original found at: http://www.slatkininfo.com/SummaryJudFraud/ExParteMotionVacateDateDanning.pdf *|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*| HOWARD KOLLITZ (State Bar No. 059611), FILED RICHARD D. BURSTEIN (State Bar No. 056661), KIM TUNG (State Bar No. 196236) 02 DEC 4 PM12:27 JAMES B. DEVINE (State Bar No. 205270) unintelligible TAX COURT GREGORY M. SHAMO (State Bar No. 217656) of Central District of California DANNING, GILL, DIAMOND & KOLLITZ, LLP 2029 Century Park East, Third Floor BY___[initials]____DEPUTY Los Angeles, California 90067-2904 Telephone: (310) 277-0077 Facsimile: (310) 277-5735 Attorneys for Defendants Peter Henman-Laufer and Milova Incorporated UNITED STATES BANKRUPTCY COURT CENTRAL DISTRICT OF CALIFORNIA NORTHERN DIVISION In re ) Case No. ND-01-11549-RR ) REED E. SLATKIN, ) Chapter 11 ) Debtor. ) ) ____________________________________________ ) ) R. TODD NEILSON, Trustee Of The ) Adv. No. AD-02-01165-RR Chapter 11 Bankruptcy Estate Of ) Reed E. Slatkin, ) Judge: Hon. Robin L. Riblet ) Plaintiff, ) DEFENDANTS' EX PARTE ) APPLICATION FOR ORDER VACATING v. ) HEARING DATE ON TRUSTEE'S ) MOTION FOR PARTIAL SUMMARY PETER HENMAN-LAUFER, an ) JUDGMENT, MEMORANDUM OF POINTS individual, MILOVA INCORPORATED, ) AND AUTHORITIES, DECLARATION a California corporation, and ) OF RICHARD D. BURSTEIN AND DOES 1-10 ) DECLARATION OF HOWARD KOLLITZ ) IN SUPPORT THEREOF Defendants. ) ) Date: January 17, 2003 ) Time: 10:00 am ) Place: 1415 State Street ) Courtroom 201 ) Santa Barbara, ______________________________________________) California /// /// /// 200946.01 [XP] 23297 I. INTRODUCTION Defendants Peter Henman-Laufer and Milova Incorporated ("Defendants") apply to this Court by this ex parte application under the authority of Local Bankruptcy Rule 9075-1 for an Order vacating the hearing date on the Trustee's pending motion for partial summary judgment. Defendants cannot be compelled to respond to the Trustee's motion at this time. They have had no opportunity to develop a record to present to the Court. The Trustee's counsel knows that. II. STATEMENT OF CASE On or about November 18, 2002, the Trustee filed his within Motion for Partial Summary Judgment ("Motion") with supporting documentation seeking a partial summary judgment that the Debtor possessed "actual intent to hinder, delay or defraud" his creditors, as set forth in page 2, lines 19 through 24 of the Motion. The Trustee has done so in this case, and in twenty other cases, despite having advised counsel for various defendants by fax letter on November 11, 2002 of his intent to do so and having immediately received the responding demand of within counsel that he not do so, that no discovery opportunity had been accorded to the defendants to permit them to even begin to frame a response to the Motion. After an exchange of communications, Trustee's counsel maintained his intent to proceed. It is elementary due process and a requirement of the Federal Rules of Civil Procedure and Federal Rules of Bankruptcy Procedure that adequate opportunity to conduct discovery to meet a summary judgment motion be accorded to a defendant before a summary judgment motion can be heard. The Trustee's breathtaking assertion in the Motion that the confession of the Debtor requires this Court to determine this issue summarily against persons not involved in the criminal case and without according them an opportunity to probe the veracity of that plea and its applicability to this case, or to offer evidence that a ponzi scheme was not present here, is contrary to the basic due process and not supported by the authorities cited by the Trustee. This Court must grant this application, or set it on immediate hearing, vacate the hearing date until such time as, upon further direction of the Court, it is determined that the matter may be set for hearing. III. A BRIEF REVIEW OF THE TRUSTEE'S MOTION FOR PARTIAL SUMMARY JUDGMENT DEMONSTRATES THAT DISCOVER IS PROPER AND DEFENDANTS HAVE NOT BEEN ACCORDED AN OPPORTUNITY TO OBTAIN IT A. Review of the Trustee's Motion The Trustee asserts that this Court must summarily resolve in his favor and against the Defendants the issue of whether or not Slatkin acted with actual intent to hinder, delay or defraud _his_ _creditors_ based on his plea that he acted with intent to defraud _investors_, Motion at page 8, lines 1-4, and without the Defendants' right to prove that plea or offer contrary evidence. The mere fact that the Slatkin plea agreement may be admissible in evidence, or at trial may be sufficient to support a finding of fact on a contested issue of fact, does not mean that it is dispositive of an issue of fact for purposes of summary judgment. Consequently, the Trustee's authority at page 8 of the Motion is beside the point for purposes of this motion. The cases cited by the Trustee only demonstrate how important it is for a court to consider guilty please. _Boykin_v._Alabama_, 395 U.S. 238 (1969) (reversible error to convict defendant where record fails to disclose that guilty plea of defendant was made knowingly and voluntarily); _Seiling_v._Eyuman_, 148 F.2d 211 (9th Cir. 1973) (guilty verdict reversed where state failed to prove that defendant was competent to make voluntary and knowing guilty plea); (3) _People_v._Jones_, 52 Cal.2d 636 (1959) (guilty plea relieved prosecution of duty of presenting evidence that defendants committed the crime). Further, the cases cited at pages 9 and 10 of the Motion merely establish that upon a contested trial, a conclusion of fact may be based on the plea. In _Emerson_v._Maples_ (In re Mark Benskin & Co., Inc.), 161 B.R. 644, 649-50 (Bankr. W.D. Tenn. 1993), the bankruptcy court looked at the totality of the evidence, including the debtor's guilty plea, in determining that the debtor actually intended to defraud creditors when it conducted a trial on the issue - not summary judgment. In _Martino_ _v._Edison_Worldwide_Capital_(In_re_Randy)_, 159 B.R. 425, 440 (Bankr. N.D. Ill. 1995), the bankruptcy court explains at length that the defendants in response to a summary judgment motion failed to produce any evidence other than the bare denials that triable issues of material fact existed to counter the debtor's guilty plea. Defendants here, by this motion, wish to avoid that pitfall. It is worth noting that the authority that the _In_re_Randy_ court relied upon involves the application of collateral estoppel to parties in the criminal action. See _Nathan_v._Tenna_Corp., 560 F.2d 761 (7th Cir. 1973) (plaintiff who pled guilty to fraud stemming from illegal commission-sharing contract was collaterally estopped from denying illegality of contract in subsequent civil action to enforce contract); _Raiford_v._Abney_(Matter_of_Raiford)_, 695 F.2d 521 (11th Cir. 1983) (debtor convicted of bankruptcy fraud in connection with filing fraudulent schedules was collaterally estopped form denying his discharge on the grounds of fraud); _Leibowitz_v._Saleh_(In_re_Discount_Merchandise,_Inc.)_ 1994 WL 18629 (Bankr. N.D. Ill. 1994) (defendant convicted of defrauding creditors of bankrupt company by obtaining goods of the company was collaterally estopped from denying that the transfers of the debtor's property to him were fraudulent transfers). None of these cases supports the notion that on summary judgment in a civil case persons other than the criminal case defendant can be estopped by that defendant's guilty plea. Finally the _In_re_Randy_ case has recently been questioned by the 11th Circuit in _Orlick_v._Kozyak_(In_re_Financial_Federated_Title_&_Trust, Inc.), 2002 WL 31356650 (11th Cir. 2002.). Recognizing that this is, after all, a ponzi scheme, the Trustee then goes on to argue that the ponzi scheme establishes actual intent and the Debtor's confession that he operated a ponzi scheme confirms that intent, see page 10 to 11 of the Motion. In doing so, the Trustee demonstrates that frailty of his Motion. That the Debtor may have lied, that he may not have operated a pure ponzi scheme, may be shown both by cross-examination of him and by independent expert testimony with regard to the books and records of the Debtor. None of that, of course, has been afforded to the Defendants. B. The Defendants have Had No Opportunity to Conduct Discovery As is shown in the accompanying Declaration of Howard Kollitz, the Defendants have had no discover opportunities. Indeed, in states reports filed with this Court, the Trustee has stated that the Debtor's deposition will not be available until after the hearing date for this motion. The Trustee did not until November 19, 2002, make available the Trustee's "Document Depository" to counsel for the Defendants for examination, see the Declaration for Richard D. Burstein. C. The Motion for Summary Judgment Must be Deferred for Discovery While of course the Trustee relies on Federal Rule of Bankruptcy Procedure 7056, which incorporates Federal Rule of Civil Procedure 56, FRCP 56(f) permits the Court to continue a hearing in the event that discovery is necessary to oppose the motion. As shown herein, such discovery is necessary and this Court must continue this hearing. For this reason, the Defendants' counsel requested that the Trustee not bring this motion at this time, but were rebuffed. IV. CONCLUSION For all of the reasons set forth herein, it is respectfully requested that the within application be granted, the hearing on the Motion be vacated, to be reset by further order of this Court. Dated: December 2, 2002 DANNING, GILL, DIAMOND & KOLLITZ, LLP By: (signed) [unintelligible] Richard D. Burstein Attorneys for Defendants, Peter Henman-Laufer and Milova Incorporated *|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*| DECLARATION OF RICHARD D. BURSTEIN I, Richard D. Burstein, declare: 1. I am the principal of a professional law corporation which is a partner in the law firm of DANNING, GILL, DIAMOND & KOLLITZ, LLP, attorneys of record for Defendants herein. If called upon to testify, I could so competently to the matters set forth herein below. 2. On November 11, 2002, I received a letter from Alexander Pilmer, Esq., advising of the Trustee's intent to file the within motion. On the same day, upon my receipt of the letter, by e-mail I transmitted my request that he not do so. He replied, rejecting my request, and I replied further. Attached hereto, designated as Exhibits "A" and "B" are true and correct copies of Mr. Pilmer's letter and the replying e-mails related thereto. 3. Attached hereto, designated as Exhibits "C" and incorporated herein by this reference as though fully set forth is a true and correct copy of Timothy Jafek's fax letter to me of November 19, 2002, in which he advised, for the first time, that the Trustee's "Document Depository" was now available for inspection. It is this Document Depository that contains the Debtor's records, and without which any examination of the issue of the operation of a ponzi scheme cannot begin. On November 26, 2002, an initial inspection of the Document Depository was scheduled. The Court's attention is drawn to the Joint Status Report herein where the Trustee has stated that the Debtor is not available for deposition until after his scheduled sentencing which is after the hearing date on the within Motion. 4. On December 3, 2002, at approximately 9:54 a.m., I telephonically advised Alexander Pilmer that we would be lodging the within application on December 4, 2002. I declare under penalty of perjury under the laws of the State of California and the United States of America that the foregoing is true and correct. Executed on this 3rd day of December, 2002, at Los Angeles, California. [signed] [unintelligible] Richard D. Burstein *|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*| KIRKLAND & ELLIS Fax Transmittal 777 South Figueroa Street Los Angeles, California 90017 Phone: (213) 680-8400 Fax: (213)680-8500 Please notify us immediately if any pages are not received THE INFORMATION CONTAINED IN THIS COMMUNICATION IS CONFIDENTIAL, MAY BE ATTORNEY-CLIENT PRIVILEGED, MAY CONSTITUTE INSIDE INFORMATION, AND IS INTENDED ONLY FOR THE USE OF THE ADDRESSEE. UNAUTHORIZED USE, DISCLOSURE OR COPYING IS STRICTLY PROHIBITED AND MAY BE UNLAWFUL. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US IMMEDIATELY AT (213) 680-8400 ------------------------------------------------------------------------------------------------ To: Company: Fax #: Direct #: Alan F. Broidy Law Offices of Alan F. Broidy 310-286-6610 310-286-6601 Clifford C. Gramger, Jr. 505-983-4049 505-983-2246 Sean A. 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Opperwall 925-417-0301 925-417-0300 Herb Katz Kelly, Lytton & Vann 310-277-5933 310-277-5333 Steven L Hogan Lurie, Zepeda, Schmalz, et al. 310-274-2798 310-274-8700 Walter A. Lack Paul A. Traina Engstrom, Lipscomb & Lack 310-552-9434 310-552-3800 ___________________________________________________________________________________________________ From: Date: Fax #: Direct #: Mark T. Cramer November 11, 2002 213-680-8500 (213)680-8412 EXHIBIT _A_ *|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*| Burstein, Richard ---------------------------------------------------------------------------------------------------- From: Burstein, Richard Sent: Monday, November 11, 2002 4:35 PM To: alexander_pilmer@la.kirkland.com Cc: Kollitz, Howard; Tung, Kim; James Devine: Shamo, Greg Subject; RE: In re Reed Slatkin You argue that the debtor's actual intent flows from running a ponzi scheme. His testimony is subject to dispute. He could be lying because his testimony is bought and paid for. If it is or is not a ponzi scheme can also be disputed by expert testimony, no matter what he says. If it is not a ponzi scheme, than as to each transfer, you must show the requisite intent, which is of course a different level of effort. I suggest that you will be in bad faith if you feel that on Slatkin's uncontested, untested say so you can resolve the issue. I suggest you wait until the parties may take discovery. -------Original Message--------- From: alexander_pilmer@la.kirkland.com [mailto: alexander_pilmer@la.kirkland.com] Sent: Monday, November 11, 2002 4:05 PM To: Burstein, Richard Cc: Kollitz, Howard; Tung, Kim; James Devine; Shamo, Greg Subject: Re: In re Reed Slatkin Richard - we believe that the undisputed admissible evidence will support our motion. The bases for our motion will be that the actual fraudulent transfer claim for relief asks the question whether the transferor (here Mr. Slatkin) had the actual intent to defraud. There can be no dispute that Mr. Slatkin had an actual intent to defraud because he has already plead guilty to such an offense. We believe that none of the discovery you seek can possibly lead to any admissible evidence which will undercut that notion. While I am not surprised to hear that you will oppose our motion, I still would be happy to hear any arguments you have that you believe you can find some evidence that will support a contrary conclusion - namely that Mr Slatkin did not have the actual intent to defraud. Alex "Burstein, Richard" <RBurstein@dgdk.com)_ on 11/11/2002 03:29:27 PM To: Alexander Pilmer/Los Angeles/Kirkland-Ellis@K&E cc: "Kollitz, Howard" <HKollitz@dgdk.com>, "Tung, Kim" <KTung&Dgdk.com>, "James Devine" <Jdevine@dgdk.com>, "Shamo, Greg" <GShamo@dgdk.com> Subject: In re Reed Slatkin Alex: I have your fax letter advising that on Monday, Nov 18, 2002, you intend to serve a motion for partial summary judgment determining, based on the "admissions" of the debtor, that he ran a ponzi scheme. You graciously note due date for our opposition. Please be advised that we view this as an abuse of process. You have stated in court filings and in open court that the debtor is not available for deposition until after sentencing in February. You have yet to give access t the debtor's records to evaluate the issue of a ponzi scheme. In open court you have agreed to continuances of states conferences for several months to let discovery begin in light of these obstacles. Parties are entitled to a continuance of a motion for summary judgment to conduct discovery. How, under these circumstances, you can justify bringing this motion now other than perhaps by the hope of running up fees in this calendar year escapes me. Any such motion that you elect to bring under these circumstances will be resisted and postponement sought for the reasons set forth herein and for all other appropriate reasons. Please note in this regard that it is our strong feeling that if you proceed in light of the above, that you violate Rule 11, FRBP 9001, and we will request that you withdraw such motion, or failing that, that the court award sanctions against you and the trustee for clearly abusive conduct. Kindly advise of your intention. Richard Burstein *|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*| KIRKLAND & ELLIS PARTNERSHIPS INCLUDING PROFESSIONAL CORPORATIONS 777 South Figueroa Street Los Angeles, California 90017 Phone: (213) 680-8400 Facsimile: 213 680-8500 November 19, 2002 By Facsimile and First Class Mail Richard D. Burstein, Esq. Danning, Gill, Diamond & Kollitz, LLP 2029 Century Park East, Third Floor Los Angeles, CA 90067-2904 Re: In re Reed Slatkin Case No. ND 01-11549-RR, Adversery Proceedings Dear Richard: The Document Depoistory which contains documents related to Mr. Slatkin is now ready for your use. It will generally be available on weekdays from 9 a.m. to 5 p.m. You will have to arrange for access in advance because the Trustee must always have someone present in the Document Depository. No copies of documents may be made on-site. Any copy requests must go through InHouse, a commercial copy service. You will be responsible for making copying arrangements; the Trustee will not have any part in those arrangements. The non-privildged documents index wil be available in the Document Depository. Please call to schedule access, or if you have any questions. Sincerely, [signed Timothy Jafek] Timothy B. Jafek cc: R. Todd Neilson, Trustee *|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*| DECLARATION OF HOWARD KOLLITZ I, Howard Kolitz, declare as follows: 1. I am the principal of a professional corporation which is a partner in the law firm of Danning, Gill, Diamond & Kollitz, LLP ("DGD*K"), the attorney of record herein for Defendants, Peter Henman-Laufer and Milove Incorporated. The Facts set forth herein are true of my own personal knowledge. If called upon to testify thereto, I could and would competently do so. 2. On September 10, 2002, I sent a letter to Timothy B. Jafek of Kirkland & Ellis, counsel for the Plaintiff, R. Todd Neilson, as trustee ("Trustee") in the pending Chapter 11 Bankruptcy Case for Reed E. Slatkin, as debtor ("the Debtor"), informing him that Defendants, Anthony and Margaret Hitchman ("the Hitchmans") intended to depose the Debtor in the adversary proceeding entitled, Neilson, etc., v. Hitchman, etc., et al., and designated number AD-02-01111-RR ("the Hitchman Lititgation"). I requested that Mr. Jafek advise me as to any dates which would be inconvenient for him during a sepcified three (3) week period. A true and correct copy of my September 10, 2002 letter to Mr. Jafek is attached hereto as Exhibit "1" and, by this reference, incorporated herein. 3. On September 13, 2002, I received a letter from R. Alexander Pilmer, another lawyer with Kirkland & Ellis, in response to my September 10, 2002 letter to Mr. Jafek. Mr. Pilmer advised that the trustee took the position that the Hitchmans were not entitled to take the Debtor's deposition. A true and correct copy of Mr. Pilmer's September 13, 2002 letter to me is attached hereto as Exhibit "2" and, by this reference, incorporated herein. 4. On September 13, 2002, I sent a letter to Mr. Pilmer in connection with arranging for a conference to discuss a deposition of the Debtor, pursuant to Rule 30(a)(2) of the Federal Rules of Civil Procedure, in the Hitchman Litigation. A true and correct copy of my September 13, 2002 letter to Mr. Pilmer is attached hereto as Exhibit "3" and, by this reference, incorporated herein. 5. On September 19, 2002, Mr. Pilmer sent me an email proposing October 2, 2002 for the "meet and confer" regarding the HItchmans' disputed right to take the Debtor's deposition. 6. On September 23, 2002, I responded to Mr. Pilmer's September 19, 2002 email stating that, on October 2, 2002, we would meet and confer regarding, inter alia, the Hitchmans' deposition of the Debtor in the Hitchman Litigation. A true and correct copy of my September 23, 2002 email to Mr. Pilmer and Mr. Pilmer's September 19, 2002 email to me are attached hereto as Exhibit "4" and, by this reference, incorporated herein. 7. On October 2, 2002, John R. Reitman, Andrew S. Rotter and Timothy B. Jafek (all lawyers representing the Trustee) and I, along with other lawyers of DGD&K, had a telephone conference to discuss, inter alia, taking the deposition of the Debtor in the Hitchman Litigation. During the course of our telephone conference, Mr. Reitman informed me that the Trustee's counsel was not prepared on October 2, 2002 to agree that the Hitchmans could seek to depose the Debto, and that the Trustee was not willing to produce any of the Debtor's documents until after the Trustee had copied all of those documents which task was then estimated to take another two (2) weeks. 8. Not until November 19, 2002, did the Trustee finally announce the availability of his Document Depository. I am informed that the Trustee currently takes the position that the Debtor will not be available for deposition until some unspecified date after he is sentenced in Feburary, 2003. I declare, under penalty of perjury and subject to the laws of the United States of America, that the foregoing is true and correct to the best of my knowledge, information and belief. Executed, on this 3rd day of December, 2002, at Los Angeles, California. [signed] Howard Kollitz *|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*| September 10, 2002 Timothy B. Jafek, Esq. Kirkland & Ellis 777 South Figueroa Street Los Angeles, CA 90017 Re: Reed E. Slatkin Bankruptcy Case/Trustee adv. Hitchmans-A.P. No. Ad-02-01111-RR Dear Tim: Thank you for your September 5, 2002 letter, which my office received on September 9, 2002. Please recall that, during our September 5, 2002 telephone conversation and in reponse to your description of the August 29, 2002 Order, I also advised you that the Hitchmans would move to both quash the writ of attachment and vacate the Temporary Protection Order obtained by the Trustee without notice. In that regard, you will be served with the Hitchmans' moving papers today. On Septemeber 9, 2002 your firm delivered to this firm deposition notices, which include request for the production of documents, whereby the Trustee seeks to depose Anthony Hitchman in Los Anglees on September 20, 2002 and to depose Margaret Hitchman in Los Anglees on September 23, 2002. Neiter of the Hitchmans is available for deposition on September 20 or 23 in Los Angeles. Further, virtually all of the recoreds of the Hitchmans in connection with their transactions with Reed Slatkin are in transit to South Africa, and the Hitchmans will not have access to the those records until sometime during the next month, that is, during October of 2002. The Hitchmans will make themselves available in South Africa for depositions by video conference, or by telephone, or by written questions, without the production of documents on October 7, 8, 9, 10, 11, 14, 15, 16, 17, or 18, 2002, or, with the production of documents on November 18, 19, 20, 21, or 22, 2002. The Trustee, in effect, is now forcing the Hitchmans to file a motion of vacate the September 6, 2002 Order, which was entered on the Trustee's ex parte application filed on Septemeber 5, 2002 and without any meaningful opportunity being afforded to the Hitchmans to respond. While the Trustee has, to date, elected to attempt to effect discovery by Orders obtained ex parte, or without any prior notice at all, I would ask that the Trustee reconsider, with a view to conducting this litigation on the most cost effect basis possible, his approach to discovery. The Hitchmans are enttitled to depose Reed Slatkin. In that regard, please advise me as to those dates during the eweeks of September 30, October 7 and October 14, 2002 which would be inconvenient dates for you in connection with such deposition. Finally, please recall that, during our September 5, 2002 conversation, I advised you that the Hitchmans intend to file motion in the District Court to withdraw the reference of the Adversary Proceeding from the Bankruptcy Court, with a view to reducing litigation expense for both the Bankruptcy Estate and the Hitchmans. I inquired of you as to whether the Trustee would oppose such a motion, or would be willing to stipulate to the withdrawal of the reference. You advised me that you would consult with the Trustee and other lawyers working with you, and let me know what position the Trustee would take on this issue. Please advise me as to the Trustee's position on this issue at your eareliest possible convenience. Very truly yours, [signed] Howard Kollitz cc: John C. Reitman, Esq. Tony and Peggy Hitchman (w/encl.) RIchard D. Burstein, Esq. Kim Tung, Esq. Valerie Radocay (i/o) *|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*| VIA FACSIMILE Howard Kollitz Danning, Gill, Diamond & Kollitz, LLP 2029 Century Park East Third Floor Los Angeles, California 90067 Re: Neilson v. Hitchman Dear Howard: This letter responds to your September 10, 2002 letter to Tim Jafek. In your letter to indicate that you would be serving us with a motion to quash the write of attachment on that day. We have not received any moving papers from you. We reject your proposals regarding the Hitchmans' depositions. They are under a court order to appear for their deposition, and produce documents, in my office. It is no concern of mine or my clients that the Hitchmans elected to flee the country. If the Hitchmans refuse to honor the Court order, we will take all appropriate actions to enforce it. Your request to take Mr. Slatkin's deposition is noted, however, the Hitchmans are not entitled to take that deposition. Finally, we do not agree at this time to stipulate to withdrawing the reference to the Bankruptcy court with respect to the action taken against the Hitchmans. Should you have any questions, please do not hestitate to contact me. Sincerely, [signed] R. Alexander Pilmer *|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*| September 13, 2002 VIA MAIL AND FACSIMILE R. Alexander Pilmer, Esq. Kirkland & Ellis 777 South Figueroa Street Los Angeles, CA 90017 Re: Reed E. Slatkin Bankruptcy Case/Neilson, as Trustee, adv. Anthony Hitchman, Margaret Hitchman, et al. A.P. No. AD-02-01111-RR/Request Under Local Bankruptcy Rule 9013- 1(c)(1) Dear Alex: Please advise me as to when you would be availabel on September 25, 26, or 27, 2002 to meet and confer concerning the Hitchmans' contemplated motion under Rule 30(a)(2) to obtain an Order of the Court allowing the Hitchmans to depose Reed E. Slatkin. If the Trustee is willing to stipulate to the depostion being taken, and save the time and expense assocaited with a dispute over this matter, please advise me at your earliest convenience. Very truly yours, [signed] HOWARD KOLLITZ cc: Anthony and Peggy Hitchman RIchard D. Burstein, Esq. Kim Tung, Esq. Greg Shamo, Esq. *|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*|*| James Devine ____________________________________ From : Kollitz, Howard Sent: Wednesday, October 09, 2002 8:08 PM To: James Devine Cc: Servin, Vivian; Burstein, Richard; Kollitz, Howard, Tung, Kim; Shamo, Greg Subject: RES-Hitchmans/#232237/ Slatkin Bankruptcy Case/Trustee adv Hitchmans FYI: --- Original Message --- From : Kollitz, Howard Sent: Wednesday, September 23, 2002 3:05 PM To: 'alexander_pilmer@la.kirkland.com' Cc: Kollitz, Howard; Burstein, Richard Subject: RE: Slatkin Bankruptcy Case/Trustee adv Hitchmans 4 p.m. on 10-2-02 is acceptable for the meet and confer on the Hitchmans' contemplated motion to require Slatkin to appear for a deposition. We can proceed on the basis that the meet and confer on the contemplated motino is added to the agenda on teh conference call which Tim Jafek will initiate on 10-2-02. --- Original Message --- From: 'alexander_pilmer@la.kirkland.com' [mailto:'alexander_pilmer@la.kirkland.com'] Sent: Thursday, September 19, 2002 3:59 PM To: hkollitz@dgdk.com Subject: Since we keep missing each other by phone, I thought I'd drop you a line. With respect to your request to meet and confer regarding the Hitchmans' request to depose Mr. Slatkin, I suggest that we schedule that discussion for the same time as the rule 26(f) conference. ********************************************************* The information contained in this communication is confidential, may be attorney-client privileged, may constitute inside information, and is intended only for the use of the addressee. Is is the property of Kirkland & Ellis. 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