Irving H. Picard v. Saul B. Katz et al

Filing 77

STIPULATION AND ORDER REGARDING THE AUTHENTICITY OF DOCUMENTS: IT IS THEREFORE MUTUALLY AGREED AND STIPULATED, by and between the Trustee and Defendants, through their respective counsel of record, as follows: The Sterling Rule 2004 Documents, the Third-Party Rule 2004 Documents, Defendants' Litigation Production, Trustee's Litigation Production, the BLMIS Production, and the Rule 45 Production (collectively, the "Productions") shall each be presumed to be a faithful and authentic reproduction of the original, subject to other applicable rules of evidence and conditions set forth in this Stipulation. If a party to this proceeding has reason to believe that a particular document from the Productions upon which it intends to rely at trial is not authentic, such party shall be permitted to withdraw its stipulation as to that particular document. After written notification of withdrawal of the stipulation and objection to authenticity, the parties shall meet and confer to attempt to resolve their differences by, among other means, stipulation, declaration, or, if necessary, a motion in limine. Absent a resolution of the issue(s), there will be no presumption of authenticity as to any challenged document; as further set forth in this Stipulation. (Signed by Judge Jed S. Rakoff on 12/14/2011) (mro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
IRVING H. PICARD, Trustee for the Liquidation of
Bernard L. Madoff Investment Securities LLC,
Plaintiff,
11~CV~03605

v.

(JSR) (HBP)

SAUL B. KATZ, et aI.,
Defendants.

STIPULATION AND ORDER REGARDING
THE AUTHENTICITY OF DOCUMENTS
WHEREAS on October 7, 2009, Irving H. Picard (the "Trustee"), as trustee for the
liquidation of the business of Bernard L. Madoff Investment Securities LLC ("BLMIS") under
the Securities Investor Protection Act, IS U.S.C. §§ 788aa et seq., and the consolidated estate of
Bernard L. Madoff, served subpoenas under Federal Rule of Bankruptcy Procedure 2004 on
Sterling Equities, Inc. and Sterling American Property, Inc. (together the "Sterling Rule 2004
Subpoena"), and the subpoenaed parties produced a number of documents in response (the
"Sterling Rule 2004 Documents");
WHEREAS, in 2009 and 2010, the Trustee served subpoenas under Federal Rule of
Bankruptcy Procedure 2004 on numerous other parties (the

"Third~Party

Rule 2004

Subpoenas"), and the subpoenaed third parties produced a number of documents in response
(the "Third-Party Rule 2004 Documents");
WHEREAS on December 7, 2010, the Trustee filed a Complaint against the defendants
in the above-captioned case ("Defendants") in the United States Bankruptcy Court for the
Southern District of New York, alleging, among other things, fraudulent transfer claims under

the Bankruptcy Code and New York Debtor and Creditor Law, which the Trustee amended on
March 18, 2011 (the "Complaint");
WHEREAS, on July 1,2011 and August 19,2011, this Court withdrew the reference to
this proceeding to the United States District Court for the Southern District ofNew York;
WHEREAS, during the course of discovery pursuant to the Federal Rules of Civil
Procedure in this proceeding, on September 16, 2011, the Trustee served Defendants with his
First Sel of Requests for Production of Documents ("Trustee's First Requests for Production");
and Defendants have produced and are producing a number of documents in response
("Defendants' Litigation Production"),
WHEREAS, during the course of discovery pursuant to the Federal Rules of Civil
Procedure in this proceeding, on September 20, 2011, Defendants served the Trustee with their
First Set of Requests for the Production of Documents ("Defendants' First Requests for
Production"), and the Trustee produced copies of certain Third-Party Rule 2004 Documents to
Defendants in response ("Trustee's Litigation Production");
WHEREAS, during the course of discovery pursuant to the Federal Rules of Civil
Procedure in this proceeding, the Trustee produced a number of BLMIS documents to
Defendants (the "BLMIS Production");
WHEREAS, during the course of discovery pursuant to the Federal Rules of Civil
Procedure in this proceeding, the Trustee issued a number of subpoenas to nonparties pursuant to
F.R.C.P. 45. and nonparties produced such documents to both the Trustee and Defendants (the
"Rule 45 Production");
WHEREAS, the Trustee certifies that the Third Party Rule 2004 Production consists of
true and correct copies of documents received from third parties in the course of his

........---­

investigation;
WHEREAS, the Trustee certifies that the Third Party Rule 2004 Production consists of
true and correct copies of documents received from third parties in the course of his
investigation;
WHEREAS, the parties wish to avoid the expense and burden of litigating about the
authenticity of the aforementioned documents;
IT IS THEREFORE MUTUALLY AGREED AND STIPULATED, by and between

the Trustee and Defendants, through their respective counsel of record, as foIlows:
1.

The Sterling Rule 2004 Documents, the Third-Party Rule 2004 Documents,

Defendants' Litigation Production, Trustee's Litigation Production, the BLMJS Production, and
the Rule 4S Production (collectively, the "Productions") shall each be presumed to be a faithful
and authentic reproduction of the original, subject to other applicable rules of evidence and
conditions set forth in this Stipulation.
2.

If a party to this proceeding has reason to believe that a particular document from

the Productions upon which it intends to rely at trial is not authentic. such party shall be
permitted to withdraw its stipulation as to that particular document. After written notification of
withdrawal of the stipulation and objection to authenticity, the parties shall meet and confer to
attempt to resolve their differences by. among other means, stipulation, declaration, or, if
necessary, a motion in limine. Absent a resolution of the issue(s), there will be no presumption
of authenticity as to any challenged document.
3.

The parties are entering in to this Stipulation in lieu of serving and responding to

Requests for Admission regarding the Authenticity of Documents, which are due on December
13. 2011 pursuant to the Court's Case Management Order of September 28, 2011.

4.

Except as expressly set forth herein, the parties reserve all other rights and

objections to the admissibility of any document in the Productions, and agree that entry into this
Stipulation shall not impair or otherwise affect the parties' rights under the Federal Rules of
Civil Procedure, the Federal Rules of Evidence, or applicable case law.

Dated: New York, New York
December 9, 2011

BAKER & HOSTETLER LLP

45
r Plaza
New Yor; ew York 10111
Telephone: [phone]
Facsimile: [phone]
David J. Sheehan
Email: [e-mail]
Fernando Bohorquez
Email: [e-mail]

Attorneysfor Irving H. Picard. Trusteefor the
Substantively Consolidated SIPA Liquidation
ofBernard L. Madoff Investment Securities
LLC af/d Bernard L. Madoff

DA VIS POLK & WARDWELL LLP

450LeXil1gtOl1

enue
'--­
New York, New York 10017
[phone]
Karen E. Wagner
Email: [e-mail]
Dana M. Seshens
Email: [e-mail]

Attorneys for Defondants

SO ORDERED.