Opinion
Case No. 02-13533 (AJG) (Jointly Administered)
May 13, 2003
Edward S. Weisfelner, Steven E. Greenbaum, BROWN RUDNICK BERLACK ISRAELS LLP, New York, New York, Counsel to the Ad Hoc MCI Trade Claims Committee.
Thorn Moers Mayer, Philip Bentley, James C. McCarroll, KRAMER LEVIN NAFTALIS FRANKEL LLP New York, NY, Counsel to the Dissenting MCI Bondholders.
Joseph S. Allerhand, Marcia L Goldstein, Lori R. Fife, New York, NY, and Alfredo R. Perez, Esq. WEIL, GOTSCHAL MANGES LLP, Houston, Texas, Attorneys for Debtors.
Daniel H. Golden, Ira S. Dizengoff, Douglas Maynard, Nancy Chung, New York, N.Y. AKIN GUMP STRAUSS HAUER LLP, Counsel to the Official Committee.
George Canellos, Jeffrey L. Nagel, New York, NY, MILBANK, TWEED, HADLEY McCLOY, Counsel to Cerberus Capital Management, L.P.
Brian M. Cogan, STROOCK STROOCK LAVAN LLP New York, NY, Counsel to MatlinPatterson Global Opportunities L.P. and MatlinPatterson Phoenix SPV LLC.
David Parker, KLEINBERG, KAPLAN, WOLFF COHEN, P.C. New York, NY, Counsel to Elliott Associates, L.P.
Robert J. Rosenberg, Walter P. Laughlin, LATHAM WATKINS LLP, New York, NY, Counsel to AOL Time Warner, Inc., and to Electronic Data Systems Corporation.
Robert J. White, Los Angeles, CA, O'MELVENY MYERS LLP, Attorney to ABN Amro Bank N.V. and to Deutsche Bank AG
Tina Niehold Moss, PRYOR, CASHMAN SHERMAN FLYNN LLP, New York, NY, Counsel to HSBC Bank USA, as Indenture Trustee.
Timothy R. Macdonald, Brian P. Leitch, Denver, CO; Kent Yalowitz, New York, NY, ARNOLD PORTER, Attorneys for Motorola, Inc.
Amy L. Barton, Allan J. Arffa, Alan W. Kornberg, Claudia R. Tobler, PAUL, WEISS, RIFKIND, WHARTON GARRISON LLP, New York, NY, Counsel for the Unofficial Committee of Noteholders of Intermedia Communications Inc.
David S. Rosner, Daniel N. Zinman, KASOWITZ, BENSON, TORRES FRIEDMAN LLP, New York, NY, Counsel to the Ad Hoc Committee of MCI Bondholders.
WHEREAS, the Ad Hoc MCI Trade Claims Committee ("Trade Committee") and twelve institutions holding MCI senior and subordinated bonds and referring to themselves in court submissions as "Dissenting MCI Bondholders" have filed papers in support of a Motion for the Appointment of a Chapter 11 Trustee for MCI Communications Corporation and its Subsidiaries, dated April 17, 2003 (the "Trustee Motion");
WHEREAS, in connection with the Trustee Motion, the Trade Committee and Dissenting MCI Bondholders have agreed to exchange discovery materials and information with WorldCom, Inc. and substantially all of its direct and indirect domestic subsidiaries, as Debtors in possession (collectively, the "Debtors"), the Official Committee of Unsecured Creditors ("Official Committee"), and individual creditors, ad hoc committees of creditors, and representatives of such creditors and/or ad hoc committees (collectively, the "Creditors");
WHEREAS, some of the material and information exchanged among the parties will be confidential and sensitive commercial, financial or business information, including information concerning the amount of securities of the Debtors held by various creditors;
WHEREAS, good cause exists for the entry of this Stipulation and Order Governing The Exchange And Use Of Discovery In Connection With The Ad Hoc MCI Trade Claims Committee's and Dissenting MCI Bondholders' Motion For Appointment of A Chapter 11 Trustee For MCI Communications Corporation And Its Subsidiaries (the "Stipulation and Order"); and
WHEREAS, the entry of this Stipulation and Order will promote the fair and expeditious resolution of the Trustee Motion;
IT IS HEREBY STIPULATED AND AGREED, by and between counsel for the parties to this Stipulation and Order, subject to the approval of the Court, that the following Stipulation and Order shall govern the handling of all documents, depositions, deposition exhibits, trial or hearing testimony and exhibits (and any other evidence produced at a trial, or hearing), and any other information or material produced, given or exchanged by and among the parties in connection with these proceedings, including any information derived therefrom (such information or material hereinafter referred to as "Confidential Material") by the parties to this Stipulation and Order (and any of their representatives) in any proceedings related to the Trustee Motion or in any other proceedings in these bankruptcy cases.
1. Any party producing material ("Producing Party") may designate any Confidential Material as "Confidential" under this Stipulation and Order if such party reasonably believes that such Confidential Material contains non-public, confidential, proprietary or commercially sensitive information. For purposes of this Stipulation and Order:
a. Confidential Material shall presumptively qualify as "Confidential" to the extent it contains non-public information relating to tax data, personnel, business information, personal financial information, trade secrets, proprietary technical information, customer lists, financial results or data, financial or business plans and strategies, projections or analyses, financial studies or analyses by internal or outside experts or consultants, competitive analyses, securities holdings information or other highly sensitive information.
b. The designation by any Producing Party of any Confidential Material as "Confidential" shall constitute a representation that such Confidential Material has been reviewed by an attorney for the designating party and that there is a good faith belief that such designation is valid.
2. Confidential Material shall be used solely in the above-captioned cases and shall not be used for any other purpose.
3. The designation of Confidential Material as "Confidential" for purposes of this Stipulation and Order shall be made as follows:
a. In the case of documents or other material (apart from depositions or other forms of testimony), by affixing the legend "Confidential" to the face of the first page document; provided that the failure to designate a document as "Confidential" does not constitute a waiver of such claim, and a Producing Party may so designate a document after such document has been produced upon discovery of an unintended failure to designate; and
b. In the case of depositions, other pre-trial or pre-hearing testimony, and trial or hearing testimony, (i) by a statement on the record by counsel that the testimony should be treated as "Confidential" or (ii) by written notice to the parties bound by this Stipulation and Order sent within seven (7) business days of receiving a copy of the transcript. The parties may modify this procedure for any particular deposition or testimony, through agreement on the record at such deposition or testimony, without further order by the Court.
4. Except as set forth in paragraph 5, Confidential Material designated as "Confidential" may be disclosed, summarized, described or otherwise communicated or made available in whole or in part to only the following persons:
a. Counsel who represents any party in connection with the above-referenced cases, including signatories hereto, and whose law firm has entered an appearance in the proceeding;
b. In-house counsel for any party in connection with the above-referenced cases if such in-house counsel is actively participating in the proceedings;
c. Witnesses or deponents and their counsel during the course of, and to the extent necessary, in preparation for depositions or testimony in connection with the above-referenced cases provided that any such person executes the Certification attached to this Stipulation and Order certifying that he or she has read and understands the terms of this Stipulation and Order and agree to be bound by it;
d. Experts or consultants assisting counsel in connection with the above-referenced cases, provided that such expert or consultant is using such Confidential Material solely in connection with these proceedings and further provided that any such person executes the Certification attached to this Stipulation and Order certifying that he or she has read and understands the terms of this Stipulation and Order and agrees to be bound by it;
e. Any person indicated on the document to be the author, addressee, or a copy recipient of the document;
f. The Court and its employees to the extent such material is filed with the Court in connection with the above-referenced cases;
g. Court reporters employed in connection with the above-referenced cases;
h. Any other person upon order of the Court or stipulation of the Producing Party.
5. Confidential Material, which is designated as "Confidential" and which constitutes a trade or proprietary secret, including, but not limited to, information or lists of a Producing Party's holdings in debt and/or claims of the Debtors, may only be disclosed, summarized, described or otherwise communicated or made available in whole or in part to those parties listed in paragraph 4 above upon the prior written consent of the Producing Party or upon a court order, unless such Confidential Material is being filed under seal with the court or handled pursuant to paragraph 6 below.
6. The parties to this Stipulation will work together to limit the disclosure of any Confidential Material at any public hearing or trial, or any other proceeding in connection with the above-referenced case. As such, any party to this Stipulation who intends to disclose any Confidential Material in such a setting must, before doing so (either at that public hearing, trial or proceeding or before): (i) inform the Producing Party that the party intends to disclose the Confidential Material, and (ii) collaborate with that Producing Party to limit, to the maximum extent possible, the amount of Confidential Material that will be disclosed, if at all, including treatment of the hearing transcript and/or exhibits containing Confidential Material.
7. All documents of any nature, including briefs and any attachments thereto containing Confidential Material and submitted for filing to the Court shall be filed under seal in accordance with the applicable rules of court and may be disclosed in public court proceedings only with the permission of the Producing Party or upon approval of the Court.
8. Entering into, agreeing to and/or producing or receiving Confidential Material or otherwise complying with the terms of this Stipulation and Order shall not (i) constitute an admission that any document designated Confidential contains or reflects trade secrets, (ii) prejudice in any way the rights of the parties to object to the production of documents, (iii) prevent the parties to this Stipulation and Order from agreeing to after or waive the provisions herein with respect to any particular Confidential Material, (iv) prejudice in any way the rights of any party to object to the admissibility, authenticity or use of any Confidential Material, (v) prejudice in any way the rights of a party to seek further protection or a determination by the Court whether any Confidential Material designated as Confidential should be subject to the terms of this Stipulation and Order.
9. This Stipulation and Order has no effect upon and does not apply to the Producing Party's use of its own Confidential Material for any purpose. Furthermore, nothing herein shall impose any restrictions on the use or disclosure by a party of documents or information designated as "Confidential" that has been obtained lawfully by such party independently and outside of these proceedings, including: (i) information which is or becomes generally available to the public other than as result of a disclosure by such party; (ii) information which the recipients reasonably can demonstrate was known to the recipients on a non-confidential basis prior to its disclosure to the recipients by the Producing Party; or (iii) information which becomes available to the recipients on a non-confidential basis from a source other than a Producing Party, provided that such source is not, to the recipients' knowledge, subject to any prohibition against transmitting such information.
10. In the event, any information subject to a claim of attorney-client privilege, attorney work product, or other ground upon which production should not have been made is nevertheless inadvertently produced, such production shall in no way prejudice or otherwise constitute a waiver of such privilege or objection. If a claim of inadvertent production is made with respect to documents or information then in the custody of another party, such party shall promptly return the information to the claiming party and the receiving party shall not use such information for any purpose other than in connection with a motion to compel production of such material (which motion shall be made under seal), and said motion shall not assert as a ground for production the fact or circumstances of the inadvertent production.
11. The parties to this Stipulation and Order agree to be bound by its terms pending the entry by the Court of this Stipulation and Order or a modified alternative satisfactory to all parties, and any violation of its terms prior to entry by the Court shall be subject to the same penalties and procedures as if this Stipulation and Order had been entered by the Court.
12. Upon final resolution of the above-referenced cases by a final order confirming a plan of reorganization of the Debtors or otherwise, and upon the written request of the Producing Party, the receiving party shall return to the Producing Party any Confidential Material that has been produced (and all copies, summaries and excerpts thereof) or destroy all such Confidential Material.
13. If any person receiving documents covered by this Stipulation and Order is subpoenaed or served with a document demand or equivalent in another action or proceeding and such subpoena or document demand or equivalent seeks Confidential Material that was produced and designated "Confidential" pursuant to the terms of this Stipulation and Order, the receiver of such subpoena, document request or equivalent must (i) give prompt written notice to those who produced or designated the material "Confidential" so that the Producing Party may seek an appropriate protective order and/or waive the receiving party's compliance with the provisions of this Agreement, and (ii) refrain from producing such Confidential Material that has been designated as "Confidential" until receiving written notice from the Producing Party that there is no objection to such production or obtaining court resolution of any objection by the Producing Party. Notwithstanding the foregoing, even if such notice is furnished to the Producing Party, in the absence of a protective order or the receipt of a waiver hereunder, if the recipient is nonetheless advised by counsel that it is compelled to disclose any of the Confidential Material to any tribunal, the recipient may disclose such Confidential Material to such tribunal without liability hereunder, provided that the recipient must use all reasonable efforts to limit the scope of such disclosure to the maximum extent possible and to request assurance that confidential treatment will be accorded such Confidential Material. In addition, compliance by the receiver of any court order directing production of material pursuant to a subpoena shall not constitute a violation of this Stipulation and Order.
14. Nothing in this Stipulation and Order shall preclude any party from seeking judicial relief, upon notice to the parties, with regard to any provision hereof.
ORDER
The foregoing Stipulation is hereby approved.
IT IS SO ORDERED.