Opinion
Case No. 02-13533 (AJG), (Jointly Administered).
August 5, 2003.
WEIL, GOTSHAL MANGES LLP, Attorneys for Debtors and Debtors In Possession, 767 Fifth Avenue, New York, N.Y. 10153-0119, Telephone: (212) 310-8000, Facsimile: (212) 310-8007, Marcia L. Goldstein, Esq. (MG 2606), Lori R. Fife, Esq. (LF 2839), Alfredo R. Perez, Esq., Adam P. Strochak, Esq. (AS 4104).
Marcia L. Goldstein, Esq. (MG 2606), Lori R. Fife, Esq. (LF 2839), Alfredo R. Perez, Esq., Adam P. Strochak, Esq. (AS 4104), WEIL, GOTSHAL MANGES LLP, 767 Fifth Avenue, New York, N.Y. 10153-0119, Telephone: (212) 310-8000, Facsimile: (212) 310-8007, Attorneys for Debtors and Debtors In Possession.
George M. Newcombe, Esq. (GN-4053), Patrick E. King, Esq. (PK 4207), SIMPSON THACHER BARTLETT LLP, 3330 Hillview Avenue, Palo Alto, California 94304, Telephone: (650) 251-5000, Facsimile: (650) 251-5002, Attorneys for Individual Defendants.
Lynn Lincoln Sarko, Esq., Gary A. Gotto, Esq., Erin Riley, Esq., KELLER ROHRBACK, L.L.P., 1201 Third Avenue, Suite 3200, Seattle, Washington 98101-3052, Attorneys for Stephen Vivien, Gail M. Greiner and John T. Alexander and Proposed attorneys for ERISA 401(k), Class Claimants.
WHEREAS, WorldCom, Inc. and certain of its subsidiaries (together, "WorldCom" or the "Debtors") commenced these Chapter 11 cases on July 21, 2002 and November 8, 2002;
WHEREAS, the Debtors and various of their officers and directors have been named as defendants in a series of lawsuits (the "ERISA Lawsuits") filed in different federal courts by present and former participants in the WorldCom 401(k) Salary Savings Plan, alleging liability under the Employee Retirement Income Security Act, 29 U.S.C. § 1001 et seq.
WHEREAS, the Joint Panel on Multidistrict Litigation has consolidated the ERISA Lawsuits to the United States District Court for the Southern District of New York before the Honorable Denise L. Cote under the caption In re WorldCom, Inc. ERISA Litigation, Master File No. 02 Civ. 4816 (DLC) (the "Consolidated Action");
WHEREAS, all claims against the Debtors in the ERISA Lawsuits and the Consolidated Action remain stayed pursuant to 11 U.S.C. § 362;
WHEREAS, by Stipulation and Order dated January 21, 2003, the parties agreed to defer consideration of class certification of the ERISA Proof of Claim;
WHEREAS, by First Amended Stipulation and Order dated March 31, 2003, the parties agreed to further defer consideration of class certification of the ERISA Proof of Claim;
WHEREAS, by Second Amended Stipulation and Order date July 8, 2003, the parties agreed to further defer consideration of class certification of the ERISA Proof of Claim without prejudice to any party's rights;
WHEREAS, prior to filing for bankruptcy, Debtors collected certain documents relating to Plaintiffs' claims in the Consolidated Action, which are in the possession of Simpson Thacher Bartlett LLP, counsel for certain officers and directors in the Consolidated Action (the "Individual Defendants").
WHEREAS, Plaintiffs have requested certain documents informally from Debtors;
WHEREAS. Debtors have determined that a portion of documents referenced above which are in the possession of Simpson Thacher Bartlett, LLP are responsive to Plaintiffs' informal document request; and
WHEREAS, Debtors seek to provide Plaintiffs with the documents in the possession of Simpson Thacher Bartlett, LLP that are responsive to Plaintiffs' informal document request;
THEREFORE, it is hereby stipulated, agreed, and ordered that:
1. Plaintiffs may formally serve a request for production of documents pursuant to the applicable Federal Rules of Civil Procedure substantially in the form of the informal Request for Production previously provided to Debtors' counsel; provided that not with standing the requirements of F.R.C.P Rules 26 and 34, Debtors shall respond thereto as set forth below;
2. In response to such formal document request, the Debtors will provide Plaintiffs with the documents that have already been collected and are in the possession of Individual Defendants' counsel, Simpson Thacher Bartlett LLP to the extent counsel for Debtors has determined that such documents are responsive to such request for production;
3. Plaintiffs will accept such documents from the Individual Defendants' counsel, Simpson Thacher Bartlett LLP, on behalf of Debtors;
4. Plaintiffs will regard the documents produced by the Individual Defendants' counsel, Simpson Thacher Bartlett LLP, as if produced by Debtors;
5. The Individual Defendants' counsel will make the documents available to Plaintiffs for review and copying at Individual Defendants' counsel's office as promptly as possible after the Bankruptcy Court's approval hereof;
6. If Plaintiffs should have issues with respect to the adequacy of such production under F.R.C.P. Rules 26 34 which they have been unable to resolve through good faith negotiations, Plaintiffs may address such issues, and only such issues, before Judge Cote.
7. This Stipulation and Order is without prejudice to Plaintiffs' right to seek further stay relief from this Court.