Opinion
Case No. 01-16034 (AJG), (Jointly Administered).
August 5, 2003.
Patrick L. Hayden (PH 9716) MCGUIREWOODS LLP, 9 West 57th Street, Suite 1620, New York, New York 10019-2602, Charles Wm. McIntyre (Virginia State Bar No. 27480), MCGUIREWOODS LLP, 1750 Tysons Boulevard, Suite 1800, McLean, Virginia 22102, Counsel to KPMG LLP.
Craig E. Freeman, Thelen Reid Priest LLP, 875 Third Avenue, New York, New York 10022, Counsel for Harrison J. Goldin, Examiner.
David S. Cohen, Esq., Milbank, Tweed, Hadley McCloy LLP, 1 Chase Manhattan Plaza, New York, New York 10005, Counsel for the Official Committee of Unsecured Creditors.
Melanie Gray (pro hac vice), Weil, Gotshal Manges LLP, 700 Louisiana, Suite 1600, Houston, Texas 77002 and Weil, Gotshal Manges LLP, 767 Fifth Avenue, New York, New York 10153, Counsel for the Debtors
WHEREAS, by Order entered on July 10, 2003, Harrison J. Goldin, the Enron North America Corp. Examiner (the "ENA Examiner"), was authorized to issue a subpoena (the "Subpoena") for documents to KPMG LLP ("KPMG") pursuant to F.R.Bankr.P. 2004.
WHEREAS, on July 14, 2003, KPMG filed and served its responses and objections to the Subpoena (the "KPMG Response").
WHEREAS, KPMG and the ENA Examiner have resolved the issues raised in the KPMG Response, reserving certain issues as agreed between KPMG and the ENA Examiner, which issues may be brought before this Court at a later date for resolution, if necessary.
WHEREAS, the ENA Examiner, the Official Committee of Unsecured Creditors (the "Creditors Committee") and the Debtors have stipulated pursuant to paragraph 18 of the First Amended Order Governing the Production and Use of Confidential Material Among the Enron Corp. Examiner, the Enron North America Examiner, the Official Committee of Unsecured Creditors, the Debtors and Non-Parties dated June 2, 2003 (the "Confidentiality Order") to a modification of that Order. The Confidentiality Order is hereby modified, as it pertains to KPMG as a Non-Party Producer and to the ENA Examiner, the Official Committee of Unsecured Creditors and the Debtors as follows:
(1) At the end of Paragraph 6(b) the following shall be added: and that, at least five (5) business days before such proposed disclosure, such expert or consultant, and the firm with which he or she is affiliated or employed, is disclosed to the Non-Party Producer, and provided further no written objection to such disclosure is made to the Requesting Party by the Non-Party Producer within two (2) business days before the proposed disclosure. In the event objection is made, no disclosure shall be made until such objection has been resolved by agreement or by this Court;
(2) Documents produced by KPMG in response to the ENA Examiner subpoena and designated as "Highly Confidential" shall be reviewed only by the ENA Examiner, by employees of the ENA Examiner, by counsel for the ENA Examiner, by counsel for the Creditors Committee and by counsel for the Debtors, provided, however, that counsel for the ENA Examiner, counsel for the Creditors Committee or counsel for the Debtors may provide copies of documents designated by KPMG as "Highly Confidential" to any other person or parties only upon at least five (5) business days written notice to KPMG, and provided further that no written objection to such disclosure is made by KPMG within two (2) business days before such proposed disclosure. In the event an objection is raised to either (i) KPMG's designation of any document as "Highly Confidential", or (ii) any further disclosure by counsel for the ENA Examiner, counsel for the Creditors Committee or counsel for the Debtors as described in the preceding sentence, then no further disclosure of such designated documents shall be made until such objection is resolved by agreement or by this Court. Nothing herein shall prevent the undersigned parties from presenting copies of documents designated as "Highly Confidential" to the Court under seal or to current employees of KPMG in the course of a deposition.
IT IS SO ORDERED.