Adelphia liquidating trust agreement
Adelphia liquidating trust agreement - Free Online
By and through the Devon Plan and the Devon Confirmation Order, all of Devon's assets, including its causes of action, were transferred to the Liquidating Trust. 34 advisory committee note to the 1980 Amendment: "The Committee is advised that, `It is apparently not rare for parties deliberately to mix critical documents with others in the hope of obscuring significance . .' The sentence added by this subdivision [regarding usual course of business method of production of documents] follows the recommendation of the Report." The Hagemeyer court specifically found that where no attempt to obscure document discovery was made, granting access to business records in labeled, indexed archives was an acceptable production in the "usual course of business." Id.
overcharged Devon for the services provided, and caused Devon to make payments for services which were preferential in nature. The Liquidating Trust's argument that stored documents do not fall within Rule 34(b)'s "usual course of business" category glosses over the fact that the parties in this case, Devon Mobile Communications as well as the Adelphia Defendants, are bankruptcy debtors. Adelphia also indicated that the Liquidating Trust's production method was identical to that proposed by Adelphia here, save for the volume — Devon gave Adelphia access to approximately 200 boxes of business records stored in unlabeled boxes in a warehouse in Brooklyn, New York. Oral argument on the Rule 34 Motion was heard on May 5, 2005 (the "Hearing"). Devon and Adelphia also entered into specific services agreements in which Adelphia agreed to provide Devon with certain services. The district court held that the documents were nevertheless being kept in the usual course of business and the defendant was not required to search the records for responsive documents as the boxes of documents were clearly labeled, plaintiff was offered reasonable access to them and, importantly, there had been no intentional attempt to hide responsive documents among unresponsive ones. responsive documents were not deliberately mingled with unresponsive documents, diposes of the Liquidating Trust's argument that the Hagemeyer case was wrongly decided in view of Rule 34(b)'s goal to "prevent a responding party from mix[ing] critical documents with others in an attempt to obscure their importance." This last argument is somewhat counterintuitive as the purpose of permitting a discovering party to conduct a personal search of the producing party's files was to prevent attempts to deliberately conceal responsive documents among irrelevant records. Devon Mobile Communications Liquidating Trust (the "Liquidating Trust") has brought a "Motion for an Order That Defendants' Planned Response to this Court's March 30, 2005 Ruling is Inadequate." Defendants have filed a Memorandum in Opposition to Plaintiffs Motion Regarding Defendants' Production of Documents. P.") and Adelphia Communications Corporation ("Adelphia") entered into the Agreement of Limited Partnership (the "Limited Partnership Agreement") of Devon Mobile Communications, L. Pursuant to the allegations contained in the Complaint, Adelphia was to provide virtually all of the working capital to Devon. 2004), the debtor corporation's documents had been placed in a storage facility by the bankruptcy trustee. In consideration of the arguments made at the Hearing, the Liquidating Trust's Motion, Adelphia's Opposition thereto, and the authorities cited by the parties, the Court denies the Liquidating Trust's Motion in its entirety, for the reasons set forth below. Adelphia also allegedly had control over Devon's bank accounts. Devon was formed for the purpose of taking advantage of certain minority and women owned business incentives in procuring personal communication services (PCS) licenses offered by the FCC. On June 21, 2004, the Liquidating Trust commenced this adversary proceeding by filing its complaint (the "Complaint") alleging damages for certain preferential transfers, fraudulent conveyances and breaches of contract, deepening insolvency and alter ego liability. Adelphia is also accused of breaching its duty to fund Devon's operations, and it is alleged that this breach, coupled with Devon's inability to procure alternate financing as result of Adelphia's formerly exclusive financing of Devon, caused Devon to fail. 16-18, in fact, the Dryvit court indicated at least three times its dismay that no index existed or had been provided for the document repository. Rule 34(b) should not be read to have such a narrow application. corporate or governmental, directive would have to be included within the "usual course of business" rubric.
Devon LP filed for Chapter 11 protection on August 19, 2002. The purpose behind the 1980 Amendment that added the "usual course of business" language to Rule 34(b) was to allow the discovering party access to business records in the manner documents were normally maintained by the producing party to prevent deliberate "shifting of the materials from the sequence which they were ordinarily kept to somewhere else . The Court qualifies its ruling by explicitly stating that in order to satisfy the requirements of Rule 34(b) any archived documents produced must be thoroughly indexed, the boxes accurately labeled and the depository kept in good order.
Devon is seeking to have Adelphia return all the allegedly preferential and improper transfers and also to pay all creditors of the Devon Liquidating Trust. In response, the Liquidating Trust filed a Motion for an Order that Defendants' Planned Response to this Court's March 30, 2005 Ruling is Inadequate, ECF Docket No. Adelphia filed a Memorandum in Opposition to Plaintiffs Motion Regarding Defendants' Production of Documents, with affirmations and exhibits annexed thereto, see ECF Docket No. In the Opposition, Adelphia indicates that as a result of and in connection with an SEC investigation of Adelphia's credit facilities, as well as grand jury investigations into Adelphia's activities and an investigation being conducted by a Special Committee of the Adelphia Board of Directors, Adelphia issued directives to all Adelphia's personnel to retain all documents related to Adelphia's business, which are currently being stored in a document archive in Coudersport, Pennsylvania. A review of the Dryvit case shows however that the district court's real concern with the proposed method of production was that the documents were kept in "no apparent order," id. Although the Liquidating Trust maintained at oral argument that "the Dryvit case was in no way based upon the existence or the lack of existence of an index . The Court does not endorse a method of document production that merely gives the requesting party access to a "document dump," see Hagemeyer North America v.
Additionally, the Complaint indicates that Adelphia caused Devon to improperly transfer funds as a return of capital contributions in violation of the terms of the Limited Partnership Agreement. despite persistent attempts by plaintiffs' counsel to receive an index of documents located in the repository, an index has never been provided to the plaintiffs."); and id. Business records for the periods at issue have been archived on both sides to comply with official directives and document retention protocols. counsel states that they "combed" through the boxes and selected the documents for copying, and proposes that the Liquidating Trust do likewise with Adelphia's warehouse of documents.
Another allegation set forth in the Complaint is that Adelphia continued to cause Devon to incur obligations knowing full well it would not be able to provide the capital funding it had represented it would provide to Devon, all the while transferring funds from Devon in payment of the services agreements and in return of their (Adelphia's) capital contributions. at 611 ("There is also no evidence to explain why Dryvit has not kept a record for its own use concerning the location of its documents within the repository and the subject of those documents."). In fact, at oral argument counsel for the Adelphia defendants averred that the documents responsive to the Liquidating Trust's requests do not exist elsewhere for the period at issue. Where, as here, all extant corporate records for the period at issue are kept in a separate document archive pursuant to official directives, the Court holds they are being kept in the "usual course of business." There is on-point authority for permitting access to warehoused documents of a bankruptcy debtor as being stored in the "usual conduct of business." In Hagemeyer North America, Inc.
The Liquidating Trust also contends in the Complaint that Adelphia dominated and controlled Devon to the extent that Devon was merely an instrumentality of Adelphia. at 609 ("The repository documents were located in four oversized file cabinets with no index provided to plaintiffs' counsel."); id. The Court disagrees with the Liquidating Trust because it is clear that the absence of a comprehensive index in the Dryvit case was significant to the district court's determination that access to the document depository was not a permissible method of production. Wis.2004), with an instruction to the party to "go fish," see Doe v.
The Complaint denominates Adelphia as a "de facto" general partner of Devon LP. The Court cannot agree with the argument that only those parties who conduct business as document archivists would be permitted to produce documents in as they are kept in ordinary course of business, an argument made by the Liquidating Trust in reliance on a single sentence contained in the Dryvit case. The solution proposed by the 1980 Amendment was obviously intended to include all business forms, and as a logical extension documents stored as a matter of course or by official, i.e.