Opinion
3:08mc93.
July 8, 2008
ORDER
THIS MATTER is before the court in accordance with 28, United States Code, Section 636(b), upon referral of Honorable Robert J. Conrad, Jr., United States Chief District Judge, for consideration and disposition of petitioner Qwest Communications International Inc.'s Application for Discovery Pursuant to 28 U.S.C. § 1782. Petitioner seeks an Order (1) requiring the Clerk of this issue a subpoena requiring Bank of America, N.A., to appear for purposes of being deposed and producing documents as provided in Section 1782(a), (2) permitting the designation of a certified court reporter as an officer of this court for purposes of administering an oath and taking a statement, all for use in a commercial action now pending in the Netherlands before the Amsterdam District Court. Cargill v. KPN N.C., No. 360959/HA ZA 07-192.
FINDINGS AND CONCLUSIONS
I. Jurisdiction
The court has reviewed the application and the over 600 pages of exhibits annexed thereto. Review of the application begins with the authorizing statute:
(a) The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal, including criminal investigations conducted before formal accusation. The order may be made pursuant to a letter rogatory issued, or request made, by a foreign or international tribunal or upon the application of any interested person and may direct that the testimony or statement be given, or the document or other thing be produced, before a person appointed by the court. By virtue of his appointment, the person appointed has power to administer any necessary oath and take the testimony or statement. The order may prescribe the practice and procedure, which may be in whole or part the practice and procedure of the foreign country or the international tribunal, for taking the testimony or statement or producing the document or other thing. To the extent that the order does not prescribe otherwise, the testimony or statement shall be taken, and the document or other thing produced, in accordance with the Federal Rules of Civil Procedure.
A person may not be compelled to give his testimony or statement or to produce a document or other thing in violation of any legally applicable privilege.28 U.S.C. 1782(a).
First, the undersigned must determine whether he has jurisdiction to Order the issuance of subpoena under Section 1782(a). Inasmuch as this is an ex parte application, there can be no jurisdiction in a magistrate judge under 28, United States Code, Section 636(c). Turning next to 28, United States Code, Section 636(b)(1)(A), a United States Magistrate Judge may, upon referral of a United States District Judge, dispose of certain non-dispositive matters upon referral of the district court. In the only case on point that the undersigned could find, Phillips v. Beierwaltes, 466 F.3d 1217 (10th Cir. 2006), the Court of Appeals for the Tenth Circuit held, where an appeal was taken from a magistrate judge's Order allowing a Section 1782(a) subpoena, as follows:
the administrators argue their application can be characterized as a "discovery dispute" and, as such, may be referred to a magistrate judge without the Beierwaltes' consent. Specifically, the administrators claim their § 1782 application was properly referred by the clerk of court to the magistrate judge under a blanket referral order assigning to magistrate judges all "discovery disputes in cases pending in other federal courts." D.C. Colo. L. Civ. R. 72.1(B)(7). We disagree. The administrators' application does not stem from a case "pending in [an]other federal court ." D.C. Colo. L. Civ. R. 72.1(B)(7). Rather, it is a subpoena request arising from a case pending in an English court. Accordingly, we question whether an application made pursuant to 28 U.S.C. § 1782 constitutes a "pretrial matter pending before the court" for the purposes of referring a matter to a magistrate judge under this local rule. 28 U.S.C. § 636(b)(1)(A).
We need not decide whether there was a proper reference to the magistrate judge under § 636(b) and the District of Colorado local rules because even if there was, the magistrate judge had no authority to enter a final order on the matter at issue here.
Federal magistrate judges are creatures of statute, and so is their jurisdiction. Unlike district judges, they are not Article III judicial officers, and they have only the jurisdiction or authority granted to them by Congress, which is set out in 28 U.S.C. § 636. As applicable here where the parties did not consent to proceeding before the magistrate judge, see § 636(c)(1), the district court may designate a magistrate judge to consider various matters. See § 636(b). These matters are generally categorized as 'dispositive' or 'non-dispositive,' and a magistrate judge's authority with respect to each category is different: Magistrates may issue orders as to non-dispositive pretrial matters, and district courts review such orders under a clearly erroneous or contrary to law standard of review. 28 U.S.C. § 636(b)(1)(A). While magistrates may hear dispositive motions, they may only make proposed findings of fact and recommendations, and district courts must make de novo determinations as to those matters if a party objects to the magistrate's recommendations. Id. § 636(b)(1)(B), (C).
First Union Mortgage Corp., v. Smith, 229 F.3d 992, 995 (10th Cir. 2000) (internal citations, quotations, and brackets omitted).
Whether the magistrate judge's order to compel discovery was dispositive or non-dispositive in this unusual proceeding under 28 U.S.C. § 1782, it was not a final appealable order until the district court acted on it. In these circumstances, "[w]hen [the Beierwaltes] objected to the magistrate judge's order through [their] motion for reconsideration, the district court was obligated to [review] the basis for the order." First Union Mortgage Corp., 229 F.3d at 996. Because the district court failed to do so, no final appealable order was entered in this case.
Accordingly, we lack jurisdiction to review the Beierwaltes' appeal, and we therefore DISMISS it.Id., at 1221-1222 (citation omitted).
While the appellate court in Phillips questioned whether a United States Magistrate Judge could be referred a Section 1782 application under the language of the Colorado local rule, which provided a blanket referral of any "pretrial matter pending before the court," such decision does not appear to be applicable in light of the Local Civil Rules of this district as well as the district judge's Order of Reference applicable to this matter. First, Local Civil Rule 73.1(A) provides in relevant part, as follows:
(A) Magistrate Judges are Authorized and Designated to Exercise the Following Functions and Duties Regarding Civil Actions in the Western District:
***
(2) to hear and decide non-dispositive procedural or discovery motions and other pretrial matters, as provided by 28 U.S.C. § 636(b)(1)(A). . . .
L.Cv.R. 73.1(A). Further, the Order of Reference of the district judge to whom this matter is assigned authorizes a magistrate judge to "dispose of any civil pretrial motions pertaining to discovery arising under . . . the Federal Rules of Civil Procedure. . . ." See 3:05mc268 (Conrad, C.D.J.). In turn, the Federal Rules of Civil Procedure provide that such "rules govern the procedure in all civil actions and proceedings in the United States district courts. . . ." Fed.R.Civ.P. 1. Indeed, Section 1782 specifically provides that "the testimony or statement shall be taken, and the document or other thing produced, in accordance with the Federal Rules of Civil Procedure" 28 U.S.C. § 1782(a).
While the appellate court in Phillips questioned whether a Section 1782(a) proceeding was a "civil action" pending before the district court, there can be no doubt that a Section 1782(a) petition is a "proceeding in the United States district courts." Id. In any event, an Order either allowing or refusing to allow the Clerk of this court to issue a subpoena is not a final Order, and may be called into question by the subpoenaed party as provided in Rule 45, Federal Rules of Civil Procedure, or may be reviewed by the district court under Section 636(b) upon a showing that the order is clearly erroneous or contrary to law. The undersigned, therefore, determines that this petition has been properly referred and that jurisdiction exists under Section 636(b) to consider such application.
II. Substantive Review
A. Rule 45 Analysis
The undersigned has closely considered the ex parte application for issuance of a subpoena directed to Bank of America, N.A., which would require such corporation to appear and give testimony, as well as produce documents, at a deposition scheduled for July 31, 2008, in Charlotte, North Carolina. Initial review, therefor, shows that such application complies with the requirement os Rule 45 and, if promptly served, would allow the proposed deponent sufficient time within which to either object, Fed.R.Civ.P. 45(c)(2)(B), or move to quash. Fed.R.Civ.P. 45(c)(3).
B. Section 1782(a) Analysis.
First, it appears that the proposed deponent, Bank of America, N.A., is headquartered within the Western District of North Carolina. Second, it appears that courts have routinely held that the courts of the Netherlands are "tribunals" under Section 1782.In re Benetton Int'l, N.V., 1997 WL 1068669 (E.D.N.Y. 1997). Fourth, it appears that the discovery sought — Bank of America, N.A.'s GTS Due Diligence Files, Facilities Due Diligence Files, and Assignment Due Diligence Files, as well as any non-privileged communications concerning the claims that Bank of America assigned, as well as deposing the bank — are relevant to the litigation now pending in the Netherlands. The Amsterdam District Court held, in essence, that petitioner was entitled to compel the production of due diligence files that were in the possession of the plaintiff in that action, but that the due diligence files of the original lender, Bank of America, N.A., were beyond that court's jurisdiction to compel. See Sherman Decl., Ex. D, § 5.11. Third, it appears that the petitioner is an interested party and has actually appeared and subjected itself to the jurisdiction of the court in the litigation now pending in the Netherlands. In re Lancaster Factoring Co. Ltd., 90 F.3d 38, 42 (2d Cir. 1996).
Due to the limits of Electronic Case Filing, a copy of such unpublished decision is placed in the electronic docket through incorporation of the Westlaw citation.
The statutory requirements for issuance of a subpoena under Section 1782 having been met, the undersigned now turns to whether, in the court's discretion, the subpoena should be issued. Guidance on this issue is found in the Supreme Court's recent decision inIntel Corp. V. Advanced Micro Devices, Inc., 542 U.S. 241 (2004), which held that a district court may take the following factors into consideration in deciding whether to grant a Section 1782 application:
First, when the person from whom discovery is sought is a participant in the foreign proceeding (as Intel is here), the need for § 1782(a) aid generally is not as apparent as it ordinarily is when evidence is sought from a nonparticipant in the matter arising abroad. A foreign tribunal has jurisdiction over those appearing before it, and can itself order them to produce evidence. App. to Reply Brief 4a ("When th[e] person [who is to produce the evidence] is a party to the foreign proceedings, the foreign or international tribunal can exercise its own jurisdiction to order production of the evidence." ( quoting declaration of H. Smit in In re Application of Ishihara Chemical Co., Ltd., For order to Take discovery of Shipley Company, L.L.C., Pursuant to 28 U.S.C. § 1782 , Misc. 99-232(FB) (EDNY, May 18, 2000))). In contrast, nonparticipants in the foreign proceeding may be outside the foreign tribunal's jurisdictional reach; hence, their evidence, available in the United States, may be unobtainable absent § 1782(a) aid. See App. to Reply Brief 4a.
Second, as the 1964 Senate Report suggests, a court presented with a § 1782(a) request may take into account the nature of the foreign tribunal, the character of the proceedings underway abroad, and the receptivity of the foreign government or the court or agency abroad to U.S. federal-court judicial assistance. See S.Rep. No. 1580, at 7. Further, the grounds Intel urged for categorical limitations on § 1782(a)'s scope may be relevant in determining whether a discovery order should be granted in a particular case. See Brief for United States as Amicus Curiae 23. Specifically, a district court could consider whether the § 1782(a) request conceals an attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country or the United States. See id., at 27. Also, unduly intrusive or burdensome requests may be rejected or trimmed. See Bayer, 146 F.3d, at 196 (remanding for district-court consideration of "appropriate measures, if needed, to protect the confidentiality of materials"); In re Application of Esses, 101 F.3d 873, 876 (C.A.2 1996) (affirming limited discovery that is neither "burdensome [n]or duplicative").Id., at 264-265. These appear to be non-exclusive factors, and the unsigned will consider other factors.
First, it does not appear that bank of America, N.A., is either a party or a participant in the action now pending in the Netherlands. Further, it appears that the foreign court has determined that the due diligence files of the original lender are relevant to such action, but beyond that court's reach. This appears to coincide precisely with the first consideration enumerated by the Court, which would counsel invoking the aid of the United States District Court. Id., at 265 ("nonparticipants in the foreign proceeding may be outside the foreign tribunal's jurisdictional reach; hence, their evidence, available in the United States, may be unobtainable absent § 1782(a) aid.").
Second, it appears that the Amsterdam District Court is, like this court, a court of first resort in the Netherlands. Das Decl., at ¶ 8. Further, it appears that the courts in the Netherlands have been historically receptive to requests for assistance by the courts of the United States. Id., at ¶ 9.
Third, it does not appear that the application now pending before the court is an attempt to circumvent the court in the Netherlands or any restrictions such court may have imposed upon the requesting party in its efforts to gather discovery. Indeed, it appears, as discussed above, that the court in the Netherlands found the discovery sought herein to be relevant, but outside its reach. Such court specifically found that petitioner has a "legitimate interest" in the due diligence files.
Fourth, it appears that the requests are narrowly tailored to produce information relevant to the issues now pending and that safeguards are built into the request to prevent the production of privileged information. In the Netherlands action, it is alleged that petitioner and other defendants misrepresented KPNQwest's financial condition condition. Sherman Decl., at ¶ 14-17. The discovery sought herein appears to be highly relevant and narrowly tailored to defend itself against the allegations it now faces.
Fifth, the court has considered whether these documents are otherwise available to petitioner. Clearly, such are not available through the process available in the Netherlands. Instead, it appears that the only method that may be employed is through Section 1782.
Sixth, it appears that allowing the request would promote comity between the courts of the United States and the courts of the Netherlands. Indeed, it appears that like the United States, the Netherlands is a signatory to the Hague Convention. Convention on taking Evidence Abroad, 23 U.S.T. 2555.
Seventh, and finally, it appears that the issuance of a subpoena based on an ex parte application will not prejudice the rights of the subpoenaed party, bank of America, N.A. Issuance of the subpoena is but a first step in this process, and allows for the subpoenaed party to challenge the subpoena under Rule 45, Federal Rules of Civil Procedure, or appeal this Order to the district court upon a showing that its issuance was clearly erroneous or contrary to law.
C. Appointment of a Certified Court Reporter to Administer the Oath
While the petitioner has not identified the certified court reporter who will be taking the deposition, the court finds that the request is appropriate and will appoint the certified court reporter who is retained to record the deposition to administer any necessary oath and take the testimony or statement required to be given at such deposition.
ORDER
IT IS, THEREFORE, ORDERED that petitioner Qwest Communications International Inc.'s Application for Discovery Pursuant to 28 U.S.C. § 1782 (#1) is ALLOWED, and the Clerk of this court is instructed to ISSUE the proposed subpoena and return such to counsel for the petitioner for service. The court appoints the certified court reporter who is retained to record the deposition to administer any necessary oath and take the testimony or statement required to be given at such deposition. UNITED STATES DISTRICT COURT SUBPOENA IN A CIVIL CASE 45 PROOF OF SERVICE
If action is pending in district other than district of issuance, state district under case number.
DECLARATION OF SERVER
I declare under penalty of perjury under the laws of the United States of America that the foregoing information contained in the Proof of Service is true and correct. Executed on ________________________________ ___________________________________ DATE SIGNATURE OF SERVER ___________________________________ ADDRESS OF SERVER ___________________________________ Rule 45, Federal Rules of Civil Procedure, Parts C D:(c) PROTECTION OF PERSONS SUBJECT TO SUBPOENAS.
(1) A party or an attorney responsible for the issuance and service of a subpoena shall take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena. The court on behalf of which the subpoena was issued shall enforce this duty and impose upon the party or attorney in breach of this duty an appropriate sanction which may include, but is not limited to, lost earnings and reasonable attomey's fee.
(2) (A) A person commanded to produce and permit inspection and copying of designated books, papers, documents or tangible things, or inspection of premises need not appear in person at the place of production or inspection unless commanded to appear for deposition, hearing or trial.
(B) Subject to paragraph (d)(2) of this rule, a person commanded to produce and permit inspection and copying may, within 14 days after service of the subpoena or before the time specified for compliance if such time is less than 14 days after service, serve upon the party or attorney designated In the subpoena written objection to Inspection or copying of any or all of the designated materials or of the premises. If objection is made, the party serving the subpoena shall not be entitled to inspect and copy the materials or inspect the premises except pursuant to an order of the court by which the subpoena was issued. If objection has been made, the party serving the subpoena may, upon notice to the person commanded to produce, move at any time for an order to compel the production. Such an order to compel production shall protect any person who is not a party or an officer of a party from significant expense resulting from the inspection and copying commanded.
(3) (A) On timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if it
(i) fails to allow reasonable time for compliance;
(ii) requires a person who is not a party or an officer of a party to travel to a place more than 100 miles from the place where that person resides, is employed or regularly transacts in person except that, subject to the provisions of clause (c)(3)(B)(iii) of this rule, such a person may in order to attend trial be commanded to travel from any such place within the state in which the trial is held, or
(iii) requires disclosure of privileged or other protected matter and no exception or waiver applies, or
(iv) subjects a person to undue burden.
(B) If a subpoena
(i) requires disclosure of a trade secret or other confidential research, development, or commercial information, or
(ii) requires disclosure of an unretained expert's opinion or information not describing specific events or occurrences in dispute and resulting from the expert's study made not at the request of any party, or
(iii) requires a person who is not a party or an officer of a party to incur substantial expense to travel more than 100 miles to attend trial, the court may, to protect a person subject to or affected by the subpoena, quash or modify the subpoena or, if the party in whose behalf the subpoena is issued shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship and assures that the person to whom the subpoena is addressed will be reasonably compensated, the court may order appearance or production only upon specified conditions.
(d) DUTIES IN RESPONDING TO SUBPOENA
(1) A person responding to a subpoena to produce documents shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the demand.
(2) When information subject to a subpoena is withheld on a claim that it is privileged or subject to protection as trial preparation materials, the claim shall be made expressly and shall be supported by a description of the nature of the documents, communications, or things not produced that is sufficient to enable the demanding party to contest the claim.
SCHEDULE A I. DEFINITIONS AND INSTRUCTIONS
A. For purposes of interpreting or construing the scope of these definitions, instructions, and requests, the terms used shall be given their most expansive and inclusive interpretation.
B. The terms "and" and "or" used in any request in the disjunctive or conjunctive shall be read as necessary to make the request more inclusive.
C. Any singular form of any word shall be construed to include the plural and any plural form shall be read to include the singular.
D. Any past tense of a verb shall be construed to include the present tense and any present tense shall be construed to include the past tense.
E. The term "document" or "documents" shall mean the original and all copies thereof which are different in any way from the original (whether by interlineation, receipt stamp notation, indication of copies sent or received, or otherwise) and all attached or annexed materials to any written, typewritten, handwritten, printed, graphic, photographic or recorded material as well as all computer e-mails, instant messages, data files, Web pages, tapes, disks, inputs or outputs, and other computer-readable records or programs, transcripts and copies and reproductions thereof, however produced or reproduced, now or at any time in your actual or constructive possession, custody or control. The terms "document" or "documents" shall specifically include, but shall not be limited to, correspondence, e-mails, instant messages, telegrams, facsimiles, telexes, memoranda, memoranda or records of meetings, reports, studies, transcripts, indexes, accounting records of any kind, including bank examination reports whether state or federal, filings, records, charts, tabulations, lists, analyses, graphs, diagrams, estimates, minutes (including board and loan committee minutes), tapes, photographs and photographic films, sound recording tapes, phonographic records, video tapes, compact disks, CD-ROMs, data compilations from which information can be obtained or can be translated into a form reasonably useable, as well as any contracts or agreements, and records of every kind and type, including any information formerly or presently kept by any method of electronic data processing or magnetic tape storage medium, including the printed output of any such electronic data processing equipment or magnetically stored information.
F. The term "person" means any natural person, association, corporation, partnership, government (or government agency, bureau, or department), quasi-public entity, proprietorship, joint venture, trust, estate, and all other form of legal entity.
G. The term "thing" means all tangible or intangible property not otherwise defined as a document.
H. The term "communication" means any writing, or oral conversation, including, but not limited to, telephone conversations and meetings, Internet conferences, teleconferences, letters, e-mails, instant messages, facsimiles, memoranda, telegraphic communications, and telex communications.
I. The term "produce" means to make available the document or things requested herein for inspection and copying, and to separate such documents into and label them to correspond with the categories set forth in these requests.
J. The term "Cargill" refers to Cargill Financial Markets, Plc., including its officers, directors, employees, agents, predecessors and successors.
K. The term "Credit Facility" means the credit structure established for use by KPNQwest pursuant to the Facilities Agreement.
L. The term "Bank of America" means Bank of America, N.A., together with its corporate subsidiaries and affiliates.
M. The term "Facilities Agreement" means the €525,000,000 Facilities Agreement dated 11 March 2002 for KPNQwest Services International B.V., KPNQwest IP Services B.V., KPNQwest Assets International B.V., KPNQwest Finance B.V. KPNQwest Ebone Holding B.V. and certain of their subsidiaries, arranged by ABN Amro Bank N.V., London Branch, Bank of America, N.A., Barclays Capital, Citibank, N.A., Deutsche Bank AG London, Dresdner Bank AG London Branch, with Citibank International Plc acting as Agent and Security Agent.
N. The term "Gemini," "Gemini Transaction," or "Project Gemini" refers to any transaction(s) in which KPNQwest planned to acquire or did acquire assets from Global TeleSystems, Inc., GTS Europe B.V., or any of their subsidiaries or affiliates.
O. The term "Gemini Agreement" means the Stock Purchase Agreement Among Global TeleSystems, Inc., GTS European Telecommunications Corp., Global Telesystems Europe B.V. and KPNQwest N.V. dated as of October 18, 2001.
P. The term "GTS" means Global TeleSystems, Inc., GTS Central Europe B.V., or any subsidiary thereof.
Q. The term "GTS Facility" means the credit facility established by Bank of America, Dresdner Bank AG London, and Deutsche Bank AG London, and/or any of their affiliates, as creditors and GTS Europe Holdings B.V. as debtor on or about July 14, 2000, including any subsequent amendments thereto.
R. The term "GTS Transaction" means any of "Gemini," "Gemini Transaction," or "Project Gemini" as defined above.
S. The term "KPNQwest" means KPNQwest N.V.
T. The term "Lending Syndicate" means those entities that entered into the Facilities Agreement with KPNQwest N.V.
U. The term "SSSB" refers to Schroeder Salomon Smith Barney, including its officers, directors, employees, agents, predecessors and successors.
V. To the extent that you consider any of the following requests objectionable, respond to so much of each and every part thereof which is not objectionable in your view, and separately state that part of each which is objectionable and the ground for each objection.
W. If you object to any discovery request on the basis of attorney-client privilege, work-product doctrine, or any other privilege, state the privilege claimed, and identify the documents or communications for which such privilege is claimed, stating the following:
1. The date of the document or communication;
2. The description of the document or communication protected, including the identity of all persons present or all persons who authored, transmitted or received a copy of such communication, and the number of pages, if written;
3. The subject matter of the document or communication; and
4. The basis on which the privilege is claimed.
You are requested to produce for inspection and copying the documents described below at the office of the undersigned attorneys on or by June 30, 2008, or at some other time as may be agreed to.
II. DOCUMENTS AND THINGS TO BE MADE AVAILABLE
1. All documents and correspondence related to due diligence, underwriting, credit, or security analysis or investigation performed in connection with the GTS Transaction by members and potential members of the Lending Syndicate. Such documents include but are not limited to: an August 16, 2001 Due Diligence Overview, the Issues and Due Diligence Log regarding Operations and Sales and Marketing, and the 2001 summary of risk adjustments in connection with the GTS Transaction. 2. All documents and correspondence related to due diligence, underwriting, credit, or security analysis or investigation performed by members and potential members of the Lending Syndicate on KPNQwest regarding the Credit Facility from July 2001-March 2002. Such documents include but are not limited to: all due diligence or informational questions posed by members or potential members of the Lending Syndicate, all written answers provided by KPNQwest to the due diligence or informational questions, all memoranda memorializing oral answers provided by KPNQwest to the due diligence or informational questions posed by members or potential members of the Lending Syndicate, all financial information provided by KPNQwest to members and potential members of the Lending Syndicate, all files kept by members and potential members of the Lending Syndicate regarding due diligence or investigation performed on KPNQwest, KPNQwest's financial information, and/or correspondence with KPNQwest regarding the Credit Facility. 3. All documents and correspondence from July 2001 to May 2002 related to negotiations with the Lending Syndicate or SSSB, as well as prospective members of the Lending Syndicate, about the terms and/or covenants of the Credit Facility and proposed modifications to the terms and/or covenants of the Credit Facility. 4. All documents and correspondence related to the decision by financial institutions not to participate in the Credit Facility before the execution of the Facilities Agreement on or about March 11, 2002, such as but not limited to, NIB Bank and JP Morgan. 5. All documents and correspondence related to the syndication of the Credit Facility. Such documents include, but are not limited to: presentations given as part of the syndication process including a presentation given on or about November 23, 2001, agendas of any syndication meetings, lists of banks approached as part of the syndication process. 6. All documents and correspondence related to any actual or potential sale or transfer, after March 11, 2002, of any Original Lender's interest (in whole or in part) in the Credit Facility, including but not limited to transactions in secondary or private markets where the Original Lenders could or did resell their share of the Credit Facility to other banks, financial institutions, hedge funds, or partnerships. 7. All documents related to the Bank of America's actual or purported assignment of its interest in the Credit Facility or the Amsterdam Litigation, including but not limited to assignments to Deutsche Bank AG and/or the ultimate assignment of its interest by Deutsche Bank AG to Cargill. 8. All communications after April 30, 2002 between any member of the Lending Syndicate and anyone else, including but not limited to any other member of the Lending Syndicate, related to (a) the claims in the Amsterdam Litigation; (b) the value of any claims that might have been asserted in the Amsterdam Litigation; and/or (c) KPNQwest or its management.SCHEDULE B
Capitalized terms have the same definitions as in Schedule A. Bank of America is requested, pursuant to Federal Rule of Civil Procedure 30(b)(6) to designate one of its officers, directors, employees, or other persons who consent to testify on its behalf about the following subjects:1. Bank of America's due diligence or investigation regarding the Gemini Agreement or the GTS Transaction.
2. Bank of America's due diligence or investigation regarding the Facilities Agreement.
3. Bank of America's communications and discussions with the other members of the Lending Syndicate regarding the Facilities Agreement and/or the GTS Transaction.
4. Deutsche Bank AG's due diligence or investigation leading up to Bank of America's assignment of its claims under the Facilities Agreement to Deutsche Bank AG.
5. Any and all analysis of the GTS Transaction, the Gemini Agreement, the Facilities Agreement, or KPNQwest's finances (including without limitation its business, business plan, liquidity or cash position, debt, EBITDA, or method of generating revenue) undertaken by Bank of America during the period from June 1, 2001 through March 11, 2002.
6. The knowledge or suspicions of any member of the Lending Syndicate concerning any aspect of KPNQwest finances, including without limitation its business, business plan, liquidity or cash position, debt, EBITDA, or method of generating revenue.