.A.
Barclays Bank PLC
Deutsche Bank Trust Company Americas
The Royal Bank of Scotland PLC

Frederick D. Hyman, Esq.
Jason I. Kirschner, Esq.
Jean-Marie L. Atamian, Esq.
MAYER BROWN LLP
1675 Broadway
New York, NY 10019-5820
Tele: [phone]
Fax: [phone]

Defendant
Sumitomo Mitsui Banking Corporation

Robert Gerald Fracasso, Jr.
SHUTTS & BOWEN
201 S Biscayne Boulevard
Suite 1500 Miami Center
Miami, FL 33131
Tele: [phone]
Fax: [phone]

Defendant
Sumitomo Mitsui Banking Corporation

Phillip A. Geraci, Esq.
Steven C. Chin, Esq.
Aaron Rubinsten, Esq.
W. Stewart Wallace, Esq.
KAYE SCHOLER LLP
425 Park Avenue
New York, NY 10022-3598
Tele: [phone]
Fax: [phone]

Defendant
HSH Nordbank AG, New York Branch

Arthur Halsey Rice, Esq.
RICE PUGATCH ROBINSON & SCHILLER
101 NE 3 Avenue
Suite 1800
Fort Lauderdale, FL 33301
Tele: [phone]
Fax: [phone]

Defendant
HSH Nordbank AG, New York Branch

Gregory S. Grossman, Esq.
ASTIGARRAGA DAVIS MULLINS &
GROSSMAN
701 Brickell Avenue, 16th Floor
Miami, FL 33131-2847
Tele: [phone]
Fax: [phone]

Defendant
MB Financial Bank, N.A.

-9-

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Attorneys:

Representing:

Laury M. Macauley, Esq.
LEWIS & ROCA LLP
50 W Liberty Street
Reno, NV 89501
Tele: [phone]
Fax: [phone]

Defendant
MB Financial Bank, N.A.

Peter J. Roberts, Esq.
SHAW GUSSIS FISHMAN FLANTZ
WOLFSON & TOWBIN LLC
321 N Clark Street, Suite 800
Chicago, IL 60654
Tele: [phone]
Fax: [phone]

Defendant
MB Financial Bank, N.A.

Anthony L. Paccione, Esq.
Arthur S. Linker, Esq.
Kenneth E. Noble
KATTEN MUCHIN ROSENMAN LLP
575 Madison Avenue
New York, NY 10022-2585
Tele: [phone]
Fax: [phone]

Defendants
Bank of Scotland plc

Andrew B. Kratenstein, Esq.
Michael R. Huttenlocher, Esq.
MCDERMOTT WILL & EMERY LLP
340 Madison Avenue
New York, NY 10173
Tele: [phone]

Defendant
Camulos Master Fund, L.P.

Raquel A. Rodriguez
MCDERMOTT WILL & EMERY LLP
201 S. Biscayne Blvd.
Suite 2200
Miami, FL 33131
Tele: [phone]
Fax: : [phone]

Defendant
Camulos Master Fund, L.P.

David M. Friedman, Esq.
Jed I. Bergman, Esq.
Seth A. Moskowitz
KASOWITZ BENSON TORRES &
FRIEDMAN
1633 Broadway, 22nd Floor
New York, NY 10019-6799
Tele: [phone]
Fax: [phone]

Plaintiff
Fontainebleau Las Vegas LLC

-10-

Case 1:09-md-02106-ASG Document 192 Entered on FLSD Docket 12/06/2010 Page 11 of 11

Attorneys:

Representing:

Jeffrey I. Snyder, Esq.
Scott L. Baena, Esq.
BILZIN SUMBERG BAENA PRICE
& AXELROD
200 S Biscayne Blvd., Suite 2500
Miami, FL 33131-2336
Tele: [phone]
Fax: [phone]

Plaintiff
Fontainebleau Las Vegas LLC

Harold Defore Moorefield Jr., Esq.
STEARNS WEAVER MILLER WEISSLER
ALHADEFF & SITTERSON
Museum Tower
150 W Flagler Street, Suite 2200
Miami, FL 33130
Tele: [phone]
Fax: [phone]

Defendant
Bank of Scotland plc

James B. Heaton, Esq.
John D. Byars, Esq.
Steven James Nachtwey, Esq.
Vincent S. J. Buccola, Esq.
BARTLIT BECK HERMAN PALENCHAR &
SCOTT
54 West Hubbard St.
Suite 300
Chicago, IL 60654
Tele: [phone]

Plaintiffs
ACP Master, Ltd.
Aurelius Capital Master, Ltd.

Brett Michael Amron
BAST AMRON LLP
150 West Flagler Street
Penthouse 2850
Miami, FL 33130
Tele: [phone]

Plaintiffs
ACP Master, Ltd.
Aurelius Capital Master, Ltd.

-11-

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Case 1:09-md-02106-ASG Document 193 Entered on FLSD Docket 12/09/2010 Page 1 of 4

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MASTER CASE NO. 09-2106-MD-GOLD/GOODMAN
In re:
FONTAINEBLEAU LAS VEGAS
CONTRACT LITIGATION
MDL NO. 2106
This document relates to:
ALL ACTIONS
__________________________________/
BANK OF AMERICA, N.A.’S JOINDER IN THE TERM LENDERS’ MOTION FOR
DETERMINATION OF FONTAINEBLEAU RESORTS’ WAIVER OF PRIVILEGE
Defendant Bank of America, N.A. hereby joins in the Term Lenders’ Motion for
Determination of Fontainebleau Resorts’ Waiver of Privilege, dated December 6, 2010 [DE192].
Dated: December 9, 2010
By:

/s/ Craig V. Rasile

HUNTON & WILLIAMS LLP
Craig V. Rasile
1111 Brickell Avenue, Suite 2500
Miami, Florida 33131
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]
-andO’MELVENY & MYERS LLP
Bradley J. Butwin (pro hac vice)
Jonathan Rosenberg (pro hac vice)
Daniel L. Cantor (pro hac vice)
William J. Sushon (pro hac vice)
7 Times Square
New York, New York 10036
Attorneys for Bank of America, N.A.

Case 1:09-md-02106-ASG Document 193 Entered on FLSD Docket 12/09/2010 Page 2 of 4

CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy of the foregoing Bank of America, N.A.’s
Joinder in the Term Lenders’ Motion for Determination of Fontainebleau Resort’s Waiver of
Privilege was filed with the Clerk of the Court using CM/ECF. I also certify that the foregoing
document is being served this day on all counsel of record or pro se parties identified on the
attached Service List either via transmission of Notices of Electronic Filing generated by
CM/ECF or in some other authorized manner for those counsel or parties who are not authorized
to receive electronically the Notice of Electronic Filing.
Dated: December 9, 2010
By: __/s/ Craig V. Rasile
Craig V. Rasile

Case 1:09-md-02106-ASG Document 193 Entered on FLSD Docket 12/09/2010 Page 3 of 4

SERVICE LIST
Jed I. Bergman, Esq.
Marc E. Kasowitz, Esq.
David M. Friedman, Esq.
Seth A. Moskowitz, Esq.
KASOWITZ BENSON TORRES &
FRIEDMAN LLP
1633 Broadway, 22nd Floor
New York, New York 10019

Harley E. Riedel
Russell M. Blain
Susan Heath Sharp
STICHTER, RIEDEL, BLAIN &
PROSSER, P.A.
110 East Madison Street, Suite 200
Tampa, Florida 33602

Attorneys for Soneet R. Kapila, Chapter 7
Trustee
J. Michael Hennigan, Esq.
Kirk Dillman, Esq.
HENNIGAN BENNETT &
DORMAN LLP
865 South Figueroa Street, Suite 2900
Los Angeles, California 90017

David A. Rothstein, Esq.
DIMOND KAPLAN & ROTHSTEIN,
P.A.
2665 South Bayshore Drive
Penthouse 2-B
Miami, Florida 33133

Attorneys for Avenue CLO Fund, Ltd., et al.
James B. Heaton, III, Esq.
Steven J. Nachtwey, Esq.
BARTLIT BECK HERMAN
PALENCHAR & SCOTT LLP
54 West Hubbard Street, Suite 300
Chicago, Illinois 60654

David Parker, Esq.
KLEINBERG, KAPLAN, WOLFF &
COHEN, P.C.
551 Fifth Avenue, 18th Floor
New York, New York 10176

Brett M. Amron, Esq.
BAST AMRON LLP
SunTrust International Center
One Southeast Third Avenue, Suite 1440
Miami, Florida 33131
Attorneys for ACP Master, Ltd. and
Aurelius Capital Master, Ltd.
Arthur H. Rice, Esq.
RICE PUGATCH ROBINSON &
SCHILLER, P.A.
101 Northeast Third Avenue, Suite 1800
Fort Lauderdale, Florida 33301

Robert G. Fracasso, Esq.
SHUTTS & BOWEN LLP
1500 Miami Center
201 South Biscayne Boulevard
Miami, Florida 33131

Attorneys for Defendant HSH Nordbank
AG, New York Branch

Attorneys for Defendant Sumitomo Mitsui
Banking Corporation

Case 1:09-md-02106-ASG Document 193 Entered on FLSD Docket 12/09/2010 Page 4 of 4

Mark D. Bloom, Esq.
John B. Hutton, III, Esq.
GREENBERG TRAURIG LLP
333 Avenue of the Americas, Suite 4400
Miami, Florida 33131
Attorneys for Defendants JP Morgan Chase
Bank, N.A., Deutsche Bank Trust Company
Americas, Barclays Bank PLC and The
Royal Bank of Scotland plc

Harold D. Moorefield, Jr., Esq.
STEARNS WEAVER MILLER
WEISSLER ALHADEFF &
SITTERSON, P.A.
Museum Tower
150 West Flagler Street, Suite 2200
Miami, Florida 33130
Attorneys for Defendant Bank of Scotland
plc

Gregory S. Grossman, Esq.
ASTIGARRAGA, DAVIS, MULLINS &
GROSSMAN, P.A.
701 Brickell Avenue, 16th Floor
Miami, Florida 33131

Bruce J. Berman, Esq.
MCDERMOTT WILL & EMORY LLP
201 South Biscayne Boulevard, Suite 2200
Miami, Florida 33131

Attorneys for Defendant MB Financial
Bank, N.A.

Attorneys for Defendant Camulos Master
Fund, L.P.

Case 1:09-md-02106-ASG Document 194 Entered on FLSD Docket 12/13/2010 Page 1 of 13

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
MASTER CASE NO .: 09-MD- 02106-CIV-GOLD
Magistrate Goodman
In Re: FONTAINEBLEAU LAS VEGAS
CONTRACT LITIGATION
MDL NO. 2106
This document relates to all actions.
________________________________/
FONTAINEBLEAU RESORTS, LLC’S RESPONSE IN OPPOSITION TO TERM
LENDERS’ MOTION FOR DETERMINATION OF WAIVER OF PRIVILEGE
Third Party, Fontainebleau Resorts, LLC (“FBR”), through its undersigned counsel and in
accordance this Court’s Order dated November 29, 2010 [D.E. 190], respectfully submits the
following Response in Opposition to the Term Lenders’ Motion for Determination of FBR’s Waiver
of Privilege, dated December 6, 2010 [D.E. 192]:
I.

Introduction
The Term Lenders themselves have previously described the underlying litigation as a “legal

storm.” FBR, though not a party to this litigation, has found itself caught up in that storm. The Court
should decline Term Lenders’ invitation to find a wholesale waiver on the part of FBR because Term
Lenders created this predicament by causing FBR to incur an undue burden and expense in
responding to their subpoena and corresponding Court Orders.
Federal Rule of Civil Procedure 45( c), entitled, “Avoiding Undue Burden or Expense;
Sanctions,” is designed to avoid this circumstance visited upon a third party. It provides:
A party or attorney responsible for issuing and serving a subpoena
must take reasonable steps to avoid imposing undue burden or
expense on a person subject to the subpoena. The issuing court must

Case 1:09-md-02106-ASG Document 194 Entered on FLSD Docket 12/13/2010 Page 2 of 13

MASTER CASE NO .: 09-MD- 02106-CIV-GOLD/Goodman

enforce this duty and impose an appropriate sanction – which may
include lost earnings and reasonable attorney’s fees – on a party or
attorney who fails to comply.
See also Klay v. All Defendants, 425 F.3d 977, 982-984 (11th Cir. 2005); Davidson v. Government
Employees Insurance Company, 2010 WL 4342084, *5 (M.D. Fla. Oct. 26, 2010).
Despite having limited resources, FBR has fully complied with the Term Lenders’ subpoena.
It has also taken reasonable efforts under the circumstances to protect its privileges in the process,
militating against any finding of waiver. Initially, FBR filed a Motion for Entry of a Confidentiality
Order to govern its responses.1 Although the Court denied FBR’s Motion on the grounds it might
reveal the Term Lenders’ work product, it would be difficult for Term Lenders to suggest that the
mere identification and return of any privileged materials would constitute their own attorneys’ work
product.
In addition, FBR conducted a privilege review of its e-mail server. This alone demonstrates
FBR’s efforts to protect its privileged materials. The primary reason FBR was unable to identify only
responsive documents from its document server – and identify privileged materials in the process

1

Behrend v. Comcast Corporation, 248 F.R.D. 84 (D. Mass. 2008), previously relied
upon by Term Lenders, confirms that FBR has acted reasonably. The court in that case identified
factors to be considered in deciding cost allocation where a non-party is required to respond to a
subpoena. Though Term Lenders are no longer seeking monetary relief against FBR, that case
nonetheless confirms that any expense associated with the subpoena should be incurred by Term
Lenders. Notably, in Behrend, the plaintiff had offered to review the third party’s documents
wherever they were stored before it incurred the expense of a privilege review. 248 F.R.D. at 85.
Here, the Term Lenders are proposing that FBR’s privileges be deemed waived. The plaintiff in
Behrend had also stipulated that its document review would be subject to all of the protections
contained in an existing Protective Order in the underlying litigation and offered to enter into an
additional stipulation specifically preserving Greater Media’s privilege claims, if any. 248
F.R.D. at 85-86, n. 3. The Term Lenders here propose the opposite.
2

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MASTER CASE NO .: 09-MD- 02106-CIV-GOLD/Goodman

– is because of the incredible expense. Under normal circumstances and as Rule 45 mandates, this
expense would have been incurred by the Term Lenders.
When FBR was unable to incur the incredible expense of conducting a privilege review of
the document server , and at the same time comply with the Term Lenders’ subpoena and the Court’s
requirements, it provided Term Lenders with the document server. Now, having obtained full access
to it, the Term Lenders seek the Court’s imprimatur to allow them to use these confidential and
privileged documents for whatever purpose they wish and without any further obligations
whatsoever. This request should be denied.2
II.

Additional Efforts by FBR to Comply with the Subpoena
For several months, FBR worked collaboratively with the Term Lenders to, among other

things, apply search terms to the e-mail server to identify potentially responsive documents and to
reduce the size of potentially responsive documents by seventy-five percent. That process did not
occur, however, with respect to the document server. As such, FBR had no option but to produce a
full copy of it without conducting a privilege review. Under these extraordinary circumstances, and
as explained below, this is not tantamount to an intentional waiver.
Term Lenders admit the cost to review the document server for responsive documents would
have been approximately $200,000.00. This is separate and apart from the cost FBR would have

2

Term Lenders do not indicate whether they, or their attorneys, intend to use FBR’s most
confidential of documents solely in connection with this case, or in relation to other litigation, or
whether they propose to freely share FBR’s records with others (or if they have already done so),
free of accountability or responsibility for their confidential or privileged nature.
3

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MASTER CASE NO .: 09-MD- 02106-CIV-GOLD/Goodman

incurred conducting a privilege review after that search process was completed.3 Yet Term Lenders
suggest that FBR – a third party – was required to either incur this expense or, if not, be accused of
waiving its privileges. Term Lenders do not cite to a case to support such an argument. Indeed, their
use of the subpoena process and the relief they seek is violative of Rule 45. FBR has limited
resources and no employees to help conduct a privilege review or help locate responsive documents.
Thus, Term Lenders’ argument that FBR could have done so without significant expense is without
merit.
In addition, the Term Lenders never provided FBR with search terms to apply to the
document server in order to limit the scope of responsive documents and associated expense. Term
Lenders previously acknowledged in their Supplemental Memorandum in Support of Motion for
Sanctions, dated November 12, 2010 [D.E. 182] that “[i]n the normal course of production, the
producing party works collaboratively. . . to modify and narrow the search terms in order to reduce
the problem of false positives.” Though that process was done with the e-mail server, it was not
done with the document server.
III.

FBR Did Not Waive Its Privileges with Respect to the Document Server
In determining whether privilege has been waived, the court must consider: (1) the

reasonableness of precautions taken to prevent inadvertent disclosure, (2) the amount of time it took
the producing party to realize its error, (3) the scope of the production, (4) the extent of the
inadvertent disclosure, and (5) the overriding interest of fairness and justice. United States Fid. &

3

This is also separate and apart from the cost FBR already incurred in shipping
approximately ninety boxes of documents from Las Vegas to South Florida and processing the
email server to the Term Lenders’ specifications.
4

Case 1:09-md-02106-ASG Document 194 Entered on FLSD Docket 12/13/2010 Page 5 of 13

MASTER CASE NO .: 09-MD- 02106-CIV-GOLD/Goodman

Guar. Co. v. Liberty Surplus Ins. Corp., 630 F.Supp.2d 1332, 1336 (M.D.Fla. 2007).
These factors weigh in favor FBR and against the relief sought by the Term Lenders. First,
FBR took reasonable precautions to avoid inadvertent disclosure under the circumstances. FBR first
filed a Motion for Confidentiality Order prior to the disclosure and the Court-imposed deadline for
production.4 Due to the size of the production, it would have been financially and logistically
impossible to conduct a privilege review of twenty million pages of documents within the production
deadline (especially when the Court considers that FBR had no employees to undertake such an
effort). Thus, FBR took the only available precaution to protect its privileges before it disclosed the
privileged information. It cannot be credibly argued that FBR’s production of the entire document
server without the protection of a Confidentiality Order was “inconsistent with maintaining the
confidential nature of the. . . privilege” such that the holding in Pensacola Firefighters’ Relief
Pension Fund Bd. Of Trs. v. Merrill Lynch Pierce Fenner & Smith, Inc., 265 F.R.D. 589 (N.D.Fla.
2010) would apply. In fact, considering that the cost to cull and then review the document server
would have been over $200,000.00, FBR took the only available reasonable effort to protect its
privileges when it filed a Motion for Confidentiality Order, while, at the same time, complying with
the subpoena and corresponding Court Orders.
Next, the scope of production also weighs in favor of FBR. The document server alone
contains twenty million pages. Although Term Lenders focus only on the document server, FBR’s

4

Certainly, such an effort under these circumstances constitutes a reasonable precaution
as contemplated by the court in Ciba-Geigy Corp. v. Sandoz Ltd., 916 F.Supp. 404, 412 (D.N.J.
1995). This, especially when taking into account, as the court did in Ciba-Geigy, the size of
FBR’s document production – approximately twenty million pages on the document server alone.
5

Case 1:09-md-02106-ASG Document 194 Entered on FLSD Docket 12/13/2010 Page 6 of 13

MASTER CASE NO .: 09-MD- 02106-CIV-GOLD/Goodman

production here was not limited to the document server. In fact, FBR undertook extensive efforts to
apply search terms to the email server5 and to conduct a privilege review of the documents that were
identified in the search.6 However, since the Term Lenders never provided search terms for the
document server, the same process could not have been undertaken by FBR even if it had been
ordered to do so. Clearly, under these circumstances, the overriding interests of fairness and justice
also weigh in favor of FBR, a third party to this action who has already incurred significant expense
in complying with the Term Lenders’ subpoena.
Weil v. Investment/Indicators, Research & Mgmt., Inc., 647 F.2d 18, 25 (9th Cir. 1981), cited
by Term Lenders, in clearly inapplicable under these circumstances. Weil, a 1981 case, dealt with
inadvertent disclosure of one letter during discovery and related testimony during a deposition. The
disclosure at issue here, stemming from an electronically maintained document server, is much larger
and of an entirely different magnitude. The court in Weil also held that the subjective intent of the
producing party must be considered in determining whether its privileges were waived. Clearly, it
was not FBR’s intent to waive all applicable privileges. Rather, FBR was put in the undesirable
position of having to spend over $200,000.00 or turn over the entire document server. Faced with
such a decision, FBR’s production of the entire server was not voluntary such that the holding in
United States v. Suarez, 820 F.2d 1158 (11th Cir. 1987) would apply, either.

5

FBR paid IKON, a third party copying vendor, approximately $25,000.00 to apply the
Term Lenders’ search terms to the e-mail server.
6

In addition, FBR paid to ship nearly ninety boxes of documents from Las Vegas to
South Florida so that they could be made available to Term Lenders for inspection and copying.
Despite having already copied these documents, Term Lenders are now asking to impose further
obligations on FBR relating to documents, some of which have already been produced.
6

Case 1:09-md-02106-ASG Document 194 Entered on FLSD Docket 12/13/2010 Page 7 of 13

MASTER CASE NO .: 09-MD- 02106-CIV-GOLD/Goodman

The Term Lenders also cite to Federal Deposit Ins. Corp. v. Marine Midland Realty Credit
Corp., 138 F.R.D. 478 (E.D.Va. 1991) in support of their Motion. However, Federal Deposit
supports FBR’s position. In Federal Deposit, the court held that “a party may be excused from the
waiver consequences of inadvertent disclosure where the number of documents to be screened is
large and the time for screening short. See Transamerica Computer, 573 F.2d 646 (17 million
documents to be screened in three months).” Here, FBR produced twenty million pages of
documents on the document server alone. FBR did not obtain a copy of its document server until
August, giving it approximately three months to cull and conduct a privilege review of twenty
million pages of documents (while at the same time culling and reviewing the email server and
approximately ninety boxes of documents at great expense). If the size of FBR’s production here
does not warrant avoidance of waiver, it is hard to imagine a situation that does.
IV.

Conclusion
For these reasons, as well as those set forth in FBR’s prior filings, FBR respectfully requests

that the Term Lenders’ Motion be denied.
Respectfully submitted,
WALDMAN TRIGOBOFF HILDEBRANDT
MARX & CALNAN, P.A.
2200 North Commerce Parkway, Suite 202
Weston, Florida 33326
Telephone:
[phone]
Facsimile:
[phone]
[e-mail]
[e-mail]
By:

/s Sarah J. Springer
Sarah J. Springer
Florida Bar No. 0070747
7

Case 1:09-md-02106-ASG Document 194 Entered on FLSD Docket 12/13/2010 Page 8 of 13

MASTER CASE NO .: 09-MD- 02106-CIV-GOLD/Goodman

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on December 13, 2010, I electronically filed the foregoing
document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is
being served this day on the attached service list through transmission of Notices of Electronic Filing
generated by CM/ECF.

WALDMAN TRIGOBOFF HILDEBRANDT
MARX & CALNAN, P.A.
2200 North Commerce Parkway, Suite 200
Weston, Florida 33326
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
By:

/s Sarah J. Springer
Glenn J. Waldman
Florida Bar No. 370113
Sarah J. Springer
Florida Bar No. 0070747

8

Case 1:09-md-02106-ASG Document 194 Entered on FLSD Docket 12/13/2010 Page 9 of 13

MASTER CASE NO .: 09-MD- 02106-CIV-GOLD/Goodman

SERVICE LIST
ATTORNEYS :

REPRESENTING :

Bradley J. Butwin, Esq.
Daniel L. Canton, Esq.
Jonathan Rosenberg, Esq.
William J. Sushon, Esq.
O’MELVENY & MYERS LLP
Times Square Tower
7 Times Square
New York, NY 10036
Tel: [phone]/Fax: [phone]

Bank of America, N.A.
Merrill Lynch Capital Corporation

Craig V. Rasile, Esq.
Kevin Michael Eckhardt, Esq.
HUNTON & WILLIAMS
1111 Brickell Avenue, Suite 2500
Miami, FL 33131
Tel: [phone]/Fax: [phone]

Bank of America, N.A.

Craig V. Rasile, Esq.
HUNTON & WILLIAMS
1111 Brickell Avenue, Suite 2500
Miami, FL 33131
Tel: [phone]/Fax: [phone]

JP Morgan Chase Bank, N.A.
Barclays Bank PLC
Deustche Bank Trust Company Americans
Royal Bank of Scotland PLC
HSH Nordbank AG, New York Branch
Bank of Scotland PLC

David J. Woll, Esq.
Justin S. Stern, Esq.
Lisa H. Rubin, Esq.
Thomas C. Rice, Esq.
SIMPSON THACHER & BARTLETT LLP
425 Lexington Avenue
New York, NY 10017-3954
Tel: [phone]/Fax: [phone]

JP Morgan Chase Bank, N.A.
Barclays Bank PLC
Deutsche Bank Trust Company Americas

John Blair Hutton III, Esq.
Mark D. Bloom, Esq.
GREENBERG TAURIG
1221 Brickell Avenue
Miami, FL 33131
Tel: [phone]/Fax: [phone]

JP Morgan Chase Bank, N.A.
Barclays Bank PLC
Deutsche Bank Trust Company Americas
The Royal Bank of Scotland PLC

9

Case 1:09-md-02106-ASG Document 194 Entered on FLSD Docket 12/13/2010 Page 10 of 13

MASTER CASE NO .: 09-MD- 02106-CIV-GOLD/Goodman
ATTORNEYS :

REPRESENTING :

Sarah A. Harmon, Esq.
BAILEY KENNEDY
8984 Spanish Ridge Avenue
Las Vegas, NV 89148
Tel: [phone]/Fax: [phone]

JP Morgan Chase Bank, N.A.
Royal Bank of Scotland PLC

David J. Woll, Esq.
Justin S. Stern, Esq.
Lisa H. Rubin, Esq.
SIMPSON THACHER & BARTLETT LLP
425 Lexington Avenue
New York, NY 10017-3954
Tel: [phone]/Fax: [phone]

The Royal Bank of Scotland PLC

Frederick D. Hyman, Esq.
Jason I. Kirschner, Esq.
Jean-Marie L. Atamian, Esq.
MAYER BROWN LLP
1675 Broadway
New York, NY 10019-5820
Tel: [phone]/Fax: [phone]

Sumitomo Mitsui Banking Corporation

Robert Gerald Fracasso, Jr.
SHUTTS & BOWEN
201 S Biscayne Blvd.
Suite 1500 Miami Center
Miami, FL 33131
Tel: [phone]/Fax: [phone]

Sumitomo Mitsui Banking Corporation

Aaron Rubinstein, Esq.
W. Stewart Wallace, Esq.
Steven C. Chin, Esq.
Philip A. Geraci, Esq.
KAYE SCHOLER LLP
425 Park Avenue
New York, NY 10022-3598
Tel: [phone]/Fax: [phone]

HSH Nordbank AG, New York Branch

Aruthur Halsey Rice, Esq.
RICE PUGATCH ROBINSON & SCHILLER
101 NE 3rd Avenue, Suite 1800
Fort Lauderdale, FL 33301
Tel: [phone]/Fax: [phone]

HSH Nordbank AG, New York Branch

10

Case 1:09-md-02106-ASG Document 194 Entered on FLSD Docket 12/13/2010 Page 11 of 13

MASTER CASE NO .: 09-MD- 02106-CIV-GOLD/Goodman
ATTORNEYS :
Gregory S. Grossman, Esq.
ASTIGARRAGA DAVIS MULLINS
GROSSMAN
701 Brickell Avenue, 16th Floor
Miami, FL 33131-2847
Tel: [phone]/ Fax: [phone]

REPRESENTING :
MG Financial Bank, N.A.
&

Laury M. Macauley, Esq.
LEWIS & ROCA LLP
50 W. Liberty Street
Reno, NV 89501
Tel: [phone]/Fax: [phone]

MB Financial Bank, N.A.

Peter J. Roberts, Esq.
SHAW GUSSIS FISHMAN FLANTZ
WOLFSON & TOWBIN LLC
321 N Clark Street, Suite 800
Chicago, IL 606554
Tel: [phone]/Fax: [phone]

MB Financial Bank, N.A.

Thomas C. Rice, Esq.
SIMPSON THACHER & BARTLETT LLP
425 Lexington Avenue
New York, NY 10017-3954
Tel: [phone]/Fax: [phone]

Royal Bank of Scotland PLC

Anthony L. Paccione, Esq.
KATTEN MUCHIN ROSEMAN LLP
575 Madison Avenue
New York, NY 10022-2585
Tel: [phone]/Fax: [phone]

Bank of Scotland
Bank of Scotland PLC

Arthur S. Linker, Esq.
KATTEN MUCHIN ROSEMAN LLP
575 Madison Avenue
New York, NY 10022-2585
Tel: [phone]/Fax: [phone]

Bank of Scotland PLC

Bruce Judson Berman, Esq.
McDERMOTT WILL & EMERY LLP
201 S Biscayne Blvd., Suite 2200
Miami, FL 33131-4336
Tel: [phone]/Fax: [phone]

Camulos Master Fund, L.P.

11

Case 1:09-md-02106-ASG Document 194 Entered on FLSD Docket 12/13/2010 Page 12 of 13

MASTER CASE NO .: 09-MD- 02106-CIV-GOLD/Goodman
ATTORNEYS :

REPRESENTING :

Andrew B. Kratenstein, Esq.
Michasel R. Huttonlocher, Esq.
McDERMOTT WILL & EMERY LLP
340 Madison Avenue
New York, NY 10173-1922
Tel: [phone]/Fax: [phone]

Camulos Master Fund, L.P.

Nicholas J. Santoro, Esq.
SANTORO, DRIGGS, WALCH, KEARNEY,
HOLLEY & THOMPSON
400 S. Fourth Street, 3rd Floor
Las Vegas, NV 89101
Tel: [phone]/Fax: [phone]

Camulos Master Fund, L.P.

David M. Friedman, Esq.
Jed I. Bergman, Esq.
Seth A. Moskowitz, Esq.
KASOWITZ BENSON TORRES
FRIEDMAN
1633 Broadway, 22nd Floor
New York, NY 10019-6799
Tel: [phone]/Fax: [phone]

Fontainebleau Las Vegas, LLC

Jeffrey I. Snyder, Esq.
Scott L. Baena, Esq.
BILZIN SUMBERG BAENA PRICE
AXELROD
200 S. Biscayne Blvd., Suite 2500
Miami, FL 33131-2336
Tel: [phone]/Fax: [phone]

&

Fontainebleau Las Vegas, LLC
&

Harold Defore Moorefield, Jr., Esq.
STERNS WEAVER MILLER WEISSLER
ALHADEFF & SITTERSON
Museum Tower, Suite 2200
150 West Flagler Street
Miami, FL 33130

Bank of Scotland PLC

Kenneth E. Noble, Esq.
KATTEN MUCHIN ROSEMAN LLP
575 Madison Avenue
New York, NY 10022-2585
Tel: [phone]/Fax: [phone]

Bank of Scotland PLC

12

Case 1:09-md-02106-ASG Document 194 Entered on FLSD Docket 12/13/2010 Page 13 of 13

MASTER CASE NO .: 09-MD- 02106-CIV-GOLD/Goodman
ATTORNEYS :

REPRESENTING :

Mark D. Bloom, Esq.
GREENBERG TAURIG
1221 Brickell Avenue
Miami, FL 33131
Tel: [phone]/Fax: [phone]

Bank of Scotland PLC

Thomas C. Rice, Esq.
SIMPSON THACHER & BARTLETT LLP
425 Lexington Avenue
New York, NY 10017-3954
Tel: [phone]/Fax: [phone]

Bank of Scotland PLC

Francis L. Carter, Esq.
Katz, Barron, Squitero, Faust, Grady, English &
Allen, P.A.
2699 S. Bayshore Drive, 7th Floor
Miami, Florida 33133
Phone [phone]
Facsimile 305-285-9227
[e-mail]
[e-mail]

ICAHN NEVADA GAMING
ACQUISTION LLC

13

Case 1:09-md-02106-ASG Document 195 Entered on FLSD Docket 12/17/2010 Page 1 of 59
1

1
2

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION

3

Case No. 09-Civ-MD-02106-ASG

4
IN RE: FONTAINEBLEAU LAS VEGAS CONTRACT LIGITATION
5
6

CASPIAN ALPHA LONG CREDIT FUND, L.P.,
ET AL,

7
Plaintiffs,
8

MIAMI, FLORIDA
OCTOBER 18, 2010

9
10
11
12
13

TRANSCRIPT OF TELEPHONIC HEARING ON MOTION FOR
SANCTIONS FOR FAILURE TO PRODUCE DE (153) & MOTION TO WITHDRAW
AS COUNSEL
BEFORE THE HONORABLE JONATHAN GOODMAN,
UNITED STATES MAGISTRATE JUDGE

14
15

APPEARANCES:

16
FOR THE NON-PARTY:
17
18

WALDMAN TRIGOBOFF HILDEBRANDT, ET AL,
P.A.
2200 N. Commerce Parkway
Suite 202
Weston, Florida 33331
BY: CRAIG J. TRIGOBOFF, ESQ.
BY: SARA SPRINGER, ESQ.

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REPORTED BY:
TELEPHONE:

JERALD M. MEYERS, RPR.
954-431-4757

Case 1:09-md-02106-ASG Document 195 Entered on FLSD Docket 12/17/2010 Page 2 of 59
2

1
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HENNIGAN BENNET & DORMAN, LLP
865 S Figueroa Street
Suite 2900
Los Angeles, CA 90017
BY: KIRK DILLMAN, ESQ.

4
5
6
7
8
9

ALSO PRESENT BY TELEPHONE:

10
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STEVEN NACHWEY, ESQ.
DANIEL CANTOR, ESQ.
STEVEN FITZGERALD, ESQ.
JASON KIRSCHNER, ESQ.
RUSSELL BLAIN, ESQ.

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15
16
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21
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23
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REPORTED BY:

JERALD M. MEYERS, RPR.
J.M. COURT REPORTING, INC.
1601 N.W. 109TH TERRACE
Pembroke Pines, FL 33026-2717
Telephone: [phone]
E-mail Address: [e-mail]

Case 1:09-md-02106-ASG Document 195 Entered on FLSD Docket 12/17/2010 Page 3 of 59
3

1

(Call to order of the Court)

2

THE CLERK:

The U.S. District Court for the Southern

3

District of Florida is now in session; the Honorable Jonathan

4

Goodman presiding.

5
6

We are here for Fontainebleau Las Vegas Contract
Litigation, case number 09-MD-02106-Gold.

7
8
9

THE COURT:
Goodman.

Good morning, folks.

This is Jonathan

How are you?
MR. TRIGOBOFF:

Judge, good morning.

This is Craig

10

Trigoboff along with my associate, Sara Springer.

11

this morning?

12
13
14

THE COURT:

Good.

Good.

Good.

How are you

And who do we have

here for the other side?
MR. TRIGOBOFF:

Well, I think that's the problem,

15

Judge Goodman.

16

last week, call in information, and no one participated.

17

We sent around, consistent with your order of

We waited for about almost ten minutes on that call in

18

line to then transfer to you.

19

California.

20

These folks I think are out in

Sara Springer went and shot an e-mail to these other

21

lawyers to see if they were going to be joining us, and I

22

didn't want Your Honor to be waiting without us checking in

23

with you.

24
25

THE COURT:

All right.

So your understanding is that

your opposing counsel, or at least the ones that have objected

Case 1:09-md-02106-ASG Document 195 Entered on FLSD Docket 12/17/2010 Page 4 of 59
4

1

to your motion to withdraw and the ones who have filed the

2

motion for sanctions are based in California?

3

MR. TRIGOBOFF:

4

THE COURT:

5

All right.

So it is 7:00 clock in the

morning there.

6

MR. TRIGOBOFF:

7

THE COURT:

8

I believe so.

Yes.

But be that as it may, they haven't

responded to your e-mail and haven't asked to reschedule this.

9

All right.

Well, we obviously cannot go forward

10

without the other side here.

11

suggest:

12

So here is what I am going to

We are going to try to reschedule this for later

13

today.

What is your availability or Ms. Springer's

14

availability or both of your availability later on today, maybe

15

like around 2:00 o'clock?

16
17

MR. TRIGOBOFF:
Goodman.

18

I am available all day today, Judge

You let us know when it works for you.
THE COURT:

19

going to do:

20

All right.

Well, here is what we are

p.m.

21
22
23

We are going to temporarily set this for 2:00

MR. TRIGOBOFF:
mean to interrupt.

Judge Goodman, I am sorry.

I don't

Apparently these other lawyers are on hold.

I am going to try to do the conference call, and I

24

will call you back.

25

that acceptable?

I guess there is a delay on that end.

Is

Case 1:09-md-02106-ASG Document 195 Entered on FLSD Docket 12/17/2010 Page 5 of 59
5

1

THE COURT:

2

MR. TRIGOBOFF:

3

moment or two.

4

Sure.
All right.

Why don't you give us a

permission.

5

Oh.

We are going to disconnect, with your

They are going to call in.

6

apparently they are going to call in.

7

Okay.

Well,

connect all of us?

8
9
10

THE COURT:

Will you be able to

I don't know.

I have two people in the

courtroom shaking their heads, no.

So I am going to assume,

no.

11

I think there has to be some fundamental coordination.

12

I think once the call starts, I don't know if anybody can join

13

separately.

14

MR. TRIGOBOFF:

All right.

Here is what I am going to

15

do:

16

with your permission, I will disconnect and we will all try to

17

get back on the phone with you momentarily.

18
19
20
21

I am going to start that conference call process anew, and

THE COURT:

Sure.

I will have some coffee in the

meantime.
MR. TRIGOBOFF:
Judge Goodman.

That will be a great idea.

Thank you,

We will be back in touch with you momentarily.

22

THE COURT:

23

MR. TRIGOBOFF:

24

THE CLERK:

25

Is that okay?

All right.
Thank you.

This court is in recess.

[There was a short recess].

Case 1:09-md-02106-ASG Document 195 Entered on FLSD Docket 12/17/2010 Page 6 of 59
6

1

THE CLERK:

2

MR. TRIGOBOFF:

3

Trigoboff.

4

hearing.

5
6

Good morning.

Judge Goodman's chambers.

Good morning.

This is Craig

We are all calling in now on that Fontainebleau

We have got all of the lawyers on the line.
THE CLERK:

Okay.

Perfect.

I am going to just recall

the case again.

7

THE COURT:

Michael, is the digital recorder on?

8

THE CLERK:

Yes, sir.

9

THE COURT:

All right.

10

THE CLERK:

The U.S. District Court for the Southern

Okay.

11

District of Florida is now in session, the Honorable Jonathan

12

Goodman is presiding.

13
14
15

We are here for Fontainebleau Las Vegas Contract
Litigation, case number 09-MD-02106-Gold.
THE COURT:

All right, folks.

Good morning.

16

we have Craig Trigoboff and Sara Springer on the line.

17

I know

we have for the other side?

18
19

MR. DILLMAN:

THE COURT:

21

MR. DILLMAN:

23
24
25

Your Honor, this is Kirk Dillman for the

Nevada Term Lenders.

20

22

Who do

All right.

Anybody else, Mr. Dillman?

Yes, Your Honor.

They can make their

own appearances.
MR. NACHWEY:

Steve Nachwey for the Aurlius

plaintiffs.
MR. CANTOR:

Dan Cantor of Almaldy & Meyers for Bank

Case 1:09-md-02106-ASG Document 195 Entered on FLSD Docket 12/17/2010 Page 7 of 59
7

1

of America.

2
3

MR. FITZGERALD:

Deutsche Bank, J.P. Morgan and RBS.

4
5

Steve Fitzgerald for Barclays

MR. KIRSCHNER:

Jason Kirschner of Mayor Brown for

defendant Timatomo Mitsui Banking Corporation.

6

THE COURT:

All right.

7

MR. BLAIN:

Good morning, Your Honor.

This is Russ

8

Blain appearing on behalf of Sunik Capela who is the Chapter

9

VII trustee for Fontainebleau Las Vegas and other entities.

10

MR. DILLMAN:

Your Honor, this is Kirk Dillman.

11

think that may be it based upon the roll call that we did

12

I

earlier.

13
14

THE COURT:

All right.

Well, good morning to all of

you.

15

Folks, I realize as we first tried to get this hearing

16

started maybe about 15 or 20 minutes ago that when we scheduled

17

this hearing for 10:00 o'clock our time, I didn't really focus

18

on the fact that some of the counsel are West Coast lawyers

19

and, therefore, it is 7:00 a.m. your time, and that is,

20

candidly, a little early to get started for a hearing in the

21

absence of an emergency.

22

So my suggestion is if I make a similar oversight in

23

the future, just give a call to chambers and say, "Did you

24

realize that it is 7:00 a.m. here on the West Coast," and we

25

would say, "No, we didn't realize that you all were

Case 1:09-md-02106-ASG Document 195 Entered on FLSD Docket 12/17/2010 Page 8 of 59
8

1

participating or we would have scheduled it for a more normal

2

time, but, anyway, thank you for participating this early in

3

the morning for all of you West Coast lawyers.

4
5

MR. DILLMAN:
sunrise.

It is a beautiful sunset, Your Honor, or

Excuse me.

6

THE COURT:

7

Before we get into talking about some of the issues, I

8

Well, okay.

I understand.

All right.

would like for somebody to bring me up factually.

9

What is the status on the production of, number 1, the

10

80 boxes of documents and, number 2, the electronically stored

11

information?

12
13

MR. TRIGOBOFF:

Your Honor, this is Craig Trigoboff.

May I do that?

14

THE COURT:

Yes, sir.

15

MR. TRIGOBOFF:

All right.

And I will defer, if I

16

have to, to my associate Ms. Springer who has been in the

17

trenches, as you may know, and I think these other lawyers know

18

over the last number of months working arduously to get this

19

done, but let me at least give you a snapshot of where we are

20

now, at least in connection with the production.

21

This goes back, I know you know now many months, and

22

it was an order that was entered, I guess it was this past

23

summer.

24

granted a motion to compel requiring production of these

25

materials, and the production was to take place by September

Maybe it was late August or early September where you

Case 1:09-md-02106-ASG Document 195 Entered on FLSD Docket 12/17/2010 Page 9 of 59
9

1

13th, and you gave an extra week until September 20th to

2

produce a privilege log.

3

I must tell you that even before that order was

4

entered, we were working again arduously to get materials

5

copied and brought here to South Florida.

6

Let me start with the hard copy materials because

7

there is two tranches, if you will, of data here.

8

hard copy data, and I know you know this, and we have got

9

electronically stored data.

10

You have got

Beginning with the hard copy data, these were 80

11

boxes, 80 boxes, and they were stored out in Las Vegas where

12

this project had been commenced, and we brought them here, and

13

it took some time to get organized and get everything squared

14

away, but we caused those boxes to be brought here to Aventura

15

in North Miami, and we then spent, Ms. Springer did,

16

principally with another employee of Fontainebleau who had to

17

be hired just for this specific project, because I must tell

18

you the Fontainebleau has no employees.

19

None.

There is a couple or three provisional directors that

20

sort of oversee what is going on here, but this is not a

21

company that has employees running around that are available to

22

do these types of tasks.

23

So what Ms. Springer did with this other individual

24

that was hired for this specific task, all of these boxes are

25

brought in, and for a full week she and this other individual,

Case 1:09-md-02106-ASG Document 195 Entered on FLSD Docket 12/17/2010 Page 10 of 59
10

1

and I do not mean to overstate this, but it is the truth.

2

They worked like dogs hour after hour after hour going

3

through these materials to make sure that not only they

4

complied with the court's order, but also to try and redact

5

privileged information, all the while, while this was all going

6

on, and counsel knew all about this, they were also working

7

together, counsel were on, claw back type agreements, such that

8

if we were to start giving this information up quickly, in huge

9

fashion, we would have the ability to at least get back that

10

privileged information if it was erroneously produced, but

11

certainly unintentionally produced.

12

And what happens now, Judge Goodman, just so that you

13

know, is that all of these boxes have been made available, and

14

this is critical -- they have all been made available to

15

counsel.

16

In fact, from what I understand, just last Thursday,

17

last week these lawyers were out there, and they had access to

18

these materials.

19

THE COURT:

Sir, by "out there," do you mean Aventura?

20

MS. SPRINGER:

21

MR. TRIGOBOFF:

Yes, Your Honor.
Yes, Your Honor.

These materials were

22

made available to them, all of these boxes in Aventura just

23

this past Thursday.

24

I also believe that an inventory was also produced to

25

these lawyers to assist them in going through these materials.

Case 1:09-md-02106-ASG Document 195 Entered on FLSD Docket 12/17/2010 Page 11 of 59
11

1

And, from what I understand, arrangements have been made or are

2

being made for copies to now be given to these lawyers.

3

So with respect to the hard copy documents, that

4

tranche of materials, we have complied in good faith in the

5

letter and spirit of your order we worked, it was a herculean

6

effort, but we got it done.

7

And, again, I must tell you we are a non-party with no

8

employees.

9

motion to withdraw because there is no money to even fund this

10

And, as Your Honor knows, we do have a pending

effort, in any event.

11

THE COURT:

12

follow-up question.

13

you say that these 08 boxes of documents were made available

14

last Thursday in Aventura.

15

I understand.

Let me just ask a brief

I don't mean to interrupt you, but I heard

So my follow-up question is has anybody taken you up

16

on that these are available offer?

17

shown up to review these materials?

18

MR. DILLMAN:

19

MS. SPRINGER:

20

MR. DILLMAN:

21
22
23
24
25

In other words, has anybody

Your Honor, this is Kirk Dillman.
Yes.
Your Honor.

This s Kirk Dillman.

I can

answer that.
MR. TRIGOBOFF:

Excuse me.

How about if we answer

that, since it was directed to me?
THE COURT:

Well, folks, it is tough to keep order

with so many folks on the phone, especially when there is like

Case 1:09-md-02106-ASG Document 195 Entered on FLSD Docket 12/17/2010 Page 12 of 59
12

1
2

a half second delay.
So right now I am just speaking to Mr. Trigoboff and

3

Ms. Springer, and then I will give Mr. Dillman and any other

4

lawyer for the lenders or for lender related counsel the

5

opportunity to speak.

6
7
8
9
10
11

So, please, continue, sir.

MR. TRIGOBOFF:
Ms. Springer?

Thank you.

May I defer to

She has the answer to this.

MS. SPRINGER:

Yes, Your Honor.

Kirk Dillman's

associate Robert Mokler came down to Miami last week to review
the documents.

He is the only attorney that has reviewed them.

THE COURT:

All right.

Did you folks have anything

12

further to tell me factually about the status of these 80 boxes

13

of documents before telling me the status of the electronically

14

stored information?

15
16
17

MR. TRIGOBOFF:
our standpoint.

No, sir.

I think that sums it up from

Thank you.

THE COURT:

All right.

Well, before we shift to the

18

next subject, which is electronically stored information,

19

Mr. Dillman, do you or any of the other lawyers on the line

20

have any factual clarification to provide concerning these 80

21

boxes of documents in Aventura?

22

MR. DILLMAN:

Your Honor, this is Kirk Dillman.

I

23

apologize for interrupting you just a moment ago.

I thought

24

you were directing the question to those who had come out to

25

review them.

Case 1:09-md-02106-ASG Document 195 Entered on FLSD Docket 12/17/2010 Page 13 of 59
13

1

No.

As soon as we were told that they were available,

2

and we were not provided access until last week, despite

3

repeated requests, as soon as we heard that they were available

4

we sent somebody out, and of the 80 boxes that were there, I

5

think somewhere in the neighborhood of 3 or 4 were deemed

6

worthy of copying, and those are being copied now.

7

So with respect to the hard copy documents, why they

8

were not produced, you know, 5, 6 months ago when we asked for

9

them, we don't know, but they have now been produced.

10

And as far as the term lenders go, we have no,

11

assuming that those are all of the hard copy documents, we

12

believe that that has been done or resolved.

13

THE COURT:

All right.

Let's move to the

14

electronically stored information.

15

Ms. Springer, what is happening there?

16

MR. DILLMAN:

Mr. Trigoboff or

Your Honor, it sounded like somebody

17

beeped off and that may have been Mr. Trigoboff and

18

Ms. Springer inadvertently.

19

THE COURT:

Well, since I haven't heard any response

20

from either Ms. Springer for Mr. Trigoboff, I am going to

21

assume that your prediction is correct.

22

So let me ask my staff here, from a technical

23

perspective, do we need to terminate this call and start again,

24

or are they going to be able to phone in?

25

THE CLERK:

No.

They will have to terminate and call

Case 1:09-md-02106-ASG Document 195 Entered on FLSD Docket 12/17/2010 Page 14 of 59
14

1

back in.

2
3

THE COURT:

Are you absolutely certain because I heard

that AT&T operator or some operator.

4

MR. TRIGOBOFF:

5

THE COURT:

6

MR. TRIGOBOFF:

Excuse me.

Judge Goodman?

Yes.
I am sorry.

We were disconnected from

7

our conference call, and I missed counsel's presentation in its

8

entirety.

9

I am terribly sorry.

THE COURT:

Sure.

Well, what Mr. Dillman said, and I

10

am going to give you the Reader's Digest version, it was not

11

particularly long, but other than a brief reference to the

12

historical difficulties in getting these documents available,

13

Mr. Dillman advised me that as soon as he learned that the

14

documents were being made available, they immediately sent

15

somebody there.

16

They did review the documents, and out of the 80

17

boxes, about 3 or 4 of them were deemed worthy of copying, and

18

that is going on.

19

setting aside the issue of why it took so long to get these

20

documents produced, his understanding is that they have been

21

produced and the documents that they want copied are, in fact,

22

being copied.

23

And so as far as the lenders are concerned,

So you didn't miss all that much.

MR. DILLMAN:

Your Honor, if I might, this is Kirk

24

Dillman.

I do want to clarify that I was speaking only on

25

behalf of the term lenders.

Case 1:09-md-02106-ASG Document 195 Entered on FLSD Docket 12/17/2010 Page 15 of 59
15

1

There are the revolvers who are here represented in

2

part by Mr. Fitzgerald and in part by Mr. Cantor.

3

have a different perspective.

4

They may

I know they have not yet gone out to review the

5

documents.

6

well as the term lenders who I do represent.

7

So I don't want the lenders to be covering them as

THE COURT:

Understood.

Do the revolving lenders have

8

any factual clarification to provide on this issue concerning

9

the 80 boxes?

10

MR. CANTOR:

Your Honor, on behalf of Bank of America,

11

this is Dan Cantor.

12

boxes ourselves, but we have not done so yet.

13

No.

We intend to go out and review the

We are also technically on a different time frame

14

since our subpoena was served on FBR later than the term

15

lenders was.

16

MR. FITZGERALD:

And this is Steve Fitzgerald on

17

behalf of Barclays, Deutsche Bank J.P. Morgan and RBS, and we

18

also intend to coordinate with the other lenders and come up

19

with a way to know what documents are relevant.

20

THE COURT:

Does anybody else have a factual

21

clarification concerning other lenders on the 80 boxes of

22

documents?

23
24
25

All right.

Hearing none, let's move on to the

electronically stored information.
What is happening there, Mr. Trigoboff?

Case 1:09-md-02106-ASG Document 195 Entered on FLSD Docket 12/17/2010 Page 16 of 59
16

1

MR. TRIGOBOFF:

Thank you, Judge Goodman.

2

The electronic data, as you may know from prior

3

hearings and papers you have seen, this is data that is stored

4

on three discreet and distinct servers.

5
6
7

Now, these were also out in Las Vegas, too.

These had

been copied at our expense and brought here.
The three servers are identified for all of our

8

purposes as follows:

9

e-mail server and there is an accounting server.

10

There is a document server.

There is an

As you probably can imagine, given the size of this

11

project, a one billion dollar project, we are talking about an

12

immense amount of data that is being stored, if you will, in

13

these three buckets of servers.

14

A huge flow of electronic data, but here is what we

15

have done, just so that you know I guess historically what has

16

happened here.

17
18

Again, we copied these servers, and they have been
brought here.

19

Concerning the e-mail server, I will start with that

20

one first, my understanding, and I will defer to Ms. Springer

21

and to counsel, but my understanding, based on my review of

22

this, is that we were working cooperatively with the

23

plaintiff's counsel concerning the e-mail server, and by that I

24

mean we asked them, again, because of the voluminous amount of

25

data, we asked them, "Hey, listen, give us search terms or

Case 1:09-md-02106-ASG Document 195 Entered on FLSD Docket 12/17/2010 Page 17 of 59
17

1

inquiries that we can plug in.

2

would help us narrow the search field."

3

Give us some dates and that

And I must tell you that we can get that done once

4

they worked with us on that, and I thank counsel for doing that

5

is we then have hired an independent IT company, Icon, a local

6

company.

7

We spent about $25,000 right there trying to and, you

8

know, extracting this specific data.

9

has been paid for.

10
11
12

That job is done, and it

The issue as is we haven't turned back data over as
yet because of again our ongoing efforts to secure privilege.
Again, this is really a monumental task of going

13

through page by page hundreds of thousands of pieces of paper,

14

when again, it Ms. Springer or me, and perhaps one separately

15

paid employee that has to do this.

16

Again, I can't put that into words what we are dealing

17

with here, but be that as it may, that effort at least has been

18

done with the e-mail server.

19

THE COURT:

Now, let me say

--

Well, sir, wait, wait, wait.

When you

20

say, "that effort has been done," do I take it that the

21

privilege review for the entire e-mail server has been

22

completed?

23

MR. TRIGOBOFF:

No, it has not.

24

THE COURT:

25

"that effort has been done?"

Okay.

So what did you mean when you say

Case 1:09-md-02106-ASG Document 195 Entered on FLSD Docket 12/17/2010 Page 18 of 59
18

1
2

MR. TRIGOBOFF:

Well, the effort has been done in that

we worked cooperatively with plaintiff's counsel.

3

We agreed on certain search terms, inquiries and

4

things of that nature.

5

worked with Icon, again the IT company.

6

We then narrowed down the scope.

We

We spent $25,000, and we have got this dossier, if you

7

will, of information that would be responsive to the

8

plaintiff's request.

9

The concern is, Judge Goodman, again, we simply have

10

not had the time or the resources to now literally go page by

11

page.

12

We tried.

We started that process, but to go page by

13

page to try and protect and insure the sanctity of privilege,

14

that's our problem, sir.

15

THE COURT:

Okay.

Wait.

Wait.

Wait.

If I remember

16

correctly, the privilege issue is not necessarily your client's

17

privilege.

18

other parties?

It is privilege that you think might be held by

19

MR. TRIGOBOFF:

20

THE COURT:

No, sir.

It is our privilege as well.

Also what you are saying is every

21

potentially privileged document or information in the e-mail

22

server would also simultaneously be a privilege held by your

23

client?

24
25

MR. TRIGOBOFF:

No.

What I am suggesting, Judge

Goodman, is that the documents that we are most concerned about

Case 1:09-md-02106-ASG Document 195 Entered on FLSD Docket 12/17/2010 Page 19 of 59
19

1

and that we are focusing our attention on for purposes of

2

protection of privilege are those documents pertaining to

3

Fontainebleau, my client.

4

THE COURT:

Well if I remember correctly from the last

5

hearing, and maybe I should address my question to

6

Ms. Springer, I seem to recall that this particular employee --

7

I don't have his name at the forefront of my memory right now,

8

but it is in my old notes, but we identified this particular

9

person, Ms. Springer, at the hearing, and my understanding was

10

that this employee was going to be reviewing the e-mail on the

11

server for privilege, and basically it didn't sound like it was

12

going to be an overly arduous task because I had asked some

13

specific questions about what was at issue, and it sounded like

14

there was some fairly streamlined methodology which could be

15

used in order to get this process done.

16

Is my memory mistaken?

17

MS. SPRINGER:

Your Honor, this is Sara Springer.

18

When we hired Icon, the IT company to do the search terms that

19

we agreed upon, we pulled back a large number of e-mails, and

20

at that point I got the full picture of the e-mails that we

21

would have to search through for privilege purposes, and it is

22

a very large number.

23

Eric Salinger is the former SBR attorney or employee

24

who was helping with the privilege review of the hard copy

25

documents.

Case 1:09-md-02106-ASG Document 195 Entered on FLSD Docket 12/17/2010 Page 20 of 59
20

1

He was going to be there to assist with the electronic

2

discovery, but we just didn't get there in time before we filed

3

our motion to withdraw.

4

THE COURT:

All right.

So this fellow whose name you

5

just mentioned to me, that name was mentioned at our last

6

hearing?

7

MS. SPRINGER:

8

THE COURT:

9

Yes, Your Honor.

And this was the fellow who was supposed

to be reviewing the e-mail on servers for privilege?

10

MS. SPRINGER:

He was supposed to be reviewing the

11

hard copy documents as well helping me go through those 80

12

boxes.

13

THE COURT:

Yes.

Right.

Right.

Right.

I know, but

14

we are beyond the 80 boxes now, and I am focused only on the

15

electronically stored information.

16

So wasn't this fellow supposed to be going through the

17

electronically stored information in order to remove

18

potentially privileged information?

19
20
21

Wasn't that one of his tasks that we discussed at the
last hearing?
MS. SPRINGER:

I believe it is better to characterize

22

it that he would be helping Icon, the IT company, figure out

23

what terms he used to pull out privileged documents.

24

You know, I don't recall the exact number of e-mails

25

that came back after we did the search terms, but to have one

Case 1:09-md-02106-ASG Document 195 Entered on FLSD Docket 12/17/2010 Page 21 of 59
21

1

individual go through page by page, you know, 20, 30, 40,000

2

e-mails, it just wouldn't work in the time line we were working

3

under.

4
5
6

So, yes, he was going to assist, but it would not have
worked for him to be the only person going page by page.
THE COURT:

So has he, in fact, provided the

7

anticipated assistance of coming up with search terminology so

8

that Icon could put into effect whatever computer methodology

9

was necessary in order to pinpoint the potentially privileged

10
11

information?
MS. SPRINGER:

He started to.

However, there was more

12

than a billion dollar judgment entered against Fontainebleau in

13

New York.

14

When that happened, all effort on our part ceased

15

because we knew that Fontainebleau would not be able to pay our

16

bills, or that there was a very good chance the Fontainebleau

17

would not be able to pay our bills, and to fund the kind of

18

money we are talking about to do a privilege search could be

19

you, know, tens and tens of thousands of dollars.

20

MR. TRIGOBOFF:

Unfortunately, Judge Goodman, and

21

again this Craig Trigoboff.

22

New York with the concomitant injunction that their procedure

23

provides, in essence, shut Fontainebleau down.

24
25

Unfortunately, that judgment in

As a matter of court order, they couldn't spend any
more money.

They couldn't do anything with their assets.

Not

Case 1:09-md-02106-ASG Document 195 Entered on FLSD Docket 12/17/2010 Page 22 of 59
22

1

only could they not pay us, but they could not pay third-party

2

vendors such as Icon, either.

3

That is what prompted, in essence, this screech or a

4

halt, if you will, that we would not be in violation or

5

contempt or my client wouldn't be in contempt of court orders

6

in New York, given the one billion dollar judgment that was

7

entered into.

8
9

Of course, not only, you know, obviously we are
concerned about not being compensated for our efforts, but now

10

there are third-party vendors that are out there spending

11

countless hours, tens of thousands dollars of dollars, and they

12

may not get paid.

13
14
15

So, unfortunately, that was a wrench that got thrown
into this as well, clearly.
THE COURT:

Well, I think I know the answer to this

16

question because I have access to the court's electronic

17

docket, but in case there was a glitch, let me ask you this

18

question:

19

Did you or Ms. Springer or anybody else on your behalf

20

or your client's behalf file a motion with the court, such as

21

you know, "Motion to be excused from complying with the order,

22

motion for extension of time, a motion to advise the court of

23

the judgment and the restraining order, motion of inability to

24

comply with order?"

25

getting at here.

I think you understand the point that I am

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23

1

MR. TRIGOBOFF:

2

THE COURT:

3

MR. TRIGOBOFF:

We do.

So did you all file anything like that?
No.

The short and sweet answer is,

4

no, we did not, Judge Goodman, and the reason we didn't, and

5

maybe the better practice, the better practice would have been

6

to file such a motion, but everyone that is on the phone here,

7

although excluding you at the moment, but all of the lawyers

8

certainly were aware of what was going on in New York, and its

9

monumental impact on all of the litigation that Fontainebleau

10
11

was fighting.
So, yes, should a motion have been filed?

Perhaps in

12

addition to the motion to withdraw, speaking summarily from the

13

court, putting at least you on notice of what was going on and

14

the trouble that we were facing, the answer is, yes.

15

I don't know why that was not done, but, again, you

16

asked a pointed question, and we did not file such a motion,

17

but, again, everybody, all of the lawyers on this phone call

18

absolutely knew of the impact of that order that came out of

19

New York.

20

THE COURT:

All right.

Well, we will get to their

21

reaction to what they knew in a minute, but let me just get a

22

better handle on the status.

23

I take it from what you say that concerning the

24

e-mails on the e-mail server, none of that information has been

25

produced yet.

Am I correct?

Case 1:09-md-02106-ASG Document 195 Entered on FLSD Docket 12/17/2010 Page 24 of 59
24

1

MR. TRIGOBOFF:

2

THE COURT:

That is correct.

Okay.

And, secondly, the effort to review

3

the data on the e-mail server with the search terminology in

4

order to pinpoint potentially privileged information, that

5

process as you say has ground to a halt as a result of this

6

judgment and related restraining order?

7

MR. TRIGOBOFF:

8

THE COURT:

9
10

Yes, sir.

And so as we sit here today on Monday,

October 18th, nothing is really moving forward on the effort to
produce ESI, electronically stored information?

11

MR. TRIGOBOFF:

Well, you know, I must try to disabuse

12

you, Judge Goodman, of a concern you may have here that nothing

13

was done because again --

14
15

THE COURT:

No, no, no.

No, sir.

I am not saying

that nothing had been done in the past.

16

I understand that this employee had done certain

17

things.

I understand that there were discussions with counsel

18

to try to come up with an acceptable search terminology.

19

I am aware of all of that, sir.

20

My question is as we sit here today what, if anything,

21

is moving forward?

22

because everything has been stopped, tell me that.

23

If the answer is nothing is happening

If actually something is happening, like somebody from

24

Icon is implementing a search methodology, tell me that.

25

is going on today?

What

Case 1:09-md-02106-ASG Document 195 Entered on FLSD Docket 12/17/2010 Page 25 of 59
25

1
2
3

MR. TRIGOBOFF:

Then I will answer your question

straight up and straightaway, Judge Goodman.
With respect to the effort to produce data or

4

documents off of the servers, there is nothing presently

5

happening on that front.

6

THE COURT:

Okay.

And although we have been speaking

7

about only one of the three servers, namely the e-mail server,

8

what you are telling me, as a matter of fact, nothing is being

9

don't on the other two servers as well; the document server and

10
11

the accounting server?
MR. TRIGOBOFF:

That is true as well, but I must tell

12

you that the plan that we had hoped to implement here with

13

respect to the servers was to be identical with respect to the

14

document server which, by the way, has over a half million

15

files on it.

16

What we were going to do was just as we had worked

17

cooperatively with plaintiff's lawyers to again give us search

18

terms and inquiries, et cetera, we were going to undertake that

19

same effort with respect to the document server, and then with

20

respect to the accounting server.

21
22
23

That was our good faith intention and plan.
Unfortunately, we just did not get there.
THE COURT:

All right.

And when you say that you were

24

working with counsel in order to generate a list of acceptable

25

search terms, who primarily was your contact point on the other

Case 1:09-md-02106-ASG Document 195 Entered on FLSD Docket 12/17/2010 Page 26 of 59
26

1

side?

Was that Mr. Dillman?

2

MR. TRIGOBOFF:

Yes.

That would have been my

3

understanding, that Ms. Springer and Mr. Dillman were working

4

on those issues.

5

THE COURT:

Okay.

And when did you all reach an

6

agreement as to an acceptable search terminology, whether we

7

are talking about only the information on the e-mail server or

8

for all three servers, but either way what date can we pinpoint

9

as to the time when there was an agreement as to acceptable

10

search terminology?

11

MS. SPRINGER:

Your Honor, this is Sara Springer.

12

don't recall the exact date.

13

I

was somewhere a week after you entered your order.

14
15

If I had to guess I would say it

Mr. Dillman was very, you know, helpful.

He had a

list that he had used in the past.

16

I got in touch with Bank of America and some of the

17

other parties' counsel to see if they would consent to the

18

search terms so that many of these terms could be used globally

19

from their subpoenas in this matter, and they did agree.

20

I would say it was about a week after your order was

21

entered when you asked for me to clarify, but Your Honor should

22

know that those search terms were to be used only for the

23

e-mails.

24

will, for the document search.

25

We had not come up with a plan of attack, if you

THE COURT:

All right.

And so in addition to finally

Case 1:09-md-02106-ASG Document 195 Entered on FLSD Docket 12/17/2010 Page 27 of 59
27

1

reaching an agreement concerning the search terms, did Icon

2

actually start the process of using those search terms to

3

search the e-mail server, or has that not yet started?

4

MS. SPRINGER:

Yes, Your Honor.

The e-mail server as

5

well as the other servers are at Icon to those experts, and

6

they used those search terms to search the entire e-mail server

7

for the $25,000.

8
9

We do have a duplicate server that contains only the
results of that search.

The issue that the other server has

10

not been searched for privilege, but, yes, Icon was retained

11

and was paid $25,000 and did use the search terms.

12

THE COURT:

Ms. Springer, I don't know whether you are

13

on the same phone with your colleague there or whether you are

14

phoning in from a separate phone or whether you are on a

15

separate speaker, but you are, at least from my perspective,

16

kind of cutting in and out, and I am having a great deal of

17

difficulty hearing all of what you are saying.

18

Are you in the same room together?

19

MR. TRIGOBOFF:

20
21
22
23

She is, Your Honor.

I am sorry.

We

are kind of huddled over the same speaker phone.
If I may, let me just sum up, if you can hear me
better what Ms. Springer just said.
To answer your question, yes, Icon was not only

24

engaged to deal with the e-mail server, they were given all of

25

the agreed upon search terms.

Case 1:09-md-02106-ASG Document 195 Entered on FLSD Docket 12/17/2010 Page 28 of 59
28

1

They were given the server.

They were paid $25,000,

2

and they created a new copy, if you will, of a server that

3

contained the data that plaintiffs are seeking.

4
5
6

THE COURT:

In other words, so basically

non-privileged e-mails on a separate server?
MR. TRIGOBOFF:

Actually, it is all e-mails.

That is

7

the problem.

8

through that new disk or that new server, if you will, and pull

9

out what we believe might be privileged.

10
11
12

We have not yet had the opportunity to now go

THE COURT:

All right.

Wait.

Wait.

Wait.

Let me

just make sure that I understand this.
Icon was paid $25,000.

In exchange for that $25,000,

13

they have pulled out responsive e-mails and have put them on a

14

separate server.

Do I have that right?

15

MR. TRIGOBOFF:

16

THE COURT:

Yes, sir.

Okay.

So we have a separate server, and

17

on that server are, let's just use a technical term, "a bunch

18

of e-mails," but that server with all of those e-mails need to

19

be reviewed for privilege using the search terms, but that

20

process, searching the separate server with e-mails, that has

21

not yet been started; is that correct?

22

MR. TRIGOBOFF:

23

THE COURT:

That is correct, sir.

All right.

And what you are saying to me

24

is, "we were going to do that, but then financial reality hit

25

and those efforts and all efforts have stopped?"

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29

1

MR. TRIGOBOFF:

2

THE COURT:

3

Yes, sir.

Okay.

Mr. Dillman, do you have anything

to add to this factual scenario concerning the e-mail server?

4

MR. DILLMAN:

I have two discreet points.

5

One, we were told by Ms. Springer, after Icon did

6

their search, that the universe of responsive e-mails, which

7

would include privileged e-mails, was 16,000.

8
9

I heard hundreds of thousands of pages a moment ago.
That is not the information that we were provided.

10

16,000 e-mails, while nothing is in this courthouse,

11

not even a bunch, that's not a lot of e-mails.

12

easily searched through electronic terms by using the names of

13

the attorneys who worked for Fontainebleau and put in search

14

terms like "attorney-client privilege."

15

It is easily,

Those kind of things.

They will extract, in very short order, the subset of

16

potentially privileged documents, and it is only that subset

17

that typically people search as opposed to going through every

18

document and looking at every page, but even if one were to

19

look at every page of 16,000 e-mails, that's not a herculean

20

task.

21
22
23

Now, let me move to my second clarification or my
second point here -THE COURT:

Mr. Dillman, just speak up a little

24

louder, if you don't mind, sir.

25

MR. DILLMAN:

I am sorry.

I have got you on headset

Case 1:09-md-02106-ASG Document 195 Entered on FLSD Docket 12/17/2010 Page 30 of 59
30

1

to avoid the speaker problem, and apparently my headset is not

2

working right.

3

THE COURT:

4

speak a tad louder.

5

No, no.

It is fine.

If you would just a

I think your last comment was good.

MR. DILLMAN:

Your Honor, my second point is that

6

while none of us on this phone, from the various lenders

7

perspective, and there are both plaintiffs and defendants, by

8

the way.

9

lenders are plaintiffs here and the revolving lenders are

We have been sort of grouped as plaintiffs, term

10

defendants, and we interestingly find ourselves on the same

11

side of this particular issue, but none of us on this phone is

12

interested in having brother and sister counsel do work where

13

they are not getting paid.

14

You know, there but for the grace of God.

On the

15

other hand, when I hear the rational or the supporting facts

16

for why counsel is concerned that they are not going to get

17

paid, I must take a little issue here.

18

of issue.

19

No.

I must take a lot

The T.R.O. that was the source of the original concern

20

by Ms. Springer was addressed shortly after they filed their

21

motion to withdraw, and I advised Ms. Springer, as I pointed

22

out on in my papers, that we had information that that T.R.O.

23

was going to be dissolved.

24
25

It was, in fact, dissolved a matter of days after they
filed their motion, and I asked, "Have we now gotten over this

Case 1:09-md-02106-ASG Document 195 Entered on FLSD Docket 12/17/2010 Page 31 of 59
31

1

hump?"

2

motion to withdraw."

3

The answer was, "No.

We are going forward with our

There was no and has not yet been any explanation, any

4

evidence that says what the financial condition of the

5

Fontainebleau is.

6

quite as a pauper as it has been represented, but one way or

7

the other, the judgment that we keep hearing about, that case

8

has been settled.

9

We have reason to believe that it is not

So whatever the original reason for bringing this

10

motion, and whatever the reason for opposing the motion for

11

sanctions based upon that, the New York court's judgment, that

12

has dissolved.

13
14
15

That has gone away.

So with those two points, Your Honor, I don't have any
further clarification.
THE COURT:

All right.

Do any of the other lenders

16

counsel have any additional factual background to provide on

17

this specific issue?

18

MR. FITZGERALD:

19

THE COURT:

20

MR. FITZGERALD:

21
22

I have one point, Judge.

And "I" is who?
This is Steve Fitzgerald for

Barclays, Deutsche Bank, J.P. Morgan and RBS.
One minor point.

I can fix a date that search terms

23

were agreed to.

That was September 14th, but I do want to

24

clarify because I think there is the impression that there has

25

been a long negotiation on that subject.

Case 1:09-md-02106-ASG Document 195 Entered on FLSD Docket 12/17/2010 Page 32 of 59
32

1

In June I asked counsel for Fontainebleau Resorts to

2

discuss search terms or other means for streamlining production

3

issues, and I was not given that opportunity, and I advised

4

them that there was a list that the parties had agreed to so it

5

would be pretty easy to get to a final list, and I just wanted

6

to flag that issue for you.

7
8
9

THE COURT:

All right.

Fair enough.

Well, let's get

back to the nuts and bolts of production.
First, concerning the information on the e-mail

10

server, Ms. Springer, how long do you anticipate it will take

11

for Icon to implement the search methodology concerning these

12

16,000 e-mails of which I don't mind telling you, as

13

Mr. Dillman noted in the scheme of things is not an

14

unreasonably large amount of e-mails to be searched by a

15

company that specializes in electronic discovery.

16

So how long, assuming that the process resumes and

17

that the monkey wrench is somehow removed, how long is it going

18

to take to complete that privilege review?

19
20

MR. TRIGOBOFF:

May I answer that, Judge Goodman?

This is Craig Trigoboff.

21

THE COURT:

Sure.

22

MR. TRIGOBOFF:

Thank you.

The short answer is we

23

don't know because we have not looked into this, but if that is

24

where the court wants to go, then whatever cost and expense

25

going forward associated with that, respectfully, must be borne

Case 1:09-md-02106-ASG Document 195 Entered on FLSD Docket 12/17/2010 Page 33 of 59
33

1

by the requesting parties.

2
3

I think that is more than appropriate, given what we
are dealing with here.

4

So, to answer your question, we don't know how long.

5

We can inquire and report back to the court promptly, but if

6

there is going to be effort and cost to be borne there, then

7

the requesting parties are going to have to bear that freight.

8
9

THE COURT:

All right.

Well, I am going to actually

ask my next question to Ms. Springer because I think by your

10

own terms, sir, she was a little bit more in the trenches than

11

you.

12

So I am going to ask somebody who was in the trenches.

13

So do I understand, Ms. Springer, that you have never asked

14

Icon how long it would take to run the search of the 16,000

15

e-mails?

16

MS. SPRINGER:

No, Your Honor.

When that billion

17

dollar judgment was entered, they were half way through the

18

process of using the various search terms.

19

When that happened, I advised them to stop all work,

20

but by the time I reached them, they had completed that

21

process.

22

So when they heard me say to stop all work, the

23

client's, just having financial issues, they returned the

24

server to me.

25

We didn't inquire or use up anymore of their time to

Case 1:09-md-02106-ASG Document 195 Entered on FLSD Docket 12/17/2010 Page 34 of 59
34

1

ask about, "Well, how long will this take?"

2

Based on my experience with the search terms, I don't

3

think it will take that long and lengthen necessarily the cost

4

factor here.

5

It is still very expensive, regardless of, you know,

6

the fact that it may only take them a half a day once we decide

7

on the search terms privilege review process.

8
9

THE COURT:

Right.

Right.

Right.

So let me make

sure that I understand based on what you have just told me.

10

The server that Icon had been searching for privilege

11

among the e-mails has been returned to your law firm, and Icon

12

no longer has it in its possession in order to finalize the

13

privilege search.

14

Do I have that right?

MS. SPRINGER:

Your Honor, Icon returned the server to

15

us, yes, but I don't want Your Honor to think that any sort of

16

privileged review process was started.

17

We used the search terms on the entire e-mail server.

18

What we got was kind of a net as if we had cast out with those

19

search terms on the e-mails.

20

separate smaller server has not been searched at all for

21

privilege.

22

THE COURT:

Those e-mails which we have on a

I have to confess to you I am thoroughly

23

confused based on what you have told me because I thought I

24

just heard you say that Icon was half way through the process

25

of using the search terms.

Case 1:09-md-02106-ASG Document 195 Entered on FLSD Docket 12/17/2010 Page 35 of 59
35

1

In other words, running a search for privilege at the

2

point that they were told to shut down.

3

that they didn't even start the process of the search.

4

which is it?

5

MS. SPRINGER:

Now you are telling me
So

Your Honor, I am sorry if I was

6

unclear.

7

provided by counsel just to get responsive documents.

8
9
10
11

The only thing Icon did was use the search terms

Icon was about half way through the process when the
judgment was entered.

I told them to stop, but they had

already finished.
So what I got back and what they did is that they

12

searched the e-mail server for responsive documents.

13

never was a privilege review started or completed.

14

if I was unclear.

15

THE COURT:

All right.

There

I am sorry

So we are actually even more

16

behind the 8-ball than I thought, which is even if the process

17

was going to resume today, they could not really do a privilege

18

review with the names of the lawyers and the law firms,

19

et cetera, because they have not yet even completed the process

20

of searching all of the e-mails on the server in order to

21

locate responsive e-mails.

22
23

MR. TRIGOBOFF:
Trigoboff.

Do I have that right?

Judge Goodman, this is Craig

Sir, you don't.

24

THE COURT:

I don't have it right?

25

MR. TRIGOBOFF:

I am sorry.

You have it partially

Case 1:09-md-02106-ASG Document 195 Entered on FLSD Docket 12/17/2010 Page 36 of 59
36

1

right, and I am sorry that this is confusing, but again, let me

2

see if I can sum this up.

3

THE COURT:

Well, sir, I am really asking Ms. Springer

4

to finish up because, as I understand it, she is really in the

5

trenches, or she is the one dealing with Icon.

6

She is the one dealing with opposing counsel.

7

unless you have some special unique factual information that is

8

unavailable to her, for the time being I am going to have her

9

explain what is going on.

10

MS. SPRINGER:

So

So please continue, Ms. Springer.

Your Honor, the bottom line is the

11

search for responsive documents has been finished.

12

privilege review search has not been started.

13

THE COURT:

The

So what did you say to me a minute ago

14

about it was half through the process?

15

through?

16

MS. SPRINGER:

17

e-mailed Icon to stop all work.

18

way through.

19

done.

What was half way

When the judgment was entered, then I
I thought they were about half

When they got back to me they said, "No.

We are

Here is your $25,000 bill."

20

So the search for responsive documents is finished.

I

21

have a copy of that server with all of the responsive documents

22

on it.

23

started.

24
25

However, the privilege review process has not been

THE COURT:

Okay.

So I should ignore the term "half

way" because that refers to something previously?

Case 1:09-md-02106-ASG Document 195 Entered on FLSD Docket 12/17/2010 Page 37 of 59
37

1

MS. SPRINGER:

2

THE COURT:

Yes, Your Honor.

Okay.

I apologize.

So as we speak here today on the

3

category of the e-mail servers, we have a separate server

4

containing responsive e-mails ready for a privileged search to

5

be conducted whenever that is going to happen, correct?

6

MS. SPRINGER:

7

THE COURT:

8

Yes, Your Honor.

Okay.

All right.

Yes.

And you don't know how

long that privilege review will take?

9

MS. SPRINGER:

10

THE COURT:

11

MS. SPRINGER:

No, Your Honor.

And how much is it going to cost?
I have no idea because that's based on

12

a number of factors.

13

know, the length of your search term is based primarily or

14

determines the cost.

15
16

THE COURT:

If it was search terms that was used, you

So I don't know.
Well, is it conceivable in terms of the

time factor?

17

In other words, we have two factors here, time and

18

cost.

19

take as little as a day to have Icon run the search methodology

20

in order to pinpoint privileged documents?

21

Focusing on the time, is it conceivable that it could

MS. SPRINGER:

Yes, Your Honor.

Once the list is

22

drafted, when it is decided on and they get the server,

23

certainly I believe, I have to believe that it would take less

24

than a day.

25

However there is a problem.

THE COURT:

Go ahead.

Case 1:09-md-02106-ASG Document 195 Entered on FLSD Docket 12/17/2010 Page 38 of 59
38

1

MS. SPRINGER:

There is a process involved with coming

2

up with the search terms because we do have to, you know, you

3

can be as thorough as you want and then the cost increases.

4

So the longer your list of search terms is the more it

5

is going to cost you and the more it is going to pull back, but

6

the more thorough you are going to be.

7

THE COURT:

But I thought -- please correct me if I am

8

wrong.

9

there was an agreement as to search terms as of September 14th.

10
11

I thought I heard you say, and counsel agreed that

Mr. Fitzgerald gave me the date of September 14th.

I

didn't hear anybody disagree with him.

12

So hasn't there already been an agreement as to what

13

search terms will be used on this new separate e-mail server?

14

MS. SPRINGER:

No, Your Honor.

The list that was

15

given to us in September was only to get back responsive

16

documents.

17

any of the other parties regarding privilege review.

There was never a list agreed upon by counsel for

18

THE COURT:

What about that, Mr. Fitzgerald?

19

MR. FITZGERALD:

20

THE COURT:

21

MR. DILLMAN:

22

THE COURT:

Yes, Your Honor.

Okay.

I agree with that.

Mr. Dillman?

Yes, Your Honor.

Do you have any factual objections or

23

clarification to what Ms. Springer just said, that we are

24

talking about two separate search term lists, one for

25

responsive documents and one for privilege?

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39

1

MR. DILLMAN:

I would imagine that would be the case.

2

Certainly we haven't been involved in any way of trying to

3

determine their privilege search.

4

That would be something done, you know, in the normal

5

course.

The party producing the documents, you know, they

6

would know who their attorneys were and they would conduct

7

those searches without input from the requesting party.

8

THE COURT:

I would think so.

9

Ms. Springer, in terms of coming up with a list of

10

search terms to be used on the separate e-mail server to locate

11

privileged information, do you expect these other lawyers to

12

give you the names of your own client's lawyers, or is this a

13

list that you are going to be coming up with on your own?

14

MS. SPRINGER:

15

to come up with a list.

16

No, Your Honor, I would not expect them

judgment was entered.

17

THE COURT:

However, our work stopped when that

I understand.

I understand, but when I

18

hear you use the term "agreement," you said we haven't reached

19

an agreement yet on the search terminology, there really does

20

not need to be an agreement.

21

In fact, counsel may not even know the list or the

22

names of the lawyers or law firms on the list that you decide

23

to run, right?

24
25

MS. SPRINGER:

Your Honor, the idea, the process would

have been that I would have come up with the proposed search

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40

1

terms for privilege.

2

However, these other attorneys are much more

3

experienced in this litigation.

4

certainly at some point I would have ran that list by them to

5

see what their input was, but the starting point would have

6

been on my end.

7

THE COURT:

8

MS. SPRINGER:

9

THE COURT:

They know the players.

So

Have you started the list yet?
No, Your Honor.

How long do you think it will take you to

10

come up with at least a draft list to circulate to these other

11

lawyers?

12
13
14

MS. SPRINGER:

A day, if that.

I mean, I could

probably do it before the end of the day.
THE COURT:

All right.

Then as we move onto the other

15

two servers, do we each -- I mean, do we also then need two

16

separate search lists for each server?

17

In other words, one list for locating responsive

18

documents on each of the two servers, and then a separate list

19

to locate privileged documents once the responsive e-mails have

20

been found, or can we use the same two search lists which will

21

be used or have been partially been used for the e-mail server?

22

MS. SPRINGER:

I do not believe so, Your Honor.

23

Obviously, I would have to discuss this with the people who

24

issued the subpoenas.

25

Certainly with respect to the accounting server, the

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41

1

same search terms would not work because we need it with the

2

accounting server with the list of reports that they wanted

3

run.

4

It is just not only the books.

It doesn't do you any

5

good to just open it up and look at it.

We needed counsel for

6

plaintiff and the defendants in this matter to come up with a

7

list of financial reports that they wanted us to run.

8
9

I know the list would not work for the accounting
server.

For the document server, I do not think the list would

10

work, either, because if you think of, you know, the files

11

saved on your desk top on your computer searching for names and

12

the that list we came up with on the e-mail server would just

13

not work as well.

14

So I certainly believe we would have had to complete

15

that list or come up with a new plan of attack for the document

16

server.

17

THE COURT:

And if things had worked out and your law

18

firm had not filed a motion to withdraw and things had not come

19

to a screeching halt, who was going to assume the

20

responsibility for putting together at least the initial search

21

term lists for the accounting server and the document server?

22

MS. SPRINGER:

I had, before this came to a screeching

23

halt, I had asked or informed counsel for term lenders, the

24

defendants, that I needed a list of reports drawn on the

25

accounting server.

That list was never produced to me.

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42

1

However, through no fault, it was not their fault that

2

that happened.

3

one server at a time.

4

The way we were kind of all working on this was

Once we got to e-mail server done, we were going to

5

move on and figure out a plan of attack for the document

6

server, and then move on to the accounting server.

7

So the accounting server list, that would have come

8

from them because they need to figure out what they wanted from

9

us.

10
11
12

The document server, that would have been yet another
cooperative effort between myself and the subpoenas issued.
THE COURT:

All right.

Mr. Dillman, Mr. Fitzgerald,

13

any factual clarification to advise the court concerning the

14

notion that this was going to be a server by server process and

15

that you all had not really gotten to the point of dealing with

16

a list for the accounting server and the document server?

17
18
19

MR. DILLMAN:

Your Honor, Kirk Dillman.

With respect

to the accounting server, counsel is absolutely correct.
The burden was going to be on us either to identify

20

those reports that we wanted to run, but you know, the server

21

is nothing but a big data base that you have to Que it as to

22

what you want it to tell you to spit out, and that was on and

23

is on our plate.

24
25

We certainly had not gotten there yet because we had
not gotten to the e-mail server, but as to the document server,

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43

1

it was my understanding that the ball was in the plaintiffs --

2

excuse me -- in the Resorts court to tell us what that server

3

looked like.

4

If they were having problems applying the terms that

5

we had agreed to, then it was their burden to come back to us

6

and let us know what problems they were having and how we could

7

help solve those.

That dialogue never occurred.

8

THE COURT:

9

MR. DILLMAN:

10

THE COURT:

Other than that, I think counsel was

correct in general.

11

All right.

12
13

Mr. Trigoboff, what about the second point

that Mr. Dillman mentioned?
He had a list of two points, and the second point was,

14

well, the temporary restraining order, which was the purported

15

basis for the motion to withdraw has now been dissolved, but,

16

nevertheless, you folks are moving forward on the motion to

17

withdraw.

18

Number 1, has the T.R.O, in fact, been dissolved?

MR. TRIGOBOFF:

Yes, it has, Your Honor, but what is

19

important and what Mr. Dillman didn't tell you is the one

20

billion dollar judgment entered against my client has not been

21

dissolved or satisfied or discharged.

22

That has crippled, as you can expect, my client's

23

operations, such that they had to, and they have since had to

24

restructure their operations.

25

The intellectual property has been sold.

Mr. Sopher,

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44

1

who is I guess the principal owner, now owns only about one

2

percent of the hotel.

3

There has been a totally divestiture of equity and

4

dissipation of equity.

5

been entered is no longer in force and effect, the weight, the

6

crushing weight of a one bill dollar judgment has already taken

7

its toll on my client and clearly its ability to pay its

8

lawyers and other third-parties going forward.

9
10

You know, I must tell you, and I appreciate what
counsel said about brothers and sisters and all of that.

11

THE COURT:

12

MR. TRIGOBOFF:

13

THE COURT:

14

MR. TRIGOBOFF:

15
16

So, yes, while the injunction that had

Who is speaking, please?
This is Mr. Trigoboff.

Okay.

Go ahead.

Thank you.

With all due respect to

counsel, I have not had the pleasure of working with them.
These are all sophisticated lawyers, but the truth of

17

the matter is I have been practicing down here in this

18

district, Judge Goodman, for 20 years.

19
20
21

I am AD rated.

I have practiced in this court and in

state and federal courts throughout the State of Florida.
I have never opposed any lawyer's motion to withdraw

22

for any reason.

23

trial lawyer, I have never been the target of opposition.

24

So when we speak of the brothers and sisters and

25

And in my 20 years of practice, as AD rated

motions to withdraw, I find it a little disingenuous that we

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45

1

would really have to even waste the court's time with this.

2

Now, I understand the court at the end of the day your

3

problem is still different, and perhaps bigger than mine

4

because this case still has to be reached on the merits and

5

discovery has to take place, and these problems have to be

6

solved, and I have a pretty good of where I think you are going

7

here, I think, but at the end of the day, I would still ask,

8

given the totality of the circumstances here, which have been

9

set forth in a well-written motion, in accordance with the

10

rules, that my firm be allowed, be permitted to withdraw from

11

representing this third-party, this non-party to this action.

12

I hope that answers at least Mr. Dillman's point

13

number 2 of his presentation.

14

THE COURT:

Well, here is the major dilemma, and I

15

think you have sort of already flagged the issue, which is you

16

were absolutely right, motions to withdraw are routinely

17

granted.

18

They are rarely if ever opposed.

Every once in a

19

while a client may oppose a motion to withdraw, but it is very

20

rare.

21

object to a motion to withdraw, in the absence of extraordinary

22

circumstances and in the absence of a potential prejudice, but

23

here is what I see as a problem from a practical perspective.

24
25

You are absolutely right for the opposing counsel to

Let's assume I grant the motion to withdraw, and I
say, "Okay, your client has 30 days to get new counsel."

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1

So, in the meantime, 30 days go by.

There is no

2

forward movement on the production of information on this

3

separate e-mail server, nor on the other two servers.

4

So the discovery is, in effect, frozen.

5

Opposing counsel really, as a practical matter, don't

6

want to take depositions without having this information

7

available, so the rest of the discovery process has been ground

8

to a halt.

9

Then if your client is able to get new counsel, which,

10

by the way, I don't know if they are going to be able to do

11

that because whatever financial difficulties they have,

12

presumably they will have with new counsel as well, but let's

13

assume somehow they make the necessary arrangements and a new

14

law firm appears 30 days from now, what do you think is going

15

to happen?

16

Well, what I think is going to happen is that the new

17

law firm is going to say, "Judge, we are brand new to this

18

case.

19

another two months to figure out what is going on.

20

been dealing with all of these discovery issues.

There is a big learning curve here.

21

We need, gosh,
We haven't

We cannot transplant Ms. Springer's brain and

22

knowledge and familiarity with the case.

23

just to figure out where we are."

24
25

Give us two months

So then discovery will be put on hold for two more
months.

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47

1

In the meantime, these folks have been waiting since

2

April for the discovery.

3

its face seems relatively routine, there are some other

4

practical consequences.

5

So the motion to withdraw, which on

You know, I note in the motion to withdraw docket

6

entry 144, in Paragraph 3, your firm says, "There will be no

7

prejudice to any of the parties if the firm is allowed to

8

withdraw as counsel for the third-parties."

9

So Mr. Dillman, Mr. Fitzgerald, anybody else, do you

10

agree with Ms. Springer's representation that there will be no

11

prejudice to your parties?

12
13

MR. DILLMAN:

For all of

the reasons that Your Honor just articulated, we don't agree.

14
15

Your Honor, Kirk Dillman.

We have been waiting now 6 months.

We have been

waiting for documents.

16

We have been waiting now a month since the Court

17

ordered that they be produced, and we have very little head way

18

to show for it.

19

We didn't oppose the motion to withdraw.

What we opposed was a withdrawal of counsel that would

20

result in further delays.

21

step in and get the job done in the next week or two, so be it.

22

THE COURT:

23

MR. DILLMAN:

24
25

If they have other counsel that can

Right.
That would be wonderful.

that.
THE COURT:

Right.

Right.

Right.

We would like

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48

1

MR. DILLMAN:

Our concern is exactly what the Court

2

articulated.

3

documents and we are going to be back in a similar hearing to

4

this with perhaps a new set of, but, you know, eerily

5

reminiscent of claims about why the documents cannot be

6

produced.

7

90 days from now we are not going to have the

THE COURT:

Right.

So, Mr. Trigoboff, let me ask you

8

this, because I am sensitive to your firm's situation, and I am

9

sure it is not comfortable, and so I do feel for you, but as a

10

practical matter, tell me your practical suggestion of how I

11

can grant your motion to withdraw without unduly prejudicing

12

these folks who have been waiting a long time for discovery and

13

who are anxious to move forward with depositions, but who need

14

this material in order to do so.

15

So tell me how you would like me to fashion relief

16

which will simultaneously grant your motion to withdraw, but

17

not unduly prejudice these other folks?

18

MR. TRIGOBOFF:

Well, I mean I am struggling with

19

that, Judge Goodman, but I must tell you that if these folks

20

want this done and, you know, I am hearing Mr. Dillman speak

21

about very little head way.

22

I find that to be a little disingenuous, given the 80

23

boxes of documents and the production to date and the server

24

work that has been done, and these folks, by the way, let's not

25

lose sight of the prize here.

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49

1

These are all big banks that are litigating here.

2

They are paying their lawyers to do their work.

3

us in the game because they view us at least, and I think you,

4

Judge Goodman, view us and view Ms. Springer as being involved

5

and knowledgeable and having arms around these documents and

6

these issues and having accountability to this court, then I

7

will tell you what:

8
9
10

If they want

Be careful, plaintiffs and defendants, what you wish
for.

If you don't want us out, then keep us in, but you will

pay the freight.

11

My recommendation, Judge Goodman, is deny my motion to

12

withdraw, but require these requesting parties to pay my law

13

firm a reasonable hourly rate and all costs associated with

14

this effort.

15

This way everybody is protected, because at the

16

moment, Judge Goodman, I have got to tell you the only party

17

here who is really prejudiced is me.

18

It is my law firm representing a non-party.

These

19

guys, I haven't heard one thing about us going to trial or this

20

case is going to trial in 60 days or 90 days.

21

that.

Nothing like

That's real legal prejudice.

22

The fact that a party may have to wait 45, 60 or 90

23

days for discovery, we deal with that, unfortunately, all of

24

the time.

25

system.

Sometimes that's just a built-in vagary of our

It is not intentional vagary, but it is a byproduct of

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50

1

complex litigation, but if they want this done and they are

2

driving as they are driving, then do you know something?

3

They can pay the freight.

You can deny my motion to

4

withdraw.

5

this effort, and we will just move forward until such time as

6

we have to revisit it with the court.

7

We will submit our fee schedule in connection with

THE COURT:

8

novel suggestion.

9

Well, that's certainly shall we say a

that?

10

Do you have any other suggestions besides

MR. TRIGOBOFF:

I mean, I guess I could say, "Judge,

11

keep us in the case for 30 more days.

12

copies, we know that issue has already been dealt with.

13

is sort of resolved.

14

Obviously the hard
That

The issue that at least as close to being resolved is,

15

which one is it, Debbie?

16

Ms. Springer.

17

The e-mail server which you heard

I think this process can start up today.

Again, my

18

feeling is that these folks should pay the freight for whatever

19

fees and costs that are associated with at least finishing that

20

discreet task; that being the e-mail server production and the

21

privilege issue, and then I would submit to the court,

22

respectfully, you should grant our motion to withdraw because

23

then clearly we have worked in good faith to at least get the

24

hard copy documents and at least 33 percent of the electronic

25

data so that these folks really cannot say, "Yeah, we are

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51

1

prejudiced.

2

haven't seen paper one."

3

Yeah, we haven't gotten anything.

So that would be my second proposal.

Yeah, we

Give us 30 days

4

to finish this task.

5

the court, then you grant our motion to withdraw, but again any

6

fees or costs associated with finishing this task I would

7

submit should be borne by the requesting parties.

8
9
10
11
12
13

THE COURT:

Assuming we do it to the satisfaction of

And so when you are using the term,

Mr. Trigoboff, "These folks should pay my firm's invoices," who
do you mean specifically by "these folks?"
MR. TRIGOBOFF:

Which parties?

The parties that have caused the

subpoenas to be issued on my client to do this work.
THE COURT:

All right.

Mr. Dillman, just I would just

14

like to have it on the record.

15

Mr. Trigoboff's suggestion that your clients pay his firm's

16

legal fees and costs so that they can stay in the case for 30

17

more days and help this process get completed?

18
19

MR. DILLMAN:

What is your position on

It may surprise the court, but I am not

really fully on board with that idea.

20

THE COURT:

21

MR. CANTOR:

Okay.
Your Honor, this is Dave Cantor on behalf

22

of Bank of America.

If I could just add a note here,

23

Fontainebleau's papers on this motion are, in my view, a bit

24

vague on this, you know, now key issue, and I, too, regret that

25

I am forced to debate whether a law firm should be allowed to

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52

1

withdraw for a lack of payment.

2

I would hate to be in their position, but there has

3

been no evidence submitted to the court that, in fact, bills

4

have been submitted and are not paid; that there has been a

5

statement by Fontainebleau to the law firm that they are not

6

going to be paid.

7

All we have heard is that because the judgment is

8

really big that they have got no present ability to pay, and

9

that's a big difference.

10

MR. DILLMAN:

If I might, Your Honor, to supplement

11

Mr. Cantor's because the statement was made by Mr. Trigoboff

12

that there was this judgment out there.

13

Let me reiterate.

That case has been settled, and so

14

whatever the issues may have been, they no longer are.

15

just want to make sure that that is clear.

16

THE COURT:

Let me make sure that I am clear.

So I

The

17

case which led to the one billion dollar judgment, that case

18

has already been settled?

19

MR. DILLMAN:

20

T.R.O. was dissolved.

21

THE COURT:

That was settled at the same time as the

All right.

So is there still a judgment

22

outstanding or has it been satisfied or has there been some

23

other resolution?

24
25

MR. DILLMAN:

What Fontainebleau Resorts has done with

that document or that judgment, Your Honor, I am afraid is a

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53

1

matter of confidential agreement.

2

That was confidential at Fontainebleau Resort's

3

request.

I cannot disclose that information to the court.

4

Certainly Mr. Trigoboff could as he represents that counsel,

5

and I invite him to if he want to continue on the road of an

6

extant one billion dollar judgment.

7

THE COURT:

All right.

8

him to do that at this point.

9

All right.

Well, I am not going to ask

And I take it that on the motion for

10

sanctions, the moving parties are standing by their request

11

that the Fontainebleau be required to simply turn over the

12

three servers and then you will do what you need to do?

13

MR. DILLMAN:

Your Honor, we have given a number of

14

possibilities in terms of the requested relief, or at least we

15

are prepared to.

16

One would be to have them do their job and do it by

17

week's end and get us the materials.

18

of time consuming, or they are not left with certain time

19

consuming events that require them to go much past that.

20

THE COURT:

21

MR. DILLMAN:

It does not take the kind

All right.
But certainly given the history here, we

22

have no confidence, given Mr. Trigoboff's statements, we have

23

no confidence that that will occur.

24

Then, yes, we are left with give us the server.

25

will go about it, and, by the way, we would ask that the

We

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54

1

Fontainebleau Resorts pay the costs of the independent people

2

who will be required to search those servers in the way that

3

they should have.

4

THE COURT:

Right.

Right.

Right.

And I was

5

listening to Mr. Trigoboff's statement that really there was no

6

legal prejudice.

7

There is basically just, well, maybe this will put

8

things off 30 days or 45 days, and that is not really legal

9

prejudice, and I think I heard him make a comment about no one

10

talked about a trial date or trial prejudice or that sort of

11

thing, and I seem to recall that Judge Gold has, in fact,

12

entered a trial scheduling order in this case.

13

MR. DILLMAN:

Am I correct?

Your Honor, I chose not to address those

14

remarks by Mr. Trigoboff because I gave him the benefit of the

15

doubt that he was not at the last hearing when all of these

16

matters were discussed, but, yes, there is a trial date that

17

has been set.

18

There is a discovery cut-off date that has been set.

19

The commencement of depositions has already passed the date for

20

commencing depositions.

21

The parties are at a standstill until they get these

22

documents, and every day that goes by we are butting up further

23

and further to a discovery cut-off that none of the plaintiffs

24

are prepared to move.

25

The judge has indicated he is not prepared to move,

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55

1

and let's step back for a minute.

2

litigation.

3

This is a multi-district

This a series of cases, and the Fontainebleau Resorts

4

is the parent of one of the plaintiffs in this multi-district

5

litigation.

6

THE COURT:

Right.

7

MR. DILLMAN:

So we find it extremely frustrating that

8

our trial date and our discovery cut-off date is being

9

threatened because the parent of a party to this cannot seem to

10

get their act together to get us the documents.

11

THE COURT:

12

MR. TRIGOBOFF:

13

THE COURT:

14

17

Judge, may I ask a question?

Wait.

Wait.

Wait.

Wait one second.

What is the trial date?

15
16

Right.

MR. DILLMAN:
2012.

Your Honor, I believe it is January of

I could be off by a week or two.
The discovery cut-off is April of 2011, and I think

18

the parties anticipate many, many, many depositions in this

19

case and are just sort of waiting at the starter's gate for the

20

pistol to go off, which is Fontainebleau Resorts and the

21

Fontainebleau Las Vegas documents.

22

The trustee is on the phone.

Your Honor may recall

23

that Fontainebleau Las Vegas is also awaiting the outcome of

24

this because their documents are on the server.

25

They have waived the attorney-client privilege.

They

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56

1

are prepared to produce the entire servers.

2

want to be in the position where Fontainebleau Resorts throws

3

rocks at them for having produced documents which Fontainebleau

4

Resorts claims are privileged.

5

They just don't

So we have a number of parties that the trustee, not

6

the least of whom have very patiently waited for the

7

Fontainebleau Resorts to get its job done.

8
9
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THE COURT:
off.

Right.

Mr. Trigoboff, I think I cut you

You wanted to say something?
MR. TRIGOBOFF:

I did, Your Honor.

You actually asked

11

the question that I was going to ask, and I didn't mean to

12

suggest that the case was not set for trial.

13
14
15

My comment was that I didn't hear anything about a
trial date causing a problem here.
THE COURT:

I understand.

I understand exactly what

16

you said, and that's why I asked when the trial date was, and I

17

think I accurately paraphrased you when I said your point was I

18

didn't hear anybody raise a trial conflict issue or a trial

19

delay issue.

20

MR. TRIGOBOFF:

21

THE COURT:

22
23

Yes, sir.

Yes.

So I am aware of what you said and

did not say.
All right.

Ms. Springer, what other point, which is

24

are there any issues, factual or legal, that you wanted to

25

bring to my attention at the hearing today which you had put in

Case 1:09-md-02106-ASG Document 195 Entered on FLSD Docket 12/17/2010 Page 57 of 59
57

1

whatever response, memo you submitted which, as I indicated I

2

haven't read and my law clerks haven't read for the reasons

3

outlined?

4

So is there anything that you think was in that unread

5

response which we would need to know about in order to get a

6

better handle on either the motion to withdraw or the motion

7

for sanctions?

8
9

MS. SPRINGER:

I would say that the relief, or I would

bring the court's attention to the relief that they are

10

requesting.

11

motions.

12

We spoke to these attorneys who are bringing these

We paid for the cost of whatever they may be of

13

running the search terms that come up with the document server

14

and whatever reports they come up with for the accounting

15

server.

16

However, that is so open-ended that that could wind up

17

being an enormous sanction; I mean beyond tens of thousands of

18

dollars.

19

is $25,000.

20

to this litigation.

21

THE COURT:

22
23

If we take a look at the e-mail server example, that
There is extreme prejudice to this one non-party
That's all.
All right.

Well, we have spent a lot more

time this morning on this hearing than I anticipated.
So before we adjourn, do any of the lawyers have any

24

additional points that they would like to call to our

25

attention?

Case 1:09-md-02106-ASG Document 195 Entered on FLSD Docket 12/17/2010 Page 58 of 59
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MR. DILLMAN:
the term lenders.

3
4

Your Honor, Kirk Dillman on behalf of

I have nothing further.

MR. TRIGOBOFF:
anything further to add.

5

THE COURT:

Thank you.

This is Craig Trigoboff.

I don't have

Thank you, Judge.

All right.

Well, hearing no additional

6

comments, we will review all of the information we have

7

received this morning, as well as what has been in the properly

8

filed papers, and we will get out a written order in short

9

order.

10

I thank you for your time, and the folks on the West

11

Coast, thanks for waking up early.

12

future hearings in this case at a time which will require you

13

to get up at some crazy hour.

14
15

I will try not to schedule

So thanks for getting up to participate in this
hearing.

We will be in recess.

Thank you.

16

MR. DILLMAN:

17

MR. TRIGOBOFF:

18

(Whereupon the proceedings were concluded).

19
20
21
22
23
24
25

Thank you.
Thank you, Judge.

Case 1:09-md-02106-ASG Document 195 Entered on FLSD Docket 12/17/2010 Page 59 of 59
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C E R T I F I C A T E
I hereby certify that the foregoing is an accurate
transcription of proceedings in the above-entitled matter.

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DECEMBER 7, 2010
________________
DATE

S/JERALD M. MEYERS
______________________________________
JERALD M. MEYERS, RPR-CM

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Quality Assurance by Proximity Linguibase Technologies

Case 1:09-md-02106-ASG Document 195-1 Entered on FLSD Docket 12/17/2010 Page 1 of 1

"Jerald M. Meyers"
<[e-mail]>

To [e-mail],
[e-mail]
cc

12/17/2010 12:36 PM

bcc
Subject Simultaneous Transcript Access Designation Form

From: Jerald M. Meyers <[e-mail]>
New Simultaneous Transcript Access Designation Form
Submitters Name:

Jerald M. Meyers

Submitters Email: [e-mail]
Case Number: 09-Civ-MD-02106-GOLD
Case Style: Fontaineblue Las Vegas Contract Litigation
Access rights are granted to the following attorney(s) of record: U.S.
MAGISTRATE JUDGE JONATHAN GOODMAN ONLY
Signature of court reporter: S/Jerald M. Meyers
Date: December 17, 2010
Uploaded Transcript: fontain4.pdf
[attachment "fontain4.pdf" deleted by Collette Quinones/FLSD/11/USCOURTS]

Case 1:09-md-02106-ASG Document 196 Entered on FLSD Docket 12/17/2010 Page 1 of 35
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION

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Case No. 09-Civ-MD-02106-ASG

5
IN RE: FONTAINEBLEAU LAS VEGAS CONTRACT LIGITATION
6
7

CASPIAN ALPHA LONG CREDIT FUND, L.P.,
ET AL,

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Plaintiffs,
9

MIAMI, FLORIDA
AUGUST 30, 2010

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11
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TRANSCRIPT OF TELEPHONIC HEARING ON MOTION TO COMPEL
PRODUCTION OF DOCUMENTS IN RESPONSE TO SUBPOENA DE# (123)
BEFORE THE HONORABLE JONATHAN GOODMAN,
UNITED STATES MAGISTRATE JUDGE

15
APPEARANCES:
16
17

FOR THE NON-PARTY:

18
WALDMAN TRIGOBOFF HILDEBRANDT, ET AL,
P.A.
2200 N. Commerce Parkway
Suite 202
Weston, Florida 33331
BY: SARAH SPRINGER, ESQ.

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REPORTED BY:
TELEPHONE:

JERALD M. MEYERS, RPR.
954-431-4757

Case 1:09-md-02106-ASG Document 196 Entered on FLSD Docket 12/17/2010 Page 2 of 35
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HENNIGAN BENNET & DORMAN, LLP
865 S Figueroa Street
Suite 2900
Los Angeles, CA 90017
BY: KIRK DILLMAN, ESQ.

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5
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9

ALSO PRESENT BY TELEPHONE:

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11
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BONNIE CHAMIL, ESQ.
STEVEN J. NACHTWEY, ESQ.
DANIEL CANTOR, ESQ.
STEVEN FITZGERALD, ESQ.
JASON KIRSCHNER, ESQ.
STEVE BUSEY ESQ.
STEVEN C. CHIN, ESQ.

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REPORTED BY:

JERALD M. MEYERS, RPR.
J.M. COURT REPORTING, INC.
1601 N.W. 109TH TERRACE
Pembroke Pines, FL 33026-2717
Telephone: [phone]
E-mail Address: [e-mail]

Case 1:09-md-02106-ASG Document 196 Entered on FLSD Docket 12/17/2010 Page 3 of 35
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(Call to order of the Court)

2

THE CLERK:

The U.S. District Court for the Southern

3

District of Florida is now in session; the Honorable Jonathan

4

Goodman presiding.

5

We are here for case number 09-2106

6

Multi-District-Gold, Fontainebleau Las Vegas Contract

7

Litigation.

8

THE COURT:

9

MR. DILLMAN:

10

THE COURT:

Good afternoon.

Can you folks hear me?

Yes, Your Honor, we can.

Okay.

I understand we have a bunch of

11

lawyers on the phone, but do we have a sense for which of the

12

lawyers are most likely going to be doing most of the talking?

13

MR. DILLMAN:

Your Honor, This is Kirk Dillman for the

14

Avenue CLO plaintiffs, one of the parties that brought this

15

motion.

16
17
18

Myself and perhaps Mr. Nachtwey on behalf of the
Arelius plaintiffs will be presenting for the moving parties.
I must admit I may not have listened very carefully to

19

the roll call that was made, but I don't recall hearing a

20

lawyer from a representative of Fontainebleau Resorts who is

21

the responding party.

22
23
24
25

THE COURT:

Well, that would certainly make this a

rather inefficient hearing.
Is there anybody here on behalf of Fontainebleau
Resorts, LLC, otherwise known as FBR?

Case 1:09-md-02106-ASG Document 196 Entered on FLSD Docket 12/17/2010 Page 4 of 35
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2
3
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MR. DILLMAN:
I guess.
THE COURT:

Yes.

MR. DILLMAN:

6

THE COURT:

8
9
10

We were looking for somebody.

I

think I was actually expecting Sarah Springer.

5

7

I listened as carefully as I needed to,

I was, too, Your Honor.

All right.

Well, why don't we put you all

on hold, if we have the ability to.
I am going to check with my courtroom Deputy,
Santorufo and see if we can't do that.
In the meantime, we are going to give Ms. Springer a

11

call and find out what is happening.

12

bear with us.

13

to you just as soon as we figure out what is happening.

I regret any inconvenience, and we will be back

14

MR. DILLMAN:

15

THE COURT:

16
17

So if you all will just

Thank you.

Thank you.

[There was a short recess].
THE CLERK:

Yes.

Okay.

Why don't you put me back on

18

the speaker phone.

This is Jonathan Goodman.

19

the folks on the phone for the hearing?

20

MR. DILLMAN:

21

THE COURT:

Do we still have

Yes, Your Honor.

All right.

Well, thank you for being so

22

patient and waiting.

We have found out that apparently

23

Ms. Springer was going to appear here in person, and she

24

apparently is on her way and is expected here as we understand

25

it, "any minute."

Case 1:09-md-02106-ASG Document 196 Entered on FLSD Docket 12/17/2010 Page 5 of 35
5

1

So what I propose to do is wait about another minute

2

or two and see if she shows up.

3

time being.

4
5
6

I will put you on hold for the

If not, then I will get back on the phone with you and
we will make some other arrangements.
I realize that this is not your fault, and I realize

7

we probably have a combined billing rate of thousands of

8

dollars an hour here with all of these lawyers on the phone.

9
10
11

So thanks for your patience answer and hopefully you
will hear from us soon in just a minute or two.
Okay.

I am going to call a 15 minute recess.

And

12

whenever she shows up, whether or not to keep these lawyers

13

waiting, whenever she shows up, she will show up.

14

All right.

Now put me through to the phone

15

conference, please.

16

still here on the line?

Hi.

It is Jonathan Goodman.

Is everybody

Hello?

17

MR. DILLMAN:

18

THE COURT:

19

down the confusion.

20

impression that the hearing was going to be in front of

21

District Judge Alan Gold, and I don't know if you all are

22

familiar with our courthouse down here, but that's actually in

23

a separate building.

24

across the street.

25

Yes, Your Honor.

All right.

Great.

Well, we have tracked

Apparently Ms. Springer was under the

It is not far away.

It is literally

So what I am going to do is I am going to call a 15

Case 1:09-md-02106-ASG Document 196 Entered on FLSD Docket 12/17/2010 Page 6 of 35
6

1

minute recess and ask you all to phone back in 15 minutes.

2

think that you had slotted that much time, anyway, for this

3

hearing under the notice.

4

I

I don't want to force you all to wait for another 15

5

minutes Ms. Springer to show up.

6

enough to phone back in at 3:00 clock Eastern Standard Time,

7

which is about 15 minutes from now, hopefully Ms. Springer will

8

arrive by then and we can get the hearing underway.

9

MR. DILLMAN:

10

THE COURT:

11

MR. DILLMAN:

12

THE COURT:

13

you soon.

14

So if you all would be good

All right?

Yes.

All right.
Thank you, Your Honor.

All right.

Speak to you soon.

Speak to

Bye.
[There was a short recess].

15

THE CLERK:

All rise.

17

THE COURT:

Bear with me for just a minute.

18

MS. SPRINGER:

19

THE COURT:

16

20
21

This matter is now back in

session.

Of course.

All right.

Michael, would you just call

the case so we can start off from the beginning, please.
THE CLERK:

Absolutely.

We are here for Fontainebleau

22

Las Vegas Contract Litigation, case number 09-2106

23

Multi-District Gold.

24
25

THE COURT:

All right.

And we have one lawyer with us

here in person in the courtroom today.

Would you state your

Case 1:09-md-02106-ASG Document 196 Entered on FLSD Docket 12/17/2010 Page 7 of 35
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1

appearance for the record, please.

2
3

MS. SPRINGER:

My name is Sarah Springer, and I am

here on behalf, Fontainebleau Resorts, LLC.

4

THE COURT:

All right.

And I am guessing that we have

5

the same folks who called in before, but, Michael, have you

6

gone through a roll call on this recall?

7

THE CLERK:

I have not, Judge.

8

THE COURT:

All right.

9

here.

Let me just tick off the names

Kirk Dillman?

10

MR. DILLMAN:

Yes, Your Honor.

11

THE COURT:

12

MR. NACHTWEY:

13

THE COURT:

14

MR. CANTOR:

15

THE COURT:

All right.

Steve Nachtwey?

Yes, Your Honor.

Dan Cantor?
Yes, Your Honor.
Bonnie, and it looks like Chamil, but I

16

may be misprouncing it.

17

right, Bonnie Chamil?

18

And, if so, I apologize.

MS. CHAMIL:

No need.

20

THE COURT:

All right.

21

MR. FITZGERALD:

22

THE COURT:

23

MR. CHIN:

24

THE COURT:

25

MR. KIRSCHNER:

19

Is that

I am here, Your Honor.

you.
Steven Fitzgerald?

Here, Your Honor.

Okay.

Steven Chin?

Yes, Your Honor.
Jason Kirschner?
Here, Your Honor.

Thank

Case 1:09-md-02106-ASG Document 196 Entered on FLSD Docket 12/17/2010 Page 8 of 35
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THE COURT:

Steve Busey?

2

MR. BUSEY:

Yes, Your Honor.

3

THE COURT:

Is there anybody on the phone whose name I

4
5
6
7
8
9

have yet not called?

All right.

Good.

So, Ms. Springer, I understand that you started off
going across the street, and don't be concerned about that.
I mean, obviously we would have preferred it if you
had shown up here first, but it is not an unknown mistake.
It happens from time to time.

Fortunately, the

10

building is just right across the street.

11

delayed maybe about 15 for 20 minutes.

12

that's good.

13

MS. SPRINGER:

So we only were

So you are here.

So

Well, I appreciate that, Your Honor.

I

14

would like to apologize to the court and everyone on the phone

15

for my lateness.

16

THE COURT:

Understood.

So, Ms. Springer, let me just

17

ask you, I have several questions of you and your party's

18

position.

19

Before I hear from some of these other lawyers, I have

20

read the motion.

21

Ms. Springer, did you get a chance to read the order that I

22

entered on August 23rd?

23
24
25

I read the motion to compel.

MS. SPRINGER:

And,

With respect to the three subpoenas

issued by the defendants?
THE COURT:

It was my order, docket entry 126 on

Case 1:09-md-02106-ASG Document 196 Entered on FLSD Docket 12/17/2010 Page 9 of 35
9

1

August 23rd, saying that we were going to schedule the motion

2

to compel for a telephone hearing and asking the parties not to

3

submit any additional briefing on the motion.

4

MS. SPRINGER:

5

THE COURT:

Yes.

Okay.

So that order went out and was

6

uploaded on the electronic court filing system on August 23rd,

7

and then on August 25th, two days later, I received your

8

response.

9

So I am just a little puzzled about how it is that I

10

asked the parties not to submit a brief, and then two days

11

later you submitted a brief.

12

MS. SPRINGER:

I apologize, Your Honor.

I probably

13

assumed that meant you didn't want them to file a reply.

14

was a bad assumption on my part, and I apologize.

15

THE COURT:

All right.

All right.

It

What I sometimes

16

try to do and what many of the magistrate judges here in this

17

district try to do with these kinds of discovery disputes, when

18

they come in and we try to nip them in the bud which is we try

19

to bring the parties in either in person or on the phone and

20

try to get it resolved with a minimum of fuss and muss and not

21

to waste or spend -- I don't want to use the word waste" -- not

22

to have the parties incur a significant amount of time and cost

23

and energy and attorneys fees because very frequently it is my

24

understanding that these discovery disputes get resolved rather

25

quickly in a telephone hearing.

Case 1:09-md-02106-ASG Document 196 Entered on FLSD Docket 12/17/2010 Page 10 of 35
10

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So I was really sending the message to all of the

2

parties not to submit any further paper because we would hash

3

it out in a telephone hearing.

4

So, for next time if you are unclear, my suggestion is

5

that you call up and seek clarification.

Maybe other

6

magistrate judges have different policies and procedures in

7

their chambers, and probably it would be best for you to

8

contact their chambers if they issue a similar order, but for

9

me, at least for purposes of this case, if I enter an order

10

saying, "No more briefing," what I mean is anybody no more

11

briefing.

Okay?

12

MS. SPRINGER:

13

THE COURT:

Understood.

All right.

Now, the other question that I

14

had for you is I am a little confused on some of the timing,

15

and here is what I mean:

16

In your response you say that you or your firm was

17

retained on May 12th, and then I am reading in the motion that

18

you had a phone call with the counsel for Term Lenders on May

19

4th, which would have been more than a week before you were

20

retained.

21

is happening there?

22

So that strikes me as a little bit strange.

MS. SPRINGER:

So what

I believe what happened, Your Honor, is

23

that our firm got involved with the bankruptcy litigation in

24

representing Fontainebleau Resorts, LLC, and certain people in

25

other matters heard of our being retained to represent them,

Case 1:09-md-02106-ASG Document 196 Entered on FLSD Docket 12/17/2010 Page 11 of 35
11

1
2

and they started reaching out to us.
I know we were retained for the limited purpose of

3

filing the motion for extension of time, and then we finally

4

got Fontainebleau Resorts to retain us for the full purpose of

5

responding to the subpoena.

6

of how that possibly happened.

7

THE COURT:

8

MS. SPRINGER:

9

That would be my best recollection

All right.
If I may, I am sorry, Your Honor.

Actually, the Term Lenders issued a subpoena in the bankruptcy

10

matter to Fontainebleau Resorts, and we had been retained by

11

Fontainebleau Resorts.

12

In that case they served a subpoena in this matter,

13

and they contacted us similarly, so I wasn't going to shun them

14

simply because we had not been retained in this specific case.

15

THE COURT:

All right.

So, Ms. Springer, I was going

16

through the motion, and the motion makes certain

17

representations about what you had advised the parties, and I

18

just wanted to confirm if, in fact, these were your

19

representations.

20

It said that you told them on May 4th in a telephone

21

call that the trustee in bankruptcy was in control of the

22

servers on which FBR's documents were stored.

23

Right now I am not asking you if there is another

24

explanation.

I am just trying to find out did you, in fact,

25

make that representation on May 4th?

Case 1:09-md-02106-ASG Document 196 Entered on FLSD Docket 12/17/2010 Page 12 of 35
12

1

MS. SPRINGER:

2

THE COURT:

Probably.

All right.

The moving parties also say

3

that on June 9th you again represented that FBR didn't have

4

access to the electronic documents because the trustee had

5

taken possession of the servers or was not allowing removal of

6

information.

7

So setting aside the issue of whether there is an

8

explanation or not, did you, in fact, make that representation

9

in a June 9th, 2010 letter?

10

MS. SPRINGER:

11

trustee would not allow removal.

12

caveat, but, yes, I did say that.

13

THE COURT:

Yes, but I believe I also stated or the
There was some sort of

Then again on June 17th, according to the

14

moving party, you indicated again that the servers are still in

15

possession of the trustee.

16

that explanation on June 17th?

17

MS. SPRINGER:

18
19

So I am guessing that you did make

Yes, and the servers were in the

trustee's possession and still are in the trustee's possession.
THE COURT:

All right.

Well, I can only go by what

20

the folks say in the moving papers.

And according to the

21

motion, it says that on July 28th for the very first time you

22

asserted that the documents, the electronic documents were not

23

in the trustee's control, but, instead, were stored on, number

24

1, an accounting server in Las Vegas and, number 2, a document

25

server at that facility and, number 3, an e-mail server in

Case 1:09-md-02106-ASG Document 196 Entered on FLSD Docket 12/17/2010 Page 13 of 35
13

1

Miami.

2
3

So I guess my question is did you, in fact, make that
assertion or make those assertions?

4

MS. SPRINGER:

Yes, I did, and they are also true.

5

What I found out is that the trustee had copies of the

6

servers.

7

Honor said to an accounting server and a document server in Las

8

Vegas and an e-mail server that was originally in Las Vegas,

9

but what I found out was moved to Miami in January of this

10
11

If I may, the main servers were laid out just as Your

year.
The trustee took possession of two copies of those

12

servers which were in the debtor's office in Las Vegas.

13

when we were retained, the trustee asked if he could take

14

possession of the servers for safe keeping.

15

So

I said, "Yes," and later on I came to find out the

16

full scope, the full realm of servers that are out there, and

17

that is not even the full scope.

18

took so long to figure out what servers were out there, what

19

server copies were out there, when they were made, who had

20

possession of them is that, one, they were or half of them were

21

in Las Vegas.

22

And part of the reason it

One was in Miami.

The trustee took possession of two copies, and we had

23

a bunch of attorneys talking about servers with different

24

names, different locations, and finally an IT person from the

25

Fontainebleau Florida Hotel, LLC came in and set the record

Case 1:09-md-02106-ASG Document 196 Entered on FLSD Docket 12/17/2010 Page 14 of 35
14

1

straight for what the server world was.

2

THE COURT:

3

MS. SPRINGER:

4

THE COURT:

5
6

And what is that person's name?
David Chin.

Right.

You mentioned him in your

response.
MS. SPRINGER:

Yes.

7

THE COURT:

9

MS. SPRINGER:

He works

for the hotel down in Miami.

8

He is not an attorney.

10

THE COURT:

And is Mr. Chin an IT person?
Yes.

All right.

And is the status, in terms of

11

who has the servers, the location of the servers, who has

12

copies of the servers is the latest information available to

13

you what you have outlined in the response that you submitted

14

on August 25th?

15

MS. SPRINGER:

16

THE COURT:

Yes, Your Honor.

All right.

17

since then as far as you know?

18

MS. SPRINGER:

There are no new developments

My client, I picked up these servers

19

from David Chin in Miami, and my client Fontainebleau Resorts

20

picked up the copies that I picked up, and they are now or

21

their IT person is now going through them and trying to sort

22

through what belongs to us and what belongs to the debtors.

23

THE COURT:

24

all of the servers?

25

And does the trustee still have copies of

MS. SPRINGER:

He has copies of 2 of the 3 servers.

Case 1:09-md-02106-ASG Document 196 Entered on FLSD Docket 12/17/2010 Page 15 of 35
15

1

THE COURT:

Which ones?

2

MS. SPRINGER:

He has copies of the document server

3

and the e-mail server which were made out in Las Vegas I

4

believe in January of this year.

5
6

THE COURT:

And so which one does the

trustee not have a copy of?

7
8

All right.

MS. SPRINGER:

I do not think he presently has a copy

of the accounting server, but he may have picked up his copy.

9

What happened is this IT person in Miami, David Chin,

10

remotely copied the documents and the accounting server, and he

11

made copies for all of the entities that had the information on

12

those servers, so that the trustee may have picked up his copy

13

of the accounting server by now.

14

THE COURT:

All right.

I don't know.
So regardless of what the

15

trustee has, as we sit here today, what do you and your clients

16

have?

17

where it is.

And tell me on a server by server basis who has it and

18

MS. SPRINGER:

19

THE COURT:

20
21

We have a copy of --

By "we," do you mean the law firm or your

client?
MS. SPRINGER:

I am sorry.

I apologize.

I picked up

22

on Monday a copy of the e-mail server which contains I have

23

been told documents belonging to my client Fontainebleau

24

Resorts, as well as the debtors.

25

copy of the documents server and the accounting server.

I also picked up from Miami a

Case 1:09-md-02106-ASG Document 196 Entered on FLSD Docket 12/17/2010 Page 16 of 35
16

1
2
3
4

THE COURT:

And where are those servers now?

At your

office?
MS. SPRINGER:

All three servers were transferred to

my client on Friday, or Thursday, rather.

5

THE COURT:

Last Thursday?

6

MS. SPRINGER:

7

THE COURT:

Correct.

Okay.

So neither a server nor a copy are

8

in your law firm's possession?

9

MS. SPRINGER:

10

THE COURT:

Correct, Your Honor.

Okay.

All right.

And as I understand it,

11

it is your position that there are many parties whose documents

12

are on these servers and they need to, A, tell you or your

13

client whether there is information on the servers and, 2,

14

whether it is privileged?

15

MS. SPRINGER:

16

THE COURT:

Correct.

And how many parties are going to be

17

participating in this process?

18

MS. SPRINGER:

19

THE COURT:

20

MS. SPRINGER:

The debtors.

How many?
I consider them as a whole, the debtors

21

themselves.

22

through on behalf of the debtors.

23

So the trustee and his counsel will be going

My client, Fontainebleau Resorts, LLC, Fontainebleau

24

Miami or Fontainebleau Florida Hotel is another entity with

25

documents, and perhaps Turnberry Construction; Turnberry

Case 1:09-md-02106-ASG Document 196 Entered on FLSD Docket 12/17/2010 Page 17 of 35
17

1
2
3
4

related entities.

So there are 4 total.

THE COURT:

All right.

Now, mechanically speaking or

practically speaking, how is this going to happen?
How are these debtors and the trustee going to review

5

this electronic discovery in order to see, A, whether their

6

materials are on the servers and, B, if so, whether there is

7

anything privileged?

8
9

MS. SPRINGER:

If I may, I will take the servers

separately because the e-mail server hopefully will be an

10

easier process because the e-mail server, which is now in my

11

client's possession, has e-mails which belong to the debtors

12

and e-mails which belong to Fontainebleau Resorts.

13

Only two entities.

So I am hoping, based on the

14

e-mail addresses we have already retained a former

15

Fontainebleau Resorts employee to look through the list of

16

e-mails addresses and say, "All right, this person worked for

17

Fontainebleau Resorts.

18

and just right then and there we will hopefully be able to

19

split up which e-mails belong to which entity.

20
21
22
23
24
25

This person worked for the debtors,"

After that, it will be up to the individual entities
to do some sort of privilege review.
THE COURT:

All right.

So let's just sort of dig down

a little deeper into this.
Right now we are talking about the e-mail server.
say that the client has retained a former employee to go

You

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18

1

through the e-mails?

2
3

MS. SPRINGER:

To look at the list of e-mail

addresses.

4

THE COURT:

Yes.

5

What is that employee's name?

6

MS. SPRINGER:

7

THE COURT:

8

MS. SPRINGER:

9

THE COURT:

To look at the list of addresses.

Eric Salsinger.

And what was his position?
I am not sure.

And is he going to be a full time employee

10

devoting, you know 8, 10 hours a day to this process?

11

going to do it whenever he has the spare time?

12

going to happen?

13

MS. SPRINGER:

No.

Is he

How is this

My client reached out to Eric with

14

the understanding that we needed to produce things as soon as

15

possible.

16

Aventura going through some stuff right now.

17
18

So my understanding is that Eric may be in a room in

THE COURT:

And is he going to be doing this on a full

time basis until he completes the task?

19

MS. SPRINGER:

That was my understanding, but I don't

20

want to say for sure, but I would hope, based on my

21

representations that time was of the essence, and we needed to

22

move.

23

That would be the case.
THE COURT:

Any idea how long it is going to take Eric

24

to review the e-mail address list to make this sort of

25

distinction?

Case 1:09-md-02106-ASG Document 196 Entered on FLSD Docket 12/17/2010 Page 19 of 35
19

1

MS. SPRINGER:

It is not a long list.

It is maybe 4

2

or 5 pieces of paper with one line each for each e-mail

3

address.

4

I would hope it wouldn't be long.

From what I have

5

been told, throughout this case there were a few instances

6

where one party worked for the debtors at one time and they

7

worked for Fontainebleau Resorts at another time.

8
9
10

So maybe there are a few that will be worth arguing
over, but I would hope he could look at it in one day and tell
us.

11

THE COURT:

12

might even be done.

13

hours.

14

Well, right.

In fact, it sounds like it

I mean, it could take less than 1 or 2

MS. SPRINGER:

Yes.

Based on, I am not sure what his

15

knowledge base is, but he has represented that he will be able

16

to help us with that.

17
18
19

THE COURT:

Okay.

And then what about the next phase

of this e-mail server, how is that going to happen?
MS. SPRINGER:

Once the e-mails are split up, I am not

20

sure how the trustee is going to handle the privilege review.

21

What we had planned on doing, we being Fontainebleau

22

Resorts, had been to retain an IT person or someone to craft

23

search terms based on what documents we believe may be

24

privileged.

25

So including general counsel's name, my name, stuff

Case 1:09-md-02106-ASG Document 196 Entered on FLSD Docket 12/17/2010 Page 20 of 35
20

1

like that so that we could go through quickly and pull out with

2

an electronic search what we think is privileged.

3

we had planed on producing everything that was non-privileged.

4
5

THE COURT:

After that,

And what is your estimate as to how long

that process will take?

6

MS. SPRINGER:

7

THE COURT:

I really am unsure.

Do you understand why I am asking?

I

8

mean, the subpoena was served, as I understand it, on April

9

22nd.

10

It is now basically the beginning of September, so it

11

has been almost 4 and a half months since the subpoena has been

12

issued, and it sounds to me like you and your clients are now

13

right about at the preliminary stage where parties first start

14

digging into electronic discovery.

15
16

So it sounds to me like 4 and a half months down the
road you are really just beginning.

17

MS. SPRINGER:

It would appear that way, but I can

18

represent that I have been working diligently.

It has been

19

complicated by all of the parties involved and the servers

20

being copied, but I understand.

21

I would say a month would be sufficient to pull out

22

everything that is privileged and produce everything that is

23

not.

24

THE COURT:

And is this from all of the servers or

25

just from the e-mail server?

Case 1:09-md-02106-ASG Document 196 Entered on FLSD Docket 12/17/2010 Page 21 of 35
21

1
2

MS. SPRINGER:

The e-mail server certainly.

I am

going to estimate a month is sufficient.

3

The other two servers, it is my understanding they are

4

not organized as clearly.

5

belong to which entity may be a little bit more burdensome, but

6

I would hope that there wouldn't be as many privileged

7

documents and the documents on the server as opposed to the

8

e-mails.

9

THE COURT:

So figuring out which documents

All right.

Well, let's talk about those

10

other two servers.

11

Eric counterpart who is going to be going through those two

12

servers, and explain it to me on a server by server basis,

13

please.

14
15
16

Is there somebody similar to Eric like an

MS. SPRINGER:

My understanding is that Eric has been

retained to help us with all of these various server issues.
Now, that my client is in possession of the accounting

17

and the documents server, I have asked them to look at our

18

copy, see out how it is organized and start going through and

19

seeing if we can pull out easily what belongs to us.

20

THE COURT:

21

MS. SPRINGER:

22

THE COURT:

23
24
25

So Eric is the man?
Yes.

Eric is going to be going through the

e-mail server and the other two servers as well?
MS. SPRINGER:

Yes, with the help of myself and the

other attorneys at my firm.

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22

1
2

THE COURT:

All right.

Mr. Dillman, you have heard

the explanation in the background.

3

MR. DILLMAN:

What do you have to say?

Well, Your Honor, it is consistent with

4

the story line we have been getting for the last 4 and a half

5

months, which is a lack of focus shall I say by the

6

Fontainebleau Resorts on the process of actually reviewing and

7

producing documents.

8
9

It has been, as you note, a long time and they are
only just now beginning that process.

10

It has been my experience that fixed deadlines focus

11

the mind in efforts in a way that a more free-flowing process

12

does not, and what we would ask is that Fontainebleau Resorts

13

be given a fixed time, and I would suggest, Your Honor, and

14

have a proposal to make here, that a month is too much time to

15

produce the documents.

16

I think the court needs to know two facts.

One is

17

that Judge Gold has set has issued a scheduling order in this

18

case, not surprisingly, which schedules dates out through

19

trial.

20

parties would agree that the Fontainebleau Resorts documents

21

are important, or at least certainly potentially important to

22

the deposition process.

23

Commencement of depositions is today.

I think all

Resorts and its principals controlled the financing

24

and the construction of the project.

They were at the center

25

of the defaults and the failed conditions precedent that are at

Case 1:09-md-02106-ASG Document 196 Entered on FLSD Docket 12/17/2010 Page 23 of 35
23

1
2

the center of our claims.
And as I think Ms. Springer has just acknowledged,

3

they have this entire time that the subpoena has been pending

4

owned and controlled these servers.

5

Whether Ms. Springer understood that to be the case or

6

not, I have no qualms about the veracity of her statements as

7

what she knew, but the facts now establish that for some time

8

now they have had these documents.

9

We are under Judge Gold's order, and further delay is

10

simply something that I think the plaintiffs in this case,

11

Mr. Nachtwey's clients and mine, are not agreeable to, nor,

12

frankly, do I think Judge Gold is.

13

The commencement of deposition dates has already been

14

extended I believe twice before.

15

Mr. Nachtwey can correct me, because of delays by Fontainebleau

16

Las Vegas in terms of their activities in the case and their

17

production of documents.

18
19

Perhaps just once.

So that's as an initial position.

Further delay is

simply not acceptable to us.

20

We understand that the documents cannot be produced

21

tomorrow, but it sounds to me as if let's take them one at a

22

time, the e-mail server should be able to be produced very

23

quickly, and here would be my proposal:

24
25

I will represent to the court that as recently as
several hours ago I spoke to the trustee for the debtors.

Case 1:09-md-02106-ASG Document 196 Entered on FLSD Docket 12/17/2010 Page 24 of 35
24

1

Excuse me.

2

Trustees' counsel.

He confirmed to me what he has told me in the past,

3

which is that the trustee has no intention of asserting any

4

privilege or other basis for withholding production of the

5

Fontainebleau Las Vegas documents.

6

So all of the documents on the e-mail server that are

7

debtor related, as I understood it, there were two categories,

8

can be produced immediately without any review whatsoever.

9

To the extent that that representation by the trustee

10

needs to be more concrete, we can certainly get that, but that

11

has been my information now for some time and was confirmed

12

today.

13
14
15
16

THE COURT:

Who is the bankruptcy trustee and who is

the trustee's counsel?
MR. DILLMAN:

The trustee's counsel is Russ Blaine,

B-l-a-i-n-e, I believe.

17

THE COURT:

And the trustee?

18

MR. DILLMAN:

The trustee's name I am going to botch.

19

Steve, can you help me out here?

20

MR. NACHTWEY:

His first name is Sanote.

21

name is spelled K-a-p-i-l-a.

22

THE COURT:

23

MR. DILLMAN:

His last

All right.
So it would seem to me that with respect

24

to the e-mail server and, you know, there is a lot of what we

25

want is on the e-mail server.

Case 1:09-md-02106-ASG Document 196 Entered on FLSD Docket 12/17/2010 Page 25 of 35
25

1

The debtor's documents will not be a problem.

2

with respect to Fontainebleau Resorts, the only other party as

3

I understand it that has documents on that server, I have heard

4

Ms. Springer say that it should be a fairly process of

5

determining whose documents are whose.

6

And

And once the FBR documents are segregated or

7

determined, then it seems to me that a quick search to

8

determine a top level privilege, you know, probably broader

9

than actual privileged universe, could be done.

10

We could get everything that does not fall within that

11

broad privilege determination, and they could then go through

12

that on a basis to cull out privileged or non-privileged, but

13

in the meantime we can get the documents for which there is no

14

reasonable basis to believe that they are privileged.

15
16

THE COURT:
just one second.

17

All right.

Mr. Dillman, bear with me for

Let me just follow-up here.

Is this the first time that you have heard the

18

position of the trustee that he does not intend to assert a

19

privilege as to any of the Fontainebleau Las Vegas debtors?

20

MS. SPRINGER:

Yes.

There have been a lot of e-mails

21

exchanged, but I believe this is the first time I have heard

22

that.

23

THE COURT:

All right.

Have you heard to the contrary

24

that the trustee was, in fact, going to be asserting some kind

25

of a privilege, or was it merely, you know, an answer of

Case 1:09-md-02106-ASG Document 196 Entered on FLSD Docket 12/17/2010 Page 26 of 35
26

1

communication or confusing communication?

2

MS. SPRINGER:

3

THE COURT:

4

Absence of communication on that issue.

All right.

Mr. Dillman, please proceed to

the rest of your comments.

5

MR. DILLMAN:

Well, taking the servers again one at a

6

time, the accounting server, I would think that the

7

determination of whose accounting records are whose would be

8

fairly easy to make in that.

9

I don't have obviously the access of the server.

I

10

can't say that for sure, but based on my experience, accounting

11

servers are segregated in ways that make identification of

12

particular entities financial statements and related materials

13

fairly easy.

14

I don't see a privilege issue that would attach to the

15

accounting server.

16

that can, in very short order, within, you know, a week or two

17

be produced pursuant to our requests.

18

So, again, that seems to me to be a server

The document server, I really haven't been given

19

enough information to understand how that is set up and whose

20

documents are on it, how they are organized or categorized, and

21

so on, but I guess I would retreat to the position that I

22

stated earlier which is we have been at this now four and a

23

half months, and it is Fontainebleau Resorts obligation to do

24

whatever it takes to get the documents to us that we have asked

25

for.

Case 1:09-md-02106-ASG Document 196 Entered on FLSD Docket 12/17/2010 Page 27 of 35
27

1
2

I would think, under the circumstances, 2 or 3 weeks
should, given what I have just heard, be sufficient.

3

If we start delaying longer than that, we are going to

4

be affecting and impacting Judge Gold's discovery schedule and

5

our ability to get this matter ready for trial along his

6

schedule.

7
8

THE COURT:

Is it your position that the trustee needs

to be brought into this discovery motion preceding?

9

I ask that because I notice in the response filed by

10

Fontainebleau Resorts, LLC on page 2 in a footnote, there is an

11

explanation that there is some sort of an oral agreement which

12

governs production of documents from the servers, but it is

13

supposed to be reduced to writing, and the person apparently

14

who has been tasked with the preparation of the written

15

agreement is the trustee's counsel, Russell Blain, but the

16

explanation here by Ms. Springer is that despite follow-up

17

e-mails, she has no idea when Mr. Blain is actually going to go

18

ahead and draft this agreement.

19

So when I hear that, I sort of wonder whether or not

20

Mr. Blain or the trustee needs to be part of this discovery

21

dispute.

22
23
24
25

What are your thoughts?
MR. DILLMAN:

I don't think he does, and for the

following reason:
The request, the subpoena that we had issued is to
Fontainebleau Resorts.

The fact that there may be other

Case 1:09-md-02106-ASG Document 196 Entered on FLSD Docket 12/17/2010 Page 28 of 35
28

1

parties with interest in documents that are on the servers is

2

perhaps important to those parties and they are going to want

3

to work out whatever agreements they have with Fontainebleau

4

Resorts, but from our standpoint, we have a subpoena.

5

It is directed to Fontainebleau Resorts.

They are

6

obligated to produce responsive documents in a timely manner.

7

They are obligated to figure out how to do that, and they

8

cannot delay their own production based upon the fact that

9

there isn't an agreement with a third-party that, frankly, is

10

not required in any instance for their production.

11

So I think if Mr. Blain or if the court would like to

12

hear from Mr. Blain to confirm the representations that I have

13

made, he has told me he is happy to do that.

14

I have asked him about this issue with the draft

15

agreement.

16

about the process by which and the timing, which is they

17

haven't decided on anything, by which the various parties would

18

identify what their documents are on these servers, but, again,

19

FBR can identify their own documents.

20

What he said was that the parties have only talked

They can produce their own documents.

I am not

21

worried at this point about what our trustee documents or what

22

are Fontainebleau Miami documents.

23

I am worried about and want to get copies of

24

Fontainebleau Resort's documents which is fully within their

25

control without recourse to any agreement with the trustee.

Case 1:09-md-02106-ASG Document 196 Entered on FLSD Docket 12/17/2010 Page 29 of 35
29

1

MS. SPRINGER:

If I may, Your Honor, Mr. Blain

2

e-mailed me this morning with a preliminary bullet point

3

agreement which reflects the oral agreement we came to a couple

4

of months ago.

5

So we do have something in writing, but I would

6

disagree with Mr. Dillman that it is not important that we

7

allow parties with information on these servers to figure out

8

if the stuff belongs to them.

9

THE COURT:

10

Right.

MS. SPRINGER:

We may own the hardware, but we do not

11

own all of the information on the servers.

12

beginning we have recognized that and have been trying to work

13

with all of the entities to try to figure out the best way to

14

make sure my client doesn't produce documents belonging to the

15

debtor or other Fontainebleau related entities.

16
17
18
19
20

THE COURT:

Right.

So from the

I don't think Mr. Dillman's

position is that it is completely irrelevant.
I think what he is saying is a subpoena was served on
your client.

Your client has a responsibility to respond.

If for whatever reason your client has decided as a

21

courtesy as part of an agreement or understanding to give other

22

parties the right to review the information before it is

23

disclosed, to see whether or not they have any privilege

24

issues, that is fine, but this process should not unduly

25

prejudice the parties which has served the subpoena, otherwise

Case 1:09-md-02106-ASG Document 196 Entered on FLSD Docket 12/17/2010 Page 30 of 35
30

1

it would be far too easy for a party who has been served with a

2

subpoena to unduly delay by simply saying, "Well, we need to

3

check with party A or party B or corporation C or D.

4

golly, gee, it is not our fault.

5

as we can.

6

us timely," and in this last part of the discussion Mr. Dillman

7

didn't exactly say, but it was sort of implied, and I am

8

amplifying his comments, but I suspect that he would not

9

disagree with what I am saying.

10

And,

We are acting as diligently

It is these other folks who haven't gotten back to

MR. DILLMAN:

No.

Correct, sir?

Absolutely, Your Honor, and I just

11

heard Ms. Springer say that the agreement that was discussed

12

with the trustee was discussed two months ago, so further

13

indicating that there simply has not been any sense of urgency

14

on behalf of Fontainebleau Resorts to get us the documents we

15

have asked for.

16

THE COURT:

Right.

All right.

Ms. Springer, let me

17

ask you about something that was contained in the final page of

18

your response.

19

It says here that you are asking the court to deny the

20

motion to compel and refer the matter to a general magistrate

21

for an evidentiary hearing.

22
23
24
25

So I guess my question is what do you anticipate
happening at an evidentiary hearing?
MS. SPRINGER:

I anticipate that we would be able to

explain more fully at that time the universe of servers, how

Case 1:09-md-02106-ASG Document 196 Entered on FLSD Docket 12/17/2010 Page 31 of 35
31

1

they are organized, what the process will be, what the

2

deadlines would be for reviewing for privilege, and that type

3

of information.

4

deadlines that correspond to the reasonable doable rate of

5

production.

6
7

And once that information is laid out, have

THE COURT:

And what witnesses would you anticipate

testifying at this evidentiary hearing that you have asked for?

8

MS. SPRINGER:

Well, we could bring in David Chin who

9

did the copying of the servers.

We could bring in this Eric

10

Salsinger to set forth whether he can tell easily which

11

documents belong to Fontainebleau Resorts and which ones belong

12

to other entities.

13

have former general counsel.

14

THE COURT:

That's just two that I can think of.

All right.

We

I don't want to short-circuit

15

the ability of any of the other counsel on the phone to

16

participate in the hearing.

17

Mr. Dillman you have been carrying the laboring oar

18

there.

19

to make any argument or say anything at all concerning this

20

motion?

21
22
23

Do any of the other lawyers participating by phone want

MR. NACHTWEY:
the Aruilus plaintiffs.

This is Steve Nachtwey.

I represent

I am also one of the moving parties.

The one thing I would like to point out, and I think

24

it is referenced in our papers, is that there was a denial of a

25

motion to quash before Judge Bandstra in which FBR or

Case 1:09-md-02106-ASG Document 196 Entered on FLSD Docket 12/17/2010 Page 32 of 35
32

1

Fontainebleau Resorts has been ordered to complete its

2

production by September 17th.

3

There is already an order requiring Fontainebleau

4

Resorts to produce documents by a certain date.

5

my perspective, I would like to see on our subpoena that same

6

deadline or something sooner as Mr. Dillman has laid out.

7

MS. SPRINGER:

You know, from

If I may, that order may not or I don't

8

want to say go into effect, but the trustee chose to my

9

understanding is abandon the cause of action that dealt with

10
11

that order.
I have asked the defendants who issued the subpoena to

12

Fontainebleau Resorts, in light of the trustee's recent

13

decision, to dismiss its case, whether they would agree to some

14

sort of a stay until there is a formal order or agreement

15

between the debtors and the trustee is entered, and I have yet

16

to hear back.

17

THE COURT:

And that order that you just referenced

18

Mr. Nachtwey, the subpoena was issued to which entity or

19

entities?

20

MR. NACHTWEY:

Well, this is part of an MDL.

The

21

subpoena was issued by some of the defendants on the phone to

22

Fontainebleau Resorts, the same entity we subpoenaed.

23

MS. SPRINGER:

It was actually issued to three

24

Fontainebleau entities, Fontainebleau Resorts, Fontainebleau

25

Resorts Holdings and one other Fontainebleau resort entity.

Case 1:09-md-02106-ASG Document 196 Entered on FLSD Docket 12/17/2010 Page 33 of 35
33

1

THE COURT:

All right.

And then those three entities

2

filed a motion to quash, and then there was an order entered

3

denying the motion to quash?

4
5

MS. SPRINGER:

Yes, and requiring that we produce by

September 17th.

6

THE COURT:

All right.

7

by Magistrate Judge Bandstra?

8

MS. SPRINGER:

9

THE COURT:

And that was an order entered

Yes, Your Honor.

But from what I hear you saying, that

10

order related to subpoenas which were issued in an action which

11

is now, in effect, moot?

12

MS. SPRINGER:

13

MR. DILLMAN:

14

MR. NACHTWEY:

15

tomorrow.

16
17

Well, it may be moot.
It may be moot.

We have a hearing

Those actions are still pending.

THE COURT:
Mr. Dillman.

18

Yes, Your Honor.

All right.

So I have heard from

I have heard from Mr. Nachtwey.

Are there any other lawyers on the phone who want to

19

call my attention to anything that we haven't discussed

20

already?

21

All right.

Well, we are going to be getting an order

22

out fairly quickly on this, probably within the next day or

23

two.

24
25

So as the saying goes, keep your eyes peeled for the
electronic filings.

It should be coming across your computers

Case 1:09-md-02106-ASG Document 196 Entered on FLSD Docket 12/17/2010 Page 34 of 35
34

1

soon.

2
3

So thank you everybody for participating and thank
you, Ms. Springer, for joining us here in person.

4

When I set a telephone hearing, by the way, it doesn't

5

preclude anybody from showing up in person, but as a matter of

6

practice, most of the time for telephone hearings lawyers

7

participate by phone, but I am always happy to see you here in

8

person.

9

MS. SPRINGER:

10
11

THE COURT:

Thank you, Your Honor.

All right.

We will be in recess.

you.

12

MR. DILLMAN:

13

(Whereupon the proceedings were concluded).

14
15
16
17
18
19
20
21
22
23
24
25

Thank you, Your Honor.

Thank

Case 1:09-md-02106-ASG Document 196 Entered on FLSD Docket 12/17/2010 Page 35 of 35
35

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C E R T I F I C A T E
I hereby certify that the foregoing is an accurate
transcription of proceedings in the above-entitled matter.

5
6

DECEMBER 7, 2010
________________
DATE

S/JERALD M. MEYERS
______________________________________
JERALD M. MEYERS, RPR-CM

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Quality Assurance by Proximity Linguibase Technologies

Case 1:09-md-02106-ASG Document 196-1 Entered on FLSD Docket 12/17/2010 Page 1 of 1

"Jerald M. Meyers"
<[e-mail]>

To [e-mail],
[e-mail]
cc

12/17/2010 12:34 PM

bcc
Subject Simultaneous Transcript Access Designation Form

From: Jerald M. Meyers <[e-mail]>
New Simultaneous Transcript Access Designation Form
Submitters Name:

Jerald M. Meyers

Submitters Email: [e-mail]
Case Number: 09-Civ-MD-02106-GOLD
Case Style: Fontaineblue Las Vegas Contract Litigation
Access rights are granted to the following attorney(s) of record: U.S.
MAGISTRATE JUDGE JONATHAN GOODMAN ONLY
Signature of court reporter: S/Jerald M. Meyers
Date: December 17, 2010
Uploaded Transcript: fontain2.pdf
[attachment "fontain2.pdf" deleted by Collette Quinones/FLSD/11/USCOURTS]

Case 1:09-md-02106-ASG Document 197 Entered on FLSD Docket 12/20/2010 Page 1 of 1

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO 09-MD-02106-CIV-GOLD/GOODMAN
IN RE: FONTAINEBLEAU LAS VEGAS
CONTRACT LITIGATION
MDL No. 2106
This document applies to:
Case No. 09-CV-23835-ASG.
Case No. 10-CV-20236-ASG.
_________________________________/
MDL ORDER NUMBER 42;
REFERRING MOTION TO MAGISTRATE JUDGE JONATHAN GOODMAN
THIS CAUSE is before the Court upon Term Lenders’ Motion for Determination of
Fontainebleau Resort’s Waiver of Privilege [ECF No. 192]. Pursuant to 28 U.S.C. § 636
and the Magistrate Rules of the Local Rules for the Southern District of Florida, the Motion
[ECF No. 192] is hereby REFERRED to United States Magistrate Judge Jonathan
Goodman to take all necessary and proper action as required by law.
DONE and ORDERED IN CHAMBERS at Miami, Florida this 17th day of December,
2010.

______________________________
THE HONORABLE ALAN S. GOLD
UNITED STATES DISTRICT JUDGE
cc:

U.S. Magistrate Judge Jonathan Goodman
Counsel of record

Case 1:09-md-02106-ASG Document 198 Entered on FLSD Docket 12/30/2010 Page 1 of 1

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO 09-MD-02106-CIV-GOLD/GOODMAN
IN RE: FONTAINEBLEAU LAS VEGAS
CONTRACT LITIGATION
MDL No. 2106
This document applies to:
Case No. 09-CV-23835-ASG.
Case No. 10-CV-20236-ASG.
_________________________________/

MDL ORDER NUMBER 43; RE ORAL ARGUMENT SET FOR
JANUARY 7, 2011 AT 10:00 AM
THIS CAUSE is before the Court sua sponte. It has come to the Court’s attention
that there are interested parties who wish to listen and not participate at the hearing
presently set before the undersigned on Friday, January 7, 2011 at 10:00 a.m. relative to
the Plaintiff Term Lenders’ Joint Motion for Partial Final Judgment (“Motion”) [ECF No.
151]. As a courtesy to those interested parties, it is hereby
ORDERED AND ADJUDGED that:
1.

Any interested party who wishes to listen and not participate at this hearing may
dial the following AT&T Toll-Free Number 1.888.684.8852, enter Access Code
8321924 and thereafter Security Code 5050. Please dial in by no later than 9:55
a.m. so that the hearing may start promptly and without interruptions by 10:00 a.m.
DONE and ORDERED in Chambers in Miami, Florida, this 30th day of December,

2010.
______________________________
THE HONORABLE ALAN S. GOLD
UNITED STATES DISTRICT JUDGE

cc:

U.S. Magistrate Judge Jonathan Goodman
Counsel of record

Case 1:09-md-02106-ASG Document 199 Entered on FLSD Docket 01/07/2011 Page 1 of 19

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 09-02106-MD-GOLD/GOODMAN
IN RE: FONTAINEBLEAU LAS VEGAS
CONTRACT LITIGATION
____________________________________/
ORDER ON MOTION FOR DETERMINATION OF WAIVER OF PRIVILEGE
This matter is before the Court on the Term Lenders’ Motion for Determination of
Fontainebleau Resort, LLC’s Waiver of Privilege (DE# 192), filed December 6, 2010.
Fontainebleau filed a response in opposition to the motion on December 13, 2010
(DE# 194). I have reviewed the Motion, the response, the pertinent portions of the
record, and the applicable law. Having already twice held hearings on the underlying
discovery dispute that is the basis for this motion (DE# 132, 165), I will decide the
motion without oral argument pursuant to Federal Rule of Civil Procedure 78(b).
As outlined below, I find that Fontainebleau Resorts, LLC (“FBR” or
“Fontainebleau”) waived the attorney-client privilege and work product protection, and
any other applicable privileges, for the materials it produced from two of three computer
servers in what can fairly be described as a data dump as part of a significantly tardy
response to a subpoena and to court-ordered production deadlines. But this Order will
also provide some relief to Fontainebleau: the waiver does not relate to the materials on
the email server, and the Term Lenders (who issued the subpoena and who received the
massive amount of data belatedly produced by Fontainebleau) shall also timely advise
Fontainebleau of any clearly privileged material they may find during their review of the
production on the documents and accounting servers. The specific parameters of this
notice requirement will be spelled out in more detail in the body of this Order.
DETAILED FACTUAL BACKGROUND
This controversy, which began with a seemingly routine discovery request, dates
back to April 22, 2010, when the Term Lenders subpoenaed Fontainebleau for
documents, including electronically stored documents, relating to the financing of the
construction of the Fontainebleau Resort and Casino in Las Vegas. After waiting four

Case 1:09-md-02106-ASG Document 199 Entered on FLSD Docket 01/07/2011 Page 2 of 19

months without a responsive production from Fontainebleau, the Term Lenders filed a
motion to compel (DE# 123). I held a hearing on the motion on August 30, 2010.
Before the hearing, other important events relating to the subpoena unfolded. But
before outlining those events, it is helpful to first explain Fontainebleau’s place in this
litigation.
Although Fontainebleau has identified itself as a “third party” in connection with
the Term Lenders’ subpoena, this is an over-simplification of its role. Fontainebleau is
the parent of Fontainebleau Las Vegas, LLC, the borrower who filed a bankruptcy
petition in the Southern District of Florida in June 2009 (DE# 123). As I will explain in
this chronology, Fontainebleau changed its explanation for continually delaying its
production of documents in response to the Term Lenders’ subpoena.

First, FBR

attributed the delay to the bankruptcy trustee’s supposed possession of the servers and the
trustee’s position on whether the data could or should be produced by FBR. Thereafter,
Fontainebleau changed its position and resisted both producing documents and
conducting privilege review on the grounds that the subpoena (and later Court orders)
was too burdensome.
Before the Term Lenders filed their motion to compel in connection with their
April 2010 subpoena, FBR and “related” entities filed a motion to quash other subpoenas
issued by several banks in July 2010 (DE# 93). In this motion to quash, FBR explained
that different entities all had information on the three computer servers and that it needed
to coordinate the removal of each entity’s information. FBR explained in its motion to
quash that its counsel had been in contact with the bankruptcy trustee and the trustee’s
counsel and that the trustee determined “that each entity will receive a full copy of each
of the servers.” It also explained that “each entity will then have to review all of the
documents on the servers to determine which documents belong to them, which
documents belong to multiple entities, which documents are privileged and which
documents are responsive to any outstanding discovery requests or subpoenas.” FBR
predicted that “deciding which documents belong to which entities will be a time-

2

Case 1:09-md-02106-ASG Document 199 Entered on FLSD Docket 01/07/2011 Page 3 of 19

consuming undertaking due to the number of documents as well as anticipated disputes
over ownership of the documents” (Id.). 1
After noting its position that other (albeit potentially related) entities would need
to review documents on the “shared” servers, FBR then said: “After this sorting process
is complete, if any of the entities with information on the servers wish to produce
documents in response to discovery requests or subpoenas, they will have to provide each
entity which received a copy of the servers with an opportunity to examine what is being
produced in order to confirm that documents belonging to the non-producing entity are
not being produced” (Id.) (emphasis added). However, Fontainebleau’s motion to quash
did not explain why an entity (Corp. A) could prevent another entity (Corp. B) from
producing documents (privileged or otherwise) initially belonging to Corp. A but now in
Corp. B’s possession (on so-called “shared servers”).
In addition to its comments about the logistics surrounding the shared servers,
Fontainebleau also argued that the subpoenas were overbroad. Significantly, however,
FBR did not specifically contend that it would be too costly to review the servers for
responsive documents or to analyze the servers for privileged material before it or the
“other” entities produced documents and data. Fontainebleau merely raised a conclusory
1

Fontainebleau did not explain in its motion to quash why the shared
documents on the computer servers would still be privileged (assuming they were
privileged in the first place) if they were stored together on servers presumably accessible
by other entities. Fontainebleau represented in its motion that the servers “are owned by
Fontainebleau Resorts, LLC (one of The FBR Entities) but [] contain documents
belonging to various Fontainebleau and Turnberry Construction entities, including the
Debtors” (DE# 93, at 2). Likewise, Fontainebleau did not explain in its motion why the
entities would not lose privilege protection under a plan where each entity would receive
“a full copy of each of the servers” (and presumably have unfettered access to all
material, including information and privileged matter belonging to others).
If all of the legally separate entities are sufficiently affiliated, then they likely
would be permitted to safely share privileged information without losing privilege, but
Fontainebleau did not address the issue in its motion and did not discuss, let alone
establish, that all of the entities having material on the servers (and which would obtain
full copies of the servers) are all in parent-subsidiary relationships or are otherwise
sufficiently affiliated. See, e.g., Roberts v. Carrier Corp., 107 F.R.D. 679, 687 (N.D. Ind.
1985) (explaining that privilege can extend to corporate subsidiaries). In addition,
Fontainebleau did not state that it had entered into a joint defense, shared information, or
common interest agreement with the separate entities.
3

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and boilerplate objection about “an undue burden or expense” but then explained that
“the servers have not even been copied yet,” despite “the best efforts of counsel,” and
that “it is unknown how many documents are on the servers or how long it will take to
complete the above described process” (DE# 93, at 3). Thus, FBR’s initial objection was
that logistical and coordination difficulties prevented timely compliance with the
subpoena.
Not surprisingly, the banks which served the subpoenas objected to the motion to
quash (DE# 114). In their objection, they noted that FBR sent an email on the day it was
required to respond to the subpoenas, advising the banks that FBR would move to quash
rather than comply. The banks also observed that FBR refused their offer to extend
FBR’s response time to respond so that it could properly coordinate its production with
the bankruptcy trustee. According to the banks’ objection, FBR declined the offer and
filed the motion to quash.
In an Order dated August 3, 2010, Magistrate Judge Ted E. Bandstra denied the
motion to quash (DE# 120), finding that the two specific requests flagged by FBR were
neither overbroad nor unduly burdensome and finding further that “the FBR Entities
failed to satisfy Local Rule 7.1(A)(3) by not making a good faith effort to resolve the
subject issues prior to filing the instant motion.”
Two days later, FBR served its formal written response to the Term Lenders’
April 22 subpoena, the discovery tool at issue here. Although FBR’s response described
the subpoena as a “document request,” it is clear that FBR was actually referring to the
subpoena. Echoing its earlier motion to quash the subpoenas issued by other banks, FBR
again raised the “shared server” explanation and explained that “certain information on
the servers belongs solely to entities other than FBR” (DE# 122, at 1 n.2) (emphasis
added).

FBR represented that the servers “are in the process of being copied and

distributed to all entities with information on them. Once that is complete, all documents
responsive to this request [sic] that belong to FBR will be produced to the Plaintiff Term
Lenders” (Id.) (emphasis added).
Again, Fontainebleau did not explain why privilege, assuming it existed, had not
been previously waived by virtue of its decision to have its documents and data stored on
servers shared by “entities other than FBR.” Fontainebleau apparently assumed that the

4

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other entities, described simply as “related entities,” were all sufficiently affiliated to
permit safe sharing of privileged information without risking a waiver, but this point was
not raised in any way (DE# 122, at 1 n.2).
Unlike its response to the other subpoenas, FBR did not file a motion to quash the
Term Lenders’ subpoena, nor did it assert in its written response that it would be too
costly to search the servers for responsive documents and data or that it would be unfairly
expensive to review the servers for privilege. Likewise, FBR never filed a motion or
pursued any written request to shift to the Term Lenders the cost of searching the servers
or conducting a privilege review. In its response, FBR’s repeatedly represented that “all
documents responsive to this [April 22, 2010] request [sic] that are the property of FBR
will be produced to the Term Lenders,” but FBR’s did not say when production would be
made (DE# 93, at 1-2).
At the August 30, 2010, hearing on the Term Lenders’ Motion to Compel
(DE# 123), Fontainebleau’s counsel conceded that she initially told the Term Lenders
that Fontainebleau’s bankruptcy trustee was in control of the electronic servers on which
most of the data was stored and that the trustee would not allow removal of the
information (DE# 196). As it turned out, this information was not entirely correct. Two
of the relevant servers, the accounting server and the documents server, were in Las
Vegas, while a third server, for emails, had moved to Miami many months earlier, in
January 2010.
The Court also learned at this hearing that there were actually two copies of some
of the servers. But only in August 2010, one week before the discovery hearing and four
months after the initial subpoena, did all three servers finally come into FBR’s possession
via its South Florida counsel.
During the four-month period between the subpoena and the hearing on the
motion to compel, Fontainebleau did not move to quash the subpoena because it was
overly broad or too burdensome, nor did Fontainebleau seek a protective order that might
have limited the scope of the subpoena. Instead, Fontainebleau’s position at the hearing
was that the delay was due to the logistical difficulty in obtaining the relevant servers.
And further, rather than attack the subpoena itself, Fontainebleau requested an
evidentiary hearing to determine how long it would take for it to properly review this

5

Case 1:09-md-02106-ASG Document 199 Entered on FLSD Docket 01/07/2011 Page 6 of 19

information for responsive and privileged documents. Fontainebleau’s position was that
it initially took four months just to gather of all the relevant materials in South Florida,
and that substantial, additional time was needed to sort through the large amount of
information contained on the servers now in its possession.
But it was only on August 30, 2010, more than four months after the initial
subpoena, that Fontainebleau informed the Court, for the first time, and only in
opposition to the motion to compel, of the alleged burdens of complying with the April
22 subpoena. Again, FBR never sought to quash the subpoena, nor did it move for a
protective order limiting its scope. Instead, Fontainebleau simply discussed the status of
the servers and announced the steps it would take to start complying with the subpoena,
albeit belatedly.
FBR also did not ask the Court to shift to the Term Lenders the cost of locating
responsive documents on the three servers or the cost of reviewing the servers for
privileged material. Instead, it advised the Court that it would take less than a day to
review the email server to determine which entities had relevant documents on it and an
additional month for it and the other entities to complete a privilege review (DE# 196, at
17-20). Fontainebleau’s counsel also explained that she hoped that “there wouldn’t be as
many privileged documents” on the other two servers (Id. at 21).
At the hearing, Fontainebleau acted as though it was also moving forward on
producing documents and data from the other two servers. It did not then (four months
after the subpoena was issued) complain that it lacked financial resources to review the
other two servers for privilege, nor did it seek to have the Term Lenders pay all or some
of the review costs. FBR simply needed more time.
Because of the lengthy delay of almost four and a half months since the Term
Lenders’ initial subpoena for documents and data, and in light of the District Court’s trial
deadlines, I denied Fontainebleau’s request for an evidentiary hearing and granted the
Term Lenders’ motion to compel. I further ordered that Fontainebleau produce nonprivileged documents covered by the subpoena by September 13, 2010, and produce a
privilege log by September 20, 2010 (DE# 129).
Fontainebleau did not comply with these deadlines and in fact made no
production whatsoever within the time given by the Court.

6

In response, the Term

Case 1:09-md-02106-ASG Document 199 Entered on FLSD Docket 01/07/2011 Page 7 of 19

Lenders filed a motion for sanctions (DE# 153), and I held a hearing on the motion on
October 18, 2010. During this same time, Fontainebleau’s counsel moved to withdraw
from the case because of concerns about its client’s ability to pay.
I learned at this second hearing that Fontainebleau’s counsel had hired IKON, a
third-party vendor specializing in e-discovery, to search the email server for relevant
documents. IKON had completed its work screening for responsive documents but
Fontainebleau’s counsel unilaterally ordered IKON not to begin a privilege review
because of its payment concerns. 2 But FBR did not file a motion to be excused from the
August 30 discovery Order, nor did it advise the Court of other circumstances which it
believed made it financially impossible or difficult to comply with the Order. In fact, as
of the October 18 hearing, FBR had not moved forward on the production front at
all--a state of affairs which I only learned about at the hearing in response to my
questioning about the production process (DE# 195, at 21-25). Fontainebleau conceded
that “the better practice” might have been to file a motion or advise the Court that all
production efforts had stopped even though an order compelling production had been
entered (Id. at 23).
During the October 18 hearing, the Term Lenders advised that the bankruptcy
trustee for Fontainebleau Las Vegas had waived the attorney-client privilege and was
“prepared to produce the entire servers” (Id. at 55-56). The Term Lenders also advised
that the bankruptcy trustee had “very patiently waited for the Fontainebleau Resorts to
get its job done” (Id.).

FBR did not contest these representations in any way.

(Fontainebleau Las Vegas is one of the entities which shared the servers with FBR.)
Thus, as of the second hearing on October 18, 2010, approximately six months
after the Term Lenders’ subpoena was issued, neither Fontainebleau nor its electronic
discovery vendor had even started the process of reviewing the email server--or any of
the servers--for privilege (Id. at 28-29, 36). In fact, the Court learned at the hearing, in
response to additional questions, that IKON had returned the email server to
Fontainebleau’s local counsel (Id. at 33-34). Fontainebleau also represented that it did
2

Although I granted Fontainebleau’s counsel’s motion to withdraw on the
condition that they find substitute counsel within 30 days, counsel has since informed that
the Court that Fontainebleau is unable to find new counsel and so current counsel will
remain in this case for the time being (DE# 166, 185).
7

Case 1:09-md-02106-ASG Document 199 Entered on FLSD Docket 01/07/2011 Page 8 of 19

not know how long it would take to review the email server for privilege and for the first
time made an informal, ore tenus request that the Term Lenders assume the expense of
the privilege review (Id. at 32-33).

But Fontainebleau did not know how much a

privilege review of the email server would cost (Id. at p. 37).
Fontainebleau then advised the Court that it would take less than a day to review
the email server for privilege once it came up with a list of privilege search terms--a list
primarily consisting of the names of lawyers and law firms (Id. at 37-40). Fontainebleau
said it wanted to reach an agreement with the Term Lenders about the names on the list
but conceded that it was supposed to carry the laboring oar and would therefore be
responsible for creating the first draft of the list (Id. at 38-40). As of the October 18
hearing, however, Fontainebleau had not begun to prepare the list. It predicted it would
take, at most, a day to prepare and circulate the draft of the privilege list (Id. at. 40).
I found that Fontainebleau was not in compliance with my order compelling
production. I therefore extended, once again, FBR’s production obligations until October
25 and November 5, and reserved ruling on the issue of monetary sanctions until the
expiration of the new deadlines in order to see whether Fontainebleau complied with
them (DE# 167). I further instructed the Term Lenders that they could file a “Notice of
Non-Compliance” if Fontainebleau did not comply with the new Order.
Fontainebleau again did not comply with the new, Court-ordered discovery
deadlines. Instead, similar to its eleventh-hour motion to quash filed in response to
subpoenas from other banks, Fontainebleau filed a Friday afternoon motion, one business
day before its production was due (under the already-extended Court-imposed deadlines),
requesting the entry of a confidentiality order (DE# 173). 3 Now, half-a-year after being
served with the subpoena, Fontainebleau sought relief because, it contended, it would be
too onerous for it to conduct an adequate privilege review within the time period
provided by the Court. The proposed order would have required the Term Lenders to
produce back to Fontainebleau all of the documents which they decided to copy off the
servers and to specifically pinpoint the privileged material that they found during their
review. This request would have essentially forced the Term Lenders to conduct the
3

This motion was filed on October 22, 2010, exactly six months after the
initial subpoena was served.
8

Case 1:09-md-02106-ASG Document 199 Entered on FLSD Docket 01/07/2011 Page 9 of 19

privilege review on behalf of Fontainebleau and would potentially have revealed attorney
work product by demonstrating which documents the Term Lenders’ attorneys found
important enough to copy. I therefore denied the last-minute motion (DE# 173).
But I did not leave FBR without recourse to protect potentially privileged
materials. Instead, I provided that Fontainebleau could file a motion at a later date if it
determined that it inadvertently produced privileged documents.

I also ruled that

Fontainebleau could file a verified motion requesting an enlargement of time to produce a
privilege log. To date, Fontainebleau has not availed itself of either option.
Instead, Fontainebleau engaged in what the Term Lenders describe (not
inaccurately) as a “document dump,” overproducing documents and data in response to
the subpoena and court-ordered production. Fontainebleau simply handed over all three
servers to the Term Lenders without conducting any meaningful relevancy review. Even
though the parties had agreed on search terms for the email server, Fontainebleau
ultimately produced a 126 gigabyte disk containing 700,000 emails. Fontainebleau also
handed over the documents and accounts servers without conducting any review for
responsive data. And Fontainebleau did not produce any privilege logs by the deadlines
set forth in the October 18 Order. FBR did, however, belatedly produce a privilege log
for the data on the email server after the expiration of the court-imposed deadline (though
without requesting leave of the Court).
Fontainebleau did not file objections to my order denying its last-minute request,
nor did it file a motion for a stay or otherwise seek to challenge my discovery rulings.
Instead, it simply turned over the data from the three servers, recognizing that none of the
data on the documents and accounting servers had been reviewed for privilege. In effect,
Fontainebleau took the two servers, which it never reviewed for privilege or
responsiveness, and said to the Term Lenders “here, you go figure it out.” And, although
FBR reviewed the email server for privilege and withheld materials on it, Fontainebleau
turned over the remaining balance of the email server to the Term Lenders with the same
implicit message of “here’s everything, search away” 4

4

The Term Lenders advised the Court in an affidavit that the documents
server contains more than 20 million pages of audio files, emails, image files, database
9

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The Term Lenders filed a notice of Fontainebleau’s non-compliance, indicating
that Fontainebleau did not search the email server with the agreed-upon terms, did not
timely provide a privilege log for the email server and produced a documents server that
contained every document in Fontainebleau’s servers going back a decade.

This

document “dump” amounts to approximately 800 gigabytes of data and 600,000
documents (DE# 180). Fontainebleau responded that it spent $25,000 to search the email
server with the terms requested by the Term Lenders and that its production did
incorporate the search terms, enabling it to eliminate seventy-five percent of the
documents on the email server. But Fontainebleau did not contest the fact that it turned
over all the data on the other two servers without either a privilege review or a
substantive review for responsiveness.
In response to Fontainebleau’s non-compliance, the Term Lenders have now
agreed to “eat” (their term) the cost of sorting through this massive amount of data for
relevant documents if they have the ability to use the data produced. Indeed, the Term
Lenders have abandoned their request for monetary sanctions. But the Term Lenders are
not prepared to bear the burden of both paying to search for relevant documents and to
risk adverse consequences if they encounter (and wish to use in litigation) what would
normally be privileged documents and data (DE# 182).
The Term Lenders are understandably concerned that they may well encounter
privileged information on Fontainebleau’s servers because of the way that they were
turned over (i.e., without having been previously reviewed for privileged information).
The Term Lenders therefore seek clear direction from the Court that they may review and
use all of the documents produced by Fontainebleau, free of any obligation to appraise
Fontainebleau of those documents that may implicate a privilege or to return such
documents to Fontainebleau. At the Court’s suggestion, the Term Lenders filed this
motion for determination of Fontainebleau’s waiver of privilege (DE# 192).
Fontainebleau opposes the motion. Fontainebleau now argues that the original
subpoena from April was unduly burdensome and expensive. Fontainebleau notes that it
did not obtain a copy of the documents server until August and therefore argues that it

files, excel files, Power Point files, Microsoft Word files, text files and video files (DE#
192-1, at 2).
10

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could not possibly cull through twenty million pages of documents for privilege review.
Citing for the first time to Federal Rule of Civil Procedure 45, which requires that a party
issuing a subpoena take reasonable steps to avoid imposing an undue burden or expense
of the subpoena’s subject, Fontainebleau argues that it has limited resources and no
employees to conduct a document review. See FED. R. CIV. P. 45(c)(1). FBR claims that
the expense “would have been incurred by the Term Lenders” under “normal
circumstances and as Rule 45 mandates” (DE# 194, at 2). 5
Fontainebleau also points to its status as a non-party to the litigation, but, as
previously noted, it is the parent of the debtor and appears to be affiliated with other
related entities. Fontainebleau argues that the Court should not find a waiver and blames
the Term Lenders for “creat[ing] this predicament by causing FBR to incur an undue
burden and expense in responding to their subpoena and corresponding Court orders.”
Fontainebleau does not say why it waited six months to first request that the Term Lender
pay the costs associated with the privilege review. Likewise, FBR does not explain why
it never filed a motion to quash or a motion for a protective order. Nor does FBR
indicate why it never asserted the “normal circumstances” of Rule 45 before its
December 13, 2010, memorandum, nor why it never filed objections to the discovery
orders.
According to the affidavit of Term Lenders’ counsel, which Fontainebleau has not
challenged, other banks in the coordinated MDL proceedings received the same
document server from Fontainebleau in response to their separate subpoenas (DE# 1921).
As outlined above, Fontainebleau’s primary objection to the banks’ subpoenas
and its principal, initial objection to the Term Lenders’ subpoena was the shared nature of
the servers and the need for “other entities” to review the material. Nevertheless, none of
the other entities (which presumably had privileged material on the shared servers)
lodged objections to my discovery orders or to Fontainebleau’s decision to turn over two
5

Fontainebleau first suggested that the Term Lenders assume the cost of the
privilege review at the October 18, 2010 hearing, approximately six months after the
subpoena was issued. When it did so, it was an informal, oral request, and no specific
motion or memorandum urging this “normal circumstances” point had been filed before
the hearing.

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servers without conducting a privilege review. None of these other entities sought to
intervene in the discovery dispute which presumably affected their privileged materials
too, and none of them pursued objections to the district court or otherwise joined in
Fontainebleau’s opposition to the motion to determine waiver. 6
Having decided to turn over two servers without even a cursory review for
privilege, Fontainebleau seeks to avoid the consequences of its review-free production. 7
THE DILEMMA
Fontainebleau argues that there is no waiver even though the documents and data
have already been produced and even though the presumably privileged information from
two of the three servers is already in the Term Lenders’ possession. The Term Lenders,
on the other hand, are reluctant to begin a meaningful review of the documents and data
produced to them without obtaining specific permission from the Court that they may do
so, because they do not want to confront potential adverse consequences which might
flow from their review of Fontainebleau’s arguably privileged information.
But Fontainebleau has not provided a workable solution to this dilemma. True, it
does not want the Court to find a waiver and does not want the Term Lenders to review
privileged information.

Yet Fontainebleau still does not pinpoint any particular

document or data as privileged and does not suggested how the Term Lenders are
supposed to review the information which has been, in effect, dumped in their collective
lap, without encountering material which is (or may be) privileged.
Assuming that Fontainebleau’s “there-was-no-waiver” theory is correct (which it
is not, as explained below), the only conceivable methods available now to prevent the
6

Under one recent appellate decision, one or more of these other entities
may well have been permitted to immediately appeal, on an interlocutory basis, a district
court ruling against privilege (had they chosen to intervene and object in the first place).
See U.S. v. Krane, 625 F.3d 568, 572 (9th Cir. 2010) (discovery orders adverse to the
attorney-client privilege are immediately appealable when the subject materials are
sought from a disinterested third party because the third party presumably lacks a
sufficient stake and would likely produce the documents rather than submit to a contempt
citation). But cf. Mohawk Indus., Inc. v. Carpenter, 130 S. Ct. 599 (2009) (privilege
determinations adverse to a litigant not appealable under collateral order doctrine).
7

“Actions have consequences [] first rule of life. And the second rule is this-you are the only one responsible for your own actions.” HOLLY LISLE, FIRE IN THE MIST
61 (1992).
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Term Lenders from encountering privileged information during their review of the two
servers is to direct the Term Lenders to immediately return the servers without reviewing
any of the data on them or to instruct the Term Lenders to completely refrain from
reviewing the information produced. Neither alternative is workable. Both alternatives
unduly prejudice the Term Lenders. And they would both create additional, unacceptable
delay. 8
ANALYSIS
In the Motion For Entry of Confidentiality Order that FBR filed on the Friday
afternoon before its Court-ordered production was due the following Monday,
Fontainebleau represented that it would “not have an opportunity to inspect them [the
three servers] all prior to production on October 25, 2010” (DE# 171, at 2) (emphasis
added).

But it appears as though Fontainebleau never reviewed anything on the

documents or accounting servers for privilege before producing the servers. Thus, the
more accurate statement would have been that Fontainebleau chose to not review any
documents or data on the accounting and document servers, for privilege or otherwise.
In fact, Fontainebleau has not pinpointed even one document on the servers it
belatedly produced which it contends is privileged. And it has not taken advantage of the
opportunity to advise the court of any inadvertently produced privileged material.
Fontainbleau seems to believe that the two servers must surely contain some type of
privileged information but it has not provided even any specific illustration. It has not
designated even one piece of paper as privileged on either the accounting or the
documents server. FBR has also not advised the Court whether it engaged in a sampling
technique to see whether privileged information could be found on the servers, nor has it
demonstrated that the materials on servers available to multiple parties had not already
lost their privilege by vitue of the access provided to other third parties.
Ironically, it is the Term Lenders who have provided the Court with additional
information about whether the servers contain privileged information. Specifically, the
Term Lenders, in their Motion for Determination of Waiver of Privilege (DE# 192),
explain that the electronic index reveals that more than 18,000 documents contain the
8

At the October 18 hearing, the Term Lenders advised the Court that April
2011 is the discovery cutoff and that “many” depositions will be taken (DE# 195, at 55).
13

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term *legal* in either their file location or name and that more than 5,000 documents are
in the folder of Fontainebleau’s former general counsel. But Fontainebleau, the party
seeking to protect presumably privileged information and to prevent a finding of waiver,
has not proffered any information whatsoever about the specific contents of the servers it
produced.
The attorney-client “privilege is not a favored evidentiary concept in the law since
it serves to obscure the truth, and it should be construed as narrowly as is consistent with
its purpose.” United States v. Suarez, 820 F.2d 1158, 1160 (11th Cir. 1987). As the party
seeking to assert privilege over still-not-designated materials on the two servers,
Fontainebleau has the burden of proving the applicability of the attorney-client privilege.
Weil v. Investment/Indicators, Research & Mgmt., Inc., 647 F.2d 18, 25 (9th Cir. 1981).
Because the burden is on the proponent of the privilege, a trial court may not properly
shift the burden to the opponent. Hawkins v. Stables, 148 F.3d 379, 381, 384 (4th Cir.
1998) (trial court incorrectly assumed the privilege applied and shifted the burden of
proof to the opponent of the privilege).
In determining whether a waiver has occurred, the Court applies the well-settled
principle that any disclosure inconsistent with maintaining the confidential nature of the
attorney-client privilege, including voluntary disclosure of privileged information, waives
the privilege. Suarez, 820 F.2d at 1160; see also In re Keeper of the Records, 348 F.3d
16, 22 (1st Cir. 2003) (“When otherwise privileged communications are disclosed to a
third party, the disclosure destroys the confidentiality upon which the privilege is
premised.”) (citing 2 PAUL R. RICE, ATTORNEY-CLIENT PRIVILEGE IN THE U.S. § 9:79, at
357 (2d ed. 1999)); United States v. Pipkins, 528 F.2d 559, 563 (5th Cir. 1976) (“It is
vital to a claim of privilege that the communication have been made and maintained in
confidence.”) (emphasis added). It also well-established that, “once waived, the attorneyclient privilege cannot be reasserted.” Id. (citing United States v. Blackburn, 446 F.2d
1089, 1091 (5th Cir. 1971)).
Although Fontainebleau produced the data and documents in response to a
subpoena and court orders compelling production, its production was still “voluntary”
because it chose to produce its entire documents and accounting servers without
conducting a privilege review. But in order to preserve a privilege claim, a party “must

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conduct a privilege review prior to document production.” Ciba-Geigy Corp. v. Sandoz
Ltd., 916 F.Supp. 404, 412 (D.N.J. 1995); see also United States Fid. & Guar. Co. v.
Liberty Surplus Ins. Corp., 630 Supp. 2d 1332 (M.D. Fla. 2007) (privilege waived where
attorney who sent out the production never reviewed the documents); SEC v. Cassano,
189 F.R.D. 83, 86 (S.D.N.Y. 1999) (attorney-client privilege waived where party makes a
deliberate decision to produce without looking at the material produced beforehand).
Fontainebleau concedes that it never reviewed the materials on the document and
accounting servers for privilege before turning them over. Fontainebleau’s failure to
conduct any meaningful privilege review prior to production accordingly resulted in a
complete waiver of applicable privileges. FBR’s production is also inconsistent with the
notion that the effort necessary to avoid inadvertent disclosure must increase as the
volume of documents increases. New Bank of New England v. Marine Midland Realty
Corp., 138 F.R.D. 479, 483 (E.D. Va. 1991).
Even now, when contesting the requested finding of waiver, Fontainebleau fails to
pinpoint any particular document or file as privileged. It simply asks the Court to assume
that privileged material will be found on the servers. 9 This is insufficient to prevent a
finder that FBR waived the privilege. Cf. United Nuclear Corp. v. Gen. Atomic Co., 629
P.2d 231, 293 (N.M. 1980) (“The bald assertion that production of the requested
information would violate a privilege . . . is not enough. The party resisting discovery
has the burden to clarify and explain its objections and to provide support therefore.
General objections without specific support may result in waiver of the objections.”)
(quotations omitted).
Moreover, “voluntary compliance with a subpoena without fully exhausting
attempts to defeat the subpoena or to pursue privilege claims vigorously, will generally
be deemed a waiver of any privilege or work-product protection.” THE ATTORNEY-

9

Had Fontainebleau wished to withhold certain documents and data on the
document and accounting servers on the basis or privilege, Local Rule 26.1(g)(3)(C)
requires, subject to an inapplicable exception, “preparation of a privilege log with respect
to all documents, electronically stored information, things and oral communications
withheld on the basis of a claim of privilege or work product protection.” At risk of
stating the obvious, Fontainebleau never distributed a privilege log for the two remaining
servers because it never reviewed the information for privilege in the first place.

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CLIENT PRIVILEGE AND THE WORK PRODUCT DOCTRINE 62 (Edna Selan Epstein ed., 4th
ed. supp. 2004); see, e.g., United States v. Philip Morris, Inc., No. 99-2496, 2002 U.S.
Dist. LEXIS 9174 (D.D.C. May 17, 2002) (producing documents in response to a House
Commerce Committee subpoena without a privilege log and without greater efforts to
protect the privilege generated a waiver, and noting that the producing party should have
first, at the very least, sought a ruling from the entire committee about the privilege not
being recognized).
Some court have also held that to prevent a waiver the party asserting privilege
must not only resist any attempt to produce privileged documents, but must generally
utilize all available options to the fullest possible extent. Anaya v. CBS Broad., Inc., No.
CIV-06-476, 2007 U.S. Dist. LEXIS 55164 (D.N.M. Apr. 30, 2007) (involving waiver
based on documents produced to Congress); Tompkins v. R.J. Reynolds Tobacco Co., 92
F. Supp. 2d 70, 77-78 (N.D.N.Y. 2000) (same).
Here, Fontainebleau hardly exhausted its privilege objections. To the contrary,
FBR (1) did not even start reviewing any of its three servers for privilege until six months
after the subpoena was issued, (2) belatedly and casually proffered a cost-shifting request,
(3) produced two of the three servers without any privilege review whatsoever and (4)
more than two months after production, has not flagged even one document as actually
being privileged.
Given the delay in production, the changing explanations for the delay, the failure
to timely file a motion for a protective order, the multi-month stalling of depositions
caused by FBR’s tardy production, the belated and informal suggestion that the Term
Lenders should pay for the privilege review, and the continued failure to establish that the
servers in fact contain privileged material which was not previously waived through the
sharing of servers by different entities, Fontainebleau’s argument against waiver is “too
little, too late.” 10 The privilege has been waived. 11

10

A well-known idiom meaning “inadequate as a remedy and not in time to
be effective,” as in “the effort to divert the stream into a corn field was too little too late
[because] the houses were already flooded” Too little, too late, - Define Too little, too
late, http://dictionary.reference.com/browse/too+little,+too+late (last visited Jan. 7,
2010).

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But notwithstanding FBR’s clear waiver of any applicable privileges, the Court
will provide some limited relief for Fontainebleau:
First, the Court cannot force the Term Lenders to review the material produced,
nor will it direct the Term Lenders on which search protocols to use should they decide to
wade into the massive amount of material produced by Fontainebleau.
However, if the Term Lenders decide to move forward on a review of the servers,
and if they encounter facially privileged information on the documents or accounting
servers, they shall timely advise Fontainebleau by identifying, in summary fashion, the
privileged information.

If the documents and data are Bates-stamped or otherwise

similarly designated, then the Term Lenders shall use those identifying criteria. If the
materials are not so designated, then the Term Lenders shall, in good faith, provide a
description which does not require undue effort, such as simply stating the file location or
name. Because the Court has not reviewed the indices, I do not know what type of
summary description would be feasible and reasonable under the circumstances (in the
absence of a document identification system such as Bates-stamping). Therefore, I am
not requiring that any particular type of description be used, and my use of “file location
or name” is merely an illustration, not a requirement.
Because I am ruling that the Term Lenders may review all documents and data on
the servers produced by Fontainebleau (even if they turn out to contain privileged
information), the Term Lenders should not be unduly prejudiced by the requirement that
they timely advise Fontainebleau of the clearly privileged materials that they encounter in
their review. The Term Lenders may provide notice in a summary fashion and may
postpone notice until they determine that a logical group of materials should be listed in a
notice.

In other words, the Term Lenders are not obligated to provide notice on a

continuing, constantly-updating, immediate basis, every time they locate one clearly
privileged document.
Thus, to provide one illustration, it might make sense for the Term Lenders to
provide notice on a weekly or monthly basis (or some other logical period), rather than on
11

The Term Lenders have advised the Court that FBR’s failure to timely
produce documents in response to the subpoena has caused a deposition discovery delay
lasting “months” (DE# 192, at 3). Fontainebleau has not contested this representation.

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an hourly basis. Because Fontainebleau has not explained how many documents it
believes are privileged or the files where they might be found, I do not know when or
under what circumstances the Term Lenders might locate documents which are facially
privileged. Therefore, it is impractical for me to impose a specific schedule for the Term
Lenders to provide the notice that I am requiring here.
Likewise, because I cannot predict the content of the servers or the type of search
that the Term Lenders may conduct, I do not know for certain what it will take for the
Term Lenders to provide the notice. If it turns out that the Term Lenders conclude that it
is unduly burdensome to comply with my notice requirement, then they may file an
appropriate motion and I will consider rescinding or modifying this requirement. If the
Term Lenders file such a motion, then it should be verified or accompanied by an
affidavit.
By requiring the Term Lenders to provide a list of privileged information found
on the document and accounting servers, I am not restricting the Term Lenders’ ability to
use those documents. Rather, the Term Lenders are permitted to use the documents
during pre-trial preparations in this case, including depositions.

Issues of trial

admissibility, however, are not encompassed by this Order.
CONCLUSION
I find that Fontainebleau’s voluntary disclosure of privileged or potentially
privileged information constitutes a waiver of applicable privileges, including any
attorney-client privilege, in the documents and data on the documents and accounting
servers. Because Fontainebleau prepared a privilege log for the email server, I do not
find a privilege waiver for the material on the email server (unless such materials can also
be found on one of the other two servers, where there has been a waiver).
The Term Lenders motion for adjudication that the privilege has been waived is
therefore GRANTED, subject to the additional procedures for notice outlined in this
Order. The Term Lenders, however, are under no obligation to screen for privileged
documents apart from their ordinary review or conduct any special investigation to
determine that a specific document would have been privileged but for FBR’s waiver.
Moreover, as stated above, the Term Lenders may use all documents and data on the two
servers in this case.

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In addition, given the magnitude of Fontainebleau’s production, it is entirely
possible that the Term Lenders might in good faith fail to notice that a document they
reviewed was otherwise privileged (i.e., before FBR’s waiver).

Because the Term

Lenders are not to blame for the overproduction of material and because the notice
requirement is designed to help Fontainebleau, the Term Lenders will not be subject to
sanctions or other adverse consequences should they inadvertently omit privileged
material from the list or lists they provide to Fontainebleau.
DONE AND ORDERED, in Chambers, at Miami, Florida, January 7, 2011.

Copies furnished to:
All counsel of record

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO 09-MD-02106-CIV-GOLD/GOODMAN

IN RE: FONTAINEBLEAU LAS VEGAS
CONTRACT LITIGATION
MDL No. 2106
This document relates to 09-23835-CIVGOLD/GOODMAN

/

NOTICE OF APPEAL
Notice is hereby given that the plaintiffs in Avenue CLO Fund, Ltd., et al v. Bank of
America, N.A., et al. Case No. 09-23835-CIV-GOLD/GOODMAN, hereby appeal to the United
States Court of Appeals for the Eleventh Circuit from the Entry of Partial Final Judgment
entered on January 13, 2011, docketed on January 18, 2011 in both the multidistrict litigation
case [Case No. 09-md-02106-ASG, D.E. # 202] and the underlying case [Case No. 09-23835CIV-GOLD/GOODMAN, D.E. # 110 ], and the related Order Granting in Part and Denying in
Part Motions to Dismiss entered in this action on May 28, 2010, to the extent the Motions to
Dismiss were granted, [MDL Order No. 18; Case No. 09-md-02106, D.E. # 79; Case No. 0923835-CIV, D.E. # 107].
This Notice of Appeal has simultaneously been filed and docketed in both the
multidistrict litigation case, Case No. 09-md-02106-ASG, and the underlying case, Case No. 0923835-CIV-GOLD/GOODMAN, as an appeal from the above referenced Entry of Partial Final
Judgment and the above referenced order entered and docketed in both cases.

Case 1:09-md-02106-ASG Document 203 Entered on FLSD Docket 01/19/2011 Page 2 of 7

Dated: January 19, 2011

Respectfully submitted,

____s/ Lorenz M. Prüss, Esq.
David A. Rothstein, Esq.
Fla. Bar No.: 056881
[e-mail]
Lorenz M. Prüss, Esq.
Fla Bar No.: 581305
[e-mail]
DIMOND KAPLAN & ROTHSTEIN, P.A.
2665 South Bayshore Drive, PH-2B
Miami, FL 33133
Telephone:
[phone]
Facsimile:
[phone]
Local Counsel for Plaintiff Term Lenders
Of counsel:
J. Michael Hennigan
Kirk D. Dillman
HENNIGAN, BENNETT & DORMAN LLP
865 South Figueroa Street, Suite 2900
Los Angeles, California 90017
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
[e-mail]

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Case 1:09-md-02106-ASG Document 203 Entered on FLSD Docket 01/19/2011 Page 3 of 7

CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy of the foregoing NOTICE OF APPEAL
was filed with the Clerk of the Court using CM/ECF. I also certify that the foregoing document
is being served this day on all counsel of record or pro se parties identified on the attached
Service List in the manner specified either via transmission of Notices of Electronic Filing
generated by CM/ECF or in some other authorized manner for those counsel or parties who are
not authorized to receive electronically the Notice of Electronic Filing.

Dated: January 19, 2011

s/Lorenz Prüss __________
Lorenz M. Prüss, Esq.

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Case 1:09-md-02106-ASG Document 203 Entered on FLSD Docket 01/19/2011 Page 4 of 7

Service List

Attorneys:

Representing:

Bradley J. Butwin, Esq.
Daniel L. Cantor, Esq.
Jonathan Rosenberg, Esq.
William J. Sushon, Esq.
O’MELVENY & MYERS LLP
Times Square Tower
7 Times Square
New York, NY 10036
Tele: [phone]
Fax: [phone]

Defendants
Bank of America, N.A.
Merrill Lynch Capital Corporation

Craig V. Rasile, Esq.
Kevin Michael Eckhardt, Esq.
HUNTON & WILLIAMS
1111 Brickell Avenue
Suite 2500
Miami, FL 33131
Tele: [phone]
Fax: [phone]

Defendants
Bank of America, N.A.
Merrill Lynch Capital Corporation
JP Morgan Chase Bank, N.A.
Barclays Bank PLC
Deutsche Bank Trust Company Americas
The Royal Bank of Scotland PLC
HSH Nordbank AG, New York Branch
Bank of Scotland plc

David J. Woll, Esq.
Justin S. Stern, Esq.
Lisa H. Rubin, Esq.
Thomas C. Rice, Esq.
Steven S. Fitzgerald
SIMPSON THACHER & BARTLETT LLP
425 Lexington Avenue
New York, NY 10017-3954
Tele: [phone]
Fax: [phone]

Defendants
JP Morgan Chase Bank, N.A.
Barclays Bank PLC
Deutsche Bank Trust Company Americas
The Royal Bank of Scotland PLC
Bank of Scotland plc

John Blair Hutton III, Esq,
Mark D. Bloom, Esq.
GREENBERG TAURIG
1221 Brickell Avenue
Miami, FL 33131
Tele: [phone]
Fax: [phone]

Defendants
JP Morgan Chase Bank, N.A.
Barclays Bank PLC
Deutsche Bank Trust Company Americas
The Royal Bank of Scotland PLC

-2-

Case 1:09-md-02106-ASG Document 203 Entered on FLSD Docket 01/19/2011 Page 5 of 7

Attorneys:

Representing:

Sarah A. Harmon, Esq.
BAILEY KENNEDY
8984 Spanish Ridge Avenue
Las Vegas, NV 89148
Tele: [phone]
Fax: [phone]

Defendant
JP Morgan Chase Bank, N.A.
Barclays Bank PLC
Deutsche Bank Trust Company Americas
The Royal Bank of Scotland PLC

Frederick D. Hyman, Esq.
Jason I. Kirschner, Esq.
Jean-Marie L. Atamian, Esq.
MAYER BROWN LLP
1675 Broadway
New York, NY 10019-5820
Tele: [phone]
Fax: [phone]

Defendant
Sumitomo Mitsui Banking Corporation

Robert Gerald Fracasso, Jr.
SHUTTS & BOWEN
201 S Biscayne Boulevard
Suite 1500 Miami Center
Miami, FL 33131
Tele: [phone]
Fax: [phone]

Defendant
Sumitomo Mitsui Banking Corporation

Phillip A. Geraci, Esq.
Steven C. Chin, Esq.
Aaron Rubinsten, Esq.
W. Stewart Wallace, Esq.
KAYE SCHOLER LLP
425 Park Avenue
New York, NY 10022-3598
Tele: [phone]
Fax: [phone]

Defendant
HSH Nordbank AG, New York Branch

Arthur Halsey Rice, Esq.
RICE PUGATCH ROBINSON & SCHILLER
101 NE 3 Avenue
Suite 1800
Fort Lauderdale, FL 33301
Tele: [phone]
Fax: [phone]

Defendant
HSH Nordbank AG, New York Branch

Gregory S. Grossman, Esq.
ASTIGARRAGA DAVIS MULLINS &
GROSSMAN
701 Brickell Avenue, 16th Floor
Miami, FL 33131-2847
Tele: [phone]
Fax: [phone]

Defendant
MB Financial Bank, N.A.

-3-

Case 1:09-md-02106-ASG Document 203 Entered on FLSD Docket 01/19/2011 Page 6 of 7

Attorneys:

Representing:

Laury M. Macauley, Esq.
LEWIS & ROCA LLP
50 W Liberty Street
Reno, NV 89501
Tele: [phone]
Fax: [phone]

Defendant
MB Financial Bank, N.A.

Peter J. Roberts, Esq.
SHAW GUSSIS FISHMAN FLANTZ
WOLFSON & TOWBIN LLC
321 N Clark Street, Suite 800
Chicago, IL 60654
Tele: [phone]
Fax: [phone]

Defendant
MB Financial Bank, N.A.

Anthony L. Paccione, Esq.
Arthur S. Linker, Esq.
Kenneth E. Noble
KATTEN MUCHIN ROSENMAN LLP
575 Madison Avenue
New York, NY 10022-2585
Tele: [phone]
Fax: [phone]

Defendants
Bank of Scotland plc

Andrew B. Kratenstein, Esq.
Michael R. Huttenlocher, Esq.
MCDERMOTT WILL & EMERY LLP
340 Madison Avenue
New York, NY 10173
Tele: [phone]

Defendant
Camulos Master Fund, L.P.

Raquel A. Rodriguez
MCDERMOTT WILL & EMERY LLP
201 S. Biscayne Blvd.
Suite 2200
Miami, FL 33131
Tele: [phone]
Fax: : [phone]

Defendant
Camulos Master Fund, L.P.

David M. Friedman, Esq.
Jed I. Bergman, Esq.
Seth A. Moskowitz
KASOWITZ BENSON TORRES &
FRIEDMAN
1633 Broadway, 22nd Floor
New York, NY 10019-6799
Tele: [phone]
Fax: [phone]

Plaintiff
Fontainebleau Las Vegas LLC

-4-

Case 1:09-md-02106-ASG Document 203 Entered on FLSD Docket 01/19/2011 Page 7 of 7

Attorneys:

Representing:

Jeffrey I. Snyder, Esq.
Scott L. Baena, Esq.
BILZIN SUMBERG BAENA PRICE
& AXELROD
200 S Biscayne Blvd., Suite 2500
Miami, FL 33131-2336
Tele: [phone]
Fax: [phone]

Plaintiff
Fontainebleau Las Vegas LLC

Harold Defore Moorefield Jr., Esq.
STEARNS WEAVER MILLER WEISSLER
ALHADEFF & SITTERSON
Museum Tower
150 W Flagler Street, Suite 2200
Miami, FL 33130
Tele: [phone]
Fax: [phone]

Defendant
Bank of Scotland plc

James B. Heaton, Esq.
John D. Byars, Esq.
Steven James Nachtwey, Esq.
Vincent S. J. Buccola, Esq.
BARTLIT BECK HERMAN PALENCHAR &
SCOTT
54 West Hubbard St.
Suite 300
Chicago, IL 60654
Tele: [phone]

Plaintiffs
ACP Master, Ltd.
Aurelius Capital Master, Ltd.

Brett Michael Amron
BAST AMRON LLP
150 West Flagler Street
Penthouse 2850
Miami, FL 33130
Tele: [phone]

Plaintiffs
ACP Master, Ltd.
Aurelius Capital Master, Ltd.

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Case 1:09-md-02106-ASG Document 204 Entered on FLSD Docket 01/24/2011 Page 1 of 1
ELEVENTH CIRCUIT TRANSCRIPT ORDER FORM
PART I.

TRANSCRIPT ORDER INFORMATION

Appellant to complete and file with the District Court Clerk within x days of the filing of the notice of appeal in all cases, including those in which there
10
was no hearing or for which no transcript is ordered.
14
Short Case Style:

Avenue CLO Fund, Ltd., et al.

vs Bank of America, N.A., et al.,

District Court No.: 09-CV-23835-Gold
CHOOSE ONE:

Date Notice of Appeal Filed: January 19, 2011 Court of Appeals No.: Not Available
(If Available)
No hearing
No transcript is required for appeal purposes
All necessary transcript(s) on file
I AM ORDERING A TRANSCRIPT OF THE FOLLOWING PROCEEDINGS:

Check appropriate box(es) and provide all information requested:
HEARING DATE(S)
Pre-Trial Proceedings

JUDGE/MAGISTRATE

COURT REPORTER NAME(S)

May 7, 2010 and January 7, 2011 - Judge Gold - Joseph A. Millikan

Trial
Sentence
Other

METHOD OF PAYMENT:
I CERTIFY THAT I HAVE CONTACTED THE COURT REPORTER(S) AND HAVE MADE SATISFACTORY ARRANGEMENTS WITH THE
COURT REPORTER(S) FOR PAYING THE COST OF THE TRANSCRIPT.
CRIMINAL JUSTICE ACT. Attached for submission to District Judge/Magistrate is my completed CJA Form 24 requesting authorization for
government payment of transcript. [A transcript of the following proceedings will be provided ONY IF SPECIFICALLY AUTHORIZED in Item 13 on
CJA Form 24: Voir Dire; Opening and Closing Statements of Prosecution and Defense; Prosecution Rebuttal; Jury Instructions]
Ordering Counsel/Party: Lorenz Pruss/Plaintiffs
Name of Firm: Dimond Kaplan & Rothstein, P.A
Street Address/P.O. Box: 2655 S. Bayshore Drive, Penthouse 2B
City/State/Zip Code: Miami, FL 33133

Phone No.: 305-600-1393

I certify that I have filed the original (Yellow page) with the District Court Clerk, sent the Pink and green pages to the appropriate Court Reporter(s) if
ordering a transcript, and sent a photocopy to the Court of Appeals Clerk and to all parties.
DATE: January 19, 2011

SIGNED: s/

PART II.

Lorenz Pruss

Attorney For: Plaintiffs

COURT REPORTER ACKNOWLEDGMENT

Court Reporter to complete and file Pink page with the District Court Clerk within 10 days of receipt. The Court Reporter shall send a photocopy to the
Court of Appeals Clerk and to all parties, and retain the Green page to provide notification when transcript filed.
Date Transcript Order received:
Satisfactory arrangements for paying the cost of the transcript were completed on:
Satisfactory arrangements for paying the cost of the transcript have not been made.
No. of hearing days:

Estimated no. of transcript pages:

Estimated filing date:

DATE:
SIGNED: s/
Phone No.:
NOTE: The transcript is due to be filed within 30 days of the date satisfactory arrangements for paying the cost of the transcript were completed unless the
Court Reporter obtains an extension of time to file the transcript.

PART III.

NOTIFICATION THAT TRANSCRIPT HAS BEEN FILED IN DISTRICT COURT

Court Reporter to complete and file Green page with the District Court Clerk on date of filing transcript in District Court. The Court Reporter shall send a
photocopy of the completed Green page to the Court of Appeals Clerk on the same date.
This is to certify that the transcript has been completed and filed with the district court on (date):
Actual No. of Volumes and Hearing Dates:
Date:

Signature of Court Reporter: s/
*U.S. GPO: 1998-734-049-80146

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Case 1:09-md-02106-ASG Document 206 Entered on FLSD Docket 02/08/2011 Page 1 of 7

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO 09-MD-02106-CIV-GOLD/GOODMAN

IN RE: FONTAINEBLEAU LAS VEGAS
CONTRACT LITIGATION
MDL No. 2106
This document relates to all actions.

/

NOTICE OF REQUEST FOR TERMINATION OF
APPEARANCE OF ATTORNEYS ON SERVICE LIST
The Avenue Term Lenders,1 by and through the undersigned counsel, hereby give notice
of this request to the Clerk of Courts that the following persons be terminated from the Service
List:
Bruce Bennett
Hennigan, Bennett & Dorman LLP
865 South Figueroa Street, Suite 2900
Los Angeles, CA 90017
and
Sidney P. Levinson
Hennigan, Bennett & Dorman LLP
865 South Figueroa Street, Suite 2900
Los Angeles, CA 90017
and
Michael Schneidereit
Hennigan, Bennett & Dorman LLP
865 South Figueroa Street, Suite 2900
Los Angeles, CA 90017

1 The Avenue Term Lenders consist of the plaintiffs in the case captioned Avenue CLO Fund,

Ltd., et al. v. Bank of America, N.A., et al., Case No. 09-CV-23835-GOLD/GOODMAN.

-1-

Case 1:09-md-02106-ASG Document 206 Entered on FLSD Docket 02/08/2011 Page 2 of 7

Dated: February 8, 2011

Respectfully submitted,
_______/s/ Lorenz M. Prüss______________
David A. Rothstein, Esq.
Fla. Bar No.: 056881
[e-mail]
Lorenz M. Prüss, Esq.
Fla Bar No.: 581305
[e-mail]
DIMOND KAPLAN & ROTHSTEIN, P.A.
2665 South Bayshore Drive, PH-2B
Miami, FL 33133
Telephone:
[phone]
Facsimile:
[phone]
Local Counsel for Plaintiff Term Lenders

Of counsel:
J. Michael Hennigan
Kirk D. Dillman
HENNIGAN DORMAN LLP
865 South Figueroa Street, Suite 2900
Los Angeles, California 90017
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
[e-mail]

-2-

Case 1:09-md-02106-ASG Document 206 Entered on FLSD Docket 02/08/2011 Page 3 of 7

CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy of the foregoing NOTICE OF REQUEST
FOR TERMINATION OF APPEARANCE OF ATTORNEYS ON SERVICE LIST was
filed with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is
being served this day on all counsel of record or pro se parties identified on the attached Service
List in the manner specified either via transmission of Notices of Electronic Filing generated by
CM/ECF or in some other authorized manner for those counsel or parties who are not authorized
to receive electronically the Notice of Electronic Filing.

Dated: February 8, 2011.

_______/s/ Lorenz M. Prüss_________
Lorenz M. Prüss

Case 1:09-md-02106-ASG Document 206 Entered on FLSD Docket 02/08/2011 Page 4 of 7

SERVICE LIST

Attorneys:

Representing:

Bradley J. Butwin, Esq.
Daniel L. Cantor, Esq.
Jonathan Rosenberg, Esq.
William J. Sushon, Esq.
O’MELVENY & MYERS LLP
Times Square Tower
7 Times Square
New York, NY 10036
Tele: [phone]
Fax: [phone]

Defendants
Bank of America, N.A.
Merrill Lynch Capital Corporation

Craig V. Rasile, Esq.
Kevin Michael Eckhardt, Esq.
HUNTON & WILLIAMS
1111 Brickell Avenue
Suite 2500
Miami, FL 33131
Tele: [phone]
Fax: [phone]

Defendants
Bank of America, N.A.
Merrill Lynch Capital Corporation
JP Morgan Chase Bank, N.A.
Barclays Bank PLC
Deutsche Bank Trust Company Americas
The Royal Bank of Scotland PLC
HSH Nordbank AG, New York Branch
Bank of Scotland plc

David J. Woll, Esq.
Justin S. Stern, Esq.
Lisa H. Rubin, Esq.
Thomas C. Rice, Esq.
Steven S. Fitzgerald
SIMPSON THACHER & BARTLETT LLP
425 Lexington Avenue
New York, NY 10017-3954
Tele: [phone]
Fax: [phone]

Defendants
JP Morgan Chase Bank, N.A.
Barclays Bank PLC
Deutsche Bank Trust Company Americas
The Royal Bank of Scotland PLC
Bank of Scotland plc

John Blair Hutton III, Esq,
Mark D. Bloom, Esq.
GREENBERG TAURIG
1221 Brickell Avenue
Miami, FL 33131
Tele: [phone]
Fax: [phone]

Defendants
JP Morgan Chase Bank, N.A.
Barclays Bank PLC
Deutsche Bank Trust Company Americas
The Royal Bank of Scotland PLC

Case 1:09-md-02106-ASG Document 206 Entered on FLSD Docket 02/08/2011 Page 5 of 7

Attorneys:

Representing:

Sarah A. Harmon, Esq.
BAILEY KENNEDY
8984 Spanish Ridge Avenue
Las Vegas, NV 89148
Tele: [phone]
Fax: [phone]

Defendant
JP Morgan Chase Bank, N.A.
Barclays Bank PLC
Deutsche Bank Trust Company Americas
The Royal Bank of Scotland PLC

Frederick D. Hyman, Esq.
Jason I. Kirschner, Esq.
Jean-Marie L. Atamian, Esq.
MAYER BROWN LLP
1675 Broadway
New York, NY 10019-5820
Tele: [phone]
Fax: [phone]

Defendant
Sumitomo Mitsui Banking Corporation

Robert Gerald Fracasso, Jr.
SHUTTS & BOWEN
201 S Biscayne Boulevard
Suite 1500 Miami Center
Miami, FL 33131
Tele: [phone]
Fax: [phone]

Defendant
Sumitomo Mitsui Banking Corporation

Phillip A. Geraci, Esq.
Steven C. Chin, Esq.
Aaron Rubinsten, Esq.
W. Stewart Wallace, Esq.
KAYE SCHOLER LLP
425 Park Avenue
New York, NY 10022-3598
Tele: [phone]
Fax: [phone]

Defendant
HSH Nordbank AG, New York Branch

Arthur Halsey Rice, Esq.
RICE PUGATCH ROBINSON & SCHILLER
101 NE 3 Avenue
Suite 1800
Fort Lauderdale, FL 33301
Tele: [phone]
Fax: [phone]

Defendant
HSH Nordbank AG, New York Branch

Gregory S. Grossman, Esq.
ASTIGARRAGA DAVIS MULLINS &
GROSSMAN
701 Brickell Avenue, 16th Floor
Miami, FL 33131-2847
Tele: [phone]
Fax: [phone]

Defendant
MB Financial Bank, N.A.

-5-

Case 1:09-md-02106-ASG Document 206 Entered on FLSD Docket 02/08/2011 Page 6 of 7

Attorneys:

Representing:

Laury M. Macauley, Esq.
LEWIS & ROCA LLP
50 W Liberty Street
Reno, NV 89501
Tele: [phone]
Fax: [phone]

Defendant
MB Financial Bank, N.A.

Peter J. Roberts, Esq.
SHAW GUSSIS FISHMAN FLANTZ
WOLFSON & TOWBIN LLC
321 N Clark Street, Suite 800
Chicago, IL 60654
Tele: [phone]
Fax: [phone]

Defendant
MB Financial Bank, N.A.

Anthony L. Paccione, Esq.
Arthur S. Linker, Esq.
Kenneth E. Noble
KATTEN MUCHIN ROSENMAN LLP
575 Madison Avenue
New York, NY 10022-2585
Tele: [phone]
Fax: [phone]

Defendants
Bank of Scotland plc

Andrew B. Kratenstein, Esq.
Michael R. Huttenlocher, Esq.
MCDERMOTT WILL & EMERY LLP
340 Madison Avenue
New York, NY 10173
Tele: [phone]

Defendant
Camulos Master Fund, L.P.

Raquel A. Rodriguez
MCDERMOTT WILL & EMERY LLP
201 S. Biscayne Blvd.
Suite 2200
Miami, FL 33131
Tele: [phone]
Fax: : [phone]

Defendant
Camulos Master Fund, L.P.

David M. Friedman, Esq.
Jed I. Bergman, Esq.
Seth A. Moskowitz
KASOWITZ BENSON TORRES &
FRIEDMAN
1633 Broadway, 22nd Floor
New York, NY 10019-6799
Tele: [phone]
Fax: [phone]

Plaintiff
Fontainebleau Las Vegas LLC

-6-

Case 1:09-md-02106-ASG Document 206 Entered on FLSD Docket 02/08/2011 Page 7 of 7

Attorneys:

Representing:

Jeffrey I. Snyder, Esq.
Scott L. Baena, Esq.
BILZIN SUMBERG BAENA PRICE
& AXELROD
200 S Biscayne Blvd., Suite 2500
Miami, FL 33131-2336
Tele: [phone]
Fax: [phone]

Plaintiff
Fontainebleau Las Vegas LLC

Harold Defore Moorefield Jr., Esq.
STEARNS WEAVER MILLER WEISSLER
ALHADEFF & SITTERSON
Museum Tower
150 W Flagler Street, Suite 2200
Miami, FL 33130
Tele: [phone]
Fax: [phone]

Defendant
Bank of Scotland plc

James B. Heaton, Esq.
John D. Byars, Esq.
Steven James Nachtwey, Esq.
Vincent S. J. Buccola, Esq.
BARTLIT BECK HERMAN PALENCHAR &
SCOTT
54 West Hubbard St.
Suite 300
Chicago, IL 60654
Tele: [phone]

Plaintiffs
ACP Master, Ltd.
Aurelius Capital Master, Ltd.

Brett Michael Amron
BAST AMRON LLP
150 West Flagler Street
Penthouse 2850
Miami, FL 33130
Tele: [phone]

Plaintiffs
ACP Master, Ltd.
Aurelius Capital Master, Ltd.

-7-

Case 1:09-md-02106-ASG Document 207 Entered on FLSD Docket 02/08/2011 Page 1 of 7

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO 09-MD-02106-CIV-GOLD/GOODMAN

IN RE: FONTAINEBLEAU LAS VEGAS
CONTRACT LITIGATION
MDL No. 2106
This document relates to all actions.

/

NOTICE OF NAME CHANGE OF AVENUE TERM LENDERS’ COUNSEL
Avenue Term Lenders1 hereby file this Notice of Name Change of Avenue Term
Lenders’ Counsel and give notice that effective February 7, 2011, Avenue Term Lenders’
counsel, the law firm formerly known as Hennigan, Bennett & Dorman LLP, changed its name
to Hennigan Dorman LLP. The firm’s address, telephone number and facsimile number have not
changed. The email address of J. Michael Hennigan has changed to [e-mail],
the email address of Kirk Dillman has changed to [e-mail], the email address
of Peter J. Most has changed to [e-mail], the email address of Robert W. Mockler
has changed to [e-mail], the email address of Rebecca T. Pilch has changed
to [e-mail], and the email address of Caroline M. Walters has changed to
[e-mail].

1 Avenue Term Lenders consist of the plaintiffs in the case captioned Avenue CLO Fund, Ltd., et

al. v. Bank of America, N.A., et al., Case No. 09-CV-23835-GOLD/GOODMAN.

-1-

Case 1:09-md-02106-ASG Document 207 Entered on FLSD Docket 02/08/2011 Page 2 of 7

Dated: February 8, 2011

Respectfully submitted,
____/s/ Lorenz M. Prüss
David A. Rothstein, Esq.
Fla. Bar No.: 056881
[e-mail]
Lorenz M. Prüss, Esq.
Fla Bar No.: 581305
[e-mail]
DIMOND KAPLAN & ROTHSTEIN, P.A.
2665 South Bayshore Drive, PH-2B
Miami, FL 33133
Telephone:
[phone]
Facsimile:
[phone]
Local Counsel for Plaintiff Term Lenders

Of counsel:
J. Michael Hennigan
Kirk D. Dillman
Peter J. Most
Robert Mockler
Rebecca T. Pilch
Caroline M. Walters
HENNIGAN DORMAN LLP
865 South Figueroa Street, Suite 2900
Los Angeles, California 90017
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]

-2-

Case 1:09-md-02106-ASG Document 207 Entered on FLSD Docket 02/08/2011 Page 3 of 7

CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy of the foregoing NOTICE OF NAME
CHANGE OF AVENUE TERM LENDERS’ COUNSEL was filed with the Clerk of the
Court using CM/ECF. I also certify that the foregoing document is being served this day on all
counsel of record or pro se parties identified on the attached Service List in the manner specified
either via transmission of Notices of Electronic Filing generated by CM/ECF or in some other
authorized manner for those counsel or parties who are not authorized to receive electronically
the Notice of Electronic Filing.

Dated: February 8, 2011.

/s/ Lorenz M. Prüss ___________
Lorenz M. Prüss, Esq.

Case 1:09-md-02106-ASG Document 207 Entered on FLSD Docket 02/08/2011 Page 4 of 7

SERVICE LIST

Attorneys:

Representing:

Bradley J. Butwin, Esq.
Daniel L. Cantor, Esq.
Jonathan Rosenberg, Esq.
William J. Sushon, Esq.
O’MELVENY & MYERS LLP
Times Square Tower
7 Times Square
New York, NY 10036
Tele: [phone]
Fax: [phone]

Defendants
Bank of America, N.A.
Merrill Lynch Capital Corporation

Craig V. Rasile, Esq.
Kevin Michael Eckhardt, Esq.
HUNTON & WILLIAMS
1111 Brickell Avenue
Suite 2500
Miami, FL 33131
Tele: [phone]
Fax: [phone]

Defendants
Bank of America, N.A.
Merrill Lynch Capital Corporation
JP Morgan Chase Bank, N.A.
Barclays Bank PLC
Deutsche Bank Trust Company Americas
The Royal Bank of Scotland PLC
HSH Nordbank AG, New York Branch
Bank of Scotland plc

David J. Woll, Esq.
Justin S. Stern, Esq.
Lisa H. Rubin, Esq.
Thomas C. Rice, Esq.
Steven S. Fitzgerald
SIMPSON THACHER & BARTLETT LLP
425 Lexington Avenue
New York, NY 10017-3954
Tele: [phone]
Fax: [phone]

Defendants
JP Morgan Chase Bank, N.A.
Barclays Bank PLC
Deutsche Bank Trust Company Americas
The Royal Bank of Scotland PLC
Bank of Scotland plc

John Blair Hutton III, Esq,
Mark D. Bloom, Esq.
GREENBERG TAURIG
1221 Brickell Avenue
Miami, FL 33131
Tele: [phone]
Fax: [phone]

Defendants
JP Morgan Chase Bank, N.A.
Barclays Bank PLC
Deutsche Bank Trust Company Americas
The Royal Bank of Scotland PLC

-1-

Case 1:09-md-02106-ASG Document 207 Entered on FLSD Docket 02/08/2011 Page 5 of 7

Attorneys:

Representing:

Sarah A. Harmon, Esq.
BAILEY KENNEDY
8984 Spanish Ridge Avenue
Las Vegas, NV 89148
Tele: [phone]
Fax: [phone]

Defendant
JP Morgan Chase Bank, N.A.
Barclays Bank PLC
Deutsche Bank Trust Company Americas
The Royal Bank of Scotland PLC

Frederick D. Hyman, Esq.
Jason I. Kirschner, Esq.
Jean-Marie L. Atamian, Esq.
MAYER BROWN LLP
1675 Broadway
New York, NY 10019-5820
Tele: [phone]
Fax: [phone]

Defendant
Sumitomo Mitsui Banking Corporation

Robert Gerald Fracasso, Jr.
SHUTTS & BOWEN
201 S Biscayne Boulevard
Suite 1500 Miami Center
Miami, FL 33131
Tele: [phone]
Fax: [phone]

Defendant
Sumitomo Mitsui Banking Corporation

Phillip A. Geraci, Esq.
Steven C. Chin, Esq.
Aaron Rubinsten, Esq.
W. Stewart Wallace, Esq.
KAYE SCHOLER LLP
425 Park Avenue
New York, NY 10022-3598
Tele: [phone]
Fax: [phone]

Defendant
HSH Nordbank AG, New York Branch

Arthur Halsey Rice, Esq.
RICE PUGATCH ROBINSON & SCHILLER
101 NE 3 Avenue
Suite 1800
Fort Lauderdale, FL 33301
Tele: [phone]
Fax: [phone]

Defendant
HSH Nordbank AG, New York Branch

Gregory S. Grossman, Esq.
ASTIGARRAGA DAVIS MULLINS &
GROSSMAN
701 Brickell Avenue, 16th Floor
Miami, FL 33131-2847
Tele: [phone]
Fax: [phone]

Defendant
MB Financial Bank, N.A.

-2-

Case 1:09-md-02106-ASG Document 207 Entered on FLSD Docket 02/08/2011 Page 6 of 7

Attorneys:

Representing:

Laury M. Macauley, Esq.
LEWIS & ROCA LLP
50 W Liberty Street
Reno, NV 89501
Tele: [phone]
Fax: [phone]

Defendant
MB Financial Bank, N.A.

Peter J. Roberts, Esq.
SHAW GUSSIS FISHMAN FLANTZ
WOLFSON & TOWBIN LLC
321 N Clark Street, Suite 800
Chicago, IL 60654
Tele: [phone]
Fax: [phone]

Defendant
MB Financial Bank, N.A.

Anthony L. Paccione, Esq.
Arthur S. Linker, Esq.
Kenneth E. Noble
KATTEN MUCHIN ROSENMAN LLP
575 Madison Avenue
New York, NY 10022-2585
Tele: [phone]
Fax: [phone]

Defendants
Bank of Scotland plc

Andrew B. Kratenstein, Esq.
Michael R. Huttenlocher, Esq.
MCDERMOTT WILL & EMERY LLP
340 Madison Avenue
New York, NY 10173
Tele: [phone]

Defendant
Camulos Master Fund, L.P.

Raquel A. Rodriguez
MCDERMOTT WILL & EMERY LLP
201 S. Biscayne Blvd.
Suite 2200
Miami, FL 33131
Tele: [phone]
Fax: : [phone]

Defendant
Camulos Master Fund, L.P.

David M. Friedman, Esq.
Jed I. Bergman, Esq.
Seth A. Moskowitz
KASOWITZ BENSON TORRES &
FRIEDMAN
1633 Broadway, 22nd Floor
New York, NY 10019-6799
Tele: [phone]
Fax: [phone]

Plaintiff
Fontainebleau Las Vegas LLC

-3-

Case 1:09-md-02106-ASG Document 207 Entered on FLSD Docket 02/08/2011 Page 7 of 7

Attorneys:

Representing:

Jeffrey I. Snyder, Esq.
Scott L. Baena, Esq.
BILZIN SUMBERG BAENA PRICE
& AXELROD
200 S Biscayne Blvd., Suite 2500
Miami, FL 33131-2336
Tele: [phone]
Fax: [phone]

Plaintiff
Fontainebleau Las Vegas LLC

Harold Defore Moorefield Jr., Esq.
STEARNS WEAVER MILLER WEISSLER
ALHADEFF & SITTERSON
Museum Tower
150 W Flagler Street, Suite 2200
Miami, FL 33130
Tele: [phone]
Fax: [phone]

Defendant
Bank of Scotland plc

James B. Heaton, Esq.
John D. Byars, Esq.
Steven James Nachtwey, Esq.
Vincent S. J. Buccola, Esq.
BARTLIT BECK HERMAN PALENCHAR &
SCOTT
54 West Hubbard St.
Suite 300
Chicago, IL 60654
Tele: [phone]

Plaintiffs
ACP Master, Ltd.
Aurelius Capital Master, Ltd.

Brett Michael Amron
BAST AMRON LLP
150 West Flagler Street
Penthouse 2850
Miami, FL 33130
Tele: [phone]

Plaintiffs
ACP Master, Ltd.
Aurelius Capital Master, Ltd.

-4-

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 09-MD-02106-CIV-GOLD/GOODMAN

IN RE: FONTAINEBLEAU LAS VEGAS
CONTRACT LITIGATION
MDL No. 2106
This document relates to 10-cv-20236GOLD/GOODMAN

/

NOTICE OF APPEAL
PLEASE TAKE NOTICE THAT all plaintiffs in ACP Master, Ltd, et al. v. Bank of
America, N.A., et al. Case No. 10-cv-20236-GOODMAN/GOLD, hereby appeal to the United
States Court of Appeals for the Eleventh Circuit from the Entry of Partial Final Judgment
entered on January 13, 2011, docketed on January 18, 2011 in both the multidistrict litigation
case [Case No. 09-md-02106, D.E. # 202] and the underlying case [Case No. 10-cv-20236, D.E.
# 57], and the related Order Granting in Part and Denying in Part Motions to Dismiss entered in
this action on May 28, 2010, to the extent the Motions to Dismiss were granted, [MDL Order
No. 18; Case No. 09-md-02106, D.E. # 79, 80; Case No. 10-CV-20236, D.E. # 54, 55].
This Notice of Appeal has simultaneously been filed and docketed in both the
multidistrict litigation case, Case No. 09-md-02106, and the underlying case, Case No. 10-cv20236, as an appeal from the above referenced Entry of Partial Final Judgment and the above
referenced order entered and docketed in both cases.

Case 1:09-md-02106-ASG Document 208 Entered on FLSD Docket 02/11/2011 Page 2 of 7

Dated: February 11, 2011

Respectfully submitted,

/s/ Brett M. Amron
Brett M. Amron, Esq.
Florida Bar No. 148342
BAST AMRON LLP
SunTrust International Center
One Southeast Third Avenue
Suite 1440
Miami, FL 33131
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Local Counsel for Plaintiff Term
Lenders
Of counsel:
James B. Heaton, III
Steven J. Nachtwey
John D. Byars
Vincent S. J. Buccola
BARTLIT BECK HERMAN PALENCHAR
SCOTT LLP
54 West Hubbard Street, Suite 300
Chicago, IL 60654
Telephone: [phone]
Facsimile: [phone]

-1-

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CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy of the foregoing NOTICE OF APPEAL
was filed with the Clerk of the Court using CM/ECF. I also certify that the foregoing document
is being served this day on all counsel of record or pro se parties identified on the attached
Service List in the manner specified either via transmission of Notices of Electronic Filing
generated by CM/ECF or in some other authorized manner for those counsel or parties who are
not authorized to receive electronically the Notice of Electronic Filing.

Dated: February 11, 2011

/s/ Brett M. Amron _______

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Service List

Attorneys:

Representing:

Bradley J. Butwin, Esq.
Daniel L. Cantor, Esq.
Jonathan Rosenberg, Esq.
William J. Sushon, Esq.
O’MELVENY & MYERS LLP
Times Square Tower
7 Times Square
New York, NY 10036
Tele: [phone]
Fax: [phone]

Defendants
Bank of America, N.A.
Merrill Lynch Capital Corporation

Craig V. Rasile, Esq.
Kevin Michael Eckhardt, Esq.
HUNTON & WILLIAMS
1111 Brickell Avenue
Suite 2500
Miami, FL 33131
Tele: [phone]
Fax: [phone]

Defendants
Bank of America, N.A.
Merrill Lynch Capital Corporation
JP Morgan Chase Bank, N.A.
Barclays Bank PLC
Deutsche Bank Trust Company Americas
The Royal Bank of Scotland PLC
HSH Nordbank AG, New York Branch
Bank of Scotland plc

David J. Woll, Esq.
Justin S. Stern, Esq.
Lisa H. Rubin, Esq.
Thomas C. Rice, Esq.
Steven S. Fitzgerald
SIMPSON THACHER & BARTLETT LLP
425 Lexington Avenue
New York, NY 10017-3954
Tele: [phone]
Fax: [phone]

Defendants
JP Morgan Chase Bank, N.A.
Barclays Bank PLC
Deutsche Bank Trust Company Americas
The Royal Bank of Scotland PLC
Bank of Scotland plc

John Blair Hutton III, Esq,
Mark D. Bloom, Esq.
GREENBERG TAURIG
1221 Brickell Avenue
Miami, FL 33131
Tele: [phone]
Fax: [phone]

Defendants
JP Morgan Chase Bank, N.A.
Barclays Bank PLC
Deutsche Bank Trust Company Americas
The Royal Bank of Scotland PLC

-2-

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Attorneys:

Representing:

Sarah A. Harmon, Esq.
BAILEY KENNEDY
8984 Spanish Ridge Avenue
Las Vegas, NV 89148
Tele: [phone]
Fax: [phone]

Defendant
JP Morgan Chase Bank, N.A.
Barclays Bank PLC
Deutsche Bank Trust Company Americas
The Royal Bank of Scotland PLC

Frederick D. Hyman, Esq.
Jason I. Kirschner, Esq.
Jean-Marie L. Atamian, Esq.
MAYER BROWN LLP
1675 Broadway
New York, NY 10019-5820
Tele: [phone]
Fax: [phone]

Defendant
Sumitomo Mitsui Banking Corporation

Robert Gerald Fracasso, Jr.
SHUTTS & BOWEN
201 S Biscayne Boulevard
Suite 1500 Miami Center
Miami, FL 33131
Tele: [phone]
Fax: [phone]

Defendant
Sumitomo Mitsui Banking Corporation

Phillip A. Geraci, Esq.
Steven C. Chin, Esq.
Aaron Rubinsten, Esq.
W. Stewart Wallace, Esq.
KAYE SCHOLER LLP
425 Park Avenue
New York, NY 10022-3598
Tele: [phone]
Fax: [phone]

Defendant
HSH Nordbank AG, New York Branch

Arthur Halsey Rice, Esq.
RICE PUGATCH ROBINSON & SCHILLER
101 NE 3 Avenue
Suite 1800
Fort Lauderdale, FL 33301
Tele: [phone]
Fax: [phone]

Defendant
HSH Nordbank AG, New York Branch

Gregory S. Grossman, Esq.
ASTIGARRAGA DAVIS MULLINS &
GROSSMAN
701 Brickell Avenue, 16th Floor
Miami, FL 33131-2847
Tele: [phone]
Fax: [phone]

Defendant
MB Financial Bank, N.A.

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Attorneys:

Representing:

Laury M. Macauley, Esq.
LEWIS & ROCA LLP
50 W Liberty Street
Reno, NV 89501
Tele: [phone]
Fax: [phone]

Defendant
MB Financial Bank, N.A.

Peter J. Roberts, Esq.
SHAW GUSSIS FISHMAN FLANTZ
WOLFSON & TOWBIN LLC
321 N Clark Street, Suite 800
Chicago, IL 60654
Tele: [phone]
Fax: [phone]

Defendant
MB Financial Bank, N.A.

Anthony L. Paccione, Esq.
Arthur S. Linker, Esq.
Kenneth E. Noble
KATTEN MUCHIN ROSENMAN LLP
575 Madison Avenue
New York, NY 10022-2585
Tele: [phone]
Fax: [phone]

Defendants
Bank of Scotland plc

Andrew B. Kratenstein, Esq.
Michael R. Huttenlocher, Esq.
MCDERMOTT WILL & EMERY LLP
340 Madison Avenue
New York, NY 10173
Tele: [phone]

Defendant
Camulos Master Fund, L.P.

Raquel A. Rodriguez
MCDERMOTT WILL & EMERY LLP
201 S. Biscayne Blvd.
Suite 2200
Miami, FL 33131
Tele: [phone]
Fax: : [phone]

Defendant
Camulos Master Fund, L.P.

David M. Friedman, Esq.
Jed I. Bergman, Esq.
Seth A. Moskowitz
KASOWITZ BENSON TORRES &
FRIEDMAN
1633 Broadway, 22nd Floor
New York, NY 10019-6799
Tele: [phone]
Fax: [phone]

Plaintiff
Fontainebleau Las Vegas LLC

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Case 1:09-md-02106-ASG Document 208 Entered on FLSD Docket 02/11/2011 Page 7 of 7

Attorneys:

Representing:

Jeffrey I. Snyder, Esq.
Scott L. Baena, Esq.
BILZIN SUMBERG BAENA PRICE
& AXELROD
200 S Biscayne Blvd., Suite 2500
Miami, FL 33131-2336
Tele: [phone]
Fax: [phone]

Plaintiff
Fontainebleau Las Vegas LLC

Harold Defore Moorefield Jr., Esq.
STEARNS WEAVER MILLER WEISSLER
ALHADEFF & SITTERSON
Museum Tower
150 W Flagler Street, Suite 2200
Miami, FL 33130
Tele: [phone]
Fax: [phone]

Defendant
Bank of Scotland plc

J. Michael Hennigan
Kirk D. Dillman
Peter Most
Robert Mockler
Rebecca T. Pilch
Caroline M. Walters
HENNIGAN DORMAN LLP
865 South Figueroa Street, Suite 2900
Los Angeles, California 90017
Tele: [phone]
Fax: [phone]

Plaintiffs
Avenue CLO Fund, Ltd., et al.

David A. Rothstein
Lorenz M. Prüss
DIMOND KAPLAN & ROTHSTEIN, P.A.
2665 South Bayshore Drive, PH-2B
Miami, FL 33133
Tele: [phone]

Plaintiffs
Avenue CLO Fund, Ltd., et al.

Fax:

[phone]

-5-

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO 09-MD-02106-CIV-GOLD/GOODMAN

IN RE: FONTAINEBLEAU LAS VEGAS
CONTRACT LITIGATION
MDL No. 2106
This document relates to all actions.

/

MOTION FOR ORDER DISMISSING AURELIUS ACTION WITHOUT PREJUDICE
The plaintiffs in Avenue CLO Fund, Ltd., et al. v. Bank of America, N.A., et al., Case No.
09-cv-23835-ASG (the “Avenue Action”) have purchased all of the Term Loan Notes previously
held by the plaintiffs in ACP Master, Ltd., et al. v. Bank of America, N.A., et al., Case No. 10-cv20236-ASG (the “Aurelius Action”). The Avenue plaintiffs wish to pursue in a single action all
claims on all Term Loan Notes they now own. The Avenue and Aurelius plaintiffs have agreed
with Bank of America (“BofA”) to the terms of a Stipulation dismissing the Aurelius Action
without prejudice so that all claims can be pursued in the Avenue Action. The Revolving
Lenders have refused to stipulate. Plaintiffs thus bring this motion for an order approving the
terms of that Stipulation.
I.

BACKGROUND
The Avenue plaintiffs are (and the Aurelius plaintiffs were) term lenders or successors-

in-interest to term lenders under a Credit Agreement dated as of June 6, 2007 for the financing of
the development and construction of the Fontainebleau Las Vegas Resort and Casino.
On June 9, 2009, the Avenue plaintiffs filed an action against Bank of America, N.A. and
the Revolving Lenders (collectively the “Defendants”) in the United States District Court for the
District of Nevada, captioned as Avenue CLO Fund, Ltd., et al. v. Bank of America, N.A., et al.,

-1-

Case 1:09-md-02106-ASG Document 212 Entered on FLSD Docket 02/17/2011 Page 2 of 11

Case No. 09-cv-1047-KJD-PAL (D. Nev.). The Avenue Action asserts claims for breach of
contract and declaratory relief arising out of (1) the Revolving Lenders’ wrongful failure to fund
under the Credit Agreement and (2) BofA’s wrongful disbursement of funds under a related
Disbursement Agreement.
On September 21, 2009, the Aurelius plaintiffs filed the Aurelius Action against
Defendants in the United States District Court for the Southern District of New York captioned
as ACP Master, Ltd., et al. v. Bank of America, N.A., et al., Case No. 09-cv-8064-LTS/THK
(S.D.N.Y). The claims asserted in the Aurelius Action are substantially identical to the claims
asserted in the Avenue Action. The two cases have been coordinated for pre-trial purposes in
this Multidistrict Litigation.
The Avenue plaintiffs recently purchased all of the interest in the Term Loan Notes
1

previously owned by the Aurelius plaintiffs and thus have succeeded to all claims asserted in the
Aurelius Action. While the Avenue plaintiffs could continue to pursue those claims in the
Aurelius action,2 they wish to avoid splitting claims between the two cases, one of which will be
returned to Nevada for trial, and the other to New York. All parties currently before this Court
(the Aurelius and Avenue plaintiffs and BofA) have negotiated a Stipulation that would dismiss
3

the Aurelius Action without prejudice so that the Avenue plaintiffs can pursue the claims related
to the Term Loan Notes previously held by the Aurelius plaintiffs in the Avenue Action.4

1

Dillman Decl., ¶ 2.

2

Fed. R. Civ. P. 25(c).

3

The Stipulation provides for a dismissal without prejudice as to claims purchased by the
Avenue plaintiffs and a dismissal with prejudice in all other regards. This was to address BofA’s
concern that parties other than the Avenue plaintiffs might purchase Term Loan Notes previously
held by Aurelius and then file actions elsewhere in an effort to avoid having their claims
coordinated in the Multidistrict Litigation. The Avenue plaintiffs, however, have purchased all
-2-

Case 1:09-md-02106-ASG Document 212 Entered on FLSD Docket 02/17/2011 Page 3 of 11

Rule 41 of the Federal Rules of Civil Procedure permits an action to be dismissed without
prejudice by a stipulation “signed by all parties who have appeared.” The Stipulation has been
signed by all active parties to the Aurelius and Avenue Actions, but the Revolving Lenders, who
are no longer before this Court,5 have refused. Out of an abundance of caution, the Avenue and
Aurelius plaintiffs therefore have brought this motion to approve the Stipulation.
II.

PROCEEDING WITH ALL CLAIMS IN A SINGLE ACTION IS EFFICIENT
AND WILL NOT PREJUDICE ANY PARTY
In the absence of a stipulation of dismissal by all appearing parties, the Court may order
6

dismissal of an action upon a plaintiff’s request “on terms that the court considers proper.” A
motion to dismiss should be granted unless dismissal will cause the defendants “legal
7

prejudice.”

Dismissing the Aurelius Action in favor of proceeding on all claims in the Avenue Action
is a commonsense way to streamline this litigation in light of the fact that all of the Term Loan
Notes at issue in the two actions are now owned by the Avenue plaintiffs. Combining the claims
from those two actions into one proceeding will be more efficient and less costly for the Court

of the Term Loan Notes previously owned by Aurelius, and thus, as a practical matter, all claims
will be dismissed without prejudice pursuant to the Stipulation.
4

Dillman Decl., Ex. A. BofA has preserved its ability to challenge the validity of any transfer of
Term Loan Notes to or from the Aurelius plaintiffs.
5

The Court dismissed the claims against them [MDL Order No. 18; Case No. 09-md-02106,
D.E. # 79, 80], and that order is now on appeal [Case No. 09-md-02106, D.E. # 203, 208].
6

Fed. R. Civ. P. 41(a)(2).

7

8-41 Moore’s Federal Practice - Civil § 41.40[5][a]. In considering possible prejudice, courts
commonly consider: “(1) the extent to which the suit has progressed, including the defendant's
effort and expense in preparing for trial, (2) the plaintiff's diligence in prosecuting the action or
in bringing the motion, (3) the duplicative expense of relitigation, and (4) the adequacy of
plaintiff's explanation for the need to dismiss.” Id. at § 41.40[6]. Here, all of these factors
support granting plaintiffs’ request.

-3-

Case 1:09-md-02106-ASG Document 212 Entered on FLSD Docket 02/17/2011 Page 4 of 11

and the parties and will avoid the possibility of contradictory rulings in the two cases. As one
court has stated, where two related actions are simultaneously pending, “the interests of the
parties and the Court that the matters at issue . . . be decided in one action, not two parallel ones”
8

is an “excellent reason for voluntary dismissal.”

Dismissing the Aurelius Action without prejudice is appropriate. A dismissal with
prejudice typically bars the subsequent prosecution of the claims.

9

But the very purpose of the

dismissal here is to permit the Avenue plaintiffs to continue prosecuting the claims associated
with the Term Loan Notes previously owned by Aurelius, just in a different action. If put to the
choice, the Avenue plaintiffs certainly would elect to split their claims between the two actions
rather than dismiss the Aurelius claims with prejudice and risk losing them.
The Revolving Lenders have identified no prejudice from a dismissal without prejudice.
Indeed, the primary reason given by the Revolving Lenders for their refusal to agree to the
Stipulation was that they were “not getting anything in return.”

10

Efficient case management,

however, should not require a quid pro quo. Whether the claims are pursued in one action or
two, they will be pursued. All of the procedures governing the coordinated proceedings in this
Multidistrict Litigation will continue to apply, and there will be no delays or duplicative work as
a result of the dismissal without prejudice.

8 Buller v. Owner Operator Indep. Driver Risk Retention Group, Inc., 461 F. Supp. 2d 757, 768
(S.D. Ill. 2006); see also Grabinger v. Canadian Pac. Ry. Co., 2004 U.S. Dist. LEXIS 18209, *4
(D. N.D. Sept. 10, 2004) (holding dismissal without prejudice appropriate where plaintiff filed an
identical action in another state).
9

See Lawlor v. National Screen Service Corp., 349 U.S. 322, 327 (1955) (“It is of course true
that the 1943 judgment dismissing the previous suit ‘with prejudice’ bars a later suit on the same
cause of action.”).
10

Dillman Decl., ¶ 4.

-4-

Case 1:09-md-02106-ASG Document 212 Entered on FLSD Docket 02/17/2011 Page 5 of 11

III.

CONCLUSION
For the foregoing reasons, plaintiffs request that the Court grant this motion, order the

Aurelius Action dismissed without prejudice and enter the attached Stipulation as an order of this
Court.

Respectfully submitted,

Dated: February 16, 2011

____/s/ Lorenz M. Prüss
David A. Rothstein, Esq.
Fla. Bar No.: 056881
[e-mail]
Lorenz M. Prüss, Esq.
Fla Bar No.: 581305
[e-mail]
DIMOND KAPLAN & ROTHSTEIN, P.A.
2665 South Bayshore Drive, PH-2B
Miami, FL 33133
Telephone:
[phone]
Facsimile:
[phone]
Local Counsel for Plaintiff Term Lenders
Of counsel:
J. Michael Hennigan
Kirk D. Dillman
HENNIGAN DORMAN LLP
865 South Figueroa Street, Suite 2900
Los Angeles, California 90017
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
[e-mail]

-5-

Case 1:09-md-02106-ASG Document 212 Entered on FLSD Docket 02/17/2011 Page 6 of 11

Respectfully submitted,

Dated: February 16, 2011

____/s/ Brett Michael Amron
Brett Michael Amron
Email: [e-mail]
BAST AMRON LLP
150 West Flagler Street
Penthouse 2850
Miami, FL 33130
Telephone:
[phone]
Facsimile:
[phone]
Local Counsel for ACP Master, Ltd. Aurelius
Capital Master, Ltd.

Of counsel:
James B. Heaton, Esq.
John D. Byars, Esq.
Steven James Nachtwey, Esq.
Vincent S. J. Buccola, Esq.
BARTLIT BECK HERMAN PALENCHAR
& SCOTT
54 West Hubbard St., Suite 300
Chicago, IL 60654
Telephone: [phone]
Facsimile:
[phone]
Email: [e-mail]
[e-mail]
[e-mail]
[e-mail]

-6-

Case 1:09-md-02106-ASG Document 212 Entered on FLSD Docket 02/17/2011 Page 7 of 11

CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy of the foregoing MOTION FOR ORDER
DISMISSING AURELIUS CLAIMS WITHOUT PREJUDICE was filed with the Clerk of
the Court using CM/ECF. I also certify that the foregoing document is being served this day on
all counsel of record or pro se parties identified on the attached Service List in the manner
specified either via transmission of Notices of Electronic Filing generated by CM/ECF or in
some other authorized manner for those counsel or parties who are not authorized to receive
electronically the Notice of Electronic Filing.

Dated: February 16, 2011.

/s/ Lorenz M. Prüss ___________
Lorenz M. Prüss, Esq.

Case 1:09-md-02106-ASG Document 212 Entered on FLSD Docket 02/17/2011 Page 8 of 11

SERVICE LIST

Attorneys:

Representing:

Bradley J. Butwin, Esq.
Daniel L. Cantor, Esq.
Jonathan Rosenberg, Esq.
William J. Sushon, Esq.
O’MELVENY & MYERS LLP
Times Square Tower
7 Times Square
New York, NY 10036
Tele: [phone]
Fax: [phone]

Defendants
Bank of America, N.A.
Merrill Lynch Capital Corporation

Craig V. Rasile, Esq.
Kevin Michael Eckhardt, Esq.
HUNTON & WILLIAMS
1111 Brickell Avenue
Suite 2500
Miami, FL 33131
Tele: [phone]
Fax: [phone]

Defendants
Bank of America, N.A.
Merrill Lynch Capital Corporation

David J. Woll, Esq.
Lisa H. Rubin, Esq.
Thomas C. Rice, Esq.
Steven S. Fitzgerald
SIMPSON THACHER & BARTLETT LLP
425 Lexington Avenue
New York, NY 10017-3954
Tele: [phone]
Fax: [phone]

Defendants
JP Morgan Chase Bank, N.A.
Barclays Bank PLC
Deutsche Bank Trust Company Americas
The Royal Bank of Scotland PLC

John Blair Hutton III, Esq,
Mark D. Bloom, Esq.
GREENBERG TAURIG
1221 Brickell Avenue
Miami, FL 33131
Tele: [phone]
Fax: [phone]

Defendants
JP Morgan Chase Bank, N.A.
Barclays Bank PLC
Deutsche Bank Trust Company Americas
The Royal Bank of Scotland PLC

-1-

Case 1:09-md-02106-ASG Document 212 Entered on FLSD Docket 02/17/2011 Page 9 of 11

Attorneys:

Representing:

Sarah A. Harmon, Esq.
BAILEY KENNEDY
8984 Spanish Ridge Avenue
Las Vegas, NV 89148
Tele: [phone]
Fax: [phone]

Defendant
JP Morgan Chase Bank, N.A.
Barclays Bank PLC
Deutsche Bank Trust Company Americas
The Royal Bank of Scotland PLC

Frederick D. Hyman, Esq.
Jason I. Kirschner, Esq.
Jean-Marie L. Atamian, Esq.
MAYER BROWN LLP
1675 Broadway
New York, NY 10019-5820
Tele: [phone]
Fax: [phone]

Defendant
Sumitomo Mitsui Banking Corporation

Robert Gerald Fracasso, Jr.
SHUTTS & BOWEN
201 S Biscayne Boulevard
Suite 1500 Miami Center
Miami, FL 33131
Tele: [phone]
Fax: [phone]

Defendant
Sumitomo Mitsui Banking Corporation

Phillip A. Geraci, Esq.
Steven C. Chin, Esq.
Aaron Rubinsten, Esq.
W. Stewart Wallace, Esq.
KAYE SCHOLER LLP
425 Park Avenue
New York, NY 10022-3598
Tele: [phone]
Fax: [phone]

Defendant
HSH Nordbank AG, New York Branch

Arthur Halsey Rice, Esq.
RICE PUGATCH ROBINSON & SCHILLER
101 NE 3 Avenue
Suite 1800
Fort Lauderdale, FL 33301
Tele: [phone]
Fax: [phone]

Defendant
HSH Nordbank AG, New York Branch

Gregory S. Grossman, Esq.
ASTIGARRAGA DAVIS MULLINS &
GROSSMAN

Defendant
MB Financial Bank, N.A.

-2-

Case 1:09-md-02106-ASG Document 212 Entered on FLSD Docket 02/17/2011 Page 10 of 11

Attorneys:
701 Brickell Avenue, 16th Floor
Miami, FL 33131-2847
Tele: [phone]
Fax: [phone]

Representing:

Laury M. Macauley, Esq.
LEWIS & ROCA LLP
50 W Liberty Street
Reno, NV 89501
Tele: [phone]
Fax: [phone]

Defendant
MB Financial Bank, N.A.

Peter J. Roberts, Esq.
SHAW GUSSIS FISHMAN FLANTZ WOLFSON
& TOWBIN LLC
321 N Clark Street, Suite 800
Chicago, IL 60654
Tele: [phone]
Fax: [phone]

Defendant
MB Financial Bank, N.A.

Anthony L. Paccione, Esq.
Arthur S. Linker, Esq.
Kenneth E. Noble
KATTEN MUCHIN ROSENMAN LLP
575 Madison Avenue
New York, NY 10022-2585
Tele: [phone]
Fax: [phone]

Defendant
Bank of Scotland plc

Andrew B. Kratenstein, Esq.
Michael R. Huttenlocher, Esq.
MCDERMOTT WILL & EMERY LLP
340 Madison Avenue
New York, NY 10173
Tele: [phone]

Defendant
Camulos Master Fund, L.P.

Raquel A. Rodriguez
MCDERMOTT WILL & EMERY LLP
201 S. Biscayne Blvd.
Suite 2200
Miami, FL 33131
Tele: [phone]
Fax: : [phone]

Defendant
Camulos Master Fund, L.P.

David M. Friedman, Esq.
Jed I. Bergman, Esq.

Plaintiff
Fontainebleau Las Vegas LLC

-3-

Case 1:09-md-02106-ASG Document 212 Entered on FLSD Docket 02/17/2011 Page 11 of 11

Attorneys:
Seth A. Moskowitz
KASOWITZ BENSON TORRES & FRIEDMAN
1633 Broadway, 22nd Floor
New York, NY 10019-6799
Tele: [phone]
Fax: [phone]

Representing:

Jeffrey I. Snyder, Esq.
Scott L. Baena, Esq.
BILZIN SUMBERG BAENA PRICE
& AXELROD
200 S Biscayne Blvd., Suite 2500
Miami, FL 33131-2336
Tele: [phone]
Fax: [phone]

Plaintiff
Fontainebleau Las Vegas LLC

Harold Defore Moorefield Jr., Esq.
STEARNS WEAVER MILLER WEISSLER
ALHADEFF & SITTERSON
Museum Tower
150 W Flagler Street, Suite 2200
Miami, FL 33130
Tele: [phone]
Fax: [phone]

Defendant
Bank of Scotland plc

James B. Heaton, Esq.
John D. Byars, Esq.
Steven James Nachtwey, Esq.
Vincent S. J. Buccola, Esq.
BARTLIT BECK HERMAN PALENCHAR &
SCOTT
54 West Hubbard St.
Suite 300
Chicago, IL 60654
Tele: [phone]

Plaintiffs
ACP Master, Ltd.
Aurelius Capital Master, Ltd.

Brett Michael Amron
BAST AMRON LLP
150 West Flagler Street
Penthouse 2850
Miami, FL 33130
Tele: [phone]

Plaintiffs
ACP Master, Ltd.
Aurelius Capital Master, Ltd.

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Case 1:09-md-02106-ASG Document 212-1 Entered on FLSD Docket 02/17/2011 Page 1 of 19

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO 09-MD-02106-CIV-GOLD/GOODMAN

IN RE: FONTAINEBLEAU LAS VEGAS
CONTRACT LITIGATION
MDL No. 2106
This document relates to all actions.

/

DECLARATION OF KIRK D. DILLMAN IN SUPPORT OF MOTION FOR ORDER
DISMISSING AURELIUS ACTION WITHOUT PREJUDICE
I, Kirk D. Dillman, declare as follows:
1.

I am a partner in the firm of Hennigan Dorman, LLP, counsel for Plaintiffs in

Avenue CLO Fund, Ltd., et al. v. Bank of America, N.A., et al., No. 09-cv-23835-ASG (the
“Avenue Action”). I submit this declaration in support of the Motion for Order Dismissing
Aurelius Action Without Prejudice. Except where otherwise indicated, I have personal
knowledge of the facts stated herein and, if called as a witness, could and would competently
testify thereto.
2.

The plaintiffs in the Avenue Action have purchased all of the Term Loan Notes

previously held by the plaintiffs in ACP Master, Ltd., et al. v. Bank of America, N.A., et al., Case
No. 10-cv-20236-ASG (the “Aurelius Action”).
3.

The Avenue and Aurelius plaintiffs have agreed with Bank of America to the

terms of a Stipulation dismissing the Aurelius Action without prejudice so that all claims can be
pursued in the Avenue Action. A true and correct copy of the Stipulation is attached hereto as
Exhibit A.
4.

On February 7, I spoke with David Woll, counsel for JP Morgan Chase Bank,

N.A., Barclays Bank PLC, Deutsche Bank Trust Company Americas and The Royal Bank of

-1-

Case 1:09-md-02106-ASG Document 212-1 Entered on FLSD Docket 02/17/2011 Page 2 of 19

Scotland PLC, four of the Revolving Lenders. I previously had sent a copy of the Stipulation to
Mr. Woll and asked if he would coordinate with the other Revolving Lenders to determine
whether they would agree to it. During our conversation, Mr. Woll told me that the Revolving
Lenders were not willing to agree to the Stipulation. The primary reason he gave was that the
Revolving Lenders felt that they were “not getting anything in return” for the Stipulation.

I declare under penalty of perjury under the laws of the United States of America that the
foregoing is true and correct.

DATED: February 16, 2011
KIRK D. DILLMAN

-2-

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CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy of the foregoing DECLARATION OF
KIRK D. DILLMAN IN SUPPORT OF MOTION FOR ORDER DISMISSING
AURELIUS CLAIMS WITHOUT PREJUDICE was filed with the Clerk of the Court using
CM/ECF. I also certify that the foregoing document is being served this day on all counsel of
record or pro se parties identified on the attached Service List in the manner specified either via
transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized
manner for those counsel or parties who are not authorized to receive electronically the Notice of
Electronic Filing.

Dated: February 16, 2011.

/s/ Lorenz M. Prüss ___________
Lorenz M. Prüss, Esq.

Case 1:09-md-02106-ASG Document 212-1 Entered on FLSD Docket 02/17/2011 Page 4 of 19

SERVICE LIST

Attorneys:

Representing:

Bradley J. Butwin, Esq.
Daniel L. Cantor, Esq.
Jonathan Rosenberg, Esq.
William J. Sushon, Esq.
O’MELVENY & MYERS LLP
Times Square Tower
7 Times Square
New York, NY 10036
Tele: [phone]
Fax: [phone]

Defendants
Bank of America, N.A.
Merrill Lynch Capital Corporation

Craig V. Rasile, Esq.
Kevin Michael Eckhardt, Esq.
HUNTON & WILLIAMS
1111 Brickell Avenue
Suite 2500
Miami, FL 33131
Tele: [phone]
Fax: [phone]

Defendants
Bank of America, N.A.
Merrill Lynch Capital Corporation

David J. Woll, Esq.
Lisa H. Rubin, Esq.
Thomas C. Rice, Esq.
Steven S. Fitzgerald
SIMPSON THACHER & BARTLETT LLP
425 Lexington Avenue
New York, NY 10017-3954
Tele: [phone]
Fax: [phone]

Defendants
JP Morgan Chase Bank, N.A.
Barclays Bank PLC
Deutsche Bank Trust Company Americas
The Royal Bank of Scotland PLC

John Blair Hutton III, Esq,
Mark D. Bloom, Esq.
GREENBERG TAURIG
1221 Brickell Avenue
Miami, FL 33131
Tele: [phone]
Fax: [phone]

Defendants
JP Morgan Chase Bank, N.A.
Barclays Bank PLC
Deutsche Bank Trust Company Americas
The Royal Bank of Scotland PLC

-1-

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Attorneys:

Representing:

Sarah A. Harmon, Esq.
BAILEY KENNEDY
8984 Spanish Ridge Avenue
Las Vegas, NV 89148
Tele: [phone]
Fax: [phone]

Defendant
JP Morgan Chase Bank, N.A.
Barclays Bank PLC
Deutsche Bank Trust Company Americas
The Royal Bank of Scotland PLC

Frederick D. Hyman, Esq.
Jason I. Kirschner, Esq.
Jean-Marie L. Atamian, Esq.
MAYER BROWN LLP
1675 Broadway
New York, NY 10019-5820
Tele: [phone]
Fax: [phone]

Defendant
Sumitomo Mitsui Banking Corporation

Robert Gerald Fracasso, Jr.
SHUTTS & BOWEN
201 S Biscayne Boulevard
Suite 1500 Miami Center
Miami, FL 33131
Tele: [phone]
Fax: [phone]

Defendant
Sumitomo Mitsui Banking Corporation

Phillip A. Geraci, Esq.
Steven C. Chin, Esq.
Aaron Rubinsten, Esq.
W. Stewart Wallace, Esq.
KAYE SCHOLER LLP
425 Park Avenue
New York, NY 10022-3598
Tele: [phone]
Fax: [phone]

Defendant
HSH Nordbank AG, New York Branch

Arthur Halsey Rice, Esq.
RICE PUGATCH ROBINSON & SCHILLER
101 NE 3 Avenue
Suite 1800
Fort Lauderdale, FL 33301
Tele: [phone]
Fax: [phone]

Defendant
HSH Nordbank AG, New York Branch

Gregory S. Grossman, Esq.
ASTIGARRAGA DAVIS MULLINS &
GROSSMAN

Defendant
MB Financial Bank, N.A.

-2-

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Attorneys:
701 Brickell Avenue, 16th Floor
Miami, FL 33131-2847
Tele: [phone]
Fax: [phone]

Representing:

Laury M. Macauley, Esq.
LEWIS & ROCA LLP
50 W Liberty Street
Reno, NV 89501
Tele: [phone]
Fax: [phone]

Defendant
MB Financial Bank, N.A.

Peter J. Roberts, Esq.
SHAW GUSSIS FISHMAN FLANTZ WOLFSON
& TOWBIN LLC
321 N Clark Street, Suite 800
Chicago, IL 60654
Tele: [phone]
Fax: [phone]

Defendant
MB Financial Bank, N.A.

Anthony L. Paccione, Esq.
Arthur S. Linker, Esq.
Kenneth E. Noble
KATTEN MUCHIN ROSENMAN LLP
575 Madison Avenue
New York, NY 10022-2585
Tele: [phone]
Fax: [phone]

Defendant
Bank of Scotland plc

Andrew B. Kratenstein, Esq.
Michael R. Huttenlocher, Esq.
MCDERMOTT WILL & EMERY LLP
340 Madison Avenue
New York, NY 10173
Tele: [phone]

Defendant
Camulos Master Fund, L.P.

Raquel A. Rodriguez
MCDERMOTT WILL & EMERY LLP
201 S. Biscayne Blvd.
Suite 2200
Miami, FL 33131
Tele: [phone]
Fax: : [phone]

Defendant
Camulos Master Fund, L.P.

David M. Friedman, Esq.
Jed I. Bergman, Esq.

Plaintiff
Fontainebleau Las Vegas LLC

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Case 1:09-md-02106-ASG Document 212-1 Entered on FLSD Docket 02/17/2011 Page 7 of 19

Attorneys:
Seth A. Moskowitz
KASOWITZ BENSON TORRES & FRIEDMAN
1633 Broadway, 22nd Floor
New York, NY 10019-6799
Tele: [phone]
Fax: [phone]

Representing:

Jeffrey I. Snyder, Esq.
Scott L. Baena, Esq.
BILZIN SUMBERG BAENA PRICE
& AXELROD
200 S Biscayne Blvd., Suite 2500
Miami, FL 33131-2336
Tele: [phone]
Fax: [phone]

Plaintiff
Fontainebleau Las Vegas LLC

Harold Defore Moorefield Jr., Esq.
STEARNS WEAVER MILLER WEISSLER
ALHADEFF & SITTERSON
Museum Tower
150 W Flagler Street, Suite 2200
Miami, FL 33130
Tele: [phone]
Fax: [phone]

Defendant
Bank of Scotland plc

James B. Heaton, Esq.
John D. Byars, Esq.
Steven James Nachtwey, Esq.
Vincent S. J. Buccola, Esq.
BARTLIT BECK HERMAN PALENCHAR &
SCOTT
54 West Hubbard St.
Suite 300
Chicago, IL 60654
Tele: [phone]

Plaintiffs
ACP Master, Ltd.
Aurelius Capital Master, Ltd.

Brett Michael Amron
BAST AMRON LLP
150 West Flagler Street
Penthouse 2850
Miami, FL 33130
Tele: [phone]

Plaintiffs
ACP Master, Ltd.
Aurelius Capital Master, Ltd.

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Case 1:09-md-02106-ASG Document 215 Entered on FLSD Docket 02/23/2011 Page 1 of 12

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MASTER CASE NO. 09-2106-MD-GOLD/GOODMAN
In re:
FONTAINEBLEAU LAS VEGAS
CONTRACT LITIGATION
MDL NO. 2106
This document relates to:
ALL ACTIONS
__________________________________/

BANK OF AMERICA, N.A.’S MOTION FOR A DETERMINATION
OF FONTAINEBLEAU RESORTS’ WAIVER OF
PRIVILEGE FOR ITS E-MAIL SERVER DOCUMENTS
Defendant Bank of America, N.A. (“BANA”) moves this Court for an order determining
that Fontainebleau Resorts, LLC (“FBR”) has waived all applicable privileges by producing
thousands of potentially privileged documents on its e-mail server to BANA without taking
appropriate steps to prevent disclosing privileged information or to correct the disclosure.
INTRODUCTION
BANA is entitled to a determination that any privilege attaching to e-mails produced by
FBR from its e-mail server has been waived due to FBR’s careless handling of those materials.
Under Federal law, the production of privileged communications waives the privilege unless the
producing party can demonstrate that (i) the production was inadvertent, (ii) it took adequate
steps to avoid production, and (iii) it promptly sought to rectify the production. See Fed. R.
Evid. 502(b). FBR cannot establish any—let alone all—of these elements.
While FBR has asserted that it reviewed its e-mail server production for privilege, it has
admitted that “due to the time and financial constraints FBR was under, not all privileged e-mails

Case 1:09-md-02106-ASG Document 215 Entered on FLSD Docket 02/23/2011 Page 2 of 12

were withheld from production.” Moreover, whatever review FBR performed (if any) was
clearly inadequate: FBR has produced thousands of potentially privileged communications with
its in-house and outside counsel. FBR has also failed promptly to address its privileged
document disclosure. Despite acknowledging that it failed to withhold all privileged documents,
FBR has repeatedly delayed taking affirmative steps to identify and seek the return of any of
privileged e-mails it produced to BANA. Instead, FBR first asked BANA to bring to FBR’s
attention any privileged documents it might come across—a request that improperly burdens and
prejudices BANA. And then, when specifically advised by BANA that it appeared to have
produced potentially privileged documents, FBR made no effort to recall any allegedly
inadvertently produced documents.
BANA seeks a determination that FBR has waived any privilege for its e-mails by
(i) deliberately producing privileged e-mails to BANA, the Term Lenders and others, (ii) failing
to take appropriate steps to avoid producing the e-mails, and (iii) failing to act promptly to recall
privileged e-mails. BANA seeks this determination now because depositions are beginning, and
the uncertainty concerning the parties’ ability to use FBR’s potentially privileged e-mails to
prepare for those depositions needs to be resolved.
BACKGROUND
BANA served FBR with a subpoena duces tecum on September 2, 2010 seeking
documents relating to the Fontainebleau Las Vegas project. Together with the other parties that
subpoenaed FBR for documents—i.e., the Term Lenders and defendants Barclays, Deutsche
Bank, JP Morgan and Royal Bank of Scotland—BANA negotiated e-mail search terms and a
relevant time period with FBR. On September 14, 2010, the parties reached agreement on a
search term list and date range that would be used to retrieve e-mails from FBR’s e-mail server.

2

Case 1:09-md-02106-ASG Document 215 Entered on FLSD Docket 02/23/2011 Page 3 of 12

(See Declaration of Kenneth T. Murata in Support of Bank of America, N.A.’s Motion for a
Determination of Waiver of Privilege for its Fontainebleau Resorts’ E-mail Server Documents
(“Murata Decl.”), at ¶ 2.)
On October 25, 2010, FBR reported that it retrieved “approximately 16,000” documents
from the e-mail server based on the mutually-agreed search terms. (Murata Decl. at ¶ 3.) But
after BANA and the other parties received the e-mails that were actually retrieved by FBR from
its e-mail server using the mutually-agreed search terms, they discovered that the search terms
and date limitations yielded more than 700,000 e-mails (61.5 gigabytes of data)—substantially
more than the 16,000 documents previously reported by FBR. (Murata Decl. at ¶ 4.) When
asked if it could explain this discrepancy, FBR simply responded “no.” (Id.) Thus, in an effort
to reduce the burden of reviewing FBR’s e-mails, defendants applied their own additional search
terms to FBR’s production, working with a vendor (IKON), at their own expense, to process and
image FBR’s e-mails so that they could be searched, reviewed and printed for discovery
purposes. (Murata Decl. at ¶ 5.)
The subsequent review of FBR’s production revealed that it contained thousands of
potentially privileged documents. For example, the term “Thier”—Fontainebleau Resorts’
former general counsel—yields nearly 13,000 documents. And the term “Sabo”—Fontainebleau
Resorts’ former Associate General Counsel—yields nearly 14,000 documents. In addition, it
appears that there are thousands of e-mails to/from FBR’s outside counsel Latham & Watkins
LLP and Buchanan Ingersoll & Rooney PC. (See Murata Decl. at ¶ 6.)
On December 20, 2010, having discovered that FBR’s production contained numerous
potentially privileged e-mails, BANA asked FBR what steps had been taken to review the e-mail
server for privileged documents. (Murata Decl. at ¶ 7.) BANA also advised FBR that the “large

3

Case 1:09-md-02106-ASG Document 215 Entered on FLSD Docket 02/23/2011 Page 4 of 12

number of potentially privileged e-mails” was impairing BANA’s document review. (Id.) In
response, FBR admitted that it knowingly produced privileged documents: “FBR internally
conducted a privilege review of the email server by searching the recipients and senders of each
email using a list of its attorneys’ names, . . . [but] [a]dmittedly, due to the time and financial
constraints FBR was under, not all privileged e-mails were withheld from production.” (Murata
Decl. at ¶ 8 (emphasis added).) FBR also asked BANA to continue to bring potentially
privileged documents to its attention. (Id.)
On January 12, 2011, BANA again advised FBR’s counsel that FBR appeared to have
produced a large number of potentially privileged documents. (Murata Decl. at ¶ 9.) But
consistent with its previous foot-dragging, FBR failed to take prompt steps to resolve the
situation. Despite BANA’s alert, FBR has yet to identify any documents that were inadvertently
produced. Instead, FBR has “consulted with an electronic discovery expert (IKON) in order to
assess the best way to handle this problem.” (Murata Decl. at ¶ 10.) On February 3, FBR’s
counsel reported that it was working with the vendor to conduct a “further privilege review” of
the email server. (Id.) But FBR has yet to recall any documents, nor has it provided a timetable
for recalling documents, producing redacted versions of partially-privileged documents, and
providing BANA with a privilege log.
ARGUMENT
Under Federal Rule of Evidence 502, the disclosure of privileged information in a
Federal or State proceeding waives the privilege unless: (i) the disclosure is inadvertent; (ii) the
holder of the privilege or protection took reasonable steps to prevent disclosure; and (iii) the
holder promptly took reasonable steps to rectify the error. See Fed. R. Evid. 502(b). FBR must
satisfy all three of these elements—but it cannot satisfy any.

4

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I.

FBR’S E-MAIL SERVER PRODUCTION WAIVED ALL APPLICABLE
PRIVILEGES THROUGH THE CARELESS HANDLING OF ITS E-MAILS
FBR waived any privilege for its e-mails by failing to take appropriate steps to prevent

their disclosure. It is well settled that “[a]ny disclosure inconsistent with maintaining the
confidential nature of the attorney-client relationship waives the privilege.” United States v.
Suarez, 820 F.2d 1158, 1660 (11th Cir. 1987); see also In re Keeper of the Records, 348 F.3d 16,
22 (1st Cir. 2003) (“When otherwise privileged communications are disclosed to a third party,
the disclosure destroys the confidentiality upon which the privilege is premised.”). In particular,
privilege is waived by a voluntary or careless disclosure of privileged information to a person
outside of the attorney-client relationship. Courts have routinely held that the voluntary or
careless production of privileged information waives the privilege. See, e.g., Conceptus, Inc. v.
Hologic, Inc., 2010 WL 3911943 (N.D. Cal. Oct. 5, 2010) (“If a party carelessly produced a
privileged document, the privilege associated with that document is waived.”); see also Reino de
Espana v. Am. Bureau of Shipping, 2005 U.S. Dist. LEXIS 33334, at *10 (S.D.N.Y. Dec. 14,
2005) (“The voluntary production of a privileged document removes all confidentiality from the
document and clearly effects a waiver of any privilege otherwise applicable.”) (quotation
omitted).
Fontainebleau’s admission that “due to the time and financial constraints FBR was under,
not all privileged e-mails were withheld from production” establishes that FBR knowingly
waived the privilege as to any privileged e-mails that were produced in response to BANA’s
subpoena. Furthermore, the large number of potentially privileged e-mails produced by FBR
dispels any remaining doubt about FBR’s state of mind in producing the e-mails. This is not the
typical inadvertent production situation, where a handful of potentially privileged e-mails slip
through an otherwise adequate privilege review. FBR produced more than 30,000 e-mails sent
5

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or received by its in-house attorneys—it must have been aware that its production included a
large number of potentially privileged documents. FBR’s admission and the sheer number of
potentially privileged documents it produced demonstrate that FBR knowingly—or, at best,
carelessly—produced privileged e-mails.
II.

FBR DID NOT TAKE REASONABLE CARE IN REVIEWING ITS E-MAILS
FBR did not take reasonable care in reviewing its e-mails before production. FBR’s

failure to withhold tens of thousands e-mails to or from its in-house counsel demonstrates that its
review process was deficient. If FBR had simply searched for privileged e-mails using its
attorneys’ names as keywords—as it claims to have done—it undoubtedly would have come
across these e-mails. And FBR cannot reasonably claim that it was impossible to review the emails for privilege due to its time and financial constraints. It represented to this Court that a
privilege review could be performed in less than a day once it came up with a list of privilege
search terms—i.e., a list of lawyers and law firms that counseled FBR.1 But FBR had over a
month to conduct a privilege review. It agreed to search terms on September 14, 2010, and
produced the e-mails on October 25, 2010. This was more than enough time to conduct a
thorough privilege review before the production deadline—FBR’s failure to do so is inexcusable.
III.

FBR HAS FAILED TO TAKE APPROPRIATE STEPS TO RECALL ITS
PRODUCTION OF PRIVILEGED DOCUMENTS
FBR’s inaction after admitting that it failed to withhold privileged e-mails also strongly

supports the conclusion that FBR has waived the privilege. Having acknowledged that “not all
privileged e-mails were withheld from production,” FBR had an affirmative obligation to

1

See Order on Motion for Determination of Waiver of Privilege, at 8 (Jan. 7, 2011) (DE# 199)
(“Fontainebleau then advised the Court that it would take less than a day to review the email
server for privilege once it came up with a list of privilege search terms--a list primarily
consisting of the names of lawyers and law firms.”).
6

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identify and recall any privileged e-mails from its production. See Fed. R. Evid. 502(b)
Advisory Committee Notes (stating “[t]he rule does require the producing party to follow up on
any obvious indications that a protected communication or information has been produced
inadvertently”) (emphasis added). But FBR has not taken any independent action to recall
allegedly inadvertently produced privileged documents—it has merely recalled those privileged
documents brought to its attention by BANA. This falls far short of following up on “any obvious
indications” that it has inadvertently produced privileged documents.
FBR has not recalled any documents since being notified by BANA on January 12, 2011
that it may have produced privileged documents. More than a month has passed since FBR was
first notified of this issue. It is well established that a producing party must take immediate steps
to recall an inadvertently produced privileged documents to avoid a privilege waiver. See
LaSalle Bank Nat’l Ass’n v. Merrill Lynch Mortgage Lending, Inc., 2007 U.S. Dist. LEXIS
59301, at **15-16 (S.D.N.Y. Aug. 13, 2007) (one-month delay in seeking inadvertently
produced document’s return waived privilege); Liz Claiborne, Inc. v. Mademoiselle Knitwear,
Inc., 1996 U.S. Dist. LEXIS 17094, at *13 (S.D.N.Y. Nov. 19, 1996) (same). Thus, even if its
initial production of privileged e-mails was inadvertent—and FBR’s admission strongly suggests
that it was not—FBR’s failure to act after BANA informed FBR that it had produced potentially
privileged documents compels a waiver finding.
IV.

FAIRNESS ALSO DICTATES A WAIVER RULING
FBR’s failure to comply with its discovery obligations is well documented and has been

the subject of several Court orders.2 It would be unfair to reward FBR—and penalize the

2

See Order on Motion for Sanctions, at 2 (Oct. 18, 2010) (DE# 167) (concluding that
“Fontainebleau is not in compliance with the order requiring it to produce the subpoenaed
files and a privilege log”); see also Order on Motion for Determination of Waiver of
7

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receiving parties—by allowing FBR to continue to assert that its e-mails are privileged. Without
relief from this Court, FBR may argue that the receiving parties have a duty to bring any
potentially privileged documents to FBR’s attention. Indeed, FBR has asked BANA to continue
to notify it of any privileged e-mails it comes across.3 Given the enormous number of potentially
privileged documents, this request is impracticable and unduly burdensome. It will significantly
delay and complicate BANA’s document review efforts. It also threatens to reveal BANA’s
attorney work product and litigation strategy by shedding light on the e-mail searches and
document reviews it has been performing. As this Court recognized in its ruling on the Term
Lenders’ Motion with respect to the document and accounting servers, that requirement is
prejudicial to the receiving party.4
FBR has prejudiced the parties’ discovery efforts by delaying its subpoena response. It
now further prejudices them by attempting to shift the privilege review burden. FBR’s conduct
also threatens the parties’ discovery schedule. The parties began depositions on February 17 and
face an April 15, 2011 discovery cutoff. Without a waiver ruling, the parties’ deposition
preparation efforts will be hampered by the lingering uncertainty regarding the use of potentially
privileged FBR e-mails. This Court should not reward FBR’s misconduct by allowing it to
preserve the privilege over the e-mails produced in response to BANA’s subpoena.

Privilege, at 4-12 (Jan. 7, 2011) (DE# 199) (discussing Fontainebleau’s delay in responding
to subpoenas).
3

See Murata Decl. at ¶ 8. BANA has brought potentially privileged e-mails to Fontainebleau
Resorts’ attention, and destroyed copies of the e-mails FBR has claimed are privileged.

4

Order on Motion for Determination of Waiver of Privilege, at 12-13.
8

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CONCLUSION
FBR’s production of privileged e-mails was not inadvertent, and FBR failed to take
reasonable steps to prevent the e-mails’ production and to retrieve any potentially privileged emails upon learning of their production. Accordingly, BANA respectfully requests an order that
FBR has waived any and all otherwise applicable privileges and protections that may have
attached to the e-mails it produced from its e-mail server.
LOCAL RULE 7.1(a)(3) CERTIFICATION
Pursuant to Local Rule 7.1.A.3, the movant’s counsel certifies that they have, as
described above, engaged in a series of calls and e-mails with FBR’s counsel in a good faith
effort to resolve the issues raised in the motion, and have been unable to do so.
Dated: February 23, 2011
By:

/s/ Craig V. Rasile

HUNTON & WILLIAMS LLP
Craig V. Rasile
1111 Brickell Avenue, Suite 2500
Miami, Florida 33131
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]
-andO’MELVENY & MYERS LLP
Bradley J. Butwin (pro hac vice)
Jonathan Rosenberg (pro hac vice)
Daniel L. Cantor (pro hac vice)
William J. Sushon (pro hac vice)
7 Times Square
New York, New York 10036
Attorneys for Bank of America, N.A.

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Case 1:09-md-02106-ASG Document 215 Entered on FLSD Docket 02/23/2011 Page 10 of 12

CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy of the foregoing Bank of America, N.A.’s
Motion for a Determination of Fontainebleau Resorts’ Waiver of Privilege For Its E-mail Server
Documents was filed with the Clerk of the Court using CM/ECF. I also certify that the foregoing
document is being served this day on all counsel of record or pro se parties identified on the
attached Service List either via transmission of Notices of Electronic Filing generated by
CM/ECF or in some other authorized manner for those counsel or parties who are not authorized
to receive electronically the Notice of Electronic Filing.
Dated: February 23, 2011
By:

/s/ Craig V. Rasile
Craig V. Rasile

Case 1:09-md-02106-ASG Document 215 Entered on FLSD Docket 02/23/2011 Page 11 of 12

SERVICE LIST
Jed I. Bergman, Esq.
Marc E. Kasowitz, Esq.
David M. Friedman, Esq.
Seth A. Moskowitz, Esq.
KASOWITZ BENSON TORRES &
FRIEDMAN LLP
1633 Broadway, 22nd Floor
New York, New York 10019

Harley E. Riedel
Russell M. Blain
Susan Heath Sharp
STICHTER, RIEDEL, BLAIN &
PROSSER, P.A.
110 East Madison Street, Suite 200
Tampa, Florida 33602

Attorneys for Soneet R. Kapilla, Chapter 7
Trustee
J. Michael Hennigan, Esq.
Kirk Dillman, Esq.
Rebecca Pilch, Esq.
Caroline Walters, Esq.
HENNIGAN & DORMAN LLP
865 South Figueroa Street, Suite 2900
Los Angeles, California 90017

David A. Rothstein, Esq.
DIMOND KAPLAN & ROTHSTEIN,
P.A.
2665 South Bayshore Drive
Penthouse 2-B
Miami, Florida 33133

Attorneys for Avenue CLO Fund, Ltd., et al.
James B. Heaton, III, Esq.
Steven J. Nachtwey, Esq.
BARTLIT BECK HERMAN
PALENCHAR & SCOTT LLP
54 West Hubbard Street, Suite 300
Chicago, Illinois 60654

David Parker, Esq.
KLEINBERG, KAPLAN, WOLFF &
COHEN, P.C.
551 Fifth Avenue, 18th Floor
New York, New York 10176

Brett M. Amron, Esq.
BAST AMRON LLP
SunTrust International Center
One Southeast Third Avenue, Suite 1440
Miami, Florida 33131
Attorneys for ACP Master, Ltd. and
Aurelius Capital Master, Ltd.
Arthur H. Rice, Esq.
RICE PUGATCH ROBINSON &
SCHILLER, P.A.
101 Northeast Third Avenue, Suite 1800
Fort Lauderdale, Florida 33301

Robert G. Fracasso, Esq.
SHUTTS & BOWEN LLP
1500 Miami Center
201 South Biscayne Boulevard
Miami, Florida 33131

Attorneys for Defendant HSH Nordbank
AG, New York Branch

Attorneys for Defendant Sumitomo Mitsui
Banking Corporation

2

Case 1:09-md-02106-ASG Document 215 Entered on FLSD Docket 02/23/2011 Page 12 of 12

Mark D. Bloom, Esq.
John B. Hutton, III, Esq.
GREENBERG TRAURIG LLP
333 Avenue of the Americas, Suite 4400
Miami, Florida 33131
Attorneys for Defendants JP Morgan Chase
Bank, N.A., Deutsche Bank Trust Company
Americas, Barclays Bank PLC and The
Royal Bank of Scotland plc

Harold D. Moorefield, Jr., Esq.
STEARNS WEAVER MILLER
WEISSLER ALHADEFF &
SITTERSON, P.A.
Museum Tower
150 West Flagler Street, Suite 2200
Miami, Florida 33130
Attorneys for Defendant Bank of Scotland
plc

Gregory S. Grossman, Esq.
ASTIGARRAGA, DAVIS, MULLINS &
GROSSMAN, P.A.
701 Brickell Avenue, 16th Floor
Miami, Florida 33131

Bruce J. Berman, Esq.
MCDERMOTT WILL & EMORY LLP
201 South Biscayne Boulevard, Suite 2200
Miami, Florida 33131

Attorneys for Defendant MB Financial
Bank, N.A.

Attorneys for Defendant Camulos Master
Fund, L.P.

Sarah J. Springer, Esq.
WALDMAN TRIGOBOFF
HILDEBRANDT MARX & CALNAN,
P.A.
Weston Pointe II, Suite 202
2200 North Commerce Parkway
Weston, Florida 33326-3258
Attorneys for Non-party Fontainebleau
Resort, LLC

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