UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE

Transcription

1 UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re Chapter 11 WASHINGTON MUTUAL, INC., et al., 1 Case No (MFW) (Jointly Administered) Debtors. CLAIMANT ANDREW ESCHENBACH S REQUEST FOR PRODUCTION OF DOCUMENTS FROM AND INTERROGATORIES DIRECTED TO DEBTORS Pursuant to Federal Rules of Civil Procedure 26 and 34, applicable hereto pursuant to Federal Rules of Bankruptcy Procedure 7026, 7034, and 9014, and Local Rule 7026 of the United States Bankruptcy Court for the District of Delaware, Andrew Eschenbach ( Claimant ) hereby requests that Washington Mutual, Inc. ( WMI ) within thirty (30) days of the date hereof, (i) produce, by either electronic or hand delivery, 2 the following requested documents (each such request, a Request for Production ) and (ii) respond to the following interrogatories (each, an Interrogatory, and, together with the Requests for Production, the Discovery Request ). INSTRUCTIONS 1. The terms used in these Requests for Production and Interrogatories are to be given their most expansive and inclusive interpretation unless otherwise expressly limited in a specific request. This includes, without limitation, the following a. construing and and or in the disjunctive or conjunctive as necessary to make a request more inclusive; 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 Debtors principal offices are located at 1301 Second Avenue, Seattle, Washington All responses to this Discovery Request should be directed to the Claimant s counsel, Lichtsinn & Haensel, s.c., 111 East Wisconsin Avenue, Suite 1800, Milwaukee, Wisconsin (Attention Michael J. Bennett, Esq.).

2 b. construing the singular form of a word to include the plural and the plural to include the singular; e. construing the term among to mean between or among; d. construing the term any to mean any, all, each, and every; e. construing masculine, feminine, or neuter pronouns to include other genders; and vice-versa. f. construing the present tense of a verb to include its past tense and 2. If any of the following Interrogatories or Requests for Production cannot be answered in full, answer or respond to the extent possible, specifying the reason for your inability to answer or respond to the remainder and stating what information and knowledge you have concerning the unanswered portion. If your answers are qualified, please set forth the details of such qualifications. 3. In the event you claim that any information responsive to these Requests for Production or Interrogatories is beyond the scope of permissible discovery, specify in detail ail the grounds on which such claim rests. 4. Pursuant to Federal Rule of Civil Procedure 33(b)(3), made applicable hereto pursuant to Bankruptcy Rule 7033, you must answer each Interrogatory separately, fully, and under oath. 5. Pursuant to Federal Rule of Civil Procedure 34(b)(2)(B), made applicable hereto pursuant to Bankruptcy Rule 7034, you must answer each Request for Production by stating that production will be made or inspection will be permitted. 6. Pursuant to Federal Rule of Civil Procedure 26(b)(5), made applicable hereto pursuant to Bankruptcy Rule 7026, you must identify in your response any documents or information you refuse to produce on the basis of any privilege, exemption, or immunity, together with information sufficient to permit the Debtors to make a determination as to whether you have a proper basis for refusing to produce the document. In doing so, the following information should be supplied in writing a. that information responsive to the request has been withheld; b. identify the request to which the information or material relates; c. state the privileges asserted; and d. describe the nature of the documents, communications, or tangible things not produced or disclosed. 7. The Requests for Production and Interrogatories are continuing in nature, and you must supplement or correct your answers in accordance with Federal Rule of Civil Procedure 26(e)(l). 2

3 8. Documents responsive to the Requests for Production are to be made available in their present condition and as they are kept in the ordinary course of business or labeled to identify the specific Request to which they pertain. 9. The Requests for Production and Interrogatories are intended to cover all information in your possession, custody, or control whether directly or indirectly. Information is deemed to be within your possession, custody, or control if (a) it is within your actual knowledge or possession; or (b) it is within the possession of any other person or entity and you have the right to obtain the documents from such person or entity. DEFINITIONS As used herein the following terms will have the stated meanings 1. And and or shall be construed either disjunctively or conjunctively so as to bring within the scope of the request all information that might otherwise be construed to be outside its scope. 2. The term any includes the word all and vice versa; and each includes the word ail and vice versa. 3. Bankruptcy Court means the United States Bankruptcy Court for the District of Delaware in which the Debtors' chapter 11 cases are currently pending. 4. Change in Control Agreement means that certain Change in Control Agreement, dated as of July 9, 2007, between Claimant and WMB. 5. Claim shall refer to Proof of Claim Numbered 557, filed by Claimant on or about January 1, Claimant means Andrew Eschenbach, an individual. 7. Claim Objection Hearing means any hearing to be held before the Bankruptcy Court with respect to the Debtors' objection, filed on June 26, 2009, to the Claim, 8. Communication means the transmittal of information (in the form of facts, ideas, inquiries, or otherwise). 9. Concerning and concern mean, in whole or in part, directly or indirectly, referring to, relating to, connected with, commenting on, responding to, pertaining to, showing, describing, analyzing, reflecting, or constituting. 10. Date means the exact date, month, and year, if ascertainable, or if not, the best available approximation. 11. Documents shall mean all written, graphic, or printed matter of any kind, however produced or reproduced, including, but not limited to, all originals, drafts, working papers and nonidentical copies, whether different from the originals by reason of any notation made on such copies 3

4 or otherwise, and all electronic, mechanical, or optical records or representations of any kind or other data compilations from which information can be obtained, or translated, if necessary, by the responding party or others through detection devices into reasonable usable form. The term documents includes any document or electronically stored information as that phrase is used in FRCP 34(a)(l)(A). 12. Evidencing and evidence mean to describe, mention, constitute, or refer to, directly or indirectly, in whole or in part, the subject matter referred to in the request. 13. Person means any natural person, corporation, partnership, association, joint venture, firm, or other business enterprise or legal entity. 14. WMB means Washington Mutual Bank and any related companies, predecessors-ininterest, partners, wholly or partially owned subsidiaries, divisions, past or present affiliated corporations, officers, directors, employees, agents, and all other persons or entities that have acted or that are acting on WMB's behalf (but specifically excluding the Debtors). 15. Relating to and relates to mean, without limitation, embodying, evidencing, mentioning, memorializing, refuting, constituting, containing, describing, reflecting, identifying, stating, concerning, or otherwise referring to, directly or indirectly, in whole or in part, the subject matter requested. 16. You or your means Debtors. REQUESTS FOR PRODUCTION Based upon and in accordance with the Definitions and Instructions set forth above, and incorporating them by reference herein, the Debtors request that Claimant respond to the following Requests for Production REQUEST FOR PRODUCTION 1 Produce all documents that you expect to present, rely on, introduce into evidence or refer to at the Claim Objection Hearing. REQUEST FOR PRODUCTION 2 Produce all documents upon which you intend to rely and that evidence a Change in Control (as defined in the Change in Control Agreement) occurred or did not occur. REQUEST FOR PRODUCTION 3 Produce the entire personnel employment file of Andrew Eschenbach. REQUEST FOR PRODUCTION 4 Produce all s and communications between Andrew Eschenbach, WMI, and WMB, or any officer or employee thereof, on the one hand, and you, on the other hand, that relate to or concern Claimant s employment. 4

5 INTERROGATORIES Based upon and in accordance with the Definitions and Instructions set forth above, and incorporating them by reference herein, the Debtors request that Claimant respond to the following Interrogatories INTERROGATORY 1 Identify each person involved in any manner in the preparation of your responses to these Discovery Requests. INTERROGATORY 2 Identify all witnesses, including any experts, who you may call to testify at the Claim Objection Hearing. INTERROGATORY 3 Identify all documents or other materials that you intend to introduce into evidence at the Claim Objection Hearing. INTERROGATORY 4 Identify all persons who participated in the drafting, negotiations, approval and/or execution of the Change in Control Agreement. INTERROGATORY 5 Please identify the approximate number of full-time employees on July 9, 2007, at a. WMI b. WMB c. WMI Investment Dated Milwaukee, Wisconsin December 11, 2009 LICHTSINN & HAENSEL, S.C. Attorneys for Claimant Andrew J. Eschenbach /s/ Michael J. Bennett Michael J. Bennett (WI State Bar No ) Kathleen R. Dahlgren (WI State Bar No ) 111 East Wisconsin Avenue, Suite 1800 Milwaukee, WI Tel (414) Fax (414) mbennett@lhlawfirm.com kdahlgren@lhlawfirm.com 5

6 UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re Chapter 11 WASHINGTON MUTUAL, INC., et al., 1 Case No (MFW) (Jointly Administered) Debtors. NOTICE OF CLAIMANT ANDREW ESCHENBACH S REQUEST FOR PRODUCTION OF DOCUMENTS FROM AND INTERROGATORIES DIRECTED TO DEBTORS PLEASE TAKE NOTICE that on December 11, 2009, the Claimant Andrew Eschenbach ( Claimant ), filed the Request for Production of Documents from and Interrogatories Directed to Debtors (the Request ) with the United States Bankruptcy Court for the District of Delaware, 824 Market Street, 3rd Floor, Wilmington, Delaware (the Bankruptcy Court ). PLEASE TAKE FURTHER NOTICE that Claimant Debtors have thirty (30) days from the date hereof to respond to the Request. PLEASE TAKE FURTHER NOTICE that the Claimant has caused the Request to be served on counsel to the Debtors by first class mail and . 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 Debtors principal offices are located at 1301 Second Avenue, Seattle, Washington

7 Dated Milwaukee, Wisconsin December 11, 2009 LICHTSINN & HAENSEL, S.C. Attorneys for Claimant Andrew J. Eschenbach /s/ Michael J. Bennett Michael J. Bennett (WI State Bar No ) Kathleen R. Dahlgren (WI State Bar No ) 111 East Wisconsin Avenue, Suite 1800 Milwaukee, WI Tel (414) Fax (414)