Opinion
Case No. 302-00979, Jointly Administered.
June 18, 2003.
William L. Norton, III, Boult, Cummings, Conners Berry, Plc, Nashville, TN, and James M. Peck, David M. Hillman, Schulte Roth Zabel LLP., New York, New York, Co-Counsel for Foothill Capital Corporation, Ableco Finance LLC and Regiment Capital II, L.P.
Craig Gabbert, Harwell, Howard, Hyne Gabbert Manner, P.C., Nashville, TN, and Joel M. Walker, Philip J. Uher, Buchanan Ingersoll, Professional Corporation, Pittsburgh, PA, Attorneys for Debtors.
Randal S. Mashburn, Baker, Donelson, Bearman Caldwell, P.C. Nashville, TN, and Charles R. Gibbs, Keith M. Aurzada, Akin Gump Strauss Hauer Feld, L.L.P., Dallas, TX, Attorneys for Committee.
STIPULATION AND ORDER REGARDING CONFIRMATION DISCOVERY
WHEREAS:
A. On January 24, 2002 (the "Petition Date"), the above-captioned Debtors filed voluntary petitions with this Court under chapter 11 of the Bankruptcy Code. Pursuant to Bankruptcy Code §§ 1107(a) and 1108, the Debtors continue to manage their respective properties as debtors in possession. On February 5, 2002, the United States Trustee appointed an Official Committee of Unsecured Creditors (the "Committee") in Pen Coal Corp.'s case.
B. On February 7, 2003, the Debtors and Committee commenced an adversary proceeding (Case No. 303-0078A) by filing a complaint (the "Complaint") against Ableco Finance LLC, Foothill Capital Corporation and Regiment Capital II, L.P. (collectively, the "Lenders") seeking, among other things, to avoid certain alleged fraudulent transfers and to determine the allowed amount of the Lenders' secured claim (the "Claim Proceeding"). On March 14, 2003, the Lenders filed an answer to the complaint and a third-party complaint alleging fraud and misrepresentation by the Debtors' officers and directors (the "Third Party Claims").
C. On May 2, 2003, the Lenders filed the "Separate Disclosures for the Lender Group's Plan of Reorganization" and the "First Amended Plan of Reorganization by the Lender Group" (the "Lender Plan").
D. On May 15, 2003, the Debtors and Committee filed the "Separate Disclosures for the Plan of Reorganization filed by the Debtors and [Committee] as Co-Plan Proponents" and the "Plan of Reorganization Filed by the Debtors and the [Committee] as Plan Proponents" (the "D/CC Plan").
E. Subject to the Court's approval, the Debtors, Committee and the Lenders have agreed to the following procedures and discovery schedule in connection with confirmation of the D/CC Plan and the Lender Plan (together, the "Plans").
IT IS HEREBY, stipulated and agreed between the Debtors, the Committee and Lenders (collectively, the "Parties"), as follows:
1. Discovery Deadlines. All discovery (fact and expert) related to Plan confirmation shall be completed by July 11, 2003. The periods for written discovery under Federal Rules of Bankruptcy Procedure 7031, 7033, 7034, 7035 and 7036 served after the date of this Stipulation shall be shortened to 10 days. Discovery requests by letter, fax or e-mail are authorized.
2. Responses to Lenders' Document Discovery. The Debtors and Committee shall use their reasonable best efforts to provide the Lenders with an initial production of documents by no later than 5:00 p.m. (Central Time) on June 10, 2003 in response to the "Lenders' First Request for Production of Documents . . . Concerning Plan Confirmation," dated May 23, 2003 (the "Lenders Document Request"). All other documents responsive to the Lenders' Documents Request and responses/objections shall be delivered so as to be received by the Lenders' counsel by no later than 5:00 p.m. (Central Time) on June 16, 2003.
3. Responses to Lenders' Interrogatories. The Debtors and Committee shall respond to the Lenders' First Set of Interrogatories . . . Concerning Plan Confirmation," dated May 23, 2003," by no later than 5:00 p.m. (Central Time) on June 16, 2003.
4. Responses to Committee's Discovery Requests. The Lenders shall produce documents and otherwise respond/object to the Committees "Second Set of Interrogatories and Request for Production of Documents," dated June 3, 2003 by no later than 5:00 p.m. (Central Time) on June 18, 2003.
5. Witness Lists. The Parties shall exchange a preliminary list of witnesses that they respectively intend to call at the hearing to consider confirmation of the Plans by no later than 5:00 p.m. (Central Time) on June 10, 2003. The witness list shall conform to Local Rule 7026-2. Nothing in this Order shall limit the parties' ability to call rebuttal witnesses at the confirmation hearing. The parties shall supplement their witness list and designate any rebuttal witnesses known to them on or before July 3, 2003 no later than 5:00 p.m. (Central Time).
6. Depositions. The Parties shall, on or before June 12, 2003, meet and confer (telephonically) to schedule the dates, times and locations for the depositions of those persons identified in (a) the Lenders' "Notice of Deposition . . . in Connection with Plan Confirmation," dated May 23, 2003 and (b) the notices of deposition served by the Debtors and/or Committee, which must be served so as to be received by no later than June 10, 2003. If the Parties are unable to agree on deposition dates, any Party may request that the Court resolve the dispute in the manner set forth in paragraph 12 below.
7. Expert Reports. The Parties shall exchange expert reports in accordance with Fed.R.Civ.Proc. 26(a)(2) and Local Rule 7026-1(b)(1)(iii) by no later than 5:00 p.m. (Central Time) on June 20, 2003. Expert discovery shall commence on June 23, 2003.
8. Stipulated Facts. The Parties shall meet and confer (telephonically) by no later than June 20, 2003 to prepare a joint statement of undisputed facts (the "Joint Statement"). A Joint Statement shall be filed by no later than July 9, 2003.
9. Confirmation Briefs. All briefs in opposition to Plan confirmation shall be served and filed by 5:00 p.m. (Central Time) July 14, 2003. All briefs in support of Plan confirmation and responding to oppositions shall be served and filed by 5:00 p.m. (Central Time) on July 21, 2003.
10. Claim Proceeding. The Claim Proceeding shall be expedited and consolidated with proceedings to consider confirmation of the Plans; provided however that the Third Party Claims asserted by Lenders against third party defendants William E. Beckner, Stephen G. Capelli, Joseph A. Davis, Jr., Mark A. Oldham and Bradley O'Shoney shall not be expedited and consolidated with the confirmation proceedings.
11. Exchange of Exhibits and Deposition Designations. The Parties shall exchange trial exhibits and designations of deposition testimony by no later than 9:00 am (Central Time) on July 22, 2003.
12. Discover Disputes. Counsel for the Parties shall resolve all discovery disputes by negotiation in good faith. In the event that the Parties are unable to resolve a discovery dispute themselves, any Party may request that the Court resolve the discovery dispute by conference call, without submission of papers. The Court will schedule the conference call subject to its availability.
13. Modification. All dates set forth herein may be modified by further Court order or by written agreement among the Parties.
14. Docketing. This order shall be docketed in the main bankruptcy case (Case No. 302-00979) and in the Claim Proceeding (Case No. 303-0078A).
SO ORDERED.