Opinion
Case No. 01-16034 (AJG), Jointly Administered.
June 20, 2005
Luc A. Despins (LD 5141), Matthew S. Barr (MB 9170), Paul D. Malek (PM 8574), MILBANK, TWEED, HADLEY McCLOY LLP, New York, NY, Attorneys to Reorganized Debtors.
Paul D. Malek (PM 8574), Attorneys for EPC Estate Services, Inc. and Enron Corp., MILBANK, TWEED, HADLEY McCLOY, LLP.
Jason Blumberg, NY Bar No. 113581033, Frederick P. Corbit, WSBA No. 10999, HELLER EHRMAN LLP, Attorneys for Coyote Springs 2, LLC.
This Stipulation and Consent Order (the "Stipulation") is entered into by and between Enron Corp. ("Enron") and EPC Estate Services, Inc. ("EPC" and together with Enron, the "Enron Parties"), two of the Reorganized Debtors in the above-captioned case, on the one hand, and Coyote Springs 2, LLC ("CS2" and, together with the Enron Parties, the "Parties" and each a "Party"), on the other hand.
WHEREAS, commencing on December 2, 2001, and periodically thereafter, Enron and certain of its affiliates each filed a voluntary petition for relief under chapter 11 of title 11 of the United States Code, 11 U.S.C. §§ 101- 1330 (as amended, the "Bankruptcy Code") in the United States Bankruptcy Court for the Southern District of New York (the "Bankruptcy Court"), which chapter 11 cases have been procedurally consolidated for administrative purposes only;
WHEREAS, on or about October 15, 2002, CS2 filed a proof of claim (No. 13030) against CS2 ("Claim 13030") and a proof of claim (No. 13040) ("Claim 13040" and, together with Claim 13030, the "Claims") against Enron;
WHEREAS, on March 7, 2005, the Enron Parties filed that certain Objection Of Enron Corp. and EPC Estate Services, Inc. to Proofs Of Claim No. 13030 And 13040 Filed By Coyote Springs 2, LLC Pursuant To Claims Estimation Procedures (Estimation Objection Number 29) (the "Objection") (Docket No. 24133);
WHEREAS, on April 8, 2005, CS2 filed a statement in support of its request to opt-out (Docket No. 25066) of the procedures (the "Estimation Procedures") provided in this Court's Order, dated February 14, 2004, Pursuant To Sections 105(A), 363(B) And 502(C) Of The Bankruptcy Code And Federal Rules Of Bankruptcy Procedure 3018, 7042, And 9019, (1) Establishing Procedures To Estimate Unliquidated And Contingent Claims, (2) Establishing Procedures To Estimate Counterclaims, (3) Establishing Procedures To Compromise Claims And Counterclaims And (4) Fixing Notice Procedures And Approving Form And Manner Of Notice (the "Estimation Order") with respect to the Claims, the Objection, and the hearing related thereto, all as set forth herein;
WHEREAS, the Parties desire to extend certain deadlines and modify certain other procedures provided for by the Estimation Order;
WHEREAS, the Parties desire to establish a schedule for discovery relating to the Claims; and
WHEREAS, this Stipulation contains the terms agreed to by the Parties with respect to (1) the modification of response and hearing dates and other provisions of the Estimation Procedures with respect to the Claims and the Objection and (2) a schedule for the Parties to provide Discovery Material.
NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED by the undersigned, subject to the Bankruptcy Court's approval, as follows:
A. Modification of Estimation Procedure Deadlines
1. Capitalized terms used but not otherwise defined in this Stipulation shall have the respective meanings given in the Estimation Order.
2. The deadline for CS2 to file its Statement of Claim shall be July 22, 2005, with no additional 15-day grace period.
3. The deadline for Enron to file a Statement of Position, if it chooses to do so, shall be August 19, 2005 (with no additional grace period).
4. To the extent any Party desires to arrange a discovery conference or conferences with the Bankruptcy Court (which conference(s) may be telephonic or in-person) in accordance with Section F of the Estimation Order, such Party (or both Parties) may request that the Court conduct such a discovery conference or conferences at any time prior to October 28, 2005.
5. The Discovered Evidence that may be submitted to the Bankruptcy Court pursuant to Section F of the Estimation Order shall not exceed twenty (20) pages, not including exhibits attached thereto, and shall be delivered no later than ten (10) days prior to the Estimation Hearing.
6. Without first conducting discovery and completing depositions, the Parties do not know for sure if live testimony will be required at the Estimation Hearing and do not know how much time should be allotted for the Estimation Hearing. If a Party subsequently concludes that that live witnesses are needed at the Estimation Hearing, they must serve and file notice of their desire to have live witnesses at the hearing on or before October 7, 2005. If no such notice is given: (a) the Estimation Hearing shall be held on October 27, 2005, or as soon thereafter as a hearing may occur; (b) each Party shall have forty-five (45) minutes to explain its position to the Bankruptcy Court; and (c) CS2 will proceed first with its presentation at the Estimation Hearing, but may reserve up to fifteen (15) minutes of its allotted time for rebuttal. If a Party timely serves and files notice that live testimony is desired at the Estimation Hearing, and the Parties cannot enter into another stipulation approved by this Court on how the Estimation Hearing will be conducted, the unresolved issues related to how the Estimation Hearing will be conducted, including whether live witnesses will be allowed, the amount of time allowed for argument, and the date for the Estimation Hearing, will be decided by this Court at a hearing held on October 27, 2005, or as soon thereafter as a hearing may occur.
7. Except as specifically provided in this Stipulation, the provisions of the Estimation Procedures as set forth in the Estimation Order shall remain unmodified with respect to the Claim and the Objection.
B. Discovery Schedule
8. The Parties agree that through prior cooperative exchange of documents and position statements, each has satisfied its Initial and Mandatory Disclosure requirements as set forth in Section E of the Estimation Order.
9. On or before September 2, 2005, the Parties may propound written discovery requests to each other. Such requests may include up to twenty (20) interrogatories, ten (10) requests for admissions and ten (10) requests for production of documents or things, and shall be narrowly tailored and specifically related to the Claims and the Objection. To the extent that the existence of additional relevant documents becomes apparent, either through reviewing documents already produced, in the course of depositions, or otherwise, the Parties will be allowed to request such additional documents as needed. Responses to the additional document and information requests shall be due thirty (30) days after service of such request. If any documents are withheld on grounds of privilege, the withholding Party shall include a privilege log its response.
10. On or before September 9, 2005, the Parties shall exchange lists (the "Testimony List") of the names of persons that may be called to testify (including any offer of proof to be made with respect to such person) and/or provide a written affidavit or declaration at the Estimation Hearing. Each Party shall be entitled to take one deposition of each person on the other Party's Testimony List, provided that such depositions shall be limited to three (3) hours in length and shall take place in a location that is convenient for the deponent. The parties shall work together in trying to schedule the depositions at mutually agreeable times, but in the event of a disagreement all notices of depositions shall be served with seven (7) days minimum notice. The Parties shall cooperate in establishing a workable deposition schedule and make diligent effort to conduct all depositions so that they are completed on or before October 7, 2005. Each Party is required to provide counsel for the other Party the documents it intends to use at the deposition four (4) business days in advance of deposition.
C. Miscellaneous
11. Modification. This Stipulation shall be without prejudice to the right of any party to apply to the Bankruptcy Court for a modification of this Stipulation or such further protective order as justice may require. Notwithstanding the foregoing, the parties to this Stipulation may agree by written agreement to modify any of the terms and/or obligations herein.
12. Bankruptcy Court Approval. This Stipulation is expressly subject to and contingent upon its approval by the Bankruptcy Court. Any violation of this Stipulation shall constitute a violation of an Order of the Bankruptcy Court and be punishable as such. If this Stipulation, or any portion hereof, is not approved by the Bankruptcy Court or if it is overturned or modified on appeal, this Stipulation shall be of no further force and effect, and, in such event, neither this Stipulation nor any negotiations and writings in connection with this Stipulation shall in any way be construed as or deemed to be evidence of or an admission on behalf of any Party hereto regarding any claim or right that such Party may have against any other party hereto.
13. Non-Severability. The provisions of this Stipulation are mutually interdependent, indivisible and non-severable.
14. Counterparts; Effective Date. This Stipulation may be executed in one or more counterparts and by facsimile, all of which shall be considered one and the same agreement, and shall become effective when one or more such counterparts have been signed by each of the Parties and delivered to all Parties, and the Bankruptcy Court has approved and entered the Stipulation on the docket of the Bankruptcy Court. The provisions of this Stipulation, including, without limitation, the confidentiality provisions herein, shall, absent further order of the Bankruptcy Court, continue to be binding throughout and after the conclusion of these proceedings, including without limitation any appeals.
15. Retention of Jurisdiction. The Bankruptcy Court shall retain exclusive jurisdiction to interpret, implement and enforce the provisions of this Stipulation, and the Parties hereby consent to exclusive jurisdiction of the Bankruptcy Court with respect thereto. The Parties waive arguments of lack of personal jurisdiction or forum non-conveniens with respect to the Bankruptcy Court.
SO ORDERED.