Case MFW Doc Filed 03/24/16 Page 1 of 14 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE

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1 Case MFW Doc Filed 03/24/16 Page 1 of 14 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE x : In re: : Chapter 11 : WASHINGTON MUTUAL, INC., et al., 1 : Case No (MFW) : : (Jointly Administered) Debtors. : : Hearing Date: April 11, 3:00 p.m. : Objection Deadline: April 6, x GRANT THORNTON LLP S MOTION FOR PROTECTIVE ORDER LIMITING THE SCOPE OF DISCOVERY Grant Thornton LLP ( Grant Thornton ) hereby moves this Court (the Motion ) for the entry of an order substantially in the form attached hereto as Exhibit 1, pursuant to Rules 7026(c) and 9014(c) of the Federal Rules of Bankruptcy Procedure (the Bankruptcy Rules ) and Rule of the Local Rules of Bankruptcy Practice and Procedure of the United States Bankruptcy Court for the District of Delaware (the Local Rules ) limiting the scope of discovery sought by the WMI Liquidating Trust ( WMILT ) to inquiries relating to the issue of whether the contingency fee awarded to Grant Thornton was approved improvidently. INTRODUCTION 1. By way of the instant Motion, Grant Thornton respectfully requests that the Court enter an Order pursuant to F.R.Bank.P. 7026(c)(1)(D), limiting the scope of all further discovery to the issue of improvidence so as to protect Grant Thornton from the annoyance and undue 1 The Debtors in these chapter 11 cases along with the last four digits of each Debtor s federal tax identification number are: (i) Washington Mutual, Inc. (3725); and (ii) WMI Investment Corp. (5395). The principal offices of WMI Liquidating Trust are located at 1201 Third Avenue, Suite 3000, Seattle, Washington

2 Case MFW Doc Filed 03/24/16 Page 2 of 14 burden or expense of responding to discovery requests or defending depositions that are not designed or intended to obtain information specific to the lone remaining issue of improvidence. 2. As the Court is aware, almost one year ago, Grant Thornton was before this Court requesting that the Court issue an Order to Show Cause Why Sanctions Should not be Imposed against WMILT ( OSC Motion ) for Failing to Comply with the Court s Final Fee App. Order [Docket No ] ( Fee App Order ). At the hearing on the OSC Motion, this Court made numerous rulings, namely that: (1) the California Engagement Letter dated June 4, 2009 is not ambiguous; (2) Grant Thornton is entitled to 10% of whatever Economic Value WMILT received as a result of the dispute with the California Franchise Tax Board ( FTB ); (3) the Order approving the Final Fee Application ( Final Fee App. Order ) approved the contingency fee; (4) the Court was not convinced that the entry of the Final Fee App Order eliminated the right of the Debtor to argue that the contingency fee was approved improvidently; and (5) discovery may be limited in scope based on the Court s rulings set forth above. 3. Yet, nearly one year later, after the exchange of thousands of pages of documents in written discovery and the deposition of Grant Thornton s 30(b)(6) witness, WMILT remains steadfast in its refusal to pay Grant Thornton its contingency fee previously approved by this Court and continues to seek discovery as to matters no longer relevant. WMILT continues to inquire into matters this Court has already adjudicated. 4. Recently, WMILT took the deposition of Grant Thornton s witness designated pursuant to Rule 30(b)(6). Over approximately seven hours, WMILT made only a handful of inquiries that arguably related to the sole remaining issue of improvidence. Now WMILT has proposed to take several more depositions, and absent a Court Order limiting the scope of discovery consistent with the Court s prior rulings, WMILT will continue to engage in 2

3 Case MFW Doc Filed 03/24/16 Page 3 of 14 unnecessary discovery and waste significant time and money by insisting on pursuing legal theories which the Court has already clearly rejected. BACKGROUND 2 5. Pursuant to the terms of the Settlement Agreement between the Debtors and the FTB ( FTB Settlement Agreement ), the FTB agreed, among other things, to withdraw the FTB Claim, with prejudice in its entirety, and make a $225 million cash payment to JPMC and WMILT, with WMILT receiving over $45 million. 6. On May 21, 2014, the Court entered an Order approving the 9019 Motion, thereby approving the settlement agreement between WMILT and the FTB ( 9019 Order ) [Docket No ]. 7. From and after the entry of the 9019 Order up through March 2015, Grant Thornton repeatedly demanded that WMILT pay the Contingency Fee as approved by the Court in the Final Fee App. Order. However, WMILT steadfastly refused to pay the Contingency Fee as agreed upon and approved by the Court, prompting Grant Thornton to file a Motion for an Order to Show Cause Why Sanctions Should not be Imposed Against Washington Mutual Liquidating Trust for Failure to Comply with the Court s Final Fee Order by Failing and Refusing to Pay Approved Professional Fees ( OSC Motion ) [Docket No ]. In the OSC Motion, Grant Thornton argued there was no basis for WMILT to refuse to pay the Contingency Fee because (1) the Final Fee App. Order unambiguously approved the Contingency Fee and (2) WMILT received Economic Value as a result of the FTB Settlement. 2. In the interest of brevity, Grant Thornton will not repeat all of the facts set forth in the OSC Motion, but for purposes of laying a foundation for the instant motion, certain facts must be included herein. 3

4 Case MFW Doc Filed 03/24/16 Page 4 of On or about May 13, 2015, WMILT filed its response to the OSC Motion, (the WMILT Response ) [Docket No ], wherein WMILT argued that (1) Grant Thornton is not entitled to the Contingency Fee because WMILT did not receive Economic Value as a result of Grant Thornton s California Tax Services; (2) the Final Fee App. Order did not approve the Contingency Fee on a Final Basis; and, (3) the payment of the Contingency Fee is Improvident. WMILT argued in the WMILT Response that approval of the Contingency Fee might have been improvident for only two reasons: (1) Grant Thornton s absence following the passing of Mr. Ryan; and (2) FTB s rejection of the Treasury Interest Issue, which, according to WMILT precluded Grant Thornton from being entitled to receive the Contingency Fee. 9. On May 18, 2015, Grant Thornton filed its reply to the WMILT Response (the Reply ) [Docket No ]. In the Reply, Grant Thornton argued that (1) nothing in the California Engagement Letter referred to the Treasury Interest Issue as coined by WMILT in the WMILT Response; (2) WMILT received Economic Value as a result of the FTB Settlement; (3) per the express and unambiguous terms of the California Engagement Letter, the only conditions to Grant Thornton s receipt of the Contingency Fee was there be an FTB finding and Economic Value; (4) the parole evidence rule barred any extrinsic evidence to interpret the FTB Settlement Agreement because the FTB Settlement Agreement was not ambiguous and contained an integration clause; (5) the Final Fee App. Order was unambiguous and clearly approved payment of the Contingency Fee on a final basis; and (6) the Court s approval of the Contingency Fee was not improvident. 10. At the conclusion of oral arguments at the May 21, 2015 hearing on the OSC Motion, the Court made its rulings on the record, which were transcribed by the Court reporter present at the time of the hearing. A true and correct copy of the transcript from the May 21, 4

5 Case MFW Doc Filed 03/24/16 Page 5 of hearing is attached as Exhibit A to the concurrently filed declaration of Casey Z. Donoyan, which is attached as Exhibit 2 (the Donoyan Dec. ). 11. The rulings made by the Court were as follows: a. The engagement agreement dated June 4, 2009 between Grant Thornton and the Debtors (the California Engagement Letter ) is not ambiguous (See Transcript page 56, line 13); b. In the California Engagement letter, the Debtors agreed to pay Grant Thornton 10 percent of the economic value received by WMI or its subsidiaries, not to exceed $5 million (Transcript page 56, lines 15-17); c. The Contingent Fee in the California Engagement Letter is not limited to economic value received as a result of the work performed by Grant Thornton (Transcript page 56, line 17-24); d. Grant Thornton is entitled to 10 percent of whatever economic value the estate received as a result of the dispute with the California Franchise Tax Board ( FTB ) (Transcript page 56, line 17 through page 57, line 1); e. The Final Fee App Order approved the Contingency Fee (Transcript page 57, lines 2-8); and f. The Court was not convinced that the entry of the Final Fee App Order eliminated the right of the Debtor to argue that the Contingency Fee was approved improvidently (Transcript page 57, lines 8-16). 12. After the Court made its rulings referenced above, counsel for the parties discussed the issue of outstanding discovery with the Court. Specifically, counsel for WMILT, Marcos Ramos, stated: 5

6 Case MFW Doc Filed 03/24/16 Page 6 of 14 Your Honor, I believe that that is what you told the parties at the telephonic hearing earlier this week. I think also it was mentioned that there were some discovery issues that were outstanding. Perhaps the best thing is for the parties to confer after this hearing, concluding on the potential hearing date with regards to the improvident issues. (Transcript page 58, lines 19 25). [Emphasis added] 13. In response to Mr. Ramos comments, the Court inquired as to whether the parties wanted to talk and get back to the Court if there was a dispute. (Transcript, page 59, lines 1-2). Counsel for Grant Thornton, Casey Donoyan, responded to the Court s inquiry by stating that: One of the issues I had is I'm not certain whether or not Your Honor's asking us to go and conduct discovery in anticipation of that motion, or if they're permitting the discovery to go forward. I think the discovery was served in connection with this particular motion. (Transcript, page 59, lines 3 8). 14. In response, the Court stated the following: Well, again, I don't know what the discovery was but I appreciate that, based on my rulings, the discovery may be more limited in scope. (Transcript, page 59, lines 9-11). [Emphasis added] 15. Finally, in response to the Court s statement regarding the status of discovery, Mr. Ramos, counsel for WMILT, stated: I apologize, Your Honor. That can certainly be one of the issues we talk about and that we can come back to Your Honor to the extent there are disagreements between the parties. (Transcript, page 59, lines 9-11). [Emphasis added] 16. Based on the Court s rulings set forth above and the discussions of counsel on the record, it was clear that the lone remaining issue for this Court to decide is whether the Contingency Fee was improvidently approved. At no point after the hearing on the OSC Motion did WMILT file a motion for re-argument or reconsideration of the Court s rulings or file a notice of appeal challenging the Court s rulings. 17. After the hearing, the parties engaged in written discovery by propounding interrogatories, requests for admission and requests for production of documents (the Discovery 6

7 Case MFW Doc Filed 03/24/16 Page 7 of 14 Requests ). After Grant Thornton produced over 8,000 pages of documents in response to WMILT s discovery requests, WMILT noticed the deposition of Grant Thornton s Rule 30(b)(6) witness for February 29, 2016 (the PMK Depo Notice ). A true and correct copy of the PMK Depo Notice is attached as Exhibit B to the Donoyan Dec. 18. At the outset of the deposition of Grant Thornton s Rule 30(b)(6) witness, Grant Thornton advised WMILT that although Grant Thornton was producing its Rule 30(b)(6) witness for all the categories identified in the PMK Depo Notice, the only remaining issue to be determined was whether the Contingency Fee was improvidently approved. Accordingly, to the extent WMILT questioned the deponent regarding matters not related to improvidence, WMILT was directed to keep that in mind when the deposition is limited under the Federal Rules to seven (7) hours, deposing the witness on matters outside the remaining issues would not be a basis to enlarging the seven (7) hour period. 19. Despite the advisement by Grant Thornton, the deposition proceeded for nearly seven (7) hours with all of the questions by WMILT counsel focused on the interpretation of the terms of the California Engagement Letter, why Grant Thornton believed it was entitled to its Contingency Fee and how Grant Thornton believed it provided WMILT Economic Value. In fact, the only time the word improvidence or improvident was uttered during the entire deposition was when counsel for Grant Thornton advised counsel for WMILT that the lone remaining issue was improvidence. 20. WMILT s strategy is clear from the questions it asked at the deposition. WMILT has no intention of challenging whether the California Engagement Letter should be determined to have been improvidently granted in light of subsequent events which could not have been anticipated at the time the engagement was approved. Rather, WMILT is trying to develop 7

8 Case MFW Doc Filed 03/24/16 Page 8 of 14 extrinsic evidence to show that the language of the California Engagement Letter -- language which has already been determined to be clear and unambiguous by this Court -- does not match the parties agreement. In other words, WMILT has not limited the scope of its discovery at all and it is trying to reargue the law of this case without filing a proper motion for re-argument or an appeal of this Court s rulings. While Grant Thornton disagrees with the factual premise of the argument WMILT is trying to make and objects to WMILT s effort to cherry pick through the record in order to justify its violation of this Court s Order, the thrust of this Motion is to show that WMILT s efforts are not directed at the sole remaining issue of improvidence and WMILT s argument is fatally flawed as a matter of law. 21. Based upon the improper line of questioning at the deposition of Grant Thornton s Rule 30(b)(6) witness, counsel for Grant Thornton subsequently contacted counsel for WMILT to inquire whether WMILT would stipulate to a protective order limiting the scope of all further discovery to facts relating to the issue(s) of improvidence. WMILT did not agree to limit the scope of its discovery, thus making the Motion necessary. A PROTECTIVE ORDER IS NECESSARY TO LIMIT THE SCOPE OF DISCOVERY TO THE LONE REMAINING ISSUE OF WHETHER THE CONTINGENCY FEE WAS IMPROVIDENTLY APPROVED 22. Federal Rule of Civil Procedure 26(c) allows parties to move the Court for protective orders in order to seal, limit, or otherwise restrict discovery. Hart v. Nationwide Mut. Fire Ins. Co., 270 F.R.D. 166, 170 (D. Del. 2010). Specifically, [t]he court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense. Fed. R. Civ. P. 26(c)(1). The party seeking a protective order must show good cause by demonstrating a particular need for protection. Hart, 270 F.R.D. at 170. In 8

9 Case MFW Doc Filed 03/24/16 Page 9 of 14 evaluating whether good cause exists, [t]he probative value of the information requested should be balanced against the costs and burdens imposed upon the producing party. Inventio AG v. ThyssenKrupp Elevator Americas Corp., 662 F. Supp. 2d 375, 381 (D. Del. 2009). Here, good cause exists for the Court to limit the scope of discovery to the issue of whether the Contingency Fee was improvidently approved because all other issues raised at the time of the hearing on May 21, 2015 have been conclusively determined by this Court, making inquiries into any other matter simply irrelevant. 23. At the hearing on May 21, 2015, the Court explicitly and unambiguously ruled that there existed no ambiguity in either the California Engagement Letter or the Final Fee App. Order. The Court explicitly and unambiguously ruled that Grant Thornton was entitled to 10 percent of whatever Economic Value the estate received as a result of the dispute with the FTB. The Court explicitly and unambiguously ruled that that Final Fee App. Order approved the Contingency Fee. The Court explicitly and unambiguously stated that I don t think economic value is limited to economic value received by WMI as a result of this SOW. (See Transcript, page 39, lines 2 3). Finally, the Court explicitly and unambiguously stated that the improvident standard is the only thing you can rely on. (See Transcript, page 48, lines 8 16). Thus, per the clear and unambiguous rulings by this Court, the only item that remained unresolved at the conclusion of the hearing was the issue of improvidence. 24. As for improvidence, as the Court noted at the hearing on the OSC Motion, it is a pretty high standard. Specifically, Section 328(a) states that the court may allow compensation different from what was previously approved if such terms and conditions prove to have been improvident in light of developments not capable of being anticipated at the time of fixing of such terms and conditions. In re Argose, Inc., (Bankr. D. Del. 2007) 372 B.R. 705, 9

10 Case MFW Doc Filed 03/24/16 Page 10 of on reconsideration, (Bankr. D. Del. 2007) 377 B.R Where the court pre-approves the terms and conditions of the retention under section 328(a), its power to amend those terms is severely constrained. In re Smart World Technologies, LLC (2d Cir. 2009) 552 F.3d 228, 232. The improvident test under section 328 is foresight-driven, not hindsight-determinative. See In re Barron, 325 F.3d 690, 693 (5th Cir.2003); In re High Voltage Eng'g Corp., 311 B.R. 320, (Bankr.D.Mass.2004). 25. Surprisingly few cases have construed this language, but those that have make it evident that it is a high hurdle to clear. According to the Fifth Circuit, section 328(a) requires the bankruptcy court... [to] determine[ ] whether developments, which made the approved fee plan improvident, had been incapable of anticipation at the time the award was approved. See In re Barron, 325 F.3d 690, 693 (5th Cir.2003). For example, simply because the size and scope of a settlement had not actually been anticipated, it does not follow that it was incapable of anticipation. See id. at Similarly, the fact that contingency fees may appear excessive in retrospect is not a ground to reduce. In re Gilbertson, No. 06-C-610, 2007 WL , at *5 (E.D.Wisc. Feb. 4, 2007). 26. Throughout the pendency of this dispute, WMILT has only made two arguments as to why the payment of the Contingency Fee is improvident: (1) Grant Thornton s absence following the passing of Mr. Ryan; and (2) FTB s rejection of the Treasury Interest Issue, which, according to WMILT precluded Grant Thornton from being entitled to receive the Contingency Fee. As for the first argument, the death of Steve Ryan could be anticipated, as no person lives forever. As for the second argument, the Court has already ruled that the payment of the Contingency Fee was not conditioned on the FTB approving or agreeing with the merits of Grant Thornton s arguments. 10

11 Case MFW Doc Filed 03/24/16 Page 11 of To allow WMILT to conduct discovery into matters outside the issue of improvidence, would effectively permit WMILT to conduct a fishing expedition in the hopes of finding information relative to issues the Court has already ruled upon. Additionally, not limiting the scope of discovery to matters related to the improvidence issue would effectively permit WMILT to violate this Court s prior rulings. 28. Based upon the Court s prior rulings, and in light of WMILT s inability to demonstrate how the discovery it seeks pertains to any issue other than the meaning of the California Engagement Letter, the testimony sought by WMILT is neither relevant to any remaining issue in this case, nor is it admissible. 29. Unless and until the Court issues an Order limiting the scope of discovery consistent with its prior rulings, WMILT will continue to subject Grant Thornton to great annoyance, great burden and great expense by forcing Grant Thornton to continue to incur costs and fees in having to prepare for and attend depositions that are designed to elicit information not relevant to the remaining issue of improvidence. THE PAROL EVIDENCE RULES BARS WMILT FROM INTRODUCING ANY EXTRINSIC EVIDENCE TO INTERPRET THE CALIFORNIA ENGAGEMENT LETTER WHICH THIS COURT HAS ALREADY DETERMINED WAS NOT AMBIGUOUS 30. As discussed above, WMILT is refusing to limit the scope of discovery because it is attempting to gather information for the sole purpose of challenging the Court s prior rulings. In other words, WMILT is conducting discovery so as to have another bite at the apple and argue yet again, that the California Engagement Letter does not say what this Court has already determined it clearly says. 31. The California Engagement Letter is governed by and construed in accordance with the laws of the State of Illinois. (See page 5, paragraph 13(e) of Attachment A of 11

12 Case MFW Doc Filed 03/24/16 Page 12 of 14 California Engagement Letter, attached as Exhibit 1 to the OSC Motion). Many cases have been decided in Illinois regarding the use of parol evidence. Under Illinois black letter law, traditional contract interpretation principles require that: [a]n agreement, when reduced to writing, must be presumed to speak the intention of the parties who signed it. It speaks for itself, and the intention with which it was executed must be determined from the language used. It is not to be changed by extrinsic evidence. Western Illinois Oil Co. v. Thompson, 26 Ill.2d 287, 291, 186 N.E.2d 285 (1962). This approach is sometimes referred to as the four corners rule. See, e.g., URS Corp. v. Ash, 101 Ill.App.3d 229, 234, 56 Ill.Dec. 749, 427 N.E.2d 1295 (1981). 32. In applying this rule, a court initially looks to the language of a contract alone. See Rakowski v. Lucente, 104 Ill.2d 317, 323, 84 Ill.Dec. 654, 472 N.E.2d 791 (1984) (stating that both the meaning of a written agreement and the intent of the parties is to be gathered from the face of the document without assistance from extrinsic evidence). If the language of the contract is facially unambiguous, then the contract is interpreted by the trial court as a matter of law without the use of parol evidence. Farm Credit Bank v. Whitlock, 144 Ill.2d 440, 447, 163 Ill.Dec. 510, 581 N.E.2d 664 (1991). It is only when a court first finds that a contract is ambiguous -- i.e., that it is susceptible to more than one meaning -- that a court may admit parol evidence to aid in resolving the ambiguity. Whitlock, 144 Ill.2d at The Illinois Supreme Court in Air Safety, Inc. v. Teachers Realty Corp., 185 Ill.2d 457, 706 N.E.2d 882 (1999) confirmed that the four corners rule of contract interpretation remains the law in Illinois. The Court in Air Safety, Inc. recognized that some lower Illinois courts have applied the so-called provisional admission approach whereby a party may still proffer parol evidence to the trial judge for the purpose of showing that an ambiguity exists in a facially unambiguous agreement, which ambiguity can be found only by looking beyond the 12

13 Case MFW Doc Filed 03/24/16 Page 13 of 14 clear language of the contract. Under this method, an extrinsic ambiguity exists when someone who knows the context of the contract would know if the contract actually means something other than what it seems to mean. However, the Illinois Supreme Court expressly rejected the application of a provisional admission in instances where the contract at issue contains an explicit integration clause. Air Safety, Inc., 185 Ill.2d Here, the Court has found that the California Engagement Letter is not ambiguous as a matter of law. Any discovery sought by WMILT seeking to create an ambiguity where none exists is impermissible. Even if WMILT were to argue that the provisional admission approach somehow applies, such evidence is inadmissible in light of the California Engagement Letter s explicit integration clause. (See page 5, paragraph 13(h) of Attachment A to the California Engagement Letter, which was attached as Exhibit 1 to the OSC Motion). Thus, based on this Court s clear ruling that the California Engagement Letter is not ambiguous, and in light of the integration clause in the California Engagement Letter, any parol evidence WMILT would seek to introduce to challenge the plain meaning of the California Engagement Letter would be irrelevant and inadmissible. Insignia/Frain Camins & Swartchild v. Querrey & Harrow, Ltd., 36 F.Supp.2d 1051, 1055 (N.D. IL. 1999), citing Hammel v. Ruby, 139 Ill.App.3d 241, 93 Ill.Dec. 742, 487 N.E.2d 409, 413 (1985). 35. Although the California Engagement Letter is governed by Illinois law, the parol evidence rule also applies in other states. Specifically, as discussed by this Court in In re WorldCorp, Inc., 252 B.R. 890, (Bankr. D. Del. 2000), according to the parol evidence rule, if the parties have reduced their agreement to writing, no evidence of any prior oral or written agreement may be offered to contradict, vary, add to or subtract from the terms of the writing. Id., citing, In re Uni-Rty Corp., 191 B.R. 595, 597 (Bankr.S.D.N.Y.1996). 13

14 Case MFW Doc Filed 03/24/16 Page 14 of Given that WMILT s intent is to obtain discovery that is irrelevant and inadmissible, there is good cause to issue a protective order limiting the scope of further discovery in this case to those matters specifically related to the issue of improvidence. CONCLUSION 37. WMILT is wasting significant resources by bull-headedly insisting on pursuing legal theories which the Court has already clearly rejected. Its motivation is clear -- WMILT has run out of ways to try and justify why it has refused to comply with this Court s Order requiring payment of Grant Thornton s Contingency Fee. But enough is enough. This Court can and should rule that further discovery in this case must be limited to the narrow issue of improvidence and thereby save the parties needless time and expense delving into unrelated matters. Date: March 24, 2016 CROSS & SIMON, LLC By: /s/ Joseph Grey Joseph Grey (ID 2358) 1105 North Market Street, Suite 901 Wilmington, DE (320) jgrey@crosslaw.com and Ian S. Landsberg, Esq. Casey Z. Donoyan, Esq. LANDSBERG LAW, APC 280 South Beverly Drive, Suite 504 Beverly Hills, CA (310) ian@landsberg-law.com casey@landsberg-law.com Attorneys for Grant Thornton, LLP 14

15 Case MFW Doc Filed 03/24/16 Page 1 of 2 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE x : In re: : Chapter 11 : WASHINGTON MUTUAL, INC., et al., 1 : Case No (MFW) : : (Jointly Administered) Debtors. : : Hearing Date: April 11, 2016 at 3:00 p.m. : Objection Deadline: April 6, 2016 at 4:00 p.m. : (By Agreement) x NOTICE OF GRANT THORNTON LLP S MOTION FOR PROTECTIVE ORDER LIMITING THE SCOPE OF DISCOVERY PLEASE TAKE NOTICE that on March 24, 2016, Grant Thornton LLP ( Grant Thornton ) filed Grant Thornton LLP s Motion for Protective Order Limiting the Scope of Discovery (the Motion ) with the United States Bankruptcy Court for the District of Delaware (the Bankruptcy Court ). PLEASE TAKE FURTHER NOTICE that objections, if any, to the Motion must be filed on or before April 6, 2016 at 4:00 p.m. (the Objection Deadline ) with the Bankruptcy Court, 824 North Market Street, 3 rd Floor, Wilmington, Delaware At the same time, you must serve a copy of the response upon the undersigned counsel to the Grant Thornton so as to be received on or before the Objection Deadline. 1 The Debtors in these chapter 11 cases along with the last four digits of each Debtor s federal tax identification number are: (i) Washington Mutual, Inc. (3725); and (ii) WMI Investment Corp. (5395). The principal offices of WMI Liquidating Trust are located at 1201 Third Avenue, Suite 3000, Seattle, Washington

16 Case MFW Doc Filed 03/24/16 Page 2 of 2 PLEASE TAKE FURTHER NOTICE that a hearing on the Motion will be held on April 11, 2016 at 3:00 p.m. before the Honorable Mary F. Walrath at the Bankruptcy Court, 824 North Market Street, 5 th Floor, Courtroom No. 4, Wilmington, Delaware PLEASE TAKE FURTHER NOTICE THAT IF YOU FAIL TO PROPERLY FILE AND SERVE A RESPONSE ON OR BEFORE THE OBJECTION DEADLINE, THE COURT MAY GRANT THE RELIEF REQUESTED IN THE MOTION WITHOUT FURTHER NOTICE OR HEARING. Dated: March 24, 2016 Wilmington, Delaware CROSS & SIMON, LLC /s/ Joseph Grey Joseph Grey (No. 2358) 1105 North Market Street, Suite 901 Wilmington, DE Telephone: (302) Facsimile: (302) jgrey@crosslaw.com - and - Ian S. Landsberg, Esq. Casey Z. Donoyan, Esq. ECOFF LANDSBERG, LLP 280 South Beverly Drive, Suite 504 Beverly Hills, CA Telephone: (310) Facsimile: (310) ian@ecofflandsberg.com donoyan@ecofflandsberg.com Attorneys for Grant Thornton LLP 2

17 Case MFW Doc Filed 03/24/16 Page 1 of 3 EXHIBIT 1

18 Case MFW Doc Filed 03/24/16 Page 2 of 3 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE x : In re: : Chapter 11 : WASHINGTON MUTUAL, INC., et al., 1 : Case No (MFW) : : (Jointly Administered) Debtors. : : : Re: Docket No x ORDER ON GRANT THORNTON LLP S MOTION FOR PROTECTIVE ORDER LIMITING THE SCOPE OF DISCOVERY Upon the Motion of Grant Thornton LLP ( Grant Thornton ) for Protective Order Limiting the Scope of Discovery in this action (the Motion ), finding that due notice of the Motion was given under the circumstances, and after consideration of the arguments made for and against the Motion, the Court having found that good cause exists for the relief requested in the Motion, IT IS ORDERED, that 1. The Motion is hereby GRANTED. 2. Pursuant to Rules 7026(c) and 9014(c) of the Federal Rules of Bankruptcy Procedure and Rule of the Local Rules of Bankruptcy Practice and Procedure of the United States Bankruptcy Court for the District of Delaware, the WMI Liquidating Trust is hereby precluded from engaging in further discovery with respect to Grant Thornton s Motion for an Order to Show Cause Why Sanctions Should not be Imposed Against Washington Mutual 1 The Debtors in these chapter 11 cases along with the last four digits of each Debtor s federal tax identification number are: (i) Washington Mutual, Inc. (3725); and (ii) WMI Investment Corp. (5395). The principal offices of WMI Liquidating Trust are located at 1201 Third Avenue, Suite 3000, Seattle, Washington

19 Case MFW Doc Filed 03/24/16 Page 3 of 3 Liquidating Trust for Failure to Comply with the Court s Final Fee Order by Failing and Refusing to Pay Approved Professional Fees (the OSC Motion ) [Docket No ] which is not reasonably related to the sole remaining issue left to be determined with respect to the OSC Motion, namely, whether the terms and conditions of the California Engagement Letter (as defined in the OSC Motion) have proven to have been improvident in light of developments not capable of being anticipated at the time the California Engagement Letter was approved by this Court. See, 11 U.S.C. 328(a). 3. The Court further finds that the WMI Liquidating Trust is further and specifically precluded from taking further discovery relating to extrinsic evidence of the intent of the parties to, or their interpretation of, the California Engagement Letter. Dated: April, 2016 The Honorable Mary F. Walrath United States Bankruptcy Judge 2

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107 Case MFW Doc Filed 03/24/16 Page 1 of 1 CERTIFICATION OF COUNSEL PURSUANT TO LOCAL RULE (d) I, Joseph Grey, hereby certify pursuant to Rule (d) of the Local Rules of The United States Bankruptcy Court for the District of Delaware that I am Delaware counsel for Grant Thornton, LLP and that a reasonable effort has been made to reach agreement with counsel for the WMI Liquidating Trust concerning the matters set forth in the attached Motion for Protective Order Limiting the Scope of Discovery. Unfortunately, the parties were unable to reach agreement on the proper scope of discovery, thus necessitating the Motion. /s/ Joseph Grey Joseph Grey (DE Bar 2358)

108 Case MFW Doc Filed 03/24/16 Page 1 of 1 CERTIFICATE OF SERVICE I, Joseph Grey, hereby certify that on this 24 th day of March, 2016, and in addition to the service provided under the Court s CM/ECF system, I caused copies of Grant Thornton, LLP s Motion for Protective Order Limiting the Scope of Discovery to be served on the parties listed below by United States first class mail. Marcos A. Ramos, Esq. Cory D. Kandestin, Esq. Andrew M. Dean, Esq. RICHARDS, LAYTON & FINGER, P.A. One Rodney Square 920 North King Street Wilmington, Delaware Brian S. Rosen, Esq. WElL, GOTSHAL & MANGES LLP 767 Fifth Avenue New York, New York /s/ Joseph Grey Joseph Grey (No. 2358)