Opinion
Case No. 01-16034 (AJG), Jointly Administered
February 27, 2003
CADWALADER, WICKERSHAM TAFT, New York, NY, Edward A. Smith (ES 2461), Joseph E. Field (JF 9238) and Mark C. Ellenberg (ME 6927) Washington, DC, Special Counsel to the Debtors
ORDER PURSUANT TO FEDERAL RULE OF BANKRUPTCY PROCEDURE 2004 DIRECTING EXAMINATION OF AND PRODUCTION OF DOCUMENTS BY THE CITY OF MESA, ARIZONA
Upon the motion of Enron North America Corp., Enron Power Marketing, Inc. and Enron Corp. as debtors and debtors in possession in the above-captioned case (collectively, the "Debtors") for an order pursuant to Rule 2004 of the Federal Rules of Bankruptcy Procedure ("Rule 2004"), directing the City of Mesa, Arizona (the "City of Mesa") to designate a corporate representative to submit to oral examinations and to produce documents (the "Motion"); and the City of Mesa having objected to the production of documents it received from bidders (the "Bidders") in response to its Request for Proposal dated January 29, 2002 that were designated as confidential (the "Bidder Documents") based on confidentiality concerns; and adequate and sufficient notice of the Motion having been provided to all parties in interest; and objections, if any, to the Motion having been overruled, settled or withdrawn; and sufficient cause appearing therefore, it is hereby
ORDERED that the Motion is granted in its entirety; and it is further
ORDERED that the Debtors are hereby authorized to issue a subpoena or other process to compel the production of documents and the attendance of a corporate representative of the City of Mesa to an oral examination; and it is further
ORDERED that the Debtors are authorized to serve the subpoena and schedule attached hereto as Schedule A upon the City of Mesa by service upon its counsel, Gerald L. Shelley, Quarles Brady Streich Lang LLP, One Renaisance Square, Two North Central Avenue, Phoenix, AZ 85004-2391 (fax no. 602-229-5690), by facsimile transmission by February 28, 2003 or within one business day after the entry of this Order, whichever is later; and it is further
ORDERED that, except for any documents withheld under a claim of privilege, the City of Mesa is directed to produce all responsive documents described in the attached subpoena and schedule by March 20, 2003 or within twenty days after the entry of this Order, whichever is later (the "Production Date"), except that if a Bidder files a motion in this Court before the Production Date in accordance with this Court's Second Amended Case Management Order Establishing, Among Other Things, Noticing Electronic Procedures, Hearing Dates, Independent Website and Alternative Method of Participating at Hearing, dated December 17, 2002 objecting to the production of any Bidder Documents on confidentiality grounds, then any document the production of which is objected to shall be withheld from production by the City of Mesa pending further order of this Court; and it is further
ORDERED that the City of Mesa shall produce all responsive documents (or copies thereof) at the offices of Holden Brodman PLC, 2425 E. Camelback Road, Suite 800, Phoenix, Arizona 85016; and it is further
ORDERED that the City of Mesa is directed to provide a privilege log in accordance with Rule 7026 of the Federal Rules of Bankruptcy Procedure by March 20, 2003 or within twenty days after the entry of this Order, whichever is later; and it is further
ORDERED that a representative of the City of Mesa is directed to submit to an oral examination upon reasonable notice, and in no event less than thirty (30) days from the date of issuance of a subpoena directed to such entity; and it is further
ORDERED that this Order shall be effective and enforceable immediately upon entry; and it is further
ORDERED that this Court retains jurisdiction to resolve any disputes arising under or related to this Order, including any discovery disputes that may arise between or among the parties, and to interpret, implement and enforce the provisions of this Order; and it is further
ORDERED that this Order is without prejudice to the rights of the Debtors to apply for further discovery of the City of Mesa, or of any other entity.
SCHEDULE A UNITED STATES BANKRUPTCY COURT DISTRICT OF ARIZONA
In re ENRON CORP., et al., SUBPOENA FOR RULE 2004 EXAMINATION
Debtors.
Case Number: 01-16034 (AJG) Chapter 11 Jointly Administered
In a case pending in the United States Bankruptcy Court for the Southern District of New York
TO: City of Mesa 640 North Mesa Drive P.O. Box 1466 Mesa, AZ 85211-1466 Attn: Clifford Cauthen
[ ] YOU ARE COMMANDED to appear and testify at an examination under Rule 2004, F.R.Bankr.P., at the place, date, and time specified below. A copy of the court order authorizing the examination is attached.
PLACE DATE AND TIME
[X] YOU ARE COMMANDED to produce and permit inspection and copying of the following documents or objects under Rule 2004, F.R.Bankr.P., at the place, date, and time specified below (list documents or objects). A copy of the court order authorizing this demand is attached.
See Attached Order and Schedule A of Requested Documents.
PLACE DATE AND TIME
Holden Brodman PLC 2425 E. Camelback Road, Suite 800 March ___, 2003 at 10:00 a.m. Phoenix, Arizona 85016 (602) 324-7800
Any organization not a party to this suit that is subpoenaed for the taking of a deposition shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify. Federal Rules of Civil Procedure, 30(b)(6), F.R.Bankr.P. 7030(b)(6).
ISSUING OFFICER SIGNATURE AND TITLE (INDICATE IF ATTORNEY FOR PLAINTIFF OR DATE DEFENDANT) Attorneys for Debtors February ___, 2003 ISSUING OFFICER'S NAME, ADDRESS AND PHONE NUMBER Michael Holden, Esq. Holden Brodman PLC 2425 E. CamelbackRoad, Suite 800 Phoenix, Arizona 85016 (602) 324-7800PROOF OF SERVICE
DATE PLACE
SERVED
SERVED ON (PRINT NAME) MANNER OF SERVICE
SERVED ON (PRINT NAME) TITLE
DECLARATION OF SERVER
I declare under penalty of perjury under the laws of the United States of America that the foregoing information is true and correct.
Executed on __________________ ____________________________________ DATE SIGNATURE OF SERVER
____________________________________ ADDRESS OF SERVER
Rule 45, Fed.R.Civ.P., Parts (c) (d) made applicable in cases under the Bankruptcy Code by Rule 9016, F.R.Bankr.P.
(c) PROTECTION OF PERSONS SUBJECT TO SUBPOENAS.
(1) A party or an attorney responsible for the issuance and service of a subpoena shall take responsible steps to avoid imposing undue burden or expense on a person subject to that subpoena. The court on behalf of which the subpoena was issued shall enforce this duty and impose upon the party or attorney in breach of this duty an appropriate sanction, which may include, but is not limited to, lost earnings and a reasonable attorney's fee.
(2)(A) A person commanded to produce and permit inspection and copying of designated books, papers, documents or tangible things, or inspection of premises need not appear in person at the place of production or inspection unless commanded to appear for deposition, hearing or trial.
(B) Subject to paragraph (d)(2) of this rule, a person commanded to produce and permit inspection and copying may, within 14 days after service of the subpoena or before the time specified for compliance if such time is less than 14 days after service, serve upon the party or attorney designated in the subpoena written objection to inspection or copying of any or all of the designated materials or of the premises. If objection is made, the party serving the subpoena shall not be entitled to inspect and copy the materials or inspect the premises except pursuant to an order of the court by which the subpoena was issued. If objection has been made, the parting serving the subpoena may, upon notice to the person commanded to produce, move at any time for an order to compel the production. Such an order to compel production shall protect any person who is not a party or an officer of a party from significant expense resulting from the inspection and copying commanded.
(3)(A) On timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if it
(i) fails to allow reasonable time for compliance;
(ii) requires a person who is not a party or an officer of a party to travel to a place more than 100 miles from the place where that person resides, is employed or regularly transacts business in person, except that, subject to the provisions of clause (c)(3)(B)(iii) of this rule, such a person may in order to attend trial be commanded to travel from any such place within the state in which the trial is held, or
(iii) requires disclosure of privileged or other protected matter and no exception or waiver applies, or
(iv) subjects a person to undue burden.
(B) If a subpoena
(i) requires disclosure of a trade secret or other confidential research, development, or commercial information, or
(ii) requires disclosure of an unretained expert's opinion or information not describing specific events or occurrences in dispute and resulting from the expert's study made not at the request of any party, or
(iii) requires a person who is not a party or an officer of a party to incur substantial expense to travel more than 100 miles to attend trial, the court may, to protect a person subject to or affected by the subpoena, quash or modify the subpoena or, if the party in whose behalf the subpoena is issued shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship and assures that the person to whom the subpoena is addressed will be reasonably compensated, the court may order appearance or production only upon specified conditions.
(d) DUTIES IN RESPONDING TO SUBPOENA.
(1) A person responding to a subpoena to produce documents shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the demand.
(2) When information subject to a subpoena is withheld on a claim that it is privileged or subject to protection as trial preparation materials, the claim shall be made expressly and shall be supported by a description of the nature of the documents, communications, or things not produced that is sufficient to enable the demanding party to contest the claim.
SCHEDULE A DEFINITIONS
As used herein, the following terms shall have the meanings set forth below:
1. "And" and "or" shall be construed either disjunctively or conjunctively as necessary to bring within the scope of the subpoena all responses that might otherwise be construed to be outside its scope.
2. "Any" includes "all" and vice versa.
3. "Agreement" shall mean any contract, agreement or mutual understanding whether written or oral, including any drafts, amendments and schedules.
4. "City" shall mean the City of Mesa, Arizona and all agents, employees, representatives or any person or entity acting on its behalf.
5. "Communications" shall mean the transmittal of information in the form of facts, ideas, inquiries or otherwise, whether orally or in writing or by any other means or medium.
6. "Concerning" means relating to, referring to, describing, evidencing or constituting.
7. "Document" shall have the broadest meaning permitted by the Federal Rules of Civil Procedure, the Federal Rules of Bankruptcy Procedure and the rules of this Court, and includes, without limitation, all originals, copies (if the originals are not available), non-identical copies (whether different from the original because of underlining, editing marks, notes made on or attached to such copy, or otherwise) and drafts of the following items, whether printed or recorded (through sound, video or other electronic, magnetic or digital recording system) or reproduced by hand, including, but not limited to, letters, correspondence, telegrams, telexes, memoranda, records, summaries of personal conversations or interviews, minutes or records or notes of meetings or conferences, note pads, notebooks, postcards, "Post-It" notes, stenographic notes, opinions or reports of financial advisors or consultants, opinions or reports of experts, projections, financial or statistical statements or compilations, contracts, agreements, appraisals, analyses, purchase orders, confirmations, publications, articles, books, pamphlets, circulars, microfilm, microfiche, reports, studies, logs, surveys, diaries, calendars, appointment books, maps, charts, graphs, bulletins, photostats, speeches, data sheets, pictures, photographs, illustrations, blueprints, films, drawings, plans, tape recordings, videotapes, disks, diskettes, compact disks, data tapes or readable computer-produced interpretations or transcriptions thereof, electronically transmitted messages ("e-mail"), voice mail messages, interoffice communications, advertising, packaging and promotional materials and any other writings, papers and tangible things of whatever description whatsoever, including, but not limited to any information contained in any computer, even if not yet printed out, within the City's possession, custody or control.
8. "EPMI" shall mean Enron Power Marketing, Inc. and its current or former subsidiaries, affiliates, subcontractors, agents, attorneys, advisors, directors, officers, employees, representatives or any person or entity acting on its behalf.
9. "Person" or "Persons" shall mean natural persons, proprietorships, corporations, partnerships, trusts, joint ventures, groups, associations, organizations, and all other entities.
10. All references to the singular in these definitions and requests shall be deemed to include the plural, and all references to the plural shall be deemed to include the singular.
11. All references to masculine gender shall be deemed to include the feminine and the neuter.
INSTRUCTIONS
A. The Documents requested herein are to be produced as they are kept in the usual course of business or organized and labeled to correspond to the numbered paragraphs and/or categories of particular requests. If there are no Documents responsive to a particular numbered paragraph and/or category, so state in writing.
B. For each Document responsive to the Requests, but withheld under a claim of privilege, the following information shall be provided:
(1) the nature of the privilege (including work product) which is being claimed and, if applicable, the state rule or law governing such claim;
(2) the identity of all Persons who have or have had access, or purport to have or have had access, to said Document;
(3) the type of Document;
(4) the general subject matter of the Document;
(5) the date of the Document;
(6) such information as is sufficient to identify the Document, including, where appropriate, the Document author(s), addressee(s), and where not apparent, the relationship between the author(s) and addressee(s).
C. All Documents produced in response to the Requests shall be provided in their entirety notwithstanding the fact that portions thereof may contain information not requested. All interim as well as final versions of the Document shall be produced, and all versions or copies that are not identical to the original or other produced copy of the Document, whether due to handwritten notations, modifications, changes, amendments, revisions or otherwise, shall be produced.
D. If any requested Document has been destroyed or discarded, or is no longer in existence, that Document is to be identified by stating:
(1) the information called for in Instruction "B" above;
(2) its date of destruction or discard;
(3) the manner and reason for its destruction or discard; and
(4) the identity of the Document's last custodian and of each Person responsible for the Document's destruction or unavailability.
E. If any requested Document was, but no longer is in the City's possession, state all circumstances of its disposition and whether any copy is in the possession, custody or control of some other Person and indicate why the Document or a copy cannot be produced.
F. Where anything has been deleted from a Document produced:
(1) specify the nature of the material deleted;
(2) specify the reason(s) for the deletion; and
(3) identify the Person(s) responsible for the deletion.
G. If any request herein cannot be complied with in full, it shall be complied with to the extent possible with an explanation as to why full compliance is not possible.
H. Unless otherwise stated, the scope of these requests are from the period from December 2, 2001 to the present.
DOCUMENTS REQUESTED
1. All documents concerning any request for proposal made by the City for the supply of power.
2. All responses to any request for proposal made by Pinnacle West Capital Corp., El Paso Merchant Energy, L.P., Coral, PNM, or any other entity.
3. All documents concerning any agreements between the City and AEP for the supply of power.
4. All documents concerning any payments made by AEP to the City.
5. All documents concerning any consideration that the City received from AEP in whatever form.
6. All documents concerning the location and amount of any funds received by the City from AEP.
7. All documents concerning any communications between the City and AEP.
8. All documents concerning any communications between the City and Pinnacle West Capital Corp., El Paso Merchant Energy, L.P., Coral, PNM or any other energy supply company.
9. All documents concerning the calculation of any early termination payment in connection with any agreements between the City and EPMI.
10. All documents concerning any escrow account established in connection with any agreements between the City and EPMI or any early termination payment to EPMI, including all interest accrued thereon.