Case 9:11-ap PC Doc 99 Filed 03/09/15 Entered 03/09/15 16:45:21 Desc Main Document Page 1 of 8.

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1 Case :-ap-0-pc Doc Filed 0/0/ Entered 0/0/ :: Desc Main Document Page of 0 JOHN P. REITMAN, SBN 0 LARRY W. GABRIEL, SBN ALEKSANDRA ZIMONJIC, SBN 0 STEVEN T. GUBNER, SBN COREY R. WEBER, SBN 0 0 Century Park East, Suite 00 EZRA BRUTZKUS GUBNER LLP Los Angeles, CA 00 0 Oxnard Street, Suite 00 Telephone: (0) -000 Woodlands Hills, CA Facsimile: (0) -00 Telephone: () jreitman@lgbfirm.com Facsimile: () -0 azimonjic@lgbfirm.com lgabriel@ebg-law.com cweber@ebg-law.com Attorneys for Plaintiff, Bradley Sharp Special Litigation Counsel for Trustee of the Liquidating Trust Thomas P. Jeremiassen, Chapter UNITED STATES BANKRUPTCY COURT CENTRAL DISTRICT OF CALIFORNIA NORTHERN DIVISION 0 In re ESTATE FINANCIAL, INC., Debtor. THOMAS P. JEREMIASSEN, Chapter Trustee, Plaintiff, vs. BRYAN CAVE, LLP, a California professional limited liability partnership; and KATHERINE M. WINDLER, an individual, Defendants. In re ESTATE FINANCIAL MORTGAGE FUND, LLC, Debtor. BRADLEY D. SHARP, Chapter Trustee, Plaintiff, vs. BRYAN CAVE, LLP, a California professional limited liability partnership; and KATHERINE M. WINDLER, an individual, Defendants Case No. :0-bk--PC Chapter Adv. No. :-ap-0-pc Case No. :0-bk--PC Chapter Adv. No. :-ap-0-pc PLAINTIFF TRUSTEES REQUEST TO STRIKE AND EVIDENTIARY OBJECTIONS TO SUPPLEMENTAL DECLARATION OF MICHAEL B. SMITH Hearing: Date: March, 0 Time: 0:00 a.m. Place: Courtroom 0 State Street Santa Barbara, CA 0 Judge: Peter H. Carroll

2 Case :-ap-0-pc Doc Filed 0/0/ Entered 0/0/ :: Desc Main Document Page of 0 0 TO THE HONORABLE PETER H. CARROLL, JUDGE OF THE UNITED STATES BANKRUPTCY COURT, THE OFFICE OF THE UNITED STATES TRUSTEE, DEFENDANTS BRYAN CAVE LLP AND KATHERINE M. WINDLER, AND ALL OTHER INTERESTED PARTIES: Thomas P. Jeremiassen, the duly appointed and acting Chapter Trustee for the bankruptcy estate of debtor Estate Financial, Inc. and Bradley D. Sharp, the duly appointed and acting Liquidating Trustee for the bankruptcy estate of debtor Estate Financial Mortgage Fund, LLC hereby object to the supplemental Declaration of Michael B. Smith (the Declaration ) filed in support of defendants Motion to Compel the Production of Documents (the Motion ) and requests that the Declaration be stricken for non-compliance with Local Bankruptcy Rule 0-(g) which states in pertinent part: () The reply memorandum and declaration or other evidence attached, must respond directly to the opposition documents.... () New arguments or matters raised for the first time in reply documents will not be considered. LBR 0-(g) (emphasis added). The Declaration does not respond to the Trustees opposition to the Motion and instead attempts to impermissibly introduce new evidence in the context of Bryan Cave s reply in support of the Motion. Bryan Cave, however, was well aware of the Trustees contentions at the time it filed the Motion because all such contentions were fully set forth in the Stipulation of Disputed Issues in Defendant Bryan Cave LLP s Motion to Compel Further Responses to Defendant s First Set of Requests for Production of Documents. Rather than including the evidence and testimony (assuming it is admissible, which it is not) in the Declaration along with the Motion, Bryan Cave has made a tactical choice to introduce the new material in its reply brief so that the Trustees do not have an opportunity to address it. Accordingly, the Declaration and all evidence submitted along with it should be stricken in accordance with Local Bankruptcy Rule 0-(g).

3 Case :-ap-0-pc Doc Filed 0/0/ Entered 0/0/ :: Desc Main Document Page of 0 0 Additionally, the Trustees assert the following evidentiary objections to the Declaration: No. EVIDENCE TRUSTEES OBJECTIONS Paragraph, Exhibit B of the Declaration. a) Relevance. FRE 0. Paragraph, at :- of the Declaration: Recently I represented the defendant in a different adversary proceeding, in which I sought to obtain third-party discovery from the law firm Doss Law and its principal, Dennis Doss. In the course of pursuing those subpoenas, I learned from Mr. Doss s attorney that Mr. Doss had moved out of the county, at least in part to avoid service of process. b) Undue prejudice. FRE 0. a) Relevance. FRE 0. b) Lack of foundation/personal knowledge. FRE 0. c) Hearsay. FRE 0. Paragraph, Exhibit C of the Declaration. a) Relevance. FRE 0. Paragraph at :- and :- of the Declaration: Over the course of fifteen years of practice, I have spent many hundreds of hours using, and have supervised and directed attorneys and paralegals in the use of, online electronic document review systems. I have used, or supervised the use of, such systems to, inter alia, (a) review client documents for responsiveness and privilege prior to production; (b) generate production sets of responsive documents; and (c) generate privilege logs. In connection with that work, I often consult with professionals whose job it is to maintain and support those systems. Through my experience with those systems and my discussions with others familiar with them, I have acquired an understanding of the functionality and capabilities of such systems in the context of litigation (including privilege review and b) Undue prejudice. FRE 0. a) Relevance. FRE 0. b) Improper expert testimony/no 0. c) Improper lay testimony. FRE 0.

4 Case :-ap-0-pc Doc Filed 0/0/ Entered 0/0/ :: Desc Main Document Page of the creation of privilege logs). I have used several different systems, including Summation, Concordance, Ringtail, and Relativity (which I understand is the system the Trustees are using in this case). In my experience, all of these systems have similar features and functionality. Paragraph at :-0 of the Declaration: a) Relevance. FRE Using a system such as Relativity, one can use keyword searches to identify particular documents or categories of documents, sort and/or filter documents using metadata, and organize documents into groups. For example, one could very easily generate a search that automatically collected all s to or from particular attorneys, tag the entire batch as potentially privileged, and save those documents in a separate group for purposes of privilege review. Paragraph at :- of the Declaration: A system like Relativity also allows one to automatically generate a table listing all of the documents in a particular group, along with selected metadata. For example, one could generate a chronological table of all s tagged as privileged, work product, etc. which could include e.g., the date, sender, recipient(s), and subject of each , as well as the names of any attachments and the tags associated with each document. In this way, a privilege log can be created automatically. b) Improper expert testimony/no 0. c) Improper lay testimony. FRE 0. a) Relevance. FRE 0. b) Improper expert testimony/no 0. c) Improper lay testimony. FRE 0.

5 Case :-ap-0-pc Doc Filed 0/0/ Entered 0/0/ :: Desc Main Document Page of Paragraph at :- of the Declaration: Similarly, one could automatically create a group consisting of all documents not tagged as potentially privileged, and generate a production set that consists only of those documents. In my estimation, based upon my experience in producing and supervising the production of electronic documents, a production set of,000 documents stored on Relativity could be generated, finalized, and produced on physical media within one week. a) Relevance. FRE 0. b) Improper expert testimony/no 0. c) Improper lay testimony. FRE Paragraph at :- and at :- of the Declaration: As part of my role as counsel for Bryan Cave in this litigation, I routinely participate in meet-and-confer discussion with counsel for the Trustees. I also receive copies of all meet-and confer correspondence from the Trustees. From the outset, meet-and-confer discussions between counsel for the defendants and counsel for the Trustees regarding the prebankruptcy documents contained on EFI s computers and hard drives were based on the premise that the Trustees would turn over the entire contents of those computers and hard drives to Bryan Cave. During earlier conversations in which I participated, counsel for the Trustees said they would turn over the unprocessed forensic images of those computers and hard drives. In later conversations in which I participated, counsel for the Trustees agreed to produce the data in the format to which they had had them converted for review on Relativity. Still later, after counsel for the Trustees said they were going to withhold pre-bankruptcy communications on the basis of privilege, counsel for the Trustees said, in conversations in which I participated, that they would still produce the data, but only a) Relevance. FRE 0.

6 Case :-ap-0-pc Doc Filed 0/0/ Entered 0/0/ :: Desc Main Document Page of 0 after they had removed those documents. Counsel for the Trustees never said that they would or wanted to remove any documents from that data on any basis other than privilege. Paragraph 0 at :- of the Declaration: In October, counsel for the EFMF Trustee sent a letter asserting that the EFMF Trustee was not required to prepare a privilege log because of the breadth of Bryan Cave s document requests. Because of the vague way in which this assertion was made, and because counsel for the EFMF Trustee had previously represented that EFMF had no pre-bankruptcy documents other than bank records, it was not clear whether the EFMF Trustee was referring to any pre-bankruptcy documents. See Nowlin Decl., Ex. at. Any ambiguity in that regard was settled in November, when both Trustees confirmed in writing that they were in the process of reviewing pre-bankruptcy documents they had segregated as potentially privileged and that once they had completed their review they would produce all non-privileged documents and a log of those documents they contend are privileged. Nowlin Decl., Ex. at. a) Improper attorney argument. Johnston v. IVAC Corp., F.d, (Fed. Cir. ) (attorney argument is no substitute for evidence). b) Improper legal conclusion. Hubbard v. Twin Oaks Health & Rehab Ctr., 0 F. Supp. d, 0 (E.D. Cal. 00) (sustaining objection because statements in declaration constituted improper legal conclusions and conclusory statements without supporting facts). c) Relevance. FRE Paragraph at :- of the Declaration: With respect to post-bankruptcy documents, the Trustees position from the outset, as communicated in several conversations in which I participated, was that all documents prepared by professionals retained by the Trustees are privileged. Although they eventually agreed to produce a handful of post-bankruptcy documents, they continue to maintain that position. In conversations in which I participated, counsel for the Trustees consistently have refused to provide Bryan Cave with any information about the types a) Improper attorney argument. Johnston v. IVAC Corp., F.d, (Fed. Cir. ) (attorney argument is no substitute for evidence). b) Improper legal conclusion. Hubbard v. Twin Oaks Health & Rehab Ctr., 0 F. Supp. d, 0 (E.D. Cal. 00) (sustaining objection because statements in declaration constituted improper legal conclusions and conclusory statements without supporting facts). c) Relevance. FRE 0. d) Improper expert testimony/no

7 Case :-ap-0-pc Doc Filed 0/0/ Entered 0/0/ :: Desc Main Document Page of of documents prepared by LECG/BRG or DSI, or the volume of those documents. Accordingly, it has never been possible for me or other counsel for Bryan Cave to engage in the kind of discussion we had hoped to have, and which in my experience counsel typically have in situations like this: working with counsel for the Trustees to identify categories of documents that Bryan Cave could agree it did not want, so that the discussions could focus on those documents that were truly at issue. 0. e) Improper lay testimony. FRE 0. 0 Paragraph at :- and Exhibit D of the Declaration: As reflected on the public docket for DA Case No. 0-, which was obtained by Gibson Dunn & Crutcher s legal librarian and shared with me by co-counsel, on October, 00, Karen Guth and Joshua Yaguda appeared in court to enter pleas of guilty to the charges against them. a) Relevance. FRE 0. b) Undue prejudice. FRE 0. 0 DATED: March, 0 DATED: March, 0 JOHN P. REITMAN ALEKSANDRA ZIMONJIC By: /s/ John P. Reitman John P. Reitman Aleksandra Zimonjic Attorneys for Plaintiff Bradley D. Sharp, Trustee LARRY W. GABRIEL COREY R. WEBER By: /s/ Larry W. Gabriel Larry W. Gabriel Corey R. Weber EZRA BRUZKUS GUBNER, LLP Attorneys for Plaintiff Thomas P. Jeremiassen, Trustee

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