Opinion
Case Nos. 08-18254, et al, (Jointly Administered Under Case No. 08-18254-JS).
November 13, 2008
Maria Ellena Chavez-Ruark (Bar No. 23941), Tydings Rosenberg LLP Baltimore, Maryland, Attorneys for Official Committee of Unsecured Creditors.
Joel I. Sher (Bar No. 00719), Shapiro Sher Guinot Sandler Baltimore, Maryland, Attorneys for Caruso Homes, Inc. and its related Debtors-in-Possession.
WHEREAS, on September 5, 2008, the Official Committee of Unsecured Creditors (the "Committee") filed a Motion for Order Pursuant to Bankruptcy Code Sections 105(a), 107(b) and 1102(b)(3)(A) Providing That Committee is Not Authorized or Required to Provide Access to Confidential or Privileged Information (the "Motion"). No party in interest filed an objection or other response to the Motion; and
WHEREAS Caruso Homes, Inc. and its related debtors-in-possession (collectively, the "Debtors") and the Committee believe that the relief requested in the Motion is in the best interests of the Debtors, their estates and their creditors;
Now therefore it is hereby agreed and stipulated by and between the Debtors and the Committee as follows:
1. For the purposes of this stipulation and Consent Order, the term "Confidential Information" shall mean any information concerning the Debtors' projections, analyses, compilations, studies and other documents similar in nature prepared by the Debtors or their advisors or other agents, which is furnished, disclosed or made known to the Committee, whether intentionally or unintentionally, and in any manner, including in written form, orally, or through any electronic, facsimile or computer-related communication. Confidential Information shall include (a) any notes, summaries, compilations, memoranda, or other written materials disclosing or discussing Confidential Information; (b) any written Confidential Information that is discussed or presented orally; and (c) any other Confidential Information conveyed to the Committee orally that the Debtors or their advisors or other agents advise the Committee should be treated as confidential. Notwithstanding the foregoing, Confidential Information shall not include any information or portions of information that: (i) is or becomes generally available to the public or is or becomes available to the Committee on a non-confidential basis, in each case to the extent that such information became so available other than by a violation of a contractual, legal or fiduciary obligation to the Debtors; or (ii) was in the possession of the Committee prior to its disclosure by the Debtors and is not subject to any other duty or obligation to maintain confidentiality.
2. For the purposes of this stipulation and Consent Order, the term "Privileged Information" shall mean any information subject to the attorney-client, work product or some other state, federal or other jurisdictional privilege law, whether such privilege is solely controlled by the Committee or is a joint defense, prosecution or other privilege with the Debtors or some other party.
3. The Committee and its members, counsel, advisors and other agents shall not be authorized or required, pursuant to Section 1102(b)(3)(A) of the Bankruptcy Code, to provide access to any Confidential Information or Privileged Information to any creditor it represents who is not a member of the Committee. Notwithstanding the foregoing, the Committee shall be permitted, but not required, in its sole and absolute discretion to provide access to privileged information to any party so long as such Privileged Information is not Confidential Information and the relevant privilege is held and controlled solely by the Committee.
4. Nothing in this stipulation and Consent Order shall expand, restrict, affirm or deny the right or obligation, if any, of the Committee to provide access or not to provide access, to any information of the Debtors to any party except as explicitly provided herein.
5. This Court shall retain jurisdiction to hear and determine all matters arising from or related to the implementation and/or interpretation of this stipulation and Consent Order, including but not limited to any request by a creditor that the Committee be required to disclose specific information to that creditor.
SO ORDERED.
Notice Recipients
Recipients of Notice of Electronic Filing: Recipients submitted to the BNC (Bankruptcy Noticing Center):
District/Off: 0416-1 User: jjohnson Date Created: 11/13/2008 Case: 08-18254 Form ID: pdfparty Total: 4 aty Alan M. Grochal agrochal@tydingslaw.com aty Joel I. Sher bankruptcy@shapirosher.com TOTAL: 2 db Caruso Homes, Inc. 1655 Crofton Boulevard, Suite 200 Crofton, MD 21114 Katherine Levin, Esquire US Trustee Office 101 West Lombard Street, Suite 2625 Baltimore, MD 21201 TOTAL: 2