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1
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LETTER OPINION
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EXTRACTED KEY WORDS
ESQUIRE GREENLIGHT OPINION EMERGING WORK PRODUCT THOMAS EINHORN COURT COMMUNICATIONS ESQUIRE DAVID DEPOSITION DISCOVERY ALLINGHAM TESTIMONY JENKINS LETTER OPINION MENTAL IMPRESSIONS COUNSEL DETERMINATION VALUATION DOCUMENT RULING WILMINGTON PRE-LITIGATION VALUATION CALCULATIONS BASIS CONTENDS COMPEL THEREFOR SETHI |
C O U R T O F C H A N C E R Y
OF THE
S T A T E O F D ELAWARE
J ACK B. J AC OBS
"ICE-CHANCELLOR February 23,200 1
Thomas J. Allingham, II, Esquire
Skadden, Arps, Slate, Meagher &
Flom
One Rodney Square
P.O. Box 636
Wilmington, DE 19899
Thomas A. Beck, Esquire
Richards, Layton & Finger
One Rodney Square
P.O. Box 55 1
Wilmington, DE 19899
RE: Greenlight Capital Qualified, L.P., et al. v.
Elmerging Communications, Inc.
Civil Action No. 16943
Date Submitted: February 20,200l
Dear Counsel:
Respondent Emerging Communications, Inc. ("Emerging") has moved for
an order compelling David Einhorn, the Rule 30(b)(6) witness for petitioners,
Greenlight Capital Qualified, L.P., et al. ("Greenlight"), to provide deposition
testimony regarding Greenlight's valuation of Emerging prepared in August and
September, 19'38 (the "August-September valuation"). That valuation is the only
Thomas J. Allingham, II, Esquire
David A. Jenkins, Esquire
February 23, 2001
Page 2
pre-litigation valuation prepared by Greenlight in which it calculated, on a
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2
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PETITIONERS OPPOSITION TO MOTION
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EXTRACTED KEY WORDS
GREENLIGHT VALUATION EMERGING COURT OPINION RULING PROTECT DEPOSITION MOT COMPEL MOTION EINHORN TESTIMONY FACTS EXH PRODUCT DOCTRINE WITNESS COUNSEL LITIGATION PRIOR RULINGS ELICIT INTANGIBLE WORK ADVERSARIES HERETO HOLDING ATTORNEY INSTRUCTION ASSERTS EXPLAINING |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
GREENLIGHT CAPITAL QUALIFIED, :
L.P., GREENLIGHT CAPITAL, L.P., and :
GREENLIGHT CAPITAL OFFSHORE, :
LTD.,
Petitioners, : Civil Action No. 16943
T
V . z ,:
r:
j-.<,
I: -
EMERGING COMMUNICATIONS, L-
5~
INC., a Delaware corporation, p
i-,\-z --
_. -7
(`,<
Respondent.
;.;I'
_- ;;. "7
PETITIONERS' MEMORANDUM IN OPPOSITION TO --
RESPONDENT'S MOTION TO COMPEL DEPOSITION TESTIMONY
Respondent, Emerging Communications, Inc. ("Emerging"), has
moved for an order to compel the Rule 30(b)(6) witness for petitioners, Greenlight
Capital Qualified, L.P., Greenlight Capital, L.P., and Greenlight Capital Offshore,
Ltd. (collectively, "Greenlight"), to provide deposition testimony that would reveal
the contents of a valuation of Emerging that Greenlight prepared in anticipation of
litigation (the "Motion" or "Mot."). This Court has already issued two rulings
(referred to in the Motion and hereinafter as the "August Ruling" and the "December
Ruling") that bear on the question presented here. However, the precise issue now
before the Court has not been addressed in the prior rulings: that is, whether
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3
.
LETTER OPINION
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EXTRACTED KEY WORDS
MOTION EMERGING ESQUIRE DEPOSITION MUOIO OBJECTIONS LEONARD STARK ESQUIRE THOMAS BECK COMPEL EVIDENCE COMMISSION DISCOVERY VALUATION ATTORNEY WORK PRODUCT SUPPORTING EMERGING COMMUNICATIONS APPRAISAL ACTION REVIEWING RODNEY SQUARE WILMINGTON PENDING REASONS ACCEDE WHATEVER WITNESS GRANT |
C O U R T O F C H A N C E R Y
OF THE
ISTATE OF DELAWARE
J ACK B. J ACOB S December 7,200O
"ICE-CHANCELLOR
Leonard P. Stark, Esquire
Skadden, Arps, Slate, Meaghe:r & Flom LLP
One Rodney Square
P.O. Box 636
Wilmington, DE 19899-0636
Thomas A. Beck, Esquire
Richards, Layton & Finger
One Rodney Square
P.O. Box 551
Wilmington, DE 19899-055 1
Re: Greenlight Capital Qualified, L.P., et al. v.
Emerging Communications, Inc.
Date Submitted: November 28, 1999
ai1 Action No. 16943
Gentlemen:
Pending in this appraisal action are two motions: (i) the Petitioner's Motion
for a Commission and (ii) the Respondent's Motion to Compel Production of
Documents. For the reasons next discussed, the Moti.on for Commission will be
granted subject to certain conditions, and decision will be reserved on the Motion
to Compel.
Leonard P. Stark, Esquire
Thomas A. Beck, Esquire
December 7,200O
Page 2
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4
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RESPONDENTS REPLY MEMORANDUM IN SUPPORT OF MOTION TO COMPEL
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EXTRACTED KEY WORDS
PREPARATION EMERGING LITIGATION PRIVILEGE ANALYSES WORK PRODUCT PROTECTION DEL COUNSEL ANTICIPATION TENDER ATTORNEY BUSINESS COURT MEMORANDUM VALUATION MOTION COMPEL MEM SETHI SLIP CLIENT LAWYER-CLIENT PRIVILEGE PURPOSES ORDINARY COURSE DISCOVERY FACTS PRIOR CONTEMPLATION |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
GREENLIGHT CAPITAL QUALIFIED, )
L.P., GREENLIGIHT CAPITAL, L.P., AND )
GREENLIGHT CAPITAL OFFSHORE,
LTD., 1
Petitioners, i Civil Action No. 16943
V . i
EMERGING COMMUNICATIONS, INC.,
Respondent. i - .
RESPONDENT'S REPLY MEMORANDUM IN SUPPORT OF ITS MOTION TO
COMPEL PRODUCTION OF DOCUMENTS
Respondent Emerging Communications, Inc. ("Emerging") hereby responds to Petitioners'
Memorandum in Opposition to Respondent's Motion to Compel Production of Documents
("Memorandum" or "P. Mem.").
Background
On .November 6, 2000, Emerging moved the Court for an order compelling Petitioners
Greenlight Capital Qualified, L.P., Greenlight Capital, L.P., and Greenlight Capital Offshore, Ltd.
(collectively, "Greenlight") to produce documents relating to certain Greenlight valuations of
Emerging stock and notes of telephone conversations among Greenlight representatives and
representatives of Emerging and/orthird parties (collectively, the "Documents"). Greenlight
to produce the Documents on the grounds that they are protected by the attorney-client privilege and
the work product doctrine. 0n:November 20,2000, Greenlight filed its Memorandum, asserting that
the Documents created after August l&2000, were protected by the attorney-client privilege and the
KLFI-2235233-1 1
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5
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RESPONDENTS MEMORANDUM IN OPPOSITION TO MOTION FOR COMMISSION
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EXTRACTED KEY WORDS
GREENLIGHT MUOIO DEPOSITION MERGER SHARES COURT PETITIONERS OFFICER SPECIAL COMMITTEE OPINION DISCOVERY HERETO TESTIMONY TENDER REQUESTS CHIEF FINANCES LITIGATION MOTION TRANSACTION REPRESENTATIVES DETERMINATION EVIDENCE VALUATION PRODUCTION INVESTMENT DEPOSE RELATING DIRECT KNOWLEDGE |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
[N AND FOR NEW CASTLE COUNTY
GREENLIGHT CAPITAL QUALIFIED: L.P,, )
GREENLI'GHT C A P I T A L , L . P . , a n d )
GREENLIGHT CAPITAL OFFSHORE, LTD., )
Petitioners,
V. ;
> C.A. No. 16943
EMERGING COMMUNICATIONS, INC., a )
Delaware corporation,
1
Respondent. >
RESPONDENT'S MEMORANDUM IN
OPPOSITION TO PETITIONERS' MOTION FOR COMMISSION
Respondent Emerging Clommunications, Inc. ("Emerging") hereby opposes the Motion by
Petitioners Greenlight Capital Qualified, L.P., Greenlight Capital, L.P. and Greenlight Capital
Offshore, Ltd. (collectively "Greenlight" or "Petitioners") for a commission to take a full-day
deposition of Salvatore Muoio, a former director of Emerging who currently resides in New York.
Mr. Muoio was an independent, outside director of Emerging at all times pertinent to the
second step merger (the "Merger") which is the subject of this appraisal action. Mr. Muoio was not
an officer of Emerging, nor was he a member of the Special Committee which considered and
negotiated the going private transaction (the "Transaction"). While Mr. Muoio participated in the
August 13, 1998 and August 17, 1998 Emerging telephonic board meetings where the Transaction
was consid'ered and unanimously approved, it is aimost inconceivable that he has factual
related to Emerging not heretofore adduced by Greenlight. Emerging respectfully submits that the
need for Greenlight to obtain duplicative factual information or improper opinion testimony from
RLFI-2227854.1
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6
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PETITIONERS MEMORANDUM IN OPPOSITION TO MOTION TO COMPEL
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EXTRACTED KEY WORDS
EMERGING LITIGATION ANALYSES WORK PRODUCT ATTORNEY-CLIENT PRIVILEGE MOTION ANTICIPATION PROTECTED WORK COMMUNICATION VALUATION COMPEL PRODUCTION DELAWARE COURT REPRESENTATIVES SHAREHOLDERS PETITIONERS MEMORANDUM EINHOM AFF PROXY STATEMENT LITIGATION COUNSEL RESPONDENT OPPOSITION SQUEEZE-OUT DISCOVERY LEGAL SERVICES GREENLIGHT CAPITAL OFFSHORE FAIR PRICE INVESTMENT EMERGING OFFICERS |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
GREENLIGHT CAPITAL QUALIFIED, PUBLIC VERSION
L.P., GREENLIGHT CAPITAL, L.P., and
GREENLIGHT CAPITAL OFFSHORE,
LTD.,
,
Petitioners,
V. Civil Action No. 16943
EMERGING COMMUNICATIONS,
INC., a Delaware corporation,
Respondent.
PETITIONERS' MEMORANDUM IN OPPOSITION TO RESPONDENT'S
MOTION `WOMPEL PRODUCTION OF DOCUMENTS
Petitioners G.reenlight Capital Qualified, L.P., Greenlight Capital,
L.P., and Greenlight Capital Offshore, Ltd. (collectively, "Greenlight" or "Petition-
ers") hereby oppose Re:spon.dent's Motion to Compel Production of Documents
("Motion" or "Mot."). By its Motion, Respondent Emerging Communications, Inc.
("Emerging" or "Respondent") seeks production of valuation analyses performed by
Greenlight (the "Analyses") and handwritten notes taken by a Greenlight representa-
tive during conversations with Emerging officers, directors and shareholders
("Notes" and, together with the Analyses, the "Documents"). All of the Documents
were prepared in anticipation of litigation, and, therefore, are protected work product.
The Documents are also protected by attorney-client privilege. For these and other
reasons, which are set forth in more detail below, Emerging's Motion should be
denied.
BACKGROUND
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7
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PETITIONERS MEMORANDUM IN SUPPORT OF MOTION FOR COMMISSION
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EXTRACTED KEY WORDS
MUOIO DEPOSITION EMERGING SQUEEZE-OUT APPRAISALS DISCOVERY LTR PETITIONERS RELEVANCY SPECIAL COMMITTEE COURT COMMISSION MERGER RELATING TRANSCRIPT REASONS MOTION VALUATION ANALYST TELEPHONE CONVERSATION DEPOSE DEL BECK LTR EVIDENCE EMERGING COMMUNICATIONS NEGOTIATION STOCK APPOINTMENT TENDER |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
GREENLIGHT CAPITAL #QUALIFIED, :
L.P., GREENLIGHT CAPITAL, L.P., and :
GREENLIGHT CAPITAL QFFSHORE, :
LTD.:
Petitioners, : Civil Action No. 16943
v.
EMERGING COMMUNICATIONS,
INC., a Delaware corporation,
Respondent.
PETITIONERS' MEMORANDUM IN SUPPORT OF
=LF: MOTION FOR COMMISSION
Petitioners Greenlight Capital Qualified, L.P., Greenlight Capital,
L.P., and Greenlight Capita:l Offshore, Ltd. (collectively, "Greenlight" or "Petition-
ers") hereby move for a commission to take a. full-day deposition of Salvatore
Muoio, a former independent director of Respondent Emerging Communications,
Inc. ("Emerging" or "Respondent"). Mr. Muoio, a resident ofNew York, was an
indeplendent director of Emerging throughout the time it existed as a public com-
pany, including during the proposal, negotiation, approval, and consummation of the
two-srep, cash-out merger (the "Squeeze-Out") that forms the basis for this appraisal
action,. As a director, Mr. Muoio had access 1:o information relating directly to
Emerging's valuation. Mr. Muoio's extensive experience as a securities analyst in
the telecommunications secmr gave him an enhanced ability to understand this
valuation information. In fa.ct, during a lengthy telephone conversation with repre-
sentatives of Petitioners in August 1998, shortly after Emerging's Board approved
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8
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PETITIONERS MOTION FOR PROTECTIVE ORDER
|
EXTRACTED KEY WORDS
EMERGING OPINION COURT DELAWARE NON-EXPERT OPINION OPINION TESTIMONY VALUATION CHANCERY DEPOSITION DEL MERGER EINHORN SHARES EXHIBIT PETITIONERS COMMUNICATIONS PURSUANT PROTECTIVE ORDER RESPONDENT WITNESS STOCK INQUIRE MOTION DISCOVERY EVIDENCE EINHOM WILMINGTON COUNSEL DIRECT KNOWLEDGE |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
GREENLIGHT CAPITAL QUALIFIED, L.P., :
GREENLIGHT CAPITAL., L.P., and
GREENLIGHT CAPITAL. OFFSHORE, LTD., :
Petitioners, :
V. Civil Action No. 16943
EMERGING COMMUNICATIONS, INC., ,..`.
a Delaware Corporation, : I
Respondent. r-3
NOTICE OF MOTION `;
,r.
. *
TO: Raymond J. DiCamillo, Esq. `22
Richards, L,ayton & Finger
One Rodney Square, P.O. Box 551
Wilmington., Delaware 19899-055 1
PLEASE TAKE NOTICE that pursuant to Court of Chancery Rule 26(c)
the undersigned counsel for Petitioners Greenlight Capital Qualified, L.P., Greenlight
Capital, L.P., and Greenlight Capital Offshore, Ltd. will present the attached Petitioners'
Motion for Protective Order to the Court at the earliest time convenient to -the Court and
counsel.
Thomas J. Allingham II
Leonard P. Stark
Rosemary S. Goodier
SKADDEN, ARPS, SLATE,
MEAGHER & FLOM LLP
One Rodney Square, P. 0. Box 636
Wilmington, Delaware 19899-0636
(302) 651-3000
DATED: August 2,200O Attorneys for Petitioners
210700.01-Whmgton SIA
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9
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ANSWERING BRIEF OF PETITIONERS IN OPPOSITION TO RESPONDENTS MOTION FOR PROTECTIVE ORDER
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EXTRACTED KEY WORDS
GREENLIGHT GOODWIN COURT DISCOVERY SPECIAL COMMITTEE CUMULATIVENESS PROSSER DEPOSITION AUTHORITIES BURDENSOME FINGER DEP DEL PRICE EMERGING COMMUNICATIONS DELAWARE CORPORATION PROVING HOULIHAN LOKEY APPRAISALS VIRGIN ISLANDS PROXY STATEMENT NEGOTIATIONS CANTOR FITZGERALD HARASSMENT MERGER CONSIDERATION PROTECTIVE ORDER FINANCIAL ADVISORS ASSERTION TESTIMONY EC1 |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
GREENLIGHT CAPITAL QUALIFIED, L.P.,
GREENLIGHT CAPITAL, L.P. and
GREENLIGHT CAPITAL OFFSHORE, LTD., :
Petitioners, :
V . Civil Action No. 16943
EMERGING COMMUNICATIONS, INC.,
a Delaware corporation,
Respondent. : -
c,
ANSWERING BRIEF OF PETITIONERS IN OPPOSITION TO _ .
RESPONDENT'S MOTION FOR PROTECTIVE ORDER i .,
r _
-"
_ +
c. 3
SKADDEN, ARPS, SLATE,
MEAGHER & FLOM LLP
One Rodney Square
Post Office Box 636
Wilmington, Delaware 19899-0636
(302) 651-3000
Attorneys for Petitioners
DATED: February 8,200O
TABLE OF CONTENTS
TABLE OF CASES AND AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
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10
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BRIEF IN OPPOSITION TO PETITIONERS MOTION TO COMPEL
|
EXTRACTED KEY WORDS
GREENLIGHT REQUEST DISCOVERY PRIVILEGE LOG PRODUCTION ADMISSIBLE EVIDENCE AMENDED REQUEST REVISED LOG COMPEL MOTION FACTS COURT PROCEEDING PETITIONERS MERGER ECI OBJECTIONS APPRAISALPETITION EMERGING COMMUNICATIONS EC1 HEREBY SUPPLEMENTS ICC ADVISORY OPINION WORK PRODUCT RESTRUCTURING SPECIAL COMMITTEE DELAWARE LAW RESPONSIVE DOCUMENTS ANTICIPATION POST-MERGER |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
GREENLIGHT CAPITAL QUALIFIED, )
L.P., GREENLIGHT CAPITAL, L.P., and )
GREENLIGHT CAPITAL OFFSHORE, )
LTD. 1`) Civil Action No. 16943
Petitioners,
V. :;
!I
EMERGING COMMUNICATIONS, INC., / )
a Delaware Corporation, 22
s !I; Et
;I :pG G-
Respondent. ".z--s *
X:. r 1 ; -;
r-1. -2 d-w
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." )` ; cm
7~
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+I
-1.; ; : *e5:
$2 r,-- . .
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-- :;7
BRIEF IN OPPOSITION TO Lc -u-l
#
PETITIONERS' MOTION TO COMPEL
Of Counsel: Thomas A. Beck
Russell C. Silberglied
P. Kevin Caste1 James Tobia
Jonathan R. DOMebin Richards, Layton & Finger
Cahill Gordon & Reindel One Rodney Square
Eighty Pine Street P. 0. Box 551
New York, NY 10005 Wilmington, DE 19899
(212) 701-3000 (302) 658-654.1
Attorneys for Respondent.
Dated: January 17,200O
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11
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BRIEF OF PETITIONERS IN SUPPORT OF MOTION TO COMPEL
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EXTRACTED KEY WORDS
GREENLIGHT ECM MERGER DEL ECM REVISED LOG COMMON BASIS WORK PRODUCT COURT COMMUNICATIONS WITHHELD PRODUCTION ATTORNEY-CLIENT DISCOVERY DELAWARE CAHILL GORDON PETITIONERS WORK PRODUCT IMMUNITY LITIGATION TECHNICOLOR AMENDED REQUEST ICC IMPROPERLY WITHHELD CONNECTION CORRESPONDENCE POST-MERGER EVIDENCE ANTICIPATION EMERGING COMMUNICATIONS PROCEEDING |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY _ ,,
,~, lt3
GREENLIGHT CAPITAL QUALIFIED, L.P.,
GREENLIGHT CAPITAL, L.P. and
GREENLIGHT CAPITAL OFFSHORE, LTD.,
Petitioners,
:,.c, .,
v. Civil Action No. 16943
EMERGING COMMUNICATIONS, INC.,
a Delaware corporation,
Respondent.
BRIEF OF PETITIONERS IN SUPPORT OF
THEIR MOTION TO COMPEL PRODUCTION OF DOCUMENTS
Thomas J. Allingham II
Leonard P. Stark
Rosemary S. Goodier
SKADDEN, ARPS, SLATE,
MEAGHER & FLOM LLP
One Rodney Square
P.O. Box 636
Wilmington, Delaware 19899-0636
(302) 651-3000
Attorneys for Petitioners
DATED: December 21, 1999
TABLE OF CONTENTS
TABLE OF CASES AND AUTHORITIES
P R E L I M I N A R Y S T A T
NATURE AND STAGE OF PROCEEDINGS 2
A R G U M E
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