UNITED STATES BANKRUPTCY COURT EASTERN DISTRICT OF MICHIGAN. Chapter 11

Transcription

1 UNITED STATES BANKRUPTCY COURT EASTERN DISTRICT OF MICHIGAN In re ENERGY CONVERSION DEVICES, INC. Chapter 11 Case No TJT Judge Thomas J. Tucker (Jointly Administered) ENERGY CONVERSION DEVICES LIQUIDATION TRUST, Adversary No.: Plaintiff, -against- OVONYX, INC., TYLER LOWREY, MICRON TECHNOLOGY, INC.,OVONYX MEMORY TECHNOLOGY, LLC, AND INTEL CORPORATION Defendants. PLAINTIFF ENERGY CONVERSION DEVICES LIQUIDATION TRUST S RESPONSES AND OBJECTIONS TO DEFENDANT MICRON TECHNOLOGY, INC. S FIRST SET OF REQUESTS FOR PRODUCTION Pursuant to Rules 26 and 34 of the Federal Rules of Civil Procedure, Rules 7026 and 7034 of the Federal Rules of Bankruptcy Procedure, Rule of the Local Rules of the U.S. Bankruptcy Court for the Eastern District of Michigan, and the Adversary Proceeding Scheduling Order [Adv. D.E. 76] (the Scheduling tjt Doc 151 Filed 02/15/19 Entered 02/15/19 14:25:08 Page 1 of 13

2 Order ) entered in the above-captioned adversary proceeding, Plaintiff Energy Conversion Devices Liquidation Trust (the Trust ) objects and responds to Defendant Micron Technology Inc. s ( Micron ) First Set of Requests for Production (the Request(s) ) as follows. PRELIMINARY STATEMENT AND INCORPORATED OBJECTIONS In addition to the objections to each individual Document Request, the following objections apply to all of the Document Requests and any accompanying instructions or directions (the Incorporated Objections ), are hereby incorporated by reference into the individual response to each Document Request, and shall have the same force and effect as if fully set forth in the individual response to each Document Request. The Trust objects as follows: 1. The Trust objects to the Document Requests to the extent they purport to impose obligations beyond those set forth in the Federal Rules, applicable Local Rules, the parties agreed-upon ESI protocol, and the Scheduling Order. 2. The Trust s agreement to produce documents in response to a particular Document Request does not mean that the Trust has any such responsive documents, that any such responsive documents exist or that the Trust will search all files maintained by any person. Instead, the Trust will produce documents located after a reasonable, good faith search of its reasonably-accessible files tjt Doc 151 Filed 02/15/19 Entered 02/15/19 14:25:08 Page 2 of 13

3 3. The Trust objects to the Document Requests to the extent they are unduly burdensome, oppressive, overbroad, vague and ambiguous, duplicative, overbroad in time and scope, seek information that is neither relevant to the claims or defenses of any party in the above-captioned action nor proportionate to the needs of the case, seek information that is publicly available (including, but not limited to, documents filed in the underlying bankruptcy and Securities and Exchange Commission filings) or which the Defendants already possess or documents the Defendants have already produced, and/or seek information that is not in the Trust s possession, custody, or control, or that is more appropriately sought from third parties. 4. The Trust objects to the Document Requests to the extent they purport to require the Trust to create or generate documents that do not currently exist. 5. The Trust objects to producing (or logging) documents dated after December 31, 2015 because such documents are not relevant to the dispute or reasonably calculated to lead to the discovery of admissible evidence. 6. The Trust objects to the Document Requests to the extent they purport to require the Trust to produce all documents, insomuch as such Document Requests are overbroad, unduly burdensome and duplicative. 7. The Trust objects to the Document Requests to the extent they seek information that is subject to the attorney-client privilege, the work-product tjt Doc 151 Filed 02/15/19 Entered 02/15/19 14:25:08 Page 3 of 13

4 privilege and/or any other applicable privilege or protection (collectively, Privileged Information ). The Trust does not waive, and instead intends to and expressly does preserve, the attorney-client privilege, the work-product privilege and every other applicable privilege or protection with respect to information contained within any documents or communications protected by such a privilege or protection. The inadvertent disclosure of any information that is privileged or otherwise protected from disclosure shall not be deemed to be a waiver, in whole or in part, of any privilege or protection applicable to any such information. 8. All objections to the use, at trial, or otherwise, of any information provided herein are hereby expressly reserved. RESPONSES REQUEST FOR PRODUCTION NO. 1: All documents and communications concerning ECD s document retention policies or practices from January 1, 1998 to the present. RESPONSE TO REQUEST FOR PRODUCTION NO. 1: The Trust objects to this Request as overly broad and seeking discovery beyond the scope of the Scheduling Order. The Trust also objects to the Request because it seeks information not relevant to the dispute or reasonably calculated to lead to the discovery of admissible evidence. Subject to and without waiving this tjt Doc 151 Filed 02/15/19 Entered 02/15/19 14:25:08 Page 4 of 13

5 objection, the Trust will produce reasonably-accessible documents, if they exist, responsive to this Request. REQUEST FOR PRODUCTION NO. 2: All documents, including books, records, and other documents, transferred from ECD to the Trust relating to the allegations in the FAC, including without limitation all documents concerning the 1998 Contract, the 1999 License Agreement, the 2000 Stockholders Agreement, or the 2012 Sale Agreement. RESPONSE TO REQUEST FOR PRODUCTION NO. 2: The Trust objects to this Request to the extent it is overly broad, beyond the scope of the Scheduling Order and seeks information not relevant to the dispute or reasonably calculated to lead to the discovery of admissible evidence. The Trust also objects to this request to the extent its seeks production of documents that are already in Micron s possession, custody or control. Subject to and without waiving the foregoing, the Trust will produce reasonably-accessible documents, if they exist, responsive to this Request. REQUEST FOR PRODUCTION NO. 3: Documents sufficient to show the Trust s financial condition, including without limitation the Trust s income, assets, and expenses, on a quarterly and annual basis from July 1, 2012 to the present tjt Doc 151 Filed 02/15/19 Entered 02/15/19 14:25:08 Page 5 of 13

6 RESPONSE TO REQUEST FOR PRODUCTION NO. 3: The Trust objects to this Request to the extent it seeks discovery beyond the scope of the Scheduling Order, is overly broad and unduly burdensome and seeks the creation and production of documents that do not presently exist. The Trust also objects to this Request because it seeks information not relevant to the dispute or reasonably calculated to lead to the discovery of admissible evidence. Subject to and without waiving the foregoing, the Trust will produce quarterly reports summarizing income, expenses and distributions sufficient to show the Trust s financial condition. REQUEST FOR PRODUCTION NO. 4: Documents sufficient to show the Trust s financial condition, including without limitation the Trust s income, assets, and expenses, on a monthly basis from January 1, 2015 to July 31, RESPONSE TO REQUEST FOR PRODUCTION NO. 4: The Trust objects to this Request to the extent it seeks discovery beyond the scope of the Scheduling Order, is overly broad and unduly burdensome and seeks the creation and production of documents that may not presently exist. The Trust also objects to this Request because it seeks information not relevant to the dispute or reasonably calculated to lead to the discovery of admissible evidence. Subject to and without waiving the foregoing, the Trust will produce quarterly reports tjt Doc 151 Filed 02/15/19 Entered 02/15/19 14:25:08 Page 6 of 13

7 summarizing income, expenses and distributions sufficient to show the Trust s financial condition. REQUEST FOR PRODUCTION NO. 5: Documents sufficient to show the Trust s distributions from July 1, 2012 to the present. RESPONSE TO REQUEST FOR PRODUCTION NO. 5: The Trust will produce documentation sufficient to show the Trust s distributions. REQUEST FOR PRODUCTION NO. 6: All documents and communications concerning the 2000 Stockholders Agreement, including without limitation the relationship between the 2000 Stockholders Agreement and the 1998 Contract. RESPONSE TO REQUEST FOR PRODUCTION NO. 6: The Trust objects to this Request to the extent it is vague, overbroad and unduly burdensome. Specifically, the Trust objects to the request for all documents and communications concerning the 2000 Agreement as overly broad and seeking information not reasonably calculated to lead to the discovery of admissible evidence. Subject to and without waiving the foregoing, the Trust will produce will produce reasonably-accessible responsive documents relating to the tjt Doc 151 Filed 02/15/19 Entered 02/15/19 14:25:08 Page 7 of 13

8 2000 Stockholders Agreement and its relationship to the 1998 Contract, to the extent such documents exist and are in the Trust s possession, custody or control. REQUEST FOR PRODUCTION NO. 7: All documents and communications concerning the 2012 Sale Agreement, including without limitation the negotiations leading up to the execution of the 2012 Sale Agreement. RESPONSE TO REQUEST FOR PRODUCTION NO. 7: The Trust objects to this Request to the extent it is vague, overbroad and unduly burdensome. Specifically, the Trust objects to the request for all documents and communications concerning as overly broad and seeking information not reasonably calculated to lead to the discovery of admissible evidence. Subject to and without waiving the foregoing, the Trust will produce reasonably-accessible responsive documents relating to the 2012 Sale Agreement, its negotiation and its execution to the extent such documents exist and are in the Trust s possession, custody or control. REQUEST FOR PRODUCTION NO. 8: All documents and communications concerning the treatment of the 1998 Contract in the Chapter 11 Case, including without limitation the treatment of the 1998 Contract, if any, in the Schedules and Statements, the Motion to Assume, the Liquidation Plan, and the Plan Supplement tjt Doc 151 Filed 02/15/19 Entered 02/15/19 14:25:08 Page 8 of 13

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10 c. that Micron had the opportunity, but declined to take assignment of, the 1998 Contract and the 1999 License Agreement in connection with the 2012 Sale Agreement, id. 72; d. RESPONSE TO REQUEST FOR PRODUCTION NO. 10: The Trust objects to this Request as vague and overly broad. Subject to and without waiving the foregoing, the Trust will produce non-public, reasonablyaccessible responsive communications related to assertions (a)-(g) in the First Amended Complaint to the extent such documents exist and are in the Trust s possession, custody or control tjt Doc 151 Filed 02/15/19 Entered 02/15/19 14:25:08 Page 10 of 13

11 Dated: February 14, 2019 By: Eric D. Winston QUINN EMANUEL URQUHART & SULLIVAN LLP Eric D. Winston 865 S. Figueroa Street 10th Floor Los Angeles, CA Telephone: (213) Facsimile: (213) Allison Huebert (admission pending) 191 N. Upper Wacker Dr., Suite 2700 Chicago, IL Telephone: (312) Facsimile: (312) Sara Clark (admission pending) 711 Louisiana Street, Suite 500 Houston, TX Telephone: (713) Facsimile: (713) ) By: Joseph R. Sgroi Joseph R. Sgroi (P68666) E. Todd Sable (P54956) Robert M. Riley (P72290) Honigman Miller Schwartz and Cohn LLP 2290 First National Building 660 Woodward Avenue Detroit, MI Telephone: (313) Facsimile: (313) Attorneys for Plaintiff tjt Doc 151 Filed 02/15/19 Entered 02/15/19 14:25:08 Page 11 of 13

12 UNITED STATES BANKRUPTCY COURT EASTERN DISTRICT OF MICHIGAN In re ENERGY CONVERSION DEVICES, INC. Chapter 11 Case No TJT (Jointly Administered) ENERGY CONVERSION DEVICES LIQUIDATION TRUST, Adversary No.: against- Plaintiff, OVONYX, INC., TYLER LOWREY, MICRON TECHNOLOGY, INC., OVONYX MEMORY TECHNOLOGY, LLC, AND INTEL CORPORATION Defendants. CERTIFICATE OF SERVICE I, Joseph R. Sgroi, hereby certify that I filed the foregoing papers with the Court s ECF system, which will send copies to all counsel of record. Dated: February 15, 2019 By: /s/ Joseph R. Sgroi Joseph R. Sgroi (P68666) E. Todd Sable (P54956) Honigman LLP 2290 First National Building 660 Woodward Avenue tjt Doc 151 Filed 02/15/19 Entered 02/15/19 14:25:08 Page 12 of 13

13 Detroit, MI Telephone: (313) Facsimile: (313) and- Eric D. Winston, Esq. (admitted pro hac) Quinn Emanuel Urquhart & Sullivan, LLP 865 S. Figueroa Street 10 th Floor Los Angeles, CA telephone facsimile Attorneys for Plaintiff Energy Conversion Devices Liquidation Trust tjt Doc 151 Filed 02/15/19 Entered 02/15/19 14:25:08 Page 13 of 13