Rigas et al v. USA

Filing 80

OPINION & ORDER: After review, the Court preliminarily holds that Petitioners have demonstrated cause for defaulting both claims. The Court also holds in response to a Government argument beyond the scope of the requested briefing that the Witnes s Access Claim is not barred by the law-of-the-case doctrine. Accordingly, Petitioners may proceed with discovery on their claims, using the attached lists of authorized document requests. The Government also makes a host of "specific objectio ns" to individual document requests. (Gov. Discovery Objections at 921). After considering those objections, the Court has modified several requests. The final lists of document requests, which Petitioners may use for discovery going forward, are attached as Exhibits A through C. (Signed by Judge Kimba M. Wood on 5/15/2015) (kl)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------X
JOHN J. RIGAS and TIMOTHY J. RIGAS,
Petitioners,

11-CV-6964 (KMW)
OPINION & ORDER

-againstUNITED STATES OF AMERICA,
Respondent.
---------------------------------------------------------------X
KIMBA M. WOOD, District Judge:
Petitioners John and Timothy Rigas allege that the Government hindered them from
speaking to potential witnesses before trial, in violation of the Fifth and Sixth Amendments (the
“Witness Access Claim”), and compelled their former employer to refuse to advance their legal
fees, in violation of the Sixth Amendment (the “Fee Advancement Claim”).1 On June 19, 2014,
the Court preliminarily approved discovery in connection with those claims. (See Discovery
Order [ECF No. 39]). At the Government’s request, however, the Court stayed discovery
pending a determination of whether Petitioners can establish “cause” for procedurally defaulting
their claims earlier in the proceeding. (See Order Staying Discovery [ECF No. 47]).
After review, the Court preliminarily holds that Petitioners have demonstrated cause for
defaulting both claims.2 The Court also holds — in response to a Government argument beyond
the scope of the requested briefing — that the Witness Access Claim is not barred by the law-of-

1

Petitioners separately claim that the Government violated the Sixth Amendment by compelling two law
firms to decline to represent them. (See Habeas Mot. at 53–54 [ECF No. 1]). That claim is not at issue here.
2
The Court may revisit the issue of cause if, during discovery, additional evidence comes to light that was
reasonably available to Petitioners at the time of default.

1

the-case doctrine. Accordingly, Petitioners may proceed with discovery on their claims, using
the attached lists of authorized document requests.
I.

Background
Petitioners are former executives of Adelphia Communications Corporation

(“Adelphia”). John Rigas founded the company and served as its Chief Executive Officer;
Timothy Rigas, his son, served as Chief Financial Officer. In 2002, Adelphia came under
government scrutiny for its accounting of related-party transactions with entities that Petitioners
and their family members controlled. Several of the company’s executives, including
Petitioners, were subsequently prosecuted for fraud and sued by Adelphia for civil damages. The
following portions of those proceedings are relevant to the present dispute.
A. Events Before Trial
Petitioners resigned from Adelphia in May 2002, and were indicted four months later on
charges of securities fraud, bank fraud and conspiracy. The indictment claimed, in part, that
Petitioners had used related-party transactions and fraudulent accounting to conceal Adelphia’s
debts and misappropriate millions of corporate dollars for their personal use.
At the time, Adelphia’s bylaws conditionally obligated the company to advance legal fees
to certain officers who faced criminal charges related to their employment. (See Sep. 30, 1999
Adelphia Bylaws (“Adelphia Bylaws”) Sec. 6.2 [ECF No. 7 Ex. T]). That obligation did not
extend to officers who had “deliberately breached [their] duty to the Corporation or its
shareholders.” Id. On June 1, 2002, Adelphia’s board determined that Petitioners had
deliberately breached their duties to both the company and its shareholders by engaging in, and
failing to properly disclose, the related-party transactions. (See Minutes of June 1, 2002

2

Adelphia Board Meeting (“June 1 Minutes”) at 3 [ECF No. 7 Ex. Y]). In keeping with its
bylaws, the company refused to advance legal fees to Petitioners thereafter. Id.
Crippled by concerns about its accounting practices, Adelphia filed for bankruptcy later
in June 2002. Soon after, the company commenced an adversary bankruptcy proceeding against
Petitioners, among others, seeking to recover the money that they had allegedly “looted” through
the related-party transactions. Complaint ¶ 57, In re Adelphia Comm. Corp., No. 02-8051
(S.D.N.Y. 2002) (Gerber, B.J.). In October 2002, Adelphia’s general counsel issued a
memorandum to the company’s employees. The document explained that Adelphia was
cooperating with several government investigations, and “continue[d] to pursue its own claims
against” Petitioners. (Oct. 14, 2002 Memo at 1 [ECF No. 7 Ex. U]). The memorandum then
instructed Adelphia’s employees not to speak to Petitioners or their counsel directly, and to refer
communications from them to the company’s legal department. Id. at 2–3.
Over the next two years, Petitioners simultaneously prepared for their criminal trial and
mounted a defense in the adversary bankruptcy proceeding. Under the relatively strict provisions
of criminal discovery, Petitioners were not entitled to depose Adelphia employees who refused to
speak to them before trial. But Petitioners could — and did — request to depose those same
employees under the broader civil discovery provisions that applied in bankruptcy court. Not
surprisingly, the prosecution immediately moved to intervene in the adversary proceeding and
stay most of the requested depositions. The Government argued that the stay was necessary to
prevent Petitioners from intimidating potential trial witnesses or otherwise “circumventing the
rules governing criminal discovery to obtain an unfair advantage.” (Gov. Mot. to Intervene &
Stay Discovery at 7–10, 21–23, In re Adelphia Comm. Corp. [Doc. No. 76]).

3

Several defendants in the adversary proceeding independently opposed the Government’s
motion. One of them, Michael Mulcahey, argued that the real risk of witness intimidation came
from Adelphia and the Government, not the defendants. (See Mulcahey Opp. to Interv. & Stay at
18–21, In re Adelphia Comm. Corp. [Doc. No. 82]). Citing the October 2002 memorandum
from Adelphia’s general counsel, Mulcahey claimed that the company, “encouraged if not
commanded by the government, ha[d] expressly intimidated its employees from even talking to
the defendants or defense investigators and attorneys.” Id. at 18. Mulcahey described that
intimidation as unconstitutional, reasoning that Adelphia, acting in concert with the Government,
qualified as a state actor and had violated both the employees’ free-speech rights and the
defendants’ right to collect evidence. Id. at 19–21.
The prosecution emphatically denied Mulcahey’s allegations. During oral argument
about the proposed stay, Assistant United States Attorney Christopher Clark stated:
I should note also that there are at least a couple of references in the brief to the
Government trying to stop people from talking to Adelphia witnesses . . . . We
have never directed Adelphia, nor could we, as far as we know, tell them not to
have their employees talk to anyone. It’s a corporation. It can do what it wants.
We don’t have any power over them. If Adelphia directed its employees not to talk
to other people, I think they could still talk to other people; but certainly that is not
something that we have done, and that is not something that is within our control.
(Transcript of Feb. 4, 2003 Hearing in In re Adelphia Comm. Corp. (“Bankruptcy Tr.”) at 22:18–
23:16 [ECF No. 46 Ex. A]). Several days later, the bankruptcy court granted the stay.
B. Trial and Petitioners’ Rule 33(b)(2) Motions
Petitioners’ trial began in February 2004 before Judge Sand. The prosecution called
several former or current Adelphia employees, including former Vice President of Finance James
Brown, to testify about Petitioners’ conduct. See United States v. Rigas, 490 F.3d 208, 221 (2d
Cir. 2007) (“Rigas I”). Petitioners cross examined those witnesses, but they did not call any

4

additional Adelphia employees to discuss what had occurred at the company. See id. at 219. On
July 8, 2004, Petitioners were convicted on multiple counts. See id. at 211. They immediately
filed motions for a new trial under Federal Rule of Criminal Procedure 33(b)(2) (“Rule
33(b)(2)”), which were unsuccessful. The following June, Judge Sand sentenced John Rigas to
15 years’ imprisonment and Timothy Rigas to 20 years’ imprisonment.
C. Resentencing and Petitioners’ 2007 Rule 30(b)(1) Motion
Petitioners appealed their convictions. In May 2007, the Second Circuit reversed one
count of conviction and remanded for resentencing. Rigas I, 490 F.3d at 239. In July 2007,
before that resentencing occurred, Petitioners moved for a new trial under Federal Rule of
Criminal Procedure 33(b)(1) (“Rule 33(b)(1)”), which permits a court to vacate a judgment on
the basis of “newly discovered evidence” that the movant could not previously have found
through diligent inquiry.3 Fed. R. Civ. P. 33(b)(1).
The motion argued that Brown, a critical Government witness, had perjured himself at
trial. (See 2007 Rule 33(b)(1) Mot., United States v. Rigas, No. 02-CR-1236 [Doc. No. 383]).
To support that charge, Petitioners cited Brown’s testimony in various post-trial civil
proceedings, which purportedly contradicted (and exposed) his perjurious statements at trial. Id.
at 13–26. Petitioners also cited the post-trial testimony of several other Adelphia employees,
which allegedly corroborated Brown’s post-trial statements. Id. at 26–42. Unlike Brown, those
Adelphia employees had not testified during Petitioners’ trial; Petitioners had known about them
at the time, but had decided not to subpoena them.

3

Petitioners had previously moved for a new trial under Rule 33(b)(1) in March 2005, on the basis of
different “newly discovered evidence.” (See 2005 Rule 33(b)(1) Mot., United States v. Rigas, No. 02-CR-1236
[Doc. No. 217]). That motion, which was unsuccessful, is not relevant here.

5

The Rule 33(b)(1) motion offered a creative argument for why Petitioners could not
previously have “discovered” the Adelphia employees’ testimony by eliciting it during trial. In
keeping with Adelphia’s October 2002 internal memorandum, those employees had refused to
speak to the Rigas family before the criminal proceeding. According to the Rule 33(b)(1)
motion, that refusal rendered the employees effectively “unavailable” to Petitioners during trial,
because it was prohibitively risky for Petitioners to subpoena them without any indication of how
they would testify. Id. at 42–49. In other words, reasonable strategic considerations had barred
Petitioners from eliciting the employees’ testimony earlier, which meant it qualified as “newly
discovered” in 2007.4 Id.
Judge Sand denied Petitioners’ Rule 33(b)(1) motion. The court concluded that Brown’s
post-trial testimony did not constitute evidence of prior perjury. United States v. Rigas, No. 02CR-1236, 2007 WL 4145282, at *3 (S.D.N.Y. Nov. 20, 2007), aff’d, 583 F.3d 108 (2d Cir.
2009). The court also held that the other Adelphia employees’ post-trial testimony did not
qualify as “newly discovered evidence” under Rule 33(b)(1), because Petitioners could have
elicited the same testimony during trial (whatever the attendant tactical risks). Id. at *5. The
Second Circuit affirmed, and in June 2008, Judge Sand resentenced Petitioners to marginally
lower sentences.
D. Habeas
On October 4, 2010, Petitioners filed a habeas motion under 28 U.S.C. § 2255, which
raised the Witness Access Claim and the Fee Advancement Claim for the first time. (See Habeas
Mot. at 32–68). There is no dispute that Petitioners procedurally defaulted both claims by not

4

Although the 2007 Rule 33(b)(1) motion speculated that some Adelphia employees had refused to
communicate with Petitioners before trial because they feared indictment, the motion did not accuse the Government
of unconstitutionally interfering with Petitioners’ access to witnesses. (See 2007 Rule 33(b)(1) Mot. at 47–49).

6

raising them earlier in the case, although the parties disagree about when the defaults occurred.
To prevail, therefore, Petitioners must demonstrate either “cause” for their defaults and
“prejudice” from the underlying prosecutorial interference, or “actual innocence.” Gutierrez v.
Smith, 702 F.3d 103, 111 (2d Cir. 2012). At the Government’s request, the parties have briefed
the issue of “cause” separately, before commencing discovery.5
To establish cause, Petitioners argue that they lacked a factual basis for either the Witness
Access Claim or the Fee Advancement Claim at the trial stage, and were procedurally foreclosed
from raising the claims thereafter. Petitioners acknowledge that they possessed before trial some
of the evidence on which they now rely to prove unconstitutional prosecutorial interference.
According to Petitioners, however, that evidence alone did not support their present claims.
Instead, the claims became factually viable only years later, at which point Petitioners had lost
their chance to allege prosecutorial interference before the trial or appellate court.6 (See Pet.
Opp. at 14–18).
The Government disagrees. It argues that the evidence available to Petitioners before
trial constituted a factual basis for both the Witness Access Claim and the Fee Advancement
Claim, and that any additional evidence gathered after trial “simply repeat[ed] what Petitioners
already knew.” (Gov. Reply at 9–20 [ECF No. 58]).
II.

Legal Standard
To establish cause for a procedural default, a petitioner must show that “‘some objective

factor external to the defense’” prevented him from raising his claim. Sosa v. United States, No.

5

In their briefing, Petitioners suggest that the Witness Access Claim and the Fee Advancement Claim are
“not procedurally defaulted” because they can establish cause. (See, e.g., Pet. Opp. at 7 [ECF No. 56]). Petitioners
mean to say that their claims are procedurally defaulted with cause; a showing of cause may excuse, but not erase, a
procedural default. See, e.g., Gutierrez, 702 F.3d at 111 n.4.
6
Some of Petitioners’ arguments are contained in a proposed Sur-Reply Brief. (See Pet. Sur-Reply [ECF
No. 61 Ex. 1]). The Court has considered those arguments, and now formally GRANTS Petitioners’ motion to file
the Sur-Reply. (See Mot. for Leave to File Sur-Reply [ECF No. 61]).

7

02-CV-1850, 2003 WL 1797885, at *5 (S.D.N.Y. Apr. 3, 2003) (Leisure, J.) (quoting Murray v.
Carrier, 477 U.S. 478, 479 (1986)). A petitioner may make that showing in several ways,
including by demonstrating that “the factual or legal basis” for his claim “was not reasonably
available to counsel.” Murray, 477 U.S. at 488.
The “factual basis” standard creates two potential points of dispute: what facts were
reasonably available at the time of default, and whether those facts constituted a factual basis for
the defaulted claim. The first point is relatively uncontested in this case; with one small
exception, the parties agree on the scope of evidence reasonably available to Petitioners at the
trial stage. But the parties disagree sharply on the second point. Petitioners argue that the
evidence available during trial did not support either the Witness Access Claim or the Fee
Advancement Claim, while the Government contends that the same evidence constituted a
factual basis for both claims.
Case law does not define the precise evidentiary threshold at which the factual basis for a
claim forms. Few decisions have explored the concept in depth, in part because many disputes
hinge on whether particular facts were reasonably available — not whether those facts, if
available, constituted a factual basis for a defaulted claim. With such sparse precedential
guidance, the Court must employ a degree of discretion in resolving the present dispute. That
said, two prior decisions inform the Court’s analysis.
A. McCleskey v. Zant
The first decision is McCleskey v. Zant, 499 U.S. 467 (1991), which the Government
cites at length to clarify the threshold for a factual basis in the procedural default context. (See
Gov. Reply at 3–7). The petitioner in that case had been convicted of murder in state court,
based in part on the trial testimony of an inmate who — posing as a relative of the petitioner’s

8

co-defendant — conversed with the petitioner about the crime during his pre-trial detention, and
then reported the petitioner’s incriminating statements to the police. See McCleskey, 499 U.S. at
470. After his direct appeals failed, the petitioner filed three successive habeas petitions: (1) a
state petition that argued, unsuccessfully, that the Government had violated his Sixth
Amendment rights as defined in Massiah v. United States, 377 U.S. 201 (1964), by using the
inmate as an agent to elicit incriminating statements; (2) a federal petition under 28 U.S.C.
§ 2254 that failed to raise the Massiah claim; and (3) a second § 2254 petition that attempted to
raise the Massiah claim. McCleskey, 499 U.S. at 472–74.
The Court decided that the petitioner had procedurally defaulted his Massiah claim by
omitting it from his first § 2254 petition, and could proceed only by demonstrating cause and
prejudice. Id. at 493–94. In an effort to establish cause, the petitioner argued that the factual
basis for his claim had not previously been available. He contended that his Massiah claim was
premised entirely on a signed statement that the testifying inmate had made to the police before
trial — a document that had not been disclosed until after the petitioner filed his first § 2254
petition. Id. at 474.
The Supreme Court disagreed, holding that the petitioner had possessed a factual basis
for the Massiah claim during trial. At that time, the Court explained, the petitioner already knew
three facts: (1) the inmate had posed as his co-defendant’s relative; (2) the petitioner had spoken
with the inmate about the charged crime; and (3) the inmate had reported the petitioner’s
incriminating statements to the police. Id. at 499. According to the Court, that information
constituted a factual basis because it placed the petitioner “on notice to pursue the Massiah

9

claim.” Id. Thus, by the time the petitioner learned about the testifying inmate’s signed
statement, he had already defaulted his Massiah claim without cause.7
As a guiding precedent for the present case, McCleskey’s value is somewhat limited. The
decision does not define, in generalizable terms, the evidentiary threshold at which a claim’s
factual basis forms. And its facts are distinguishable from the instant dispute in several respects.
Most critically, McCleskey addressed a very different type of constitutional claim: that the
police had wrongfully collected evidence subsequently offered at trial, not — as Petitioners
allege here — that the prosecution had wrongfully hindered the defendant from collecting
evidence or accessing legal funds. Nevertheless, McCleskey informs the Court’s analysis
because it provides an example of evidence that sufficed to meet the factual-basis threshold,
albeit in a distinct context. The nature of that evidence merits additional discussion.
Law enforcement officials violate Massiah when, using an inmate as an agent, they elicit
statements from a defendant in the absence of the defendant’s lawyer. See Massiah, 377 U.S. at
205–06. The agency relationship between officials and the cooperating inmate is essential to the
constitutional violation; without it, an inmate’s schemes to elicit and report incriminating
statements — however conniving — do not run afoul of Massiah. See United States v. Birbal,
113 F.3d 342, 346 (2d Cir. 1997) (“The Sixth Amendment rights of a talkative inmate are not
violated when a jailmate acts in an entrepreneurial way to seek information of potential value,
without having been deputized by the government to question that defendant.”).

7
The Court concluded that the signed statement merely reiterated the same facts known to the petitioner
during his trial. See McCleskey, 499 U.S. at 502. Even if the statement had contained additional evidence of a
Massiah violation, however, the petitioner still would have defaulted his claim without cause. See id. at 497 (“That
[the petitioner] did not possess, or could not reasonably have obtained, certain evidence fails to establish cause if
other known or discoverable evidence could have supported the claim in any event.”).

10

At the time of his trial, the petitioner in McCleskey had no direct evidence of an agency
relationship between law enforcement and the inmate who testified against him. But he
possessed significant circumstantial evidence. The inmate had appeared to make a concerted,
well-informed effort to elicit incriminating statements from the petitioner, using a strategic false
identity to glean information. The inmate had then reported those statements to the police. It
was certainly possible that the inmate fabricated his false identity and collected inculpatory
evidence entirely on his own initiative. But it was also reasonable for the petitioner to allege that
the inmate’s tactical approach was the product of coordination with the police. McCleskey
demonstrates that in such circumstances, defendants have a procedural obligation to raise a
Massiah claim.
B. Strickler v. Greene
The second decision that informs the Court’s analysis is Strickler v. Greene, which
Petitioners cite to clarify the threshold for a factual basis in the procedural default context. (See
Pet. Opp. at 16; Pet. Sur-Reply at 7–9). In that case, a petitioner convicted of murder in state
court sought federal collateral relief on several grounds after his state habeas petition failed. 527
U.S. at 278. The district court authorized wide-ranging discovery in connection with the
petitioner’s claims, which revealed something unexpected: police notes and correspondence
related to a detective’s pre-trial interviews of a witness for the prosecution. Those documents
contained impeachment material, but they had not been included in the prosecution’s purportedly
comprehensive “open file” discovery.8 See id. at 273–75, 278. After seeing the documents for

8

The parties disputed whether certain other documents related to the pre-trial witness interviews, including
a summary prepared by the detective more than a week after the final interview, had been produced before trial. See
527 U.S. at 275.

11

the first time, the petitioner amended his federal habeas petition to include a corresponding claim
under Brady v. Maryland, 373 U.S. 83 (1963). Strickler, 527 U.S. at 278.
The Fourth Circuit rejected the petitioner’s Brady claim as procedurally defaulted
without cause. The court acknowledged that the petitioner had uncovered the claim’s factual
basis only during federal habeas proceedings. But it held that the petitioner should have
uncovered that factual basis earlier, during state habeas proceedings. At that point, the court
reasoned, the petitioner was procedurally obligated to exercise “reasonable diligence” by
requesting discovery of all police files, in the hope of uncovering evidence of a Brady violation.
Strickler v. Pruett, 149 F.3d 1170, at *8–9 (4th Cir. 1998) (unpublished opinion). That
discovery, if authorized, would have revealed the interview materials that gave rise to the
petitioner’s Brady claim. The Fourth Circuit thus concluded that the claim’s factual basis was
reasonably available to the petitioner at the state habeas stage. Id.
The Supreme Court held otherwise. In criminal proceedings, the Court explained, there
is a “presumption . . . that prosecutors have fully discharged their official duties.” Strickler, 527
U.S. at 286 (internal quotation marks omitted). The prosecution had reinforced that presumption
by representing that its open file discovery included all Brady material. Id. at 283–84, 289. In
the Court’s analysis, the petitioner possessed minimal evidence to the contrary at the state habeas
stage. He knew merely that the police had interviewed a witness for the prosecution and certain
types of interview materials, including contemporaneous notes, had not been produced — facts
that, without additional indicia of prosecutorial wrongdoing, offered “no evidentiary support” for
a Brady claim.9 Id. at 286. Accordingly, the Court concluded that the petitioner had “reasonably

9

The Court so held regardless of whether any other document related to the interviews, including the
summary prepared by the detective more than a week later, had been produced, although the Court noted that the
basis for a Brady claim would have been even more tenuous if such documents had been disclosed before trial. See
Strickler, 527 U.S. at 285 (“Although it is true that petitioner's lawyers—both at trial and in post-trial proceedings—

12

relied” on the prosecution’s representations of constitutional compliance, and had not possessed
a factual basis for his Brady claim before federal discovery uncovered the interview materials.
Id. at 289.
Notably, the Court acknowledged that the petitioner and his counsel may have speculated
that interview materials had been wrongfully withheld. But the Court emphasized that
“conscientious defense counsel” do not “have a procedural obligation to assert constitutional
error on the basis of mere suspicion that some prosecutorial misstep may have occurred.” Id. at
286–87. Indeed, had the petitioner sought discovery of the police files on such a speculative
basis, the state habeas court likely would have turned him down for lack of “good cause.” Id. at
285–86.
Strickler is a valuable guiding precedent for the present case in two respects. First, it
offers an example (albeit, again, in a distinct context) of circumstantial evidence that fell short of
the factual-basis threshold, which provides a helpful counterpoint to McCleskey. During state
habeas proceedings, the petitioner possessed marginal evidence of a potential Brady violation:
he knew that the police had interviewed a witness for the prosecution, and that no (or very
limited) interview materials had been disclosed. Together, those facts pointed — if faintly — to
the possibility of wrongful withholding. Strickler demonstrates that such weak circumstantial
evidence does not constitute a factual basis for a Brady claim.
Second, relative to McCleskey, the constitutional claim at issue in Strickler is more
analogous to Petitioners’ claims. The Strickler petitioner alleged, in effect, that the prosecution

must have known that [the witness] had had multiple interviews with the police, it by no means follows that they
would have known that records pertaining to those interviews, or that the notes that [the witness] sent to the
detective, existed and had been suppressed. Indeed, if respondent is correct that [other documents related to the
interview, including the detective’s summary,] were in the prosecutor's ‘open file,’ it is especially unlikely that
counsel would have suspected that additional impeaching evidence was being withheld.” (footnote omitted)).

13

had wrongfully hindered him from acquiring relevant evidence by failing to make complete pretrial disclosures. In the same vein, the Witness Access Claim and the Fee Advancement Claim
allege that the prosecution hindered Petitioners from interviewing relevant witnesses and
acquiring legal funds before trial. All of those claims relate to prosecutorial interference with a
defendant’s trial preparation. The Massiah claim in McCleskey, by contrast, alleged that the
police had overreached in collecting evidence against the petitioner.
Because Strickler addresses a claim of prosecutorial interference with trial preparation, its
legal analysis is particularly relevant to the present case. That analysis illustrates two significant
principles. First, prosecutors are presumed to fulfill their constitutional obligations. Second, a
prosecutor’s denial of improper conduct reinforces the presumption of constitutional compliance,
and a defendant may rely on that denial absent meaningful evidence to the contrary. Those
principles reflect a longstanding measure of judicial faith in prosecutors. As Strickler
demonstrates, they also inform a court’s factual-basis analysis concerning claims of prosecutorial
error.
III.

Discussion
With Strickler and McCleskey in mind, the Court turns to the present dispute. The

Government argues that Petitioners procedurally defaulted the Witness Access Claim and the Fee
Advancement Claim at three distinct stages of the case: trial, direct appeal, and the period
immediately following remand for resentencing, when Petitioners filed their 2007 Rule 33(b)(1)
motion for a new trial. Petitioners contend that they had cause for defaulting during the first two
stages, and that no separate default occurred during the third. The Court addresses each stage of
the litigation in turn.

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A. Trial
The parties agree that Petitioners procedurally defaulted the Witness Access Claim and
the Fee Advancement Claim by not raising them at the trial stage, either before the verdict or in a
post-verdict Rule 33(b)(2) motion. (See Pet. Opp. at 14). The Court concurs. As a matter of
procedure, Petitioners were permitted to raise constitutional challenges to the prosecution’s
conduct during this time, and defaulted by failing to do so. At Petitioners’ suggestion, the Court
uses November 15, 2004 — the date on which Judge Sand denied Petitioners’ Rule 33(b)(2)
motions — as the end date for their trial-stage procedural default. (See Nov. 15, 2004 Order,
United States v. Rigas, No. 02-CR-1236 [Doc. No. 202]).
i. Reasonably Available Evidence During the Trial Stage
With one minor exception, the parties agree on the scope of evidence reasonably
available to Petitioners during the trial stage. First, Petitioners attended a May 15, 2002 meeting
of Adelphia’s board. Petitioners were still employees at the time, but they (and the company)
were under government investigation. During the board meeting, a lawyer representing Adelphia
“reported on discussions she had with the government.” (Decl. of Timothy Rigas (“T. Rigas
Decl.”) ¶ 17 [ECF No. 6]). The lawyer “advised that the government was taking the position that
Adelphia was not cooperating with the government’s investigation,” and that “a continued failure
to cooperate (as the government viewed it) would be met with serious consequences, which
might include indictment of Adelphia.” Id. At the time, the lawyer “could not articulate any
lack of cooperation by anyone associated with Adelphia.” Id.
Second, Petitioners attended at least part of a May 18, 2002 meeting of Adelphia’s board,
at which they discussed resigning from the company. During that meeting, the chairman of the
board and several attorneys for Adelphia “reported on meetings with the SEC and the U.S.

15

Attorney’s office” and “suggested that the government was monitoring the negotiations over an
agreement with the Rigas family and might not permit certain arrangements.” Id. ¶ 18. The
chairman also noted that “the government was demanding the Rigases’ resignation and said it
would be the only way to save the Company.” Id. at ¶ 19.
Later in the same meeting, Adelphia’s board discussed the terms of Petitioners’
severance. The parties dispute whether Petitioners were present for that discussion. (See Pet.
Sur-Reply at 10 n.3). There is no dispute, however, that Petitioners received a copy of the full
meeting minutes before trial.10 (See Aug. 27, 2014 Decl. of Christie Comerford (“Comerford
Decl.”) at 3 [ECF No. 48]). Those minutes indicate that Petitioners’ lawyer requested severance
for John Rigas that included “a salary, benefits, use of an office, [and] use of a secretary . . . for
the next three years.” (Minutes of May 18, 2002 Adelphia Board Meeting (“May 18 Minutes”)
at 2 [ECF No. 7 Ex. V]). The board’s chairman “countered that he was reluctant to include
benefits and felt that any severance payment [should] be made over time.” Id. An attorney for
the board’s Special Committee — which had been formed to investigate the company’s relatedparty transactions — added that “the palatability of the payments would depend on the family’s
ability to cooperate with the [Special Committee’s] investigation,” and noted that “the
government might not permit that type of arrangement if the members of the Rigas Family did
not cooperate with the investigation.” Id. According to the minutes, the board then proceeded to
confer “over the Rigas Family right to indemnification according to the by-laws of the
corporation.” Id.

10

The Government implicitly argues that Petitioners attended the full May 18, 2002 board meeting, and
thus heard remarks not captured in the minutes. (See Gov. Reply at 17). To establish the content of those additional
remarks, the Government cites a set of handwritten notes that was not itself available to Petitioners during the trial
stage. (Id.; see also Comerford Decl. at 3). According to those notes, it was suggested during the meeting that the
Government was focused on the “need to stop [the] flow of funds to [Petitioners].” (May 18, 2002 Booken &
Rothenberger Notes at 4 [ECF No. 7 Ex. W]). The Court is not convinced that Petitioners heard that ambiguous
remark; even if they did, however, the Court’s factual-basis analysis would not change.

16

Third, on May 23, 2002, Petitioners executed an agreement with Adelphia that
memorialized the terms of their resignations. (See May 23, 2002 Agr., T. Rigas Decl. Ex. 1; see
also T. Rigas Decl. ¶ 22). Under that agreement, the company promised to “provide
indemnification to [Petitioners and their family members] (according to the Bylaws and
Delaware law) as long as [they] undertake to repay Adelphia per the Bylaws.” (May 23, 2002
Agr. ¶ 11). At the time, the bylaws conditionally obligated Adelphia to provide indemnification,
including the advancement of attorney’s fees, to current or former officers sued in connection
with their employment at the company. But the bylaws permitted the board to deny fee
advancement to an officer who had “deliberately breached his duty to the Corporation or its
shareholders.” (Adelphia Bylaws Sec. 6.2).
Fourth, on June 1, 2002, Adelphia’s board decided that the company was not obligated to
advance legal fees to Petitioners under the bylaws. Petitioners did not attend the meeting, but
they received a copy of the meeting minutes before trial. (See Comerford Decl. at 3). According
to those minutes,
[a director] reported that he had described to officials at the Securities and
Exchange Commission and the Justice Department the progress of the investigation
of the Special Committee, including the agreement between the Rigas Family and
the Company regarding the family resignations as Directors of the Company and as
officers of the Company. [The director] indicated that the officials with whom [he]
had met appeared satisfied at the progress of the Special Committee.
(June 1 Minutes at 3). The same director then announced the Special Committee’s determination
that Petitioners, among others,
had deliberately breached their duties to the Company and its shareholders by
failing to cooperate with the Special Committee in its investigation by declining to
provide full and complete answers to the Special Committee and by participating
in related party transactions for their benefit to the detriment of the Company
without appropriate disclosures and approval of the Board of Directors. As a
consequence, such officers and directors were no longer entitled to the
advancement of defense expenses under the Company’s Bylaws.
17

Id. Adelphia subsequently refused to advance legal fees to Petitioners.
Fifth, on October 14, 2002, Adelphia’s general counsel distributed the internal
memorandum concerning communications with Petitioners. The document noted that the SEC
had sued Adelphia, and that Adelphia in turn had brought “claims against the Rigas Family.”
(Oct. 14, 2002 Memo at 1). The memorandum then explained that Adelphia was “committed to
cooperating with [several] federal agencies,” including the United States Attorney’s Office, in
part because such cooperation would help the company “recover damages done by the Rigases”
and “avoid prosecution.” Id. The document continued:
As part of this process, I have been asked to direct everyone to use the following
procedures regarding contact with either any member of the Rigas Family, any
employee of any of the Rigas Family private companies, any former executive of
Adelphia currently under indictment or any of their actual or purported counsel or
representatives. . . . In the case of any contact regarding a business matter between
the Rigas Family or Rigas Family private company and Adelphia . . . please refer
all contacts to the Legal Department. . . . [T]he person making the contact should
be told that it would be inappropriate to answer any questions or provide any
information.
Id. at 1–2.
Finally, as described above, Petitioners’ co-defendant Michael Mulcahey filed a motion
in bankruptcy court in early 2003 that raised the issue of prosecutorial interference with witness
access. Mulcahey claimed that Adelphia had silenced its employees at the Government’s behest,
which unconstitutionally infringed the employees’ free-speech rights and Mulcahey’s right to
gather evidence. (See Mulcahey Opp. to Interv. & Stay at 18–21). In response, AUSA Clark
stated in open court that the prosecution had “never directed Adelphia, nor could we, as far as we
know, tell them not to have their employees talk to anyone. . . . If Adelphia directed its
employee not to talk to other people, I think they could still talk to other people; but certainly

18

that is not something that we have done, and that is not something that is within our control.”
(Bankruptcy Tr. at 23:7–16).
In addition to that evidence, the Court finds that two Department of Justice documents,
the Holder Memorandum and the Thompson Memorandum, were reasonably available to
Petitioners before trial. Each of those documents defined a “set of principles to guide
Department prosecutors as they ma[d]e the decision whether to seek charges against a business
organization.” (Thompson Mem. at 1 [ECF No. 7 Ex. O]; see also Holder Mem. at 1 [ECF No. 7
Ex. N]). The Holder Memorandum was issued in 1999, and the Thompson Memorandum
superseded it in 2003. Both documents suggested that a corporation’s refusal to cooperate with
prosecutors might weigh in favor of an indictment. The documents identified several types of
conduct as potentially non-cooperative, including “a corporation’s promise of support to culpable
employees and agents . . . through the advancing of attorneys fees.” (Holder Mem. at 7;
Thompson Mem. at 6).
The Holder Memorandum and the Thompson Memorandum were publicly filed and
openly discussed before November 15, 2004. See, e.g., Alan Vinegrad, Deferred Prosecution of
Corporations, N.Y. Law J., Oct. 9, 2003 (discussing the Holder Memorandum and the
Thompson Memorandum); see also United States v. Brown, No. 02-CR-146, 2013 WL 6182032,
at *12 (M.D. Penn. Nov. 25, 2013) (concluding that the Thompson Memorandum was
reasonably available to the petitioner in 2003). The documents were thus reasonably available to
Petitioners before their trial.
ii. The Factual Basis for the Witness Access Claim Was Not Reasonably
Available to Petitioners During the Trial Stage
Having considered the collective significance of the evidence reasonably available to
Petitioners before November 15, 2004, the Court concludes that Petitioners lacked a factual basis
19

for the Witness Access Claim during the trial stage. In this case, as in any other, there was a
“presumption” that the prosecutors had “fully discharged their official duties.” Strickler, 527
U.S. at 286. The prosecutors were thus presumed to have complied with Brady; in the same
spirit, they were also presumed not to have otherwise impeded Petitioners’ access to potentially
helpful evidence, including by coercing Adelphia to silence potential witnesses. AUSA Clark
reinforced that presumption when he emphatically denied any prosecutorial effort to pressure
Adelphia on the issue of employee communications with Petitioners.
Before and during their trial, Petitioners possessed minimal evidence to the contrary.
Only two facts were even arguably relevant to the issue of prosecutorial interference with
witness access. First, during the May 15, 2002 board meeting, Petitioners learned that the
prosecution “was taking the position that Adelphia was not cooperating with the government’s
investigation,” and that “a continued failure to cooperate (as the government viewed it) would be
met with serious consequences, which might include indictment of Adelphia.” (T. Rigas Decl.
¶ 17). Months later, Petitioners received a copy of the October 14, 2002 memorandum. The
document stated that “[a]s part of” Adelphia’s efforts to “pursue its own claims against”
Petitioners and cooperate with related federal investigations, the company’s general counsel had
“been asked to direct everyone” not to communicate directly with Petitioners. (Oct. 14, 2002
Memo at 1–2). To a skeptical mind, those facts would perhaps have raised a faint possibility of
improper coercion: that the Government might have demanded, upon threat of indictment, that
Adelphia “cooperate” with its investigation by silencing its employees.
Any overtone of prosecutorial interference, however, was extremely tenuous and
circumstantial. Other, more innocuous interpretations of the meeting and the memorandum were
far more compelling at the time, and undercut any reasonable ground for raising the Witness

20

Access Claim. First, when the board meeting took place on May 15, 2002, Petitioners were still
employed by Adelphia, and the investigations into related-party transactions were relatively
young. At that point, it was perfectly legal — and expected — for the Government to request
Adelphia’s cooperation with its factfinding, and to mention that a lack of cooperation might
contribute to an indictment. Nothing about the Government’s communication suggested that it
planned to use the threat of corporate prosecution to hinder Petitioners’ access to evidence once
they resigned. Further, by the time Adelphia’s general counsel issued the memorandum on
October 14, 2002, Adelphia had sued Petitioners for millions of dollars. At that point, it was
perfectly legal — and expected — for the company to funnel all communications from
Petitioners through its counsel, without any pressure from the prosecution to do so. The meeting
and the memorandum may, as Petitioners contend, have gained new significance in light of posttrial revelations. But at the time of the proceeding, they provided minimal evidence that the
prosecution had compelled Adelphia to silence its employees.11
Regarding the Witness Access Claim, therefore, this case resembles Strickler much more
closely than McCleskey. The prosecution, already presumed to have acted constitutionally,
expressly denied any interference with Petitioners’ access to potentially helpful witnesses. At
the trial stage, Petitioners possessed only marginal circumstantial evidence to the contrary — a
degree of proof more akin to the weak evidence of a possible Brady violation in Strickler than

11

The Government emphasizes that Michael Mulcahey voiced concerns about unconstitutional
prosecutorial interference with witness access before Petitioners’ trial, in his opposition to a stay of discovery in
bankruptcy court. (Gov. Reply at 9–11). That is true. But Mulcahey, too, lacked a factual basis: his allegations of
prosecutorial interference stemmed exclusively from the October 2002 memorandum, which — as explained
above — offered minimal evidentiary support. Petitioners were not procedurally obligated to raise an unfounded
constitutional claim merely because one of their co-defendants had done so. Moreover, Mulcahey’s claim elicited
AUSA Clark’s emphatic denial of prosecutorial interference with witness access. That denial undercut any tenuous
ground for the Witness Access Claim before Petitioners’ trial began.

21

the significant evidence of a possible Massiah violation in McCleskey.12 It was thus reasonable
for Petitioners to rely on the presumption that the prosecution had not acted unconstitutionally,
as reinforced by AUSA Clark’s statement.13 That reliance constitutes cause for defaulting the
Witness Access Claim during the trial stage.14
iii. The Factual Basis for the Fee Advancement Claim Was Not Reasonably
Available to Petitioners During the Trial Stage
Petitioners also lacked a factual basis for the Fee Advancement Claim during the trial
stage. Before November 15, 2004, Petitioners possessed — at best — negligible circumstantial
evidence that the prosecution had compelled Adelphia to deny fee advancement. During
Adelphia’s board meetings on May 15 and 18, 2002, Petitioners received reports that the
Government (1) had demanded Adelphia’s cooperation with its investigation, see T. Rigas Decl.

12
The Government has not argued that Petitioners were procedurally obligated to seek pre-trial discovery
in an attempt to gather additional evidence of prosecutorial interference with their access to witnesses. The Court
notes, however, that had Petitioners requested such discovery based on the marginal evidence they possessed before
trial, they — like the Strickler petitioner at the state habeas stage — likely would have been turned down for a lack
of good cause. See Strickler, 527 U.S. at 285–86.
13
In reaching that conclusion, the Court does not suggest that AUSA Clark’s words were inaccurate (or that
he had any intent to mislead). That is an issue for the merits stage. Rather, the Court holds that Petitioners’ reliance
on AUSA Clark’s statement was reasonable at the time of trial.
The Court is surprised that the Government has contested this point. A contrary holding would be
inconsistent with Strickler, and would effectively encourage defendants in future cases to challenge prosecutors’
integrity based on mere speculation. Moreover, elsewhere in its briefing, the Government argues (prematurely) that
Petitioners cannot establish prejudice in connection with the Fee Advancement Claim because they cannot show
“that the Government caused Adelphia to fail to advance legal fees.” (Gov. Brief at 13–14 [ECF No. 51]). In
support of that argument, the Government notes that AUSA Clark “stated on the record in a proceeding before a
United States Bankruptcy Judge . . . that the Government did not ‘have an interest in trying to stop [Petitioners] from
funding their defense.’” (Gov. Brief at 14). In other words, the Government discounts AUSA Clark’s denials of
unconstitutional interference when arguing that Petitioners should have raised the Witness Access Claim earlier, but
then relies on those same denials when arguing that the Fee Advancement Claim fails on the merits. To borrow a
phrase from the Government, “[t]his is an attempt to have it both ways.” (Gov. Reply at 14).
14
The Government also argues, in the alternative, that the Witness Access Claim is barred by the law-ofthe-case doctrine, because Judge Sand rejected the claim when he denied Petitioners’ 2007 Rule 33(b)(1) motion for
a new trial. (See Gov. Brief at 4–7). In these circumstances, the law-of-the-case doctrine “is a discretionary one.”
Golden Pac. Bancorp v. F.D.I.C, No. 95-CV-9281, 2003 WL 21496842, at *5 n.14 (S.D.N.Y. June 27, 2003)
(Buchwald, J.). Even assuming that the doctrine applies, however, the Government’s argument is unpersuasive. In
rejecting the Rule 33(b)(1) motion, Judge Sand held that Adelphia employees who had refused to communicate with
Petitioners before trial were technically “available” as trial witnesses, which meant that their subsequent testimony
in civil proceedings did not qualify as “newly discovered evidence.” United States v. Rigas, 2007 WL 4145282, at
*5. Judge Sand did not decide whether the prosecution had unconstitutionally interfered with Petitioners’ trial
preparation by coercing Adelphia to silence its employees.

22

¶ 17; and (2) was “monitoring the negotiations over an agreement with the Rigas family and
might not permit certain arrangements,” id. ¶ 18. And in 2002, the Holder Memorandum
suggested that “a corporation’s promise of support to culpable employees and agents . . . through
the advancing of attorneys fees” might be considered non-cooperative by prosecutors, and thus
might weigh in favor of an indictment. (Holder Mem. at 7). Examined in isolation, those facts
arguably raised a faint possibility of unconstitutional coercion: that the prosecution might have
threatened to indict Adelphia as non-cooperative if it advanced fees to Petitioners.
That faint possibility of coercion, however, was undercut by several other facts known to
Petitioners at the time of default. First, Adelphia’s decision to deny fee advancement was
explained convincingly by the company’s bylaws and its adversary bankruptcy proceeding
against Petitioners. In June 2002, Adelphia concluded that Petitioners “had deliberately
breached their duties to the Company and its shareholders . . . by participating in related party
transactions for their benefit to the detriment of the Company without appropriate disclosures
and approval of the Board of Directors.” (June 1 Minutes at 3). Under Adelphia’s bylaws, that
determination relieved the company of any obligation to advance legal fees. Adelphia then
commenced the adversary proceeding, which sought to recover the funds Petitioners had
allegedly misappropriated from the company. From that point forward, it was virtually
unthinkable that Adelphia would voluntarily advance fees, as Petitioners had become the
company’s legal adversaries.
Moreover, the minutes of Adelphia’s June 1, 2002 board meeting — which Petitioners
received before trial — suggested that the Government had raised no concerns about
indemnification or fee advancement. According to those minutes, an Adelphia director reported
that he had informed government officials about the Special Committee’s progress, including the

23

terms of Petitioners’ resignations. (See June 1 Minutes at 3; May 23, 2002 Agr. at 2). The
director then explained that the officials “appeared satisfied at the progress of the Special
Committee.” (June 1 Minutes at 3). The minutes contain no mention of any government
objection to the terms of Petitioners’ resignations, including Adelphia’s conditional promise of
indemnification.
Overall, therefore, the information reasonably available to Petitioners during the trial
stage provided minimal evidence that the prosecution had coerced Adelphia to deny fee
advancement. The facts instead suggested, overwhelmingly, that Adelphia had declined to
advance Petitioners’ legal fees for its own reasons. Petitioners may have suspected otherwise,
but they were not procedurally obligated “to assert constitutional error” without more substantial
evidence.15 Strickler, 527 U.S. at 286–87.
B. Direct Appeal
When the Government first raised the issue of procedural default in this case, it suggested
that Petitioners had defaulted the Fee Advancement Claim on direct appeal as well as during
trial. (See Gov. Habeas Opp. at 49–50 [ECF No. 16]). The Government did not advance that
argument in subsequent briefing. Nevertheless, the argument appears correct, and it applies with

15

The Court notes that United States v. Brown, 2013 WL 6182032 (M.D. Penn. Nov. 25, 2013), suggests
that the Holder Memorandum and the Thompson Memorandum might constitute a factual basis for the Fee
Advancement Claim. In that case, a corporation under government investigation terminated fee advancement to a
former officer who faced criminal charges. The former officer was convicted, and subsequently filed a § 2255
habeas motion that raised a version of the Fee Advancement Claim. He argued that the Government had used the
Thompson Memorandum to coerce the corporation to terminate his fee advancement, in violation of the Fifth and
Sixth Amendments. See id. at *1–2. The court deemed that claim as procedurally defaulted without cause. It held
that the Thompson Memorandum had been reasonably available to the former officer earlier in the proceeding, and
had constituted a factual basis for his claim of prosecutorial interference with legal funds. Id. at *12.
The Court declines to ascribe that much evidentiary significance to the Holder Memorandum or the
Thompson Memorandum. Both documents suggest that prosecutors might consider fee advancement to an indicted
former employee non-cooperative, which might weigh in favor of corporate indictment. But the documents, by
themselves, do not constitute a factual basis for accusing prosecutors of improperly coercing a corporation to
terminate fee advancement. See United States v. Olis, No. H-07-3295, 2008 WL 5046342, at *8 (S.D. Tex. Nov. 21,
2008) (concluding that the petitioner lacked a factual basis for a version of the Fee Advancement Claim, even
though he was aware that his former employer was “attempting to comply with the Thompson [M]emorandum”).

24

equal force to the Witness Access Claim. See Campino v. United States, 968 F.2d 187, 190 (2d
Cir. 1992) (holding that the “failure to raise a claim on direct appeal is itself a default of normal
appellate procedure”).
If Petitioners separately defaulted their claims at the appellate stage, however, they did so
with cause. As a matter of appellate procedure, federal defendants cannot advance collateral
constitutional claims for the first time on appeal, absent extraordinary circumstances, if no
relevant factual record was created during the trial stage. Such claims should instead be raised in
a habeas motion. See United States v. Workman, 80 F.3d 688, 700–01 (2d Cir. 1996) (declining
to consider a claim of ineffective assistance of counsel raised for the first time on appeal where
“the record [below was] undeveloped,” and suggesting that the claim should be raised in a
§ 2255 habeas motion); see also, e.g., United States v. Rantanen, 467 F. App’x 414, 420 (6th Cir.
2012) (declining to consider a Brady claim raised for the first time on appeal where the record
below was insufficient, and suggesting that the claim should be raised in a § 2255 motion). See
generally Singh v. Dist. Council 37, 211 F. App’x 20, 21 (2d Cir. 2006) (“As a general rule,
federal appeals courts do not consider arguments raised for the first time on appeal.” (internal
quotation marks omitted)).
During the trial stage, Petitioners developed no factual record related to prosecutorial
interference with their access to witnesses or fee advancement. They were thus foreclosed from
raising the Witness Access Claim or the Fee Advancement Claim on direct appeal, a procedural
barrier that constitutes cause for any appellate default.16

16

Moreover, Petitioners may still have lacked a factual basis for the Witness Access Claim and the Fee
Advancement Claim at the appellate stage. Much of the evidence on which they now rely emerged after their
appeals concluded. In light of the procedural barrier described above, however, the Court does not reach that issue.

25

C. 2007 Rule 33(b)(1) Motion
Finally, the Government contends that Petitioners defaulted the Witness Access Claim
and the Fee Advancement Claim without cause by failing to raise them in their 2007 Rule
33(b)(1) motion for a new trial. (See Gov. Brief at 12–13). The Court is not convinced that any
separate procedural default occurred at this stage, as the Government has cited no authority for
that proposition. But even if Petitioners had procedurally defaulted their claims by omitting
them from the Rule 33(b)(1) motion, they would have done so with cause.
In the Second Circuit, a Rule 33(b)(1) motion can address only “the issues raised by the
criminal charges” against a defendant, and “not . . . collateral issues such as the effectiveness of
trial counsel.” United States v. Mayo, 14 F.3d 128, 132 (2nd Cir. 1994); see also United States v.
Cammacho, 462 Fed. App’x 81, 83 (2d Cir. 2012) (same); United States v. Evans, 224 F.3d 670,
674 (7th Cir. 2000) (holding that a collateral constitutional claim must be brought in a § 2255
motion rather than a Rule 33(b)(1) motion).17 The Witness Access Claim and the Fee
Advancement Claim raise collateral issues regarding prosecutorial interference with trial
preparation. That means Petitioners could not have raised the claims in their 2007 Rule 33(b)(1)
motion, another procedural barrier that constitutes cause for default.
IV.

Discovery
Having preliminarily decided that Petitioners had cause for procedurally defaulting the

Witness Access Claim and the Fee Advancement Claim, the Court returns to the issue of
discovery. On June 19, 2014, the Court proposed three lists of document requests that

17

The Government contends that United States v. Brown, 623 F.3d 104 (2d Cir. 2010), contradicted Mayo
because it permitted a defendant to raise an ineffective assistance claim in a Rule 33(b)(1) motion. (See Gov. Brief
at 13 n.4). Brown, however, appears to have addressed a Rule 33(b)(2) motion. See 623 F.3d at 113 n.5 (stating that
the defendant was obligated to bring his Rule 33 motion “within 14 days,” a time limit that applies to motions under
Rule 33(b)(2) but not Rule 33(b)(1)). And even if Brown called Mayo into question, it did so three years after
Petitioners filed their 2007 Rule 33(b)(1) motion, and so could not have provided a legal basis for raising either the
Witness Access Claim or the Fee Advancement Claim.

26

Petitioners could use to collect discovery related to their claims of unconstitutional prosecutorial
interference. (See Discovery Order). The Court invited a response from the Government before
finalizing the lists, and on July 21, 2014, the Government submitted a range of objections. (See
Gov. Discovery Objections [ECF No. 45]).
The Government makes three overarching “general objections” to the proposed lists of
document requests: (1) they authorize discovery related to how Adelphia and the Government
dealt with employees other than Petitioners, which is irrelevant to Petitioners’ current claims;
(2) they authorize discovery related to how Adelphia and the Government dealt with Petitioners
concerning issues other than witness access and indemnification, which is also irrelevant to
Petitioners’ current claims; and (3) they authorize discovery from the SEC, which had no
involvement in Petitioners’ criminal case. (Id. at 7–9). The Court finds those overarching
objections unpersuasive. Information about how Adelphia and the Government dealt with other
employees, and with Petitioners on issues other than indemnification and witness access, could
well shed light on the process by which Petitioners were denied access to witnesses and fee
advancement. And the SEC — whose representatives appear to have participated alongside
criminal prosecutors in several witness interviews, see Pet. Discovery Reply at 12–13 [ECF No.
46] — may possess relevant information.
The Government also makes a host of “specific objections” to individual document
requests. (Gov. Discovery Objections at 9–21). After considering those objections, the Court
has modified several requests. The final lists of document requests, which Petitioners may use
for discovery going forward, are attached as Exhibits A through C.

27

SO ORDERED.
Dated: New York, New York
May 15, 2015
/s/
Kimba M. Wood
United States District Judge

28

EXHIBIT A

EXHIBIT "A"
D9cument requests directed to the "Government,'' as defined in B(S) 1 infra.

A.

Document Regueab

I.
AU documen~ idenlifying or concerning each communication, conversalion and
meeting between the Government and Adelphia relating to the following subject matter:
a.

Whether Adelphia would or should provide adva.nccmcnl, indemnification ....,..ft:t\~ers
or payment of legal costs to attr member of Qte Rigo:. Fml!t!l{,"including
f.fl,..a
bur not limited to how the Government would view such advanoeme.nt.
indemnification or payment of legal costs und the timing end basis of such

decision.
b.

Whether Adelphia would or should provide advancement, indemnification
or payment of lega! costs to any other current or fonner Adelphia officer,
director or employee or prospective Adelphia director in relation to any
ongoing law enforcement investigation, including the timing and basis of
such decision.

c.

Adelphia's practices with respect to advancement, indemnificat1on or
payment of legal rosts incurred by its pr~ent or fonner officers, directors
or employees in defense of civil, criminal or administrative matters in the
pa:.it.

d.

What actions Adelphia. would, should or did take to as$ist the government_ fct&t\MtlS

in its investigation or pwsecudon of Rigas F11milr ~~and wliat

kM¥J

requests were ·made of Adelphia by the Government, inoluding but not
limited to what actions the government would consider to reflect
Adelphia's "cooperation.''
e.

What actions Adelphia would or could lake to help it to avoid criminal
indictment.

f.

What role, participation or oversight the government would have with
respect to the investigation conducted by Adelphfa's Special Committee.

g.

Whether Adelphia should prevent or place Crictions on i!S cm Jo es
talking to
•
· or their representaUves, includmg
but not limited to whether the government had any input into the Ootober
14, 2002 Memo from Randall D. Fisher to Adelphia employees attached
as Exhibit "l" to these requests.

h.

The Government's position and/or demands with respect to Adelphia's
corporate governance and control, including whether memben of the- ~ers
-ftigas :FaMily should resign and/or be terminated as officmi or directors of
IC.l"W
Adelph11~.

i.

'fhe selec!iee er e1t'tllttation of-candidates to 1eplace rnembets of tlte Rig~ k.M\IJ
F-amRy eR t\delpftie'e Bee~ eft:lireetere.•

j.

Whether Adelphia should make or refuse to make payments to John Rigas
and/or Timothy Rigas pursuant to the tenns of their respective s1wcrance
agreements with Adelphia.

k.

Whether any law fom retained by Adelphia, •Riga., Ptsmtt, and/or o!her
Adelphia officers and directors should represent, or continue to rcpresen1,
Mt1fReflfl.'I et= the Rig~ Pandfy.

l.

Whether the government and/or Adelphia would or should oppose; or seek
to enjoin, efforts by an, R:igas Pti:mily Dtcmbc:ftto gain acces:i to other
funds which potentially could be used to pay defense costs, including but
not limited to assets held by the Rigas Family, assets belonging to lhe
Rigas Managed Entities, aS3etS nllegedly owned by Adelphia and/or the
proceeds from any policy of insurance.

'Pa.1"\M t.rS

'Pa.\\~,,er.s

Whether the Government had any input into what form Adelphia turned
over documents or other infonnatfon te the Sc veumseut andfot to ffK>
1l,1'\\)C'l\ta Riges Ptttnil7 l!lld defeme counsel, mcluding but not limited to whether
Adelphia was required to provide (Qr prohibited from providing) that
infonnation in a searchable database.
m.

n.

¥tt1edte1 the Oo venmreut mid Melpfiia 6i&<>YIH'Q el' r'¢Cched mi)'
1i1Adlili6hmtlint a:s to who w°"le beet' tl!:e MJ3e.tlB&-ef pr·El'Ji.;ii~s doC1Jm 00ts,
eP iaffimlat:ielt te lhe Ge.,e1T1mt1ftl 11ae/er the Rip Pamay and deform~

Kfl'W

1{1\\W

41Q1.ff!SCI.

o.

"Nhoth"1 the 6o~unuent nqaixed 01-eueo11rttg<:d Adelphia to vrnivc
'6fte!i'er raiee its attvrney-ctlent pt i9Uege, itroladiug but net !in1itcd tv
"IA:lethet' tho 9'vve1111ueat's position with l'eSf'eot to :A:delphia's i~e~
ef tke pri"f 1legc •atied depending upon Hn: time ften1e-vf ttte iuform11tiert

kJ\.tw

11Q iee\:IO.

p.

i!NftetRer Uie Ge.,·emmart would indict, 01 Uneaten fo indict; any octside
-dbcctoz, law fitm 01 aewa11ting fum tbr f«!elphSa, l1tcladl11g bat nor
fi1mted t<> Oeroiue & 'f'outd1c mid Dachiman lrtge1seH, ez empl93i'BO i;ifee&h+
mv ttftfl el' eeee1m1iag ftRR,.

q.

The Holder Memorandum.

r.

The Thompson Memorandum.

s.

Whether the Government could or would consider the followiog factors
discussed in the "cooperation and voluntary disclQsure'' section of the
Holder Memorandum and the Thompson Memorandum in weighing the

"·"-·.
M"'W

extent of Adelphia's cooperation and in detennining whether !he
government would seek an indictment of Adelphia:
{iJ
(ii)

C~f'i Ul~OAS1 ~S1

Adelphia's willingness to make witnesses available.

(v)

~u"';'

Ade!phia'r retention of allegedly culpable employees "without
sanction for their misconduct."

(iv)

er

Adelphia's "willingness to identify the culprits within the
corporation, including senior executives."

(Hi)

ic.\trd-'~'r.;

Advancement, indemnificatum or payment of legal costs to
present or former officers, directors or employees of Adelphia.

Adelphia's willingness io disclose the complete results of its
iotemaI invesligation.

(vi)

Adelphia's willingness to waive the attorney-client and work
product privileges (including whether the Government requceled

ML\

'CV\t.l'\\j~ bt+wttA -ft..e. 11Mrll\"""'t
~ Mel~;~ _

such a waiver).

Adelphia's decision to provide information about the
Government's investigation lo allegedly culpable employees
------------....!.pursu::::a:nt:_:t:o.:a;:jo:in:_t defense agreement.
(vii)

2.
All internal Adelphia docum~ relating to lhe $Ubject matters identified in
requests l(a)·(s)1tA.S ~i~~.

3.
All document5trelating to conversations between Adelphia and any tlurd party
concerning the subject matte:-s identlfred in reque,,ts l(a)·(s}, o.s r...oJ,~'(itJ.

r~

1<.1-\w

4.
All documents concerning whc::ther Adelph1a would or should provide
indemnification or advancement of defet>sc ~sta to imy other current or former Adelphia officer,
direc1or or employee in relation with any ongoing law enforcement investigation or orlmlnal
proceeding relatiog to the events described in lhe indictmen1 for United Statu v. Rigas, No. 02·
Cr~l236

(S.D.N.Y.).

S.
All tlocuments reflecting or relating to whether Adelphia previously indemnified
or advunced deteme costs incurred by any current or fonner Adelphia officer, director or
employee who was made a pat1y to any criminal or .admlnistrarlve action or investigation by
reason of the fact lhat such person is or was a director, officer or employee of Adelphia.

6.
All documents rcflecfmg or relirting to Adelphia'11 reauons for detemnning that it
would not indemnify or advance defense cos~ (or that it would cease indemnifying or 11dvanclng
defense costs) to JMiMel'll efthe Rig1.1,.;<:llftli1,. ft.k*wr1. t\AtW
7
'Ve ~e uteut not 11lr8811y pt:OYidM in respqn11e to the prnvions
eeum:i::llORCI idmtifyia.g 11hategie:s 01 steps taken~) Ariel~hia le a.,•eiEI iadktlil<l'At.

ic:"ae't~, 1111

I< ft\ W

8.
To the ex.tent not already provided in response to the previous requesl3, all
documents reflecting or relating to whether the Government requested or pressured Adelphia to
refuse indemnification Ot advancement ordcferuic costs to fftembcis -oft!re Rigas Fnm1ly. f"ct\~cr'
9.
To the extent not already provided in response lo the previous r~esls, all
documentll reflecting or relating to whether the Government requested or pressured Adelphia to
oppose advancement of defem1e costs to Kte!l~cis of the Rigq P1u11ily by the Rigas Family

Entities.

'Petil\cwr.s

10.
To the eittent not already provided in response to the previous requests, all
documents reflecting or relating to whether Adelphia would have indemnified or advanced
defense costs to John Rigas or Timothy Rigas absent government pressure and/or Adelphia's
desire to ooopere.to with the government.
11.
frl! nitcntien cg.recuumte M sit'tffl1tF-4eeefflentB tnet rclnte to lcgol 1c~e11ta:lio'!1·
ef.'./,deij:lflia, the Rig!tB Pmni!y tmdler Adclphic's 012~ide di1cc!on.

K\'Jlw

12.
Fully unredacted minutes for meetings of the Adelphia Board of Directors from
March 27, 2002 through October 31, 2005.

13.
Any notes taken by attendees at meetings oftbe Adelphia Board ofDircc!orn from
March 27, 2002 through October 31, 200S.
14.

Fully unrcdacted minutes of all meetings of the Special Committ~e.

1S.

Any notes taken by attendees at meetings of the Special Commlttec.

16.

AH doetm1ents lelat:iug to

Ml)" «tmxlination 113 too

which topics !tie Speei<!t'

6:11muiUco •• e1t1'H11 +estige+«

17.
~l\fl'lily,

A>U aeeefftents reJltting te iefennation smnidea ~a the pFeee conecming 610 ltigas
\1/1"$~g6llliRgs -oi: ll9ff611t:iea11 zmd:tru •

tbcir r.csigftftltens, taeir impea4illg a;:;;e&t1 Aetliphiil
t\<Mphl11't1 ifttel'lt to imiumtif'y Rlgtis Fmulty meintenr.

J8,
All documents relating to or reflecting communications with the SEC regarding
the mecling between Adelphia, Dcloittc & To1.1che and the SBC oecumng on or about Mny 9,
2002.

19.
1\it tlocumem:s 1ehtti11g to or reffeetiflg a dnmge ift Adelphte'e iaEIOAWfic11ug1:1
pQlici.es fQ119wiag Ibo HS~&ii<m efJehft Riges fittd Timeliff¥ ~1gee es AdelphiH>ffiee'"
~

20.
Ml ciaC11tmmts 1clalillg et' 1ofcning to a strntegy tu utilize ll ~e!ic'fC!atiomi h
disefeflil (ho EYgcs Fmnily in ordcs ~ gllirt f1m~11 wit!I r11e <lo•enuuent 01 fut od1a 1essons.

21.
:f\H doemnents i:eAe9dAg er rolel2ng to a sttategJ 1')' Melpftie le ~t off mnds te· KN\IJ
iAo Rigas 17amUy iA ere er te gein en edvantage irt lltigation.

22.
All doet11m:nte refJeaijAB or w111Uiig to a atB~gy by Adelphia to make it l&SSHkel)' th~t ind:i'lidttel5 tiesigt1med 0-, the R:igases (mehiding Ban Millbud mid Leo Pemtro' wouldi:rc" less blc:cly to =ccpt appem1n1ent to Adclph!a1s Boaid of 5hecto1s, inclutlitlg but not limim:l
to den)ing the right of iudeumificatiou to such imh"W"id12als.
23.
AH eeouments Ftlaliflg er refeffiAS to Ji g;J:phla'!) e!eei9i0F1 le uelie&ito 8'.V:!I fl:IASa..
te essist the Ge• emn1ei1t i11 its PfeSeel:lffett el the Rige9 Jlam11f.
24.
All 4eciufftenf6 iRdie8*ing theoemt'1Unt of fees !lft&-oo!!1s in~m:d by l«!clphis 01 illl
S,eeiel Cem!fiittee in eormeetion with the Ge •emment's in•11!1(11rig11tien 11ndfo1 its internal
~li8MeA effelau1d pa~-ttaiteaeiieoo iwteMas c&o Rigas Fanti!) 01 Rigas Pamily &CU:ler.

~~\W

KMW

Y"4\,tU,J

25.
All documents relating to a.ny input that the Government had with respect to !he
May 23, 2002 Agreement between Adelphia and Rigas Family membeni.
26.
AH deeltft\euts disccssing wiliell e!ieflts l!tW firme ..etei1100 by Atlelp!Uer ~ R.igea
Pami:f) imd:/U' etl!:• Adelphia officers llt\d-t!ifcet\m sho11ld1epzcsctd; iuclud!!lg bat not limited W'
'Oft)" Q89URlliAl R!Aeeeiag Geveaimool epi11ieft e'I' infl\tmee eft S'Ceh eeeiiaicir.
'?t~N

\J ....

rulAW

27.
All documents relating to a jomt defense between Menteef8 ef the lt1g113 F11111ily
IUld Adelphia.

~v.>

lf\:J the -eitltflt ft6! alre~l't'l titled, el! deemncnt:l Ni1Uiag tQ U:i; sl!Sjeettt
(,ii) tht:t rc:fol"tO Adetpid11 c1 the RigM Fcwil~

\<.lt.\W

28.

cden~fied i111 eqb<'/St A1 i .11.(i)

'29.
lc!I fl9tM cf:intep.iiel"l:a coftt:iuetee eyo(;heQl'leffiffH!Rl er Rt" Special Ct:muuittcc Ill
titG ~eliest efUio Q&"lel't!ntent, thet hue 1mt p1cviou&ty beeu p1oduted to tt1e ~tgQe:!, 1m~udius- ~lMW
.\M aei limi,;d. le netcs ef i1tteFYHwf6 'flit!1 Bcitm:tflc 1\dmmi nud rvto101cna tep1esem11thes ot
.peR191iiAOL.

D.

Definitions and lnistructfons

1.
The term "Adelphia" means Adelphia Communications Corp. 11nd 11.li present or
former ofticen, directors, employees, agents and attorneys, including outside counsel and tbe
Specie! Committee.

2.

The tcnn "Special Committee" means the Special Committee of Ade!phia's Boan:!

of Directors appointed on or aboul March 6, 2002 to investigate a broad range of accounting

matters, disclosure issues and related
Family members and entities.
Covington & Burling.

3.

party

transactions between Adelphia entities and Rigas

The tenn Special Committee include& its outside counsel,

The tmn .. Rigas Family" means John Rigas, Timothy Rigas, Michael Rigas and

James Rigas or any one or more of them, separately or together.
4.
The lenn "Rigos Fmnily entity" means a privately held and managed company
owned by the Rigas Family

. S.
The te~ "Government" means the United States Department of J~tice ("DOJ"),
mcludmg prosecutors m the Office of the United States Attorney fur the Southern District of
New York, agents, attorneys or inspectors for the Sccuribes and Exchango Commission; postal
inspectors; agents, attorneys or iruipectors of other federal agencies; and any and all perso1U1el
employed or assigned lo investigate or prosecute violations by Adelphia or any of its current or
former officera. directors or emplo~ for violatiorui of the criminal laws from the period of
2002 through the present.
6.
The tenn "Holder Mcmorand'llm" meanB the June 1999 memorandum issued by
then-Deputy Attorney Genera.I Bric Holder entitled "Federal PrtnecuJlon of Business
Organi~atlon.:r."

7.
The term "Thompson Memorandum" means the 1anuary 30, 2003 memonmdum
issued by then-Deputy Attorney Oencnl Larry D. Thompson entitled "PrlndpJes r;;/ Federal
Pro:secwtfon ofBustneJS 01'ganlzartonJ."

8.
A reference ro "current or fonner Adelphia officers, directors or employees"
includes (but is not limited to) John Rigas, Timothy Rigas, Michael Rigas, James Rigas, Michael
Mul<:ahey, James Brown, Timothy Werth, Lesl\e Oelbet, Dennis Coyle, Peter Metros, Karen
Chrosniak, Dean Marshall, Doug M11lone. Peter Venetos, Erland Kailboume Bd Hartman. Colin
Higgin, Bd Babcock, Miko Brady, R1mdy Fischer, Luke Healy, Ann Montgomery, Ron Rapp,
Keith Hom a.nd Carla Brown.

9.
A reference to "prospective Adelphia directors" means pen;on:s under
consideration for a seat on Adelphia's Board of Directors following the resignations of John and
Timothy Riga9, including but is not Umited to Dan Millillrd and Leo Ferraro.
10.

The lenn "document[s}" includes any writing, charts or data compilation
clectronlcally stored informat.lon), and includes, without limitation: notes, lists,
agreements, by-laws, minutes (mchlding Board minuces), 11gendas, calendars and planners,
messages, message logs, memoranda, com::spondence, email and attachments. A drafi or non·
identical copy is a separate docume.nt within the meaning of this term.
(fn~udfng

l l.
The t = "communication" means the transnuttal of infonnation (in the fonn of
facts, id~. inquiries or otherwise), whether written or oral.
12.

The term ''to identify" means as follom:
a.

when refmlng lo a person, "to identify" means to give, to the extent
known, the person's full name, business address and business title or
affiliation;

b.

when referring to a document, "to identify" means to give: a) the typo of
document; b) the general subject matter; c) the date of the document; d)
the author(s), addressee(s), and recip1enl(s);

c..

when referring to a meeting or oral commU11ication, "to idenrify" meims:
a) to state the date and place of lhe meeting or communication; b) tci stale

the mod~ of communication; and c) to identify each person who was
p11:Sent or participated therein.
13.

The teims "1111", "each,. and "any" mean "all/eacbfany".

14.

The connectives "and" and "or" mean "cmd/or".

15.

Tho use of the singular foun of any word includes the plural and vice versR.

16.
lf a claim of privilege is asserted in objecting to any requ~t for infonnation or
documents ond cut answer is not provided on 1he basis of such assertion, the obj~ting entity shall
identify the nature or the privilego, including a brief description or the fucts and oiroum.stances
giving ri~e to the privilege, and shall also provide tho following informauon in log fonn: a) the
type of document; b) the general subject m11tter of the document; c) the date of the doc\lment; d)
such other information as is necessary to idenlif)' the basis for privilege, including, where
appropri11te: the authof(s), !he llddressee(s), the recipient(s), and their rel11Clonship to one another.
(7.
Where a requested commun1cation was oml, the subp<>enaed entity shall provide
the following information: (a) the name of the person making the communication end the nnmcs
of the persons present while the communication was made, and when not apparent, their
relationship tQ one another; (b) the date and place of the communication; and c) the general
subject matttr of the communication.
18.
Where a doeument is redacted (for example, lo avoid revealing other prosecutions
or investigatory matters unrelated to this case, dt to safi:guard confidentiality imd priva.cy where
appropriatci), the document produced should so indicate on ils face.

Exhibit "1"

Rllldall O. flSll'CI
VIQIJ l'resldl:nt lllld Gtlleral Cou111e!
One NOf1ll Mal11 &teol
Coudtr1pOll,PA 1GSi5
Phwla 81"214.!1356
I'~

t1U7U71l1

Memo~ndum

011to

October 14, 2002

To

All Employees

F1t1m

Randall D. Fisher, Vroe President and General Coun5el
Conta.:t wllh members of the Rigas Family, employees of
Rigas Famlly private companies or former amployee5
indicted by the Fede111I Government

Erkle Kallboume, Ri::m Stengel, Dari Liberatore. Bob Legge,
Chris Dunstan
As a reminder, the Company is sti11 undl':r invosiigadon by the United Stat~
Attorneys office in both Ntw York and Pcnnsyl'\'ania 11S part oC ongoing
invcistigatious, which. have iewltcd in Indictments of lhrce members or the Rig~
Family as well as two former executives of' Adelphia. Bmployces should be aware
that the Seeuritics IUld Bxchimgo Commi11~ion has 1Ncd Adelphia, tho Rigas Family

and the fonnc:r Adelphia c0tccutlvcu for alleged violations of see11rltie.s laws. The
Ctlmpmy la committed to cooperating with 1hcse federal agenciC3, because it is the
right thing lo do and becaim. cooperation with the government will help
rtcO'VW damages don~ by Ulo Rigascs and will help the Company avoid prosecution.
Adelphia continues to c:oopcrato with these govcmrnent agt:ncics by reviewing with
the government both its transactions and its cotnmunications with mcmbet1 of !hi:
Rigas Family. Rigas Family private entitlo.s emplo:yccs, formi::r Adelphia excevlivcs
under jndictment or any of Jhtir actual or purported <;Qunsm or teprescntativ03.
Additionally, bi::ginning later tbi$ week, tho Compmy will be cooperating with agents
of the lntemal Revenue Service in in"VOStigatlons oftbe Rigas Parnily. Also, Adelphia
continues to pursue its own claims 11gainsl the Riga:iPamily.
/vJ pll.rl of this procen, I havo be<m asl<ed to dirnt everyone to use the following
1

P'rocedurer for Con tad from Rigas Famfly,
Prlviue Companies, ladlcted Former Employees
Octomr 14, 2002
proced'llfC$ ~ding contact wi!h either any member of the Rigas t'amily, any
employee ofany of the RJgas Family private comparriC$, any fonncr executive of
Adelphia cuncntly under indictmc:ut or any oflheir actual oc purportecl counsel or

representatives..
Dlr9ct Contact

n has come to thu attention aC the Company that rnembcts of the Rigas family have
bem a.ttcntptin.g lo conhsct certain Company employee. on various issues. In tho case
or any contact ~garding a business matlcr between the Rigas Family or Rigas Pamily
private company and Adelphia:, whcthct at work or in a sorual setting. please refer all
contact& ro the Legal Department by 113ing t11.e following ~ures:
l. I!lheconta<lt is direct (c:itbainpcnon or by ph~mc) Che pct"Son making
the coillact should be told that il would be inappropriate lo amwcr any
qucstiona or provide any infonnation.
2. Tell tho individual that all contacts should be rcfened to Leslie Brown,
Geno Fitunaurlc.e ot Randy Fish.er.
3. lbo Adelphia employee who has n:iccived the oontacl should both mako
tm .n:ferral and report the contact to the Legal Depattment as well.
There is no uceptloa to this 11itu1ttlon, Should tbo sitaaJion arise, these same

procedures should be fo[lo~ for any direcc con~ from 1iny fonner Adelphia
oxecutivc cuxrcntly under indictment, or any of the Rigas Family or th.cse former
Adelphia executive;' ai;;tual or purported counzl or tepresentativea.

Social Settrngs
In addition to !he telephone procedures descnbed above, cmplo,YCC$ should uso g9od
judgment ifthoy ti1:1d thc:mselvos in situatkms where membe.ta of tho Rigu family,
tho formc:r Adelphia exc:euriv0$ clllttllltly under indictmenl or emplo~s of Che Rigq
Family private compa.nlc:s arc also pres~ (e.g., events, confl'.R'lnces, prolbssiOillll or
civic related gatherings, etc.). The company Jequires that If such meetings c;iCC'llr,
emplo~ will not disclose or divulge any contidmtial lnfonna.tion concerning the
Company. tho ongoing Investigation or !he benkrup~y pivceoding.. All employees
muac report aU such contacts with Rigas family mmibera or former Adelphia
executives currently under indictment to tb.e Legat Depl\ltment.

ln<11ract Contact

In tha caso of an indirect contact (such 111 a voiGC mail from a member of tile Rigas
Fnadly) empJQyees should use the followiTIB procedures:
I. Rqxm tbo contaot to the Legal Depa;tmcmt imrnediat~y.
2. Do awt 11ttcmpt to return the phone; call.

The Legat Department will review the matter and may refer lhc matter to appropriate
2

l>ro~edureg for Contact from Rigas Famil,r,
Private Compaules1 Indicted Former Employees
Oct1>ber 14, 2002

govcromcnt agencies and litigation cowu11l fur reYiew. Aftct any required review, the
Legal Dc:partmiml will, on a case-by.ca" basif. rofcr lhc: matter tQ tho appropriate
b1uirn:ss pcop!o within the Company for !be requisite aotion on c:aeh matter.
Businei;s Conduct

No employee iii authorizcd to agree 10 any transaction or course or conduct witb tho
Rigas family, an emplo)'eG oC a Rigas Family private company, any fonner Adelphia
executive cuncntly under indictment or any of the Riga! Family or these former
Adelphia exeeutive:i' aetual or purported counsel or representatives on llll)' issue on
bcllalf of Adelphia, regardless or lta sf'le or co11seq11cnce. All trnnsactioD$ or COUllC
of conduct mu11 now be n:fcm=d to !he legal dcpanment wb.eto any trannction or
O(.:CU~co may be roYicwcd by the COil1JllltlY's litigation <::ou.nsel. tho United States
Attorney's Office in New York: end PcnnsylYUDia, du: Securities and Bxllhlmge
Coinmission 1111 woll aa repxucntalives of tho United States Internal Revenue Servi~
Chico 11\al roview has bun completed, ihppropriale, the matter will then be referred
bade to the 11ppropriatc busineu people for my n:quired action.
Fe !lowing lhe;c procedlll"CS wdl be in the besl in!crest or the Company. Please CIUUZ'e
th.at you and !hose 411."0Und you implement l.he;c procedures inum:diatoly. Jr you hnvo
any quo.stions n:p.iding thr.i;o procodures. please contact J:.,eslio Brown, Geno
Pitmaurioe or Randy Fisher in the legal Department.

3

EXHIBIT B

EXHIBIT"B"

Document requests directed to Adelphia CommuniC11tions Corporation atte

1ls 08'1tft8el

tft'

the instent eriminal aetten, iad\lding! Doiea, Sehdler & FlexnQ hLP, Filed f1a11k Hanig Shtivet•
& iceobsou, Go•iugtou 8' B12iling LLP', Mo11tgom01y McC111dl:e1S 'WKl!ter llfid R?loads LLP;

Oirick Heningtoir &: Sutctiffc LLP, Wlltkla Pan &; Gaitagtrct Ltfl, Reed Smtttt ttP, Pm!,

Weiss, Rtfkind, '9/timton & Oanisou LLP, Buclua1a1rfngezsoll & R;ooney l'C, O'Melveny &

A.

Document llegueat!

I.
AU doeumenis Identifying or ooncoming eaoh communication, conversation 1uld
meeting between the Government and A'Clelphia relating to !he following subject matter:

a.

Whether Adelphia would or should provide advancement, indemnification - f.a\\~<.r;
or payment of legal ct1:itll 10
mcmbot af tltei--Pciga" Fmuiif.Tncluding
~"'°"
but not limited to how the Oovemment would view such advancement,
indemnification or payment oflegal costs and the timing and basis of such
decision.

b.

Whe!her Adelphia would or should provide adv11ncement, ind<:mnification
or payment of legal cosla to ony other current or fonner Adelphia officer,
director or employee or prospective Adelphia director in relation to 11ny
ongoing law enforcement invesligation, including !be timing and basis of
such de-0ision.

c.

Adelphia's practices with respoot to advanceme.nl, iudernnification or
payment oflegal costs incurred by its present or fonner officers, directors
or employees in defense of civil, criminal or administrative matters in the
pa.st.

d.

What actiorui Adelphia would, should or did take to assist the government
in its investigation or prosecution of Rigas Fftltiil)' ft1emln1Mf"and what
requests were made of Adelphia by the Government, including but not

at•'

limited to what actions the government would consider to reflect
Adelphia's "cooperation."
e.

What actions Adelphia would or oould take to help it to 11void criminal
indictment.

f.

What role, par1icipation or oversight tbe government would have with
respect to the mvestlgation conducted by Adelphia's Special Committee.

f\X~'Ol'f rs

g.

Whether Adelphia should preven r place rC3triclions upon its employee.!
talking to
·
· or their representatives, including
but 1101 limited to wholh« tho government had any input into the October
14, 2002 Memo from Randall D. Fisher to Adelphia employees attached

as Exhibit "l" to these requesta.

h.

The Government's position andfor demands with respect to Adelphia's
corporate governance and control, including whether e1ei11beis of ltw
~as Pnmn, should resign and/or be terminated us offie<:rs or diteclor3 of
Adelphia.
l11c aelwticn c1 evohia:tion ofcandidll.'tc3 te repl1ec111eu1be1s of!.i1rtRig11s
¥cntily on Acklpbfo's Bon:d efDireeto".

j.

Whether Adelphia should make or refuse to make payments to John Rigas
and/or Timothy Rigas pursuant to the tenna of their respective swerance
11greements with Adelphia.

k.

Whether any law finn retained by Adelphia, tfio lligas Pami1')< and/or other
Adelphia officers and directors should represent, or continue to represent.
~en of tito R:ip PMlii)'t t>L:r\~ """r~

l.

Whether tho government and/or Adelphia would or should o
or see
to enjoin, efforts by
·
·
10 gam access lo other
fund:; which potentially co11ld be used to pay defense rosts, jncluding but
not limited to assets held by the Rigas Family, assets belonging to lhe
Rigas Managed Entities, assets allegedly owned by Adelphia amVor the
pro~ from any policy ofinsuranco..

?e.\.;~MU'S

m.

Whether the Government had any inpul into what form Adelphia tumed
over documents or other information to tM C3evcrtnucnt ia1drot to <the
?tl\Ki'.11\t(.S fl:ip Pmnilr 11nd defense counsel, In.eluding but not limited to whether
Adelphia was required to p;ovide (or prohibited from providing) that
lnfonnaiion in a 11earch11ble databue.

n.

Whether the Oo11crt11llClrt mtd Melpltia siaeussed- o; fffteAeEI illl)!.
•deftllaftding 1111 to whe v1euld bear the blq!M~c of pto9iding ducmm:nts
"" it1fermatien to !hi: Ooteillllletlt cnill<er tho Rigt.ts Pemlly and detbt1se-

\,. ..

f'.l"h.J

MOOSel.
0.

Wftcthoi tho Govemmcut teqaued 01 tilWUJttged ltdeipltia to waive
aa4fai: Ealse il5-eUeffley elieat :privilege, ltrotudilig Wt 116t limited to
-wfief!tllP Qio -0e¥iRHReat'e posllioll wtlh respect to Adclptlla's 1i1Vue«titm
Of tft.& prh•j)ege I llnCd depending UpOll llte 11Jlle fiUJ?Se Of lh¢ illful'Tltl!;tj~

~W

11t-tll!Rl41

p.

YAscthw tfm Go\!emmcnt would ini!iet1 er threat~ lg 1Rdie1, BftY e'lllside
Utrectot, taw fltlll 01 ucc:om1ting finn £01 Adelphia, iueludlng Mt !lot

f<:Mw

.J:i!RM:ee ~e Dc!oitt1J & 'fVud1c and Blil&liftfffln luge:soH, or employee of Bl:leh
--iaH fism or ltOCC".fll!ing fitm.
q.

The Holder Memorandum.

r.

The Thompson Memorandum.

s.

Whether the Government could or would con6id~ the following facton
discussed in the "cooperation and voluntary disclosure" section of the
Holdu Memorandum and the Thompson Memorandum in weighing the
eittent of Adclphia's cooperation and in dctennining whether tbc
government would seek an indictment of Adelphia:
(i)

Advancement. indemnification or payment of legal costs to
present or former officers. directors or employees of Adelphia.

(ii)

Adelphla's "willingness to identify the culprits within the
corporation, including senior executives."

(iii)

Adelphia's retention of allegedly culpable employees "without
sanction for their miswndu<:<."

(iv}

Adelphia's willingness to make witnasacs available.

(v}

Adelphia's willingness to disclose tbe complete (esults of ita
intemal investigation.

(vi)

Adelphia's wil!ingiiess to waive the attorney·clienl and work
product privileges (including whether the Government requ~ted
such a waiver).

(vii)

Adelphia'l! decision to provide infonna!ion about tho
Government's investigation to allegedly culpable employees
punlUl'tlt to a joint derense agreement.

2.
All internal Adelphia documents relating to the subject matters identified in
requests l(a)-(s),AS. 1\toAi~(tl..
3.

All documents relating to converaatiollll between Adele_hia 11nd any third party

4.

AIJ documents concerning whether Adelphia would or should provide

concerning the subject mattei"S identified in req~ts l{a)·(a)> o.,s M<lr:U~tJ.

mdemnificatiun or advancement of defense costs to any other current or former Adelphia officer,
director or employee in relallon with any ongoing law enforcement investiginion or criminal
proceeding relating to tbs events descnbed in the indictment for Untied Slate1 v. Rigas, Nu. 02·
Cr-1236 (S.D.N.Y.).

l<JllW

l<Mw

5.
All doi.romenta reflecting or relating to whether Adelphia previously f.ndcmmtied
or advanced defense costs incurred by tlnY cu1Tent or fonner Adelphia officer, director or
employee who was made a party to any criminal or administrative action or investtgation by
reason of the fact that such person is or was o director, officer or employee of Adelphia.
6.
All d<Jc;umenls reflecting or relating to Adelphia's reasons for determining that il
would llQt indemnify or 11.dvance defcruJe costs (or that it would cease indemnifying or advancing
defense costs) to membeis of the ftigM Pmflily, ftti~C'r"$
7.

K"°'w
Kiii\. V

'Fe4he ex:tent not already p1=9vided iR FOSpe1'3e tg the pr.«Met1$ 1eq11Ms, all

4eet2ments idcmtifyftig stfftegies or steps ta~cm ~y Adelphia te aveid ifleielmerit.

8.
To the eittent not already provided in response to the previous requem, all
documents reflecting or relating to whether the Govemml;lllt requested or pr~sured Adelphia to
nrl'use fndemnlfieation or advancement of defense costs lo mei:Mere afehe P.t@lll llllFflil'' f\t\Ho'l1r1

l<L\llill

9.
To the extent not already provided in response to th!) previous teqUelits, all
doewmmts retlectfog or rclaling to whet.her tho Oovemment teq\<e$ted or pressured Adelphia to
oppose advan~ent of defense costs lo

111ain1'ciro c~

the Rigee Pfuni!y by the Rigas Family

?c.~ttOAtrs

Entities.

Y.a.i.w

10.
To the extent not already provided in response to the pl"Qvioua requests, all
documents refJeeting or relating to whether Adelphia would have indemnified <ir advanced
defense costs to John Rigas or Timothy Rigas absent government pressure and/or Adeiphia's
desire to cooperate with the government.

11.
~fMlelphie,

..Ul retefttier1 cgreet\\eACs er eimilltf eeettl'fleRt<* that zclatc to legal repxescutm!o11
Ille Rigas Pamily ime.ter heelpl11a's a1:11'idc dirceter.t:o

KM\IJ

12.
~Uy \tnl'~ tfdnut~ for m~ngs of the Adelphia Board of Directors from
March 27, 2002 through October31, 2005.
13.
Any notes taken by attendees at meetings of the Adelphia Board of Directors from
March 27, 2002 through October 31, 200S.
14.

Fully ur.woda~ed l6inutcs of all meetings oflhe Special Committee.

15.

Any noteii taken by attendees at meetings of the Special Commitcee. ---------~.

16.
A-11 .Jv11u1>1cal11 relatiHg to
9emurittec .veele tw<'estigete.

mt)

e.,;OJ'fttinelietl

efl

to wi!ieh tet:iies the Spesiel... ~W

17.
AH eeomi:tOA'6 Felatmg to infeamatico pl&"tideiS le- Q\e pPe&s eoriwntiug tho Rigft&
F'mrtil), fMir "RMJignatioM, t:bcfr impt1Reb1g an ~t, Adelpnil1 "'iv l'Ongdoings 01 wu ect:ions llf!6143r
Adeiphi'G'".i1ttcnt te iaeemftify Ftigas Pitmil)' memee1'61

k.

~W

I\\\~ rcao..C::hof\S. tor pr\t'l\~L

s.h"1\ t,c. "''' ~r+h

j"

i+i'l ?<'i'l\\-f..5e. 1~ tA'lSU'l be.el

l ~·
All document~ relatln~ to or reflecting communications with the SEC regarding
the meeting between Adelphia, Dclo1tlc & Touche and the SEC occurring on or about May 9

~~

I

19.
Ml Ela: w: I° Hlstu:ig !H er "=Re11fieg e sliea9c iR A.delpaia'e iademHitieatien
}"Jlit:ics ti>lle·w-ittg the i=e&ignntlea: eflelm Rigae aftd Titnothy Rigt13 as Adelpf1i11 officen. •

20.
A:ll documents relenng~r refGFtieg tea suaeeg, to 11fili::c 11public1e111tions fimt
t&11iewedU tb.e Rigas Prmii!) ht otdct to gain ftuoi witn tho Oovcinincnt~r fo1 othei 1C1Uo~
21.
A:ll eeGUR;ORl&f4!Aootisg 9F i:elatiag te e etmtogy by P.4~pliia IQ GWl eff RlAG!l kJ
tfie. Rigas Family itl eRier le ge.in iin ftd, 81ttag11 m litigutien.
..
22.
1tH -docmncuts teflectiug 01 1eiating to a snategy by Adelphia to make it less
Mlcely -that indi vldu11le-4ieeigtt11ted by ti1e R:igascs tinel\Sdir.g Dan MUliafde.R6 Leo Fen 111'0] wetiid
brr-less likely te aeeef'l appeintment to Adelpma's '896Ri qf Dii:etio;a, in.ch.idiag b\ff "ftot limitod
t-o de~g the ri8i1t of indemnification to such iudividmns.
23.

A:U4eewnent::s reltti11g 01 rcEeubtg to Adelphia's decision to tttili:i!tl ile
iu its p101Jecution offlae Rigas Familr.

Qwn

flu:idi

~9iet-tJ:ie 0e'lel1'U'Jtent

24.
AU doemnal'tt3 mdfoftting the amotmt of fe°' end eo11tr; iut:intcd by 1tde1phia"'' i~
Special Q,mmittee ia 11eflfteetion witb the 60V"1nntetst"ll h1oestigutiv11 11ndfo1 its iutorntti
itltestiga!ion a!' related patty tnmsac1Jons lnvOMng tl'le ltigas Fa1nily er Rigas Pamily Batitiei.
25.
A11 documents ielating to any input that tho Government had with respect t<l the
M11y 23, 2002 Agreement between Adelphia and Rigas Family members.

26.
-At! 6e~~ 6ieettseittg ~d1ieh cliCJJ!s hu~ ftnn:s.tctmm:d bj' Adelphia, the R1gtti1
l'ilmily eREfler ethc; Aliielt1hia effi¢¢1s itnd direet(na shoald tep1csent; including bat not limited ro
any documettt iefle'<ltiQ8 Ge'.'emment epinio1ror infh1cncc on aucil dccbion.
27.

All documents relating to a joint defense

b~wccn

kMw

members of the Rigas Fmnily

nnd Adelphia.

28.
4'.e dw c111~ aet a!re11dy p:o¥ided, ~di documents r~ing ta ll=ie Mj;l>ls
identified in 1tquest 1\. t .!.(!}(vu) mar ret'ei' m Adetphia or the R:i~ Fnmi!:y.
B.

Definitions nnd Instructions

1.
The term "Adelphia" means Adelphia Communications Corp and its present or
former officers, directors, employees, agents and altomey.s, including outside counsel and the
Special Committee.
'l.
The tenn "Special Committee" means the Special Commiltee of Adelphia's Board
of Directors appointed on or about March 6, 2002 to investigate a broad range of accounting
matters, disclosure issues and related party transactions between Adelphia entities and Rigas

KMW

Family membeis and entities.
Covington & Burling.

The term Special Committee jn<:Jucles its ou1side counsel,

3.
The term "Rig11s FtUTiily" meana John Rigas, Timothy Rigas, Michael Rigas and
James Rigas or any one or more of them, sepll(ately or together.
4
The !ems "Rigas Family Entity" means a privately held and m11naged complllly
owned by the Rigas Family
S.
The term ..Government" moans the Uniled States Department of Justice ("DOJ"),
including prosecutors in the Office of the United States Attorney for the Southern Distnct of
New York, agents, attorneys or inspectors for the Securities and Exchange Commission; postal
111spectoro; agents, attorneys or inspectora of other federal ngencles; and any and all p11rs0Mcl
employed or 11sslgned lo investigate or prosecute violations by Adelphia or any of its current or
former offic~s, directors or employees for violations of the criminal laws from the period of
2002 through the present.

6.
The tenn "Holder Memorandum" me11ns the June 1999 memorandum issued by
thea-Deputy Attorney Ooocral Bric Holder entitled "Federal Pro1ecution of Bu.sinus
Orgc:mizatlon;s."
7.
The term "Thompson Memocandum" means the January 30, 2003 memorandum
issued by then-Deputy Attorney General Limy D. Thomp30n enhtled "Prlrrciples of Pedef'1ll
Prosecution o/BuslntMI Organltallo~...
8.
A reference. to "current or former Adelphia officcfll, directors or employees"
(but is not limited to) John Rigas, Timothy Rigas, Michael Rigas, James Rigas, Mich11el
Mulcahey, James Brown, Timothy Werth, Leslie Gelber, Dennis Coyle, Peter Metros, Karen
Chrosniak. Dean Manhe.11, Doug Malone, Peter Venetos, Briand Kailboume Ed Hartman, Colin
Higgin, Bd Babcoek, Mike Brady, Randy Fischer, Luke Healy, Ann Montgomery, Ron Rapp,
Keith Hom and Carla Brown.
includ~

9.
A reference to "prospcotlve Aoclphi11 directora" mcaM persons under
consideration fur.11. scat on Adelphia'!! Board of:&ircctor.i following the ~Gignatiom1 of John Md
Timothy Rigas, including but is not limited to Dan Milliard and Leo Perraro.
10.
The term "document[s)" includc.-4 any writing. charts or data complh1tion
(including electronka!ly scored info.rmatlon), and includes, without limitation: notes, lists,
agreements. by-laws, minures (including Boaro minutes), agendas, calendar11 and planners.
messages, message logs, m~oranda, correspondence. email and attachments. A draft or non·
Identical copy is a separate document within the meaning ofth1s term.

l I.
The term "communication" means the transmittal of mformnt1on (in the fonn of
facts. ideas, inquirios or otherwise). whether written or oral.

12.

Tue tc:nn "to identify" means as follows:

a.

when referring to a person, "to identify" mean& to give, to the extent
known, the person's full name, business addre:is and business title or
affiliation;

b.

whcm refening to a document, "to identify° means to give: a) the type of
document; b) the general subject matter; c) the date of the document, d)
the author(s), addressee(s), and reoipient(11);

c.

when referring to a meeting or oral communication, "to identify" means:
a) to slate the date and place of the meeting or communication; b) to state
the mode or communication; and c) to identify each person who was
present or participated therein.

13.

The terms "all", "oach" and "any" mean "a!Vee.cb/any".

14.

The conneetives "and" and "or" mean "ancVor".

l 5.

The u11e of the s.ingular fonn of any word includes the. plural and vice vern

16.
If a claim of privilege is assened in objecting to any request for infonnabon or
documents and an answer ts not provided on the basis of such '1ssertion, the objc:oling entity shall
idimtify tho nature of the privilege, inclumng a brief description of Ille facts and circumstances
giving rise to the privilege, and sbal1 also provide the following infonnation in Jog form: a) the
type of documeut; b) the general sub;eot mattc:r of the document; c) the date of the document; d)
such other information as is necessary to identify the basis for privilege, including. whcro
appropriate: the author(s), the add~see(s), the recipient(s), and their relationship to one snoth~.
17.
Whero a requested communication was oral, the subpoenaed entity shall provide
the following infonnation: (a) the name of the pemm milking the oommunication Wld the names
of tho persons present while tho communication wus made, and when not apparent, their
relationship to one another; (b) the date and place of the communication; and c) the general
subject matter of the communication.
18.
Whe.n:i a document is redac'!cd (for exomple, to avoid revc11ling other pro5CCUti011$
or investigatory matters unrelated to this case, or to safeguard contldenli11li!y and privacy where
appropriate}, the document produced should so indicate on its face.

Exhibit "'1"

R~O.F1111w

Vice Pl!ldltenl 1m1 Gcl\Cllll C01Jnlllil
One NoM Mair> Sire.I
C~PA 16915

Pl>ane

F;&

U14.2'l'4.8356
Vt 4.274.nl!l

Memorand11m

Date

October 14, 2002

To

All Employeee

From

Randall D. Fisher, Vice President and General Counsel
Contact wtth members of the Rigas Famlly1 employees of
Rigas Family private companies or former employees
indicted by the Federal Government

Cc

Erkle Kallboume, Ron Stengel, Dan Uberatore. Bob Legge,

Ch""3 Dunstan
A:s a reminder, tho Company is still under investigation by !he United States
A1tomeys office in both New York and PCllllllylvania !IS part of ongoing
invostigatioM, which have resulted in indictment.a of~ membm of the Rigas
Family as well as two fumier cxcc11.tivca of Adelphia. Employees should be awan:

that th" Securities and !!.xchung11 Commission has wed Adtlphill. the Rigas P'amil)'

.and the former Adelphia cicce\lli.vcs for alleged violat!om1 ofsccuritios laws. The
Company is committed to coopc:niting wlth Ut.esc fcdct11f agencies, because it is the
right thing to do Md because cooperation with the government will help
~covet

dlllll1lfP done by the rugaes and will help tho Company avoid pros~utioo.

Adelphia ccntinucs w c1X1pm1.to with UlClle govmunent agencies by Rviewing with
the govcnunent both its traruiactions and lts ear.nmunications with membets ofth1:1
Rigas Family, rugas Family private entities employees, fomicr Adelphia cxei;;utive:s
under irsdictmont or any 0Hl11:ir actual or purported C01.W$1'l 11r representatives.
Additi~maJJy, beginning later Chis ~ the Company will be cooperatiug with agents
of Che wtemal R~ue Service in investfgationa or lho Rigas Family. Abo, Adelphia
continues to pur$Uc its own cill.ims again$t the 'Rigu Family.
As part of tbis process, I have beon asked to duect everyone to u~e the following

l

Procedures for Contact from Rigas F11mlly,
Private Companies, [odic:ted Former Employee.r
October 141 Z002

procedures regarding cor1tact with either any member ofthc Rigas Family, any
employee of any oftbc Rigas Family private companies, any former executive of
Adelphia currently under indiclmenl or any oflhcir acllllll or puiported counsel or
teprcsenlati""··
Ofrect Contaet
It has come to thcl attention of fhe Company thal membcl"3 of the Rigaa fWlil)' have
bCQl atlllmpting to contact ccmin Company employees on variou:s i~su~. In the c~
of a:uy wntacl cegarding a business mailer between the Rigas Family or Rigas Pamily
private company 111.ld Adelphia. whclher ~work or in a social setting. please refer aU
contacts to the Legal ~pArtrnent oyusing the following ptocedurcs:
1. If the contact is direct (either in penon or by phone) !he por&on makmg
the contact &hould'be told that ir wonld be inappropriate to answe.r any
qu<:11tio1111 or provide any informalion
2. Tell tho individual that all oontad.11 should be rcfened to Leslie Brown,
G:ne Fitzmaurice or Randy Pi$her.
3. The Adelphia wiployca who has ~ved the contact should both make
tho refemil and report the contact to the Legal Department as well.
There ls no exception to thla slluat11>n. Should the situation arise, thcsG same
proc:edm~ should be followed for any direct contact ftom any former Adelphia
executive CUO'eritly under indictment, or any of the Rigu Fam Uy or these Conner
Adelphia !l'Xocuiives' actual or purported counsel or represe.nlatives.
Soclul Settings
Ill addition fo tho toJtphom: procedUTCa d~eribed above, emplOYQOS should U~ll good
judgment if they find tbemsclves in &it1Jatiom where members ofthe £tig11i family,
the funner Adelphia executives currently under indictm!:llt or croployees o(tho Rlgi13
Family private companie1 arc also presont (e.g:.. events, conferences, pn.1f1:33lonal or
oMo ccla~d gatherings, etc.}. The acnrrpany roq11ircs that Lf such meetings occur,
employee; will not disclose ot divulgo ~Y conftdcnti11l information concerning the
Company, Iha ongoing invcstlgaUon or "'c bankruptcy pl'Occ~ing. All employees
must report all such wntacls with Rigas ta.mU:y nwmbers or Conner Adolphia
cxecutivos cuucntly under iudiclmenl to the Ll::gal Dqlm:tmcnt
lndirec:t Contact
rn the ca:scofau indirect contact (:.ucb as a voice mail from a member of the Riga:s
Family) employees should use !he following proeedutes:
l. Repon lhc c::ontac;t to tho Legal Depmmcnt immediately.
:Z. Do not attcmpl to ~tum fuc phone i;:all.

Tho Legal D1:partxnent will review the matter end m11y refer the matter to appropriate
2

EXHIBIT C

~xamrr

"C.,

Document requests directed lo the Adelphia Recovery Trnst. as euccessci1· in intere.'lt to
Adelphia Cunununication:i CorporaMn.
A.

Documenl Requests

I.

Idei1tify all pei'llons 01· enlitics employed by or assocrnted with Bucbannn Ingersoll
in the nctfon design11te<I Acl~lplua Rttcovery Tnm v. BanJc e>f America.
N.A.. et al., No. OS-cv~905Q..I.MM (S.P.N.Y.).
& Rooney, 11.C., deposed

2.
Copies of aH deposition transi.:riprs, incl\1ding exhibits, for ull persons or enti1ics
identified in respo11Se to A(l) deposed in the action desigm1tcd Adelphia Recovf1ry Trust v. /J(m"
ofAmerica. NA., et al., No. 05-cv-9050. LMM (S .v.N. Y.)
B.

Olif'initious aarl Im1trnc.tiuns

l.
The term "document{s)" mcludcs llllY wtiting, chait, or dal11 compiltttion
(inc.hading electronic1tlly stored information), and includes, without limitatifm: notes, list.'1,
agrccmc:ots, by-law11, minutes (including Board minutes}, agenda..~. caknd1m1 and planners,
me.'l:i!lges, message log.<t, memoranda, correspomlcuce, email :mu attachments. A draft or uonidenticaJ copy ill n sep11rntc rlocument witliin \he meaning of lhi:J term.
2..
The I.Cm! "to 1dwUfy", when refenine 10 a person or entity, mean.'I to give, to the
extent knuwu, the person's foll ne.me, busin~~ adclres.'I and business title or uffiJiation.

3.

The terms "all", "each"' i.md "any" menn "t\ll/ei\cb/nny''.

4.

11ie co1mectivcs "nnd" tmd "or" mcnn "and/or".

S,

TI1e use oflhQ 6ingularfo1m Ol IUIY word

includ~ tb~ plural

aml vice Versil.

6.
lf a clailn of privilege is allSc;rted in ohjecling lo any request for information or
tlocumcnls 1md an answer is not provided on the basis oft$uth n.<i~ertion, the oh1ecti11g entity shall
identify the natutc of the privilege, including a brief dectcription Qf the facti; and circumstune<:s
giving ri:1c to tl1e privilt:gc, and shall nlsu provide t11e following Jnformt~tion in log form: a) the
lypc or document; b) the Re11eral subject matter of lht: document; c) the d.tlC of the docurocnt; d)
~uch other intonnation llS is ncceflsa.ry to idt:nliJy the ballis for privilege. incluclmg, where:
npproprirtt~: the autho1"(:s), the acldressec(s), the recipient(s), a.11cl their relationship to c111e imother.
1.
Where a docwnent is redacted (fol' example, to avoid rev1.mhris other prosecutions
or invt:SOgntory matturs unrelRted to this case, or to si.tfcguatd confl<ler11i111ity and privacy where
appropriate). the document produced should so indi<.::1.tc 011 its fnce.