Case No. 01-16034 (AJG), Jointly Administered.United States Bankruptcy Court, S.D. New York.
September 28, 2005
EL PASO FIELD SERVICES, L.P., by and through its counsel, FULBRIGHT JAWORSKI L.L.P., David A. Rosenzweig (DR-5742), FULBRIGHT JAWORSKI L.L.P., New York, New York, ATTORNEYS FOR EL PASO FIELD SERVICES, L.P.
REORGANIZED DEBTORS, by and through their counsel, WEIL, GOTSHAL MANGES LLP, Martin J. Bienenstock (MB 3001), Brian S. Rosen (BR 0571), Melanie Gray (Pro Hac Vice), Martin A. Sosland (Pro Hac Vice), Weil, Gotshal Manges LLP, New York, New York, ATTORNEYS FOR THE REORGANIZED DEBTORS.
SCHEDULING ORDER CONCERNING THE REORGANIZED DEBTORS’ SEVENTY-SEVENTH OMNIBUS OBJECTION TO THE PROOF OF CLAIM FILED BY EL PASO FIELD SERVICES, L.P.
ARTHUR GONZALEZ, Bankruptcy Judge
The Reorganized Debtors having filed their Seventy-Seventh Omnibus Objection to Proofs of Claim (No Amount Due Per Debtors’ Books and Records or Insufficient Proof) (the “Omnibus Objection”) (Docket No. 23295) which included an objection to proof of claim number 24961 filed by El Paso Field Services, L.P. (“El Paso”) in the amount of $850,000, which amended proof of claim number 13417 (the “Claim”) against Enron North America Corp. (“ENA”); and El Paso having filed a response (Docket No. 24017) to the Omnibus Objection (the “El Paso Response”):
IT IS THEREFORE ORDERED that:
1. ENA shall file and serve a supplement to the Omnibus Objection setting forth the specific legal and factual basis for its objection to the Claim (the “Supplemental Objection”) no later than October 21, 2005.
2. El Paso shall file and serve a Supplement to the El Paso Response, setting forth the specific legal and factual response of El Paso to the Supplement Objection in response to the Supplemental Objection no later than November 17, 2005.
Page 2
3. Pursuant to Rule 9014 of the Federal Rules of Bankruptcy Procedure (the “Bankruptcy Rules”), Bankruptcy Rules 7016, 7026(a)(1), 7026(a)(2), 7026(a)(3), and 7026(f) are made applicable to the contested matter arising from the Claim, the Omnibus Objection, the Response, the Supplemental Objection, and the Supplemental Response and the Response (the “ContestedMatter”).
4. Written Discovery
(a) On or before November 15, 2005, the Parties shall exchange the disclosures (the “Initial Disclosures”) set forth in Rule 26(a)(1) of the Federal Rules of Civil Procedure (the “Federal Rules”), as incorporated into the Contested Matter by Bankruptcy Rules 9014, 7026, and this Order.
(b) On or before November 25, 2005, any Party may serve upon any other Party the following types of discovery requests in connection with the Contested Matter (collectively, the “WrittenDiscovery”):
(i) Requests for Production (a “Production Request”) pursuant to Federal Rule 34 as incorporated by Bankruptcy Rule 7034 (the “Bankruptcy Rules”);
(ii) Requests for Admission (an “Admission Request”), not exceeding 25 in number including all discrete subparts, pursuant to Federal Rule 34 as incorporated by Bankruptcy Rule 7036; and
(iii) Written interrogatories (“Interrogatories”), not exceeding 15 in number including all discrete subparts, pursuant to Federal Rule 33 as incorporated by Bankruptcy Rule 7033; and
Page 3
(c) In the event a Party receives a discovery request in connection with the Contested Matter that is not designated as Written Discovery herein, pursuant to Bankruptcy Rule 7026(c)(1), the Court hereby relieves such Party from any obligation to respond to such discovery request.
(d) Any Party desiring to issue a subpoena pursuant to Bankruptcy Rule 9016 seeking the production of documents from any entity that is not a Party to the Contested Matter must, on or before November 30, 2005, serve such subpoena on such entity with a copy to the other Party hereto.
(e) Responses to all Written Discovery shall be governed by the Bankruptcy Rules, provided, however, all responses to Written Discovery (with the production of documents) must be served via facsimile and/or electronic mail, no later than 5:00 p.m. New York City time on the deadline provided by the Bankruptcy Rules.
5. Procedures for fact witness depositions
(a) On or before January 15, 2006, any Party desiring to take depositions of fact witnesses in connection with the Contested Matter must: (i) in the case of the deposition of a fact witness who is currently employed by one of the Parties, or the deposition of a corporate representative of one of the Parties pursuant to Bankruptcy Rule 7030(b)(6), serve upon the other Party hereto a notice of deposition or other appropriate service of process as contemplated by the Bankruptcy Rules; and (ii) in the case of the deposition of a fact witness who is not currently employed by one of the Parties, serve upon such witness a subpoena or other appropriate service of process as contemplated by the Bankruptcy Rules, with a copy served via facsimile and/or hand delivery to the other Party hereto.
Page 4
(b) Subject to the limitations set forth in paragraph 2(c) of this Scheduling Order, the Parties shall discuss, in good faith, the scheduling of all fact witness depositions prior to service of any deposition notice pursuant to paragraph 2(a) of this Scheduling Order.
(c) As used herein, the phrase “employed by one of the Parties” shall mean and refer to any witness who: (i) is employed by a Party; (ii) is employed by a corporate parent, subsidiary, or affiliate of a Party; (iii) provides consulting or professional services to a Party; (iv) is an independent contractor for a Party; or (v) is within the direction and control of a Party.
(d) Absent agreement of the Parties or further order of the Court, depositions shall be concluded on or before February 15, 2006 (the “Deposition Deadline”); provided, however, that the Parties shall be entitled to notice and take the deposition of any Testifying Witness (defined below) without regard to the Deposition Deadline to the extent such Testifying Witness did not give his or her deposition pursuant to this Scheduling Order prior to the Deposition Deadline.
6. Procedures for Expert Discovery
(a) In accordance with Federal Rule 26 as incorporated into the Contested Matter by Bankruptcy Rule 7026 and this Order, each Party desiring to present the testimony of an expert witness in connection with the Contested Matter shall, on or before November 30, 2005, provide the other Party hereto the disclosures required by Bankruptcy Rule 7026.
Page 5
(b) Any Party may depose any person who has been designated by another Party as an expert witness pursuant to paragraph 3(a) hereof. The Parties shall discuss, in good faith, the scheduling of all expert witness depositions prior to service of any deposition notice provided, however, that no expert may be deposed before a date that is at least one day following service of such expert’s written report.
(c) Absent agreement of the Parties or further order of the Court, expert witness depositions shall be concluded on or before the Deposition Deadline provided, however, that the Parties shall be entitled to notice and take the deposition of any Testifying Witness (defined below) without regard to the Deposition Deadline to the extent such Testifying Witness did not give his or her deposition pursuant to this Scheduling Order prior to the Deposition Deadline.
7. Discovery Disputes In the event that a dispute arises concerning any request for discovery in connection with the Contested Matter, the complaining Party shall provide the other Party written notice of such dispute, and, if such dispute is not resolved within 3 business days of such notice, the complaining Party may inform the Court of such dispute via written communication delivered to the Court and all other Parties hereto. In that instance, the Court shall thereafter conduct a chambers conference or evidentiary hearing, telephonic or in person, as soon as possible to resolve or rule upon any such issues involved in such dispute. Pending resolution of any such dispute, the Parties shall cooperate and produce such discovery which is not the subject of any such dispute.
Page 6
8. Trial and Final Pretrial Conference
(a) The Court will hold a hearing (the “Trial”) to consider the Contested Matter on March 16, 2006, at 10:00 a.m. New York City time or as soon thereafter as the matter may be heard.
(b) On or before February 22, 2006, all Parties shall file and serve, via email and/or hand delivery, their final pretrial conference memoranda (a “Pre-Trial Statement”) containing: (i) a list of the names and addresses of the witnesses, including experts, such Party will call to testify at the Trial (collectively, “Testifying Witnesses”) and identifying whether each such witness will be presented for direct testimony via proffer or live, provided, however, that no Testifying Witness shall be permitted to present his or her direct testimony via proffer unless such witness is available in person for cross-examination during the presentation of such proffer, andprovided further, however, that no Party shall be prohibited from presenting the testimony of any Testifying Witness not so identified if the purpose of such presentation is to rebut the testimony or evidence offered by any other Party; (ii) a copy of any proffer that such Party will introduce into evidence at the Trial; (iii) a copy of all the exhibits, other than those used solely for impeachment or rebuttal purposes, such Party will introduce into evidence at the Trial; and (iv) any other matters that may aid in the disposition of the Contested Matter at the Trial.
(c) On or before February 28, 2006, the Parties shall file and serve, via email and/or hand delivery, any motions in limine or other motions respecting the admission or exclusion of evidence (collectively, the “Pre-Trial Motions”), and shall be prepared to argue any such motions during the Pre-Trial Conference (defined below).
Page 7
(d) The Court will hold a final pretrial conference (the “Pre-Trial Conference”) on March 9, 2006, at 10:00 a.m. New York City time or as soon thereafter as counsel may be heard, during which the Court will: (i) consider any Pre-Trial Motions; (ii) consider any issues raised in the Pre-Trial Statements; and (iii) set forth the procedures for conducting the Trial.
(e) The Parties may, by written agreement, change the dates and deadlines set forth herein without further order of the Court,provided, however, that the deadlines for submission of the Pre-Trial Statements and Pre-Trial Motions, as well as the Trial setting, cannot be changed absent order of the Court.
AGREED.
SO ORDERED.
Page 1