UNITED STATES BANKRUPTCY COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION In re: ENERGY CONVERSION DEVICES, INC., et al., 1 Debtors. Chapter 11 Case No. 12-43166 (Jointly Administered) Judge Thomas J. Tucker TRUSTEE S FIRST DISCOVERY REQUESTS TO SOLAR INTEGRATED TECHNOLOGIES GMHB John Madden, solely in his capacity as the trustee of the Energy Conversion Devices Liquidation Trust (the Trustee ), by and through its attorneys, Honigman Miller Schwartz and Cohn LLP, and pursuant to Federal Rules of Civil Procedure 33, 34, and 36, as made applicable to this contested matter by Federal Rules of Bankruptcy Procedures 7033, 7034, and 7036, submits the following discovery requests to Solar Integrated Technologies GMBH ( SIT GMBH ). I. Definitions 1. 2006 Supply Agreement means that Supply and Cooperation Agreement between United Solar Ovonic LLC and SIT, Inc., dated September 28, 2006. 2. 2008 Supply Agreement means that Supply and Cooperation Agreement between United Solar Ovonic LLC and SIT, Inc., dated April 28, 2008. 3. Any means each and every as well as any one. 4. Communication or communications means any oral or written expression, statement, or utterance of any nature whatsoever, by and to whomever made. A 1 The Debtors in these jointly-administered cases are Energy Conversion Devices, Inc. (Case No. 12-43166) and United Solar Ovonic LLC (Case No. 12-43167). 12-43166-tjt Doc 2028 Filed 08/07/13 Entered 08/07/13 14:27:36 Page 1 of 21
communication if in writing is a type of document, and thus any request for documents includes a request for communications. Further, communication and communications shall be construed coextensively with document and documents so that a request for either shall be a request for anything discoverable under the Federal Rules of Civil Procedure. 5. Contradict means to detract from, make less likely, oppose, cast doubt upon, impugn, or controvert in any way. 6. Describe in detail means: (a) Describe fully by reference to underlying facts rather than by reference to ultimate facts or conclusions of fact or law; (b) (c) Where applicable, particularize as to (i) time; (ii) place; and (iii) manner; Where applicable, identify any persons that engaged in actions or conduct described, made statements or representations described, or played a role in the development of the facts described; and (d) Set forth all relevant facts necessary to the complete understanding of the act, allegation, process, event, or thing in question. 7. Document or documents means anything discoverable under the Federal Rules of Civil Procedure and includes, without limitation, all written or graphic communications and all written or graphic matter of every kind and description however produced or reproduced, whether draft or final, original or reproduction, internal or otherwise, including, but not limited to, delivery tickets, order forms, purchase orders, letters, correspondence, memoranda, internal or otherwise, minutes, notes (whether typed or handwritten), films, recordings of any type, transcripts, contracts, memoranda of telephone conversations, personal conversations or meetings, diaries, desk calendars, telegrams, circulars, pamphlets, manuals, statements, notices, 2 12-43166-tjt Doc 2028 Filed 08/07/13 Entered 08/07/13 14:27:36 Page 2 of 21
reports, telexes, interoffice or intraoffice communications, minutes of meetings, reports, studies, books or records of accounts, bank account records, checks, bank drafts, invoices, requisitions, microfilms, movies, slides, photographs, data stored in any computer media, CD, DVD, computer runs or printouts, e-mails, voicemails, text messages, SMS messages, instant messages, tabulations, charts, guides, outlines, summaries, abstracts, plans, drawings, specifications, blueprints, graphs, studies, drafts and/or non-identical copies of any one or more of the foregoing or material similar to any of the foregoing, however denominated and by whomever prepared and to whomever addressed. 8. French Litigation is the matter of SAS Lauden Energy v. SAS Urbasolar and SA FM Logistic, et al., Commercial Court of Paris Case Nos. 2009/044809, 2009/061035, 2010003177, including, without limitation, any investigations undertaken prior to or in connection with such proceeding. 9. Includes and including shall be construed to mean without limitation. 10. Person or persons means any natural person, governmental body, governmental agency, corporation, general or limited partnership, joint venture, or any other form of business organization. 11. Proof of Claim means the proof of claim filed by SIT GMBH on or about June 20, 2012, and assigned proof of claim number 531 by Kurtzman Carson Consultants LLC. 12. Purchase Agreement means that certain Purchase Agreement between Charles L. Wells, III, the Trustee for the Chapter 7 Bankruptcy Estate of SIT, Inc. and ECCOSS GmbH, dated January 15, 2013. 3 12-43166-tjt Doc 2028 Filed 08/07/13 Entered 08/07/13 14:27:36 Page 3 of 21
13. PV Products or PV Product means, collectively and individually, the photovoltaic laminates sold to SIT, Inc. by USO pursuant to the 2006 Supply Contract and 2008 Supply Contract that SIT, Inc. or SIT GMBH incorporated into the SolarRoof Membranes. 14. Objection means the Debtors Objection to Solar Integrated Technologies GMBH s claim (docket no. 531), as may be amended. 15. Refer, referring, and referred shall be construed in their broadest sense and mean and include setting forth, reflecting, discussing, containing, or mentioning. 16. Relate to, related to, and relating to shall be construed in their broadest sense and shall mean consist of, refer to, reflect on, arise out of, or be in any way or manner legally, factually, or logically connected with the matter discussed. 17. Response means the Response to Liquidation Trustee s Objection to Solar Integrated Technologies GMBH s Claim No. 531(docket no. 1942). 18. Settlement Agreement means the Settlement and Release Agreement dated November 6, 2012, among the Energy Conversion Devices Liquidation Trust and SIT GMBH and others. 19. SIT, Inc. means Solar Integrated Technologies, Inc. (and any predecessor thereof), any of its subsidiaries (and any predecessors thereof), directors, officers, employees, affiliates, representatives, advisors, agents, attorneys, associates, or any person acting on behalf of or in concert with it, including, without limitation, Charles L. Wells, III, as Trustee for the Chapter 7 Bankruptcy Estate of SIT, Inc. 20. SolarRoof Membranes or SolarRoof Membrane means, collectively and individually, the roofing membranes into which SIT GMBH incorporated the PV Products. 4 12-43166-tjt Doc 2028 Filed 08/07/13 Entered 08/07/13 14:27:36 Page 4 of 21
21. USO means United Solar Ovonic LLC (and any predecessor thereof), any of its subsidiaries (and any predecessors thereof), directors, officers, employees, affiliates, representatives, advisors, agents, attorneys, associates, or any other person acting on its behalf. 22. You or your means SIT GMBH and any person acting on behalf of or in concert with it. 23. As used here, the singular includes the plural and the plural includes the singular; the conjunctive includes the disjunctive and the disjunctive includes the conjunctive; the masculine includes the feminine and the feminine includes the masculine; and the present tense includes the past tense and the past tense includes the present tense so as to bring within the scope of these requests all responses that might otherwise be construed to be outside of their scope. 24. The use of a verb in one tense shall be construed as use of the verb in all other tenses. 25. And and or as used in and/or shall be construed either disjunctively or conjunctively as necessary to bring within the scope of these requests all responses that might otherwise be construed to be outside of their scope. 26. Capitalized terms used but not defined here have the meanings given them in the Objection. II. Instructions A. Form of Production of Electronically Stored Information The Trustee requests, in accordance with Federal Rule of Civil Procedure Rule 34(b)(1)(C), that SIT GMBH produce electronically stored information ( ESI ) as searchable PDFs. B. Instructions for Responding to Requests for Production of Documents 5 12-43166-tjt Doc 2028 Filed 08/07/13 Entered 08/07/13 14:27:36 Page 5 of 21
1. Documents attached to each other must not be separated. 2. Where a claim of privilege is asserted in responding or objecting to any of these requests, and any documents are not provided on the basis of such assertion: (a) The attorney asserting the privilege shall in the response or objection to the request identify the nature of the privilege or immunity that is being claimed and if the privilege is being asserted in connection with a claim or defense governed by state law, indicate the state s privilege rule being invoked; and (b) The following information shall be provided in the response or objection: (i) the type of document, e.g., e-mail, letter, or memorandum; (ii) general subject matter of the document; (iii) the date of the document; (iv) the author, addressee, and any other recipient of the document, specifically identifying any attorneys, and, where not apparent, the relationship of the author, addressee, and any other recipient to each other. 3. All of the requests shall be deemed continuing so as to require further and supplemental production if you obtain or become aware of additional documents between the time of initial production until this matter is resolved. 4. These requests are not intended to be duplicative. Responsive documents that have already been produced need not be produced again. 5. In answering the requests, if you claim that there is any ambiguity in either a particular request or in an applicable definition or instruction, such claim shall not be a basis for refusing to respond, but you shall set forth as part of your response the language deemed to be ambiguous and the interpretation chosen or used in responding to the particular request. 6 12-43166-tjt Doc 2028 Filed 08/07/13 Entered 08/07/13 14:27:36 Page 6 of 21
6. Each definition, instruction, and request shall be construed independently and not by reference to any other definition, instruction, or request for the purpose of limitation, unless otherwise indicated. 7. Selection of documents from files and other sources and the numbering of such documents shall be performed in such a manner as to ensure that the source of each document may be determined, if necessary. File folders with tabs or labels or directories of files identifying documents called for by these requests must be produced intact with such documents. 8. If you contend that it would be unreasonably burdensome to obtain and provide all of the documents requested in any request for production of documents (or any subsection thereof), you should: (a) Produce all documents available to you without undertaking what you contend to be an unreasonable burden; (b) State with particularity the grounds that you contend support your allegation that the additional efforts to obtain the documents in question would be unreasonably burdensome; and (c) Describe with particularity the efforts you made to secure such documents, including, but not limited to, identifying persons consulted, describing files, records and documents reviewed, and identifying each person who participated in the gathering of such information, specifying with regard to each the amount of time spent and nature of work done. C. Instructions for Responding to Interrogatories 1. Each interrogatory is continuing. If you obtain other information that would add to or alter your responses, please produce that additional or different information immediately. 7 12-43166-tjt Doc 2028 Filed 08/07/13 Entered 08/07/13 14:27:36 Page 7 of 21
2. If any portion of these interrogatories cannot be answered in full, please answer to the extent and in the manner possible, using an estimate if detailed records are not available, and specifying if an estimate, rather than exact figures or statements, has been used. 3. If a privilege is claimed as a ground for refusing to answer any interrogatory or refusing to reveal any information responsive to any interrogatory, describe the basis for claiming the privilege in sufficient detail to permit the party serving this discovery to understand the claim and, if necessary, to allow the Court to adjudicate the validity of the claim. At a minimum, the following information should be disclosed: (a) A brief description of the type and content of each such communication, whether oral or written; (b) (c) The date of the communication and, if written, the document s title; and The name, occupation and position of the communication s initiator(s) and all addressee(s) and recipient(s), as well as any person(s) who was made aware of its content. 4. If you contend that it would be unreasonably burdensome to obtain and provide all of the information requested in any interrogatory you should: (a) Set forth all such information as is available to you without undertaking what you contend to be an unreasonable burden; (b) State with particularity the grounds that you contend support your allegation that the additional efforts to obtain the information in question would be unreasonably burdensome; and (c) Describe with particularity the efforts you made to secure such information including, but not limited to, identifying persons consulted, describing files, 8 12-43166-tjt Doc 2028 Filed 08/07/13 Entered 08/07/13 14:27:36 Page 8 of 21
records and documents reviewed, and identifying each person who participated in the gathering of such information, specifying with regard to each the amount of time spent and nature of work done. 5. If the answer to an interrogatory (or any part thereof) is not known or available, include a statement to that effect and furnish any information known or available. 6. Whenever there is a request in these interrogatories to identify a person, or for the identity of a person, please state, as to such person, the following information: (a) If a natural person: (i) (ii) (iii) (iv) His or her full name; His or her occupation, business, or profession; His or her present employer and title; His or her employer and title at the time of the actions at which each interrogatory is directed; (v) His or her last known business address, telephone number, and mobilephone number; and (vi) His or her last known home address, telephone number, and mobile-phone number. (b) If other than a natural person: (i) (ii) (iii) (iv) Its full name; The type of business in which it is engaged; The last known address and telephone number of its principal office; and The type of entity (e.g., corporation, partnership, etc.). D. Instructions for Responding to Requests for Admission 1. If you object to a request, you must state the reasons for your objection. 9 12-43166-tjt Doc 2028 Filed 08/07/13 Entered 08/07/13 14:27:36 Page 9 of 21
2. Each answer must specifically admit or deny the matter or set forth in detail the reasons why you cannot truthfully admit or deny the matter. 3. A denial must fairly meet the substance of the requested admission, and when good faith requires that you qualify your answer or deny only a part of the matter of which an admission is requested, you must specify so much of it as is true and qualify or deny the remainder. 4. You may not give lack of information or knowledge as a reason for failure to admit or deny unless you state that you have made reasonable inquiry and that the information known or readily obtainable by you is insufficient to enable you to admit or deny. 5. You may not object that a request asks for the application of law to fact. 6. If you consider that a matter of which an admission has been requested presents a genuine issue for trial you may not, on that ground alone, object to the request; you may, subject to the provisions of Federal Rule of Civil Procedure 37(c), deny the matter or set forth reasons why you cannot admit or deny it. 10 12-43166-tjt Doc 2028 Filed 08/07/13 Entered 08/07/13 14:27:36 Page 10 of 21
III. Requests for Documents 1. All documents and communications that relate or refer to or tend to support or contradict the facts, claims, denials, or objections to the Proof of Claim stated in the Objection. 2. All documents and communications that relate or refer to or tend to support or contradict the facts, claims, denials, or defenses to the Objection stated in your Response. 3. All documents and communications that relate or refer to or tend to support or contradict any information or statements in the Proof of Claim. 4. All documents and communications that you consulted or reviewed in connection with preparing your Response. 5. All documents and communications that you consulted or reviewed in connection with preparing your Proof of Claim. 6. Any documents relating to the sale and purchase of PV Products or Solar Membranes by SIT GmbH from SIT, Inc., including supply contracts and POs, that were sold to Urbasolar. 11 12-43166-tjt Doc 2028 Filed 08/07/13 Entered 08/07/13 14:27:36 Page 11 of 21
7. All documents and communications between SIT, Inc. and SIT GMBH relating or referring to negotiations, discussions, representations, or statements regarding the alleged PV Product defects or warranty claims. Urbasolar SA. 8. All documents relating or referring to your sale of SolarRoof Membranes to 9. The 2006 Supply Agreement and 2008 Supply Agreement, and all drafts, amendments, and extensions thereof. 10. All discoverable documents and communications that you provided to or received from any potential witness (expert or lay) in this contested matter. 11. All documents and communications that you received from or provided to any party in connection with the French Litigation. 12 12-43166-tjt Doc 2028 Filed 08/07/13 Entered 08/07/13 14:27:36 Page 12 of 21
12. The resume and/or curriculum vitae of each person who may provide expert testimony in this contested matter. 13. All documents and communications that SIT GMBH will use or is likely to use in the trial of this contested matter. 14. All documents and communications that SIT GMBH will use or is likely to use in the French Litigation. 15. All documents and communications that you referred to, consulted, or relied upon in connection with your responses to any discovery requests served upon you in this matter including, without limitation, document requests and interrogatories. 16. All documents and communications that evidence, refer, refute, or relate to statements made with respect to the subject matter of this contested matter by any person who may be called as a witness at any trial of this action. 13 12-43166-tjt Doc 2028 Filed 08/07/13 Entered 08/07/13 14:27:36 Page 13 of 21
17. All documents and communications that support, refute, or otherwise relate to your answers to any requests for admission served upon you in this matter. 18. All documents referring or relating to the design or other defects in the PV Products upon which you base the warranty claims against USO. 19. All documents evidencing warranty claims by your customers against you related to the PV Products. 20. All documents evidencing warranty claims by your customers against you related to the SolarRoof Membranes. 21. All documents relating or referring to your investigation of the alleged failures or defects in the PV Products, including laboratory or other test results confirming the failures. 22. All documents and communications relating to any investigation relating to the alleged PV Product defects or warranty claims. 14 12-43166-tjt Doc 2028 Filed 08/07/13 Entered 08/07/13 14:27:36 Page 14 of 21
23. All documents and communications relating to any investigation relating to the alleged SolarRoof Membrane defects or warranty claims. 24. All documents and communications between SIT GMBH and Urbasolar SA relating or referring to negotiations, discussions, representations or statements regarding the alleged PV Product defects or warranty claims. 15 12-43166-tjt Doc 2028 Filed 08/07/13 Entered 08/07/13 14:27:36 Page 15 of 21
IV. Interrogatories 1. Identify, in conformance with the instructions above, all persons who have knowledge or who are believed to have knowledge relating to any of the allegations, claims, defenses, facts, or other matters asserted in this contested matter, including, but not limited to, in the Proof of Claim, Objection, or Response. 2. For each person identified in response to Interrogatory No. 1, describe in detail (a) the substance of the facts of which each person has knowledge or is believed to have knowledge, (b) when and how the knowledge was obtained, and (c) all documents and communications relating to or evidencing the person s knowledge. 3. Identify, in conformance with the instructions above, all persons who have knowledge or who are believed to have knowledge relating to any of the allegations, claims, defenses, facts, or other matters asserted related to USO s warranty obligations to SIT GMBH under the 2006 Supply Agreement or 2008 Supply Agreement. 4. For each person identified in response to Interrogatory No. 3, describe in detail (a) the substance of the facts of which each person has knowledge or is believed to have knowledge, (b) when and how the knowledge was obtained, and (c) all documents and communications relating to or evidencing the person s knowledge. 16 12-43166-tjt Doc 2028 Filed 08/07/13 Entered 08/07/13 14:27:36 Page 16 of 21
5. Identify, in conformance with the instructions above, all persons who have knowledge or who are believed to have knowledge relating to any of the allegations, claims, defenses, facts, or other matters asserted related to the French Litigation. 6. For each person identified in response to Interrogatory No. 5, describe in detail (a) the substance of the facts of which each person has knowledge or is believed to have knowledge, (b) when and how the knowledge was obtained, and (c) all documents and communications relating to or evidencing the person s knowledge. 7. Describe in detail the manufacturing process for producing the SolarRoof Membranes, which are the subject of the French Litigation, including, but not limited to, incorporating the PV Products into the SolarRoof Membranes. 8. Identify, in conformance with the instructions above, each expert witness who will or who is likely to testify on your behalf, describe the subject matter about which each expert is expected to testify, and describe in detail the substance of the facts and opinions to which each such person is expected to testify. 17 12-43166-tjt Doc 2028 Filed 08/07/13 Entered 08/07/13 14:27:36 Page 17 of 21
9. Describe in detail all facts and documents that relate to or tend to support or contradict your Response. 10. State the serial number and date of purchase for each PV Product purchased from SIT, Inc. for which you seek recovery of a warranty or other claim. 11. Describe in detail the basis for USO s alleged warranty obligations to SIT GMBH under the 2008 Supply Agreement. 12. Describe in detail any payments or compensation you have received from any source related to the failures of the SolarRoof Membranes. 13. As part of the discovery in this case, you have been, or will be, served with Requests for Admission, and may be served with additional Requests for Admission in the future. If you provide anything other than an unqualified admission to any part of a Request for Admission, describe in detail all facts and documents that relate to or tend to support or contradict each such response. 18 12-43166-tjt Doc 2028 Filed 08/07/13 Entered 08/07/13 14:27:36 Page 18 of 21
V. Requests for Admission 1. Admit that the 2008 Supply Agreement replaced and superseded the 2006 Supply Agreement in all respects. 2. Admit that SIT GMBH is not party to any contract with USO for the purchase or sale of PV Products. 3. Admit that SIT GMBH did not purchase any PV Products from USO. 4. Admit that SIT GMBH purchased the PV Products from SIT, Inc. 5. Admit that SIT GMBH s only basis for the claims asserted in the Proof of Claim is the warranty provisions of the 2008 Supply Agreement. 6. Admit that the warranty provisions of the 2006 Supply Agreement were replaced and superseded in their entirety by the warranty provisions of the 2008 Supply Agreement. 19 12-43166-tjt Doc 2028 Filed 08/07/13 Entered 08/07/13 14:27:36 Page 19 of 21
7. Admit that the USO warranty for PV Products under the 2008 Supply Agreement extends only to SIT, Inc. 8. Admit that pursuant to the Purchase Agreement, you released all claims you had against SIT, Inc., other than the claims specifically described in paragraph 5.b. of the Purchase Agreement. 9. Admit that the French Litigation will not result in any claims against SIT GMBH related to the PV Panels. Honigman Miller Schwartz and Cohn LLP Counsel for John Madden, solely in his capacity as the Trustee of the Energy Conversion Devices Liquidation Trust By: /s/seth A. Drucker Aaron M. Silver (P65481) Seth A. Drucker (P65641) 2290 First National Building 660 Woodward Avenue Detroit, Michigan 48226 Telephone: (313) 465-7560 Dated: August 7, 2013 Facsimile: (313) 465-7561 asilver@honigman.com 20 12-43166-tjt Doc 2028 Filed 08/07/13 Entered 08/07/13 14:27:36 Page 20 of 21
Certificate of Service I certify that on August 7, 2013, I electronically filed with the Clerk of the Court using the ECF system, which will send notification of such filing to all ECF participants, and also served the foregoing document via email on Rodney M. Glusac at rodg@brgpc.com and by firstclass mail to Rodney M. Glusac, Bernardi, Ronayne & Glusac, P.C., 1058 Maple Street, Suite 100, Plymouth, MI 48187. Honigman Miller Schwartz and Cohn LLP Counsel for John Madden, solely in his capacity as the Trustee of the Energy Conversion Devices Liquidation Trust By: /s/seth A. Drucker Aaron M. Silver (P65481) Seth A. Drucker (P65641) 2290 First National Building 660 Woodward Avenue Detroit, Michigan 48226 Telephone: (313) 465-7560 Dated: August 7, 2013 Facsimile: (313) 465-7561 asilver@honigman.com ACTIVE\12839522.5 21 12-43166-tjt Doc 2028 Filed 08/07/13 Entered 08/07/13 14:27:36 Page 21 of 21