EFTA00729259.pdf

JAMS ARBITRATION IN THE MATTER OF FORTRESS VRF I LLC and FORTRESS VALUE RECOVERY FUND I LLC, Claimants v. JEEPERS, INC., Respondent and FINANCIAL TRUST COMPANY, INC. and JEEPERS, INC., Counterclaimants and Third-Party Claimants v. D.B. ZWIRN SPECIAL OPPORTUNITIES FUND, L.P. k/n/a FORTRESS VALUE RECOVERY FUND I LLC, Counter-Respondent and D.B. ZWIRN PARTNERS, LLC, D.B. ZWIRN & CO., L.P., DBZ GP, LLC, ZWIRN HOLDINGS, LLC, DANIEL ZWIRN, and Third-Party Respondents Case No. 1425006537 Arbitrator: Hon. Anthony J. Carpinello Counter-Claimants' Response to the First Set Of Document Requests By Claimants Fortress VRF I LLC And Fortress Value Recovery Fund I LLC Respondents Financial Trust Company, Inc. and Jeepers, Inc. (collectively referred to as "Respondents") hereby respond to Petitioner's First Set of Documents Requests as follows: OBJECTIONS TO DEFINITIONS AND INSTRUCTIONS EFTA00729259 1. Respondents object to any and all instructions or definitions which would require Respondents to respond in a manner beyond that required by the JAMS Arbitration Rules and Procedures. 2. Respondents object to the instructions and requests that seek documents that are not in Respondents' possession, custody or control. 3. Respondents object to each request to the extent that it calls for any documents that were prepared for or in anticipation of litigation, constitute attorney work-product, contain attorney-client communications, or are otherwise subject to a privilege. 4. Respondents object to the extent requests seek confidential or proprietary financial or operational information of Respondents. To the extent Respondents' other objections to such requests (e.g., relevance) are overruled, Respondents will produce such documents only after entering into an acceptable protective order. 5. Respondents object to the production of documents that contain proprietary and confidential information belonging to third parties. Respondents will not produce such documents without the permission of the third party. 6. Respondents reserves the right to update its Responses as more information becomes available to it. 7. Respondents asserts each of these general objections to each of the requests herein. Respondents also asserts specific objections to particular requests. The failure to assert a general objection to a particular request does not constitute a waiver of any general objections. Subject to and without waiving the above general objections to all paragraphs of the requests, Respondents responds to the individual requests as follows: Documents Requested Request No.1: 2 EFTA00729260 All documents concerning any investments made by Epstein, Jeepers or FTC in the Fund, including, but not limited to, all documents concerning: (a) any decision to make, retain or liquidate such investments; (b) the amount and timing of such investments; (c) the terms of such investments; (d) any efforts to withdraw or redeem such investments; (e) any and all communications regarding such investments; (0 any pitch or marketing materials received by Epstein, Jeepers or FTC relating to the Fund; (g) any due diligence materials, summaries or notes prepared in connection with any potential or actual investment in the Fund; or (h) any due diligence materials, summaries or notes (including background checks) related to Zwirn or any of its partners, officers or employees, including, but not limited to, Daniel Zwirn. Response; Respondents object because this request is overly broad, vague, and unduly burdensome. Moreover, any such communications after the Fund collapsed would be protected by the work product and/or common interest privilege. Subject to and without waiving the forgoing objection, Respondents will produce responsive documents, if any, that may exist. Request No.2: All documents concerning any withdrawal requests made by or on behalf of Epstein, Jeepers or FTC with respect to the Fund, including, but not limited to, all documents concerning: (a) any decision to make, alter or withdraw such requests; (b) the motivation behind any such requests; (c) the timing of such requests and the withdrawal amounts requested; (d) the validity of any and all such requests; (e) any and all communications regarding such requests; or (0 all rights of, or restrictions on, any of those parties with respect to the withdrawal of amounts from the Fund. Response: Respondents object because this request is overly broad, vague, and unduly burdensome. Moreover, any such communications after the Fund collapsed would be protected by the work product and/or common interest privilege. Subject to and without waiving the forgoing objection, Respondents will produce responsive documents, if any, that may exist. Request No. 3: To the extent not called for above, all documents reflecting communications between Epstein, Jeepers and/or FTC, on the one hand, and Zwirn and/or Daniel Zwirn, on the other, relating in any way to the Fund. 3 EFTA00729261 Response: Respondents object because this request is overly broad, vague, and unduly burdensome. Moreover, any such communications after the Fund collapsed would be protected by the work product and/or common interest privilege. Subject to and without waiving the forgoing objection, Respondents will produce responsive documents, if any, that may exist. Request No. 4: To the extent not called for above, all documents concerning: (a) any limited partnership agreement or other organizational document, or any other agreement, with respect to the Fund; (b) any Confidential Memorandum, offering document or other disclosure or subscription document relating to the Fund; (c) the November 17,2004 Supplement to the Confidential Memorandum concerning the Fund; (d) any amendments or other modifications (by side letter or otherwise) to any limited partnership agreement or other organizational documents, or any other agreement, relating to the Fund; (e) any subscription agreements relating to any investment made by Epstein, Jeepers or FTC in the Fund; (0 any side letters received or reviewed by Epstein, Jeepers or FTC pursuant to a "most favored nations" understanding or otherwise with respect to the Fund; (g) any capital account statement for Epstein, Jeepers or FTC, or annual statement indicating changes in Epstein's, Jeepers's or FTC's capital with respect to the Fund; (h) any annual report for the Fund or annual balance sheet and profit and loss statement for the Fund; (i) any K-Is or other tax information received from the Fund; or (j) any performance-related commentary received from the Fund or any of its agents or employees. Response: Respondents object because this request is overly broad, vague, and unduly burdensome. Subject to and without waiving the forgoing objection, Respondents will produce responsive documents, if any, that may exist. Request No. 5: All documents concerning the January 11, 2005 letter from D.B. Zwim Partners, LLC to FTC. Response: Respondents object because this request is overly broad and vague. Subject to and without waiving the forgoing objection, Respondents will produce responsive documents, if any, that may exist. 4 EFTA00729262 Request No. 6: All documents concerning the November 13, 2006 "Memorandum" from Epstein to Daniel Zwirn. Response: Respondents object because this request is overly broad and vague. Subject to and without waiving the forgoing objection, Respondents will produce responsive documents, if any, that may exist. Request No. 7: All documents concerning the "conversation" referred to in the November 13, 2006 "Memorandum" from Epstein to Daniel Zwirn. Response: Respondents object because this request is overly broad and vague. Subject to and without waiving the forgoing objection, Respondents will produce responsive documents, if any, that may exist. Request No. 8: All documents concerning the "Assignment" dated December 29, 2006 involving Jeepers, FTC and the Fund, including without limitation all documents concerning the reasons for the "Assignment." Response; Respondents object because this request is overly broad and vague. Subject to and without waiving the forgoing objection, Respondents will produce responsive documents, if any, that may exist. Request No. 9: All documents concerning the February 14, 2007 letter from Jeepers to D.B. Zwirn Partners, LLC. Response; Respondents object because this request is overly broad and vague. Subject to and without waiving the forgoing objection, Respondents will produce responsive documents, if any, that may exist. Request No. 10: All documents concerning the March 7, 2008 memorandum to limited partners in the Fund. 5 EFTA00729263 Response: Respondents object because this request is overly broad and vague. Subject to and without waiving the forgoing objection, Respondents will produce responsive documents, if any, that may exist. Request No. 11: All documents concerning the April 8, 2009 Settlement Agreement and Release, including, without limitation, all documents concerning: (a) the negotiation of the Settlement Agreement and Release; or (b) the purported termination of the Settlement Agreement and Release. Response: Respondents object because this request is overly broad and vague. Moreover, Respondents object because this request invades the attorney-client privilege. Subject to and without waiving the forgoing objection, Respondents will produce responsive documents, if any, that may exist. Request No. 12: To the extent not called for above, all documents relating to Zwirn or Daniel Zwirn, or any fund or other entity managed by Zwirn or Daniel Zwirn. Response: Respondents object because this request is overly broad, vague, unduly burdensome, designed to harass Respondents and/or third parties, and not calculated to lead to the discovery of relevant information to the extent it seeks information not related to the Fund at issue. Subject to and without waiving the forgoing objection, Respondents will produce responsive documents, if any, that may exist. Request No. 13: All documents concerning Glenn Dubin and/or Highbridge Capital Management (n/k1a Dubin & Swieca Asset Management, LLC) that relate to: (a) any investment by Epstein, Jeepers or FTC in the Fund; (b) any conversation between or among Epstein, Dubin and Daniel Zwirn relating to the Fund; (c) any effort by Epstein, Jeepers and/or FTC to withdraw any amount from the Fund; (d) the Fund; (e) the matters alleged in (1) Claimants' Demand for Arbitration dated May 5, 2010, or (2) FTC's and Jeepers's Statement of Counterclaim and Third Party Claim, dated May 21, 2010 (the "Statement of Counterclaim"), both in this proceeding; (0 the affidavit of Glenn Dubin attached to the Statement of Counterclaim; or (g) this Arbitration. 6 EFTA00729264 Response: Respondents object because this request is overly broad, vague, unduly burdensome, designed to harass Respondents and/or third parties, and not calculated to lead to the discovery of relevant information. Subject to and without waiving the forgoing objection, Respondents will produce responsive documents, if any, that may exist. Request No. 14: To the extent not called for above, all documents concerning the Fund, including, without limitation, all documents concerning any communications between Epstein, Jeepers and FTC, on the one hand, and the Fund, on the other. Response: Respondents object because this request is overly broad, vague, unduly burdensome, designed to harass Respondents and/or third parties, and not calculated to lead to the discovery of relevant information. Subject to and without waiving the forgoing objection, Respondents will produce responsive documents, if any, that may exist. Request No. 15: All documents concerning any communications between or among Epstein, Jeepers or FTC, on the one hand, and any other investor in the Fund concerning the Fund, including, without limitation, all documents concerning any request to withdraw any amount from the Fund. Response: Respondents object because this request is overly broad, vague, unduly burdensome, designed to harass Respondents and/or third parties, and not calculated to lead to the discovery of relevant information. Subject to and without waiving the forgoing objection, Respondents will produce responsive documents, if any, that may exist. Request No. 16: All documents concerning any actual or alleged accounting or other irregularities at or in connection with the Fund, including but not limited to all documents concerning any SEC or other investigation with respect to the Fund. Response: Respondents object because this request is overly broad, vague, unduly and burdensome. Subject to and without waiving the forgoing objection, Respondents will produce responsive documents, if any, that may exist. Request No. 17: All documents concerning the relationship between: (a) Epstein and FTC; (b) Epstein and Jeepers; or ( c) FTC and Jeepers. 7 EFTA00729265 Response: Respondents object because this request is overly broad, vague, unduly burdensome, designed to harass Respondents, and not calculated to lead to the discovery of relevant information to the extent it seeks information not related to the Fund at issue. Request No. 18: All organizational documents concerning FTC and Jeepers. Response: Respondents object because this request is overly broad and vague, designed to harass Respondents, and not calculated to lead to the discovery of relevant information to the extent it seeks information not related to the Fund at issue. Request No. 19: All documents concerning: (a) all investors in FTC and Jeepers; (b) any partner, member, or beneficial owner of, or other direct or indirect economic participant in, FTC or Jeepers or FTC's or Jeepers's investment in the Fund; (c) the compensation arrangements among Epstein, Jeepers, FTC and any investor in FTC or Jeepers; (d) the compensation arrangements among Epstein, Jeepers, FTC and any partner, member, or beneficial owner of, or other direct or indirect economic participant in, FTC or Jeepers or FTC's or Jeepers's investment in the Fund; (e) all marketing or sales materials concerning FTC or Jeepers; (0 all communications between Epstein, Jeepers, and/or FTC, on the one hand, and any other investors in FTC or Jeepers or any partner, member, or beneficial owner of, or other direct or indirect economic participant in, FTC or Jeepers or FTC's or Jeepers's investment in the Fund, on the other, relating to the Fund, any efforts by Epstein, Jeepers or FTC to withdraw amounts from the Fund, or this Arbitration; or (g) all sources of capital and financing for any investment by Epstein, Jeepers or FTC in the Fund. Response: Respondents object because this request is overly broad, vague, unduly burdensome, designed to harass Respondents and/or third parties, and not calculated to lead to the discovery of relevant information to the extent it seeks information not related to the Fund at issue. Subject to and without waiving the forgoing objection, Respondents will produce responsive communications, if any, that may exist regarding the Fund or this Arbitration. Request No. 20: All documents concerning: 8 EFTA00729266 (a) the November 13, 2006 "telephone conference" referred to in Paragraph 8 of the Statement of Counterclaim; (b) any of the conversations referred to in Paragraphs 33-37 of the Statement of Counterclaim; or (c) the alleged "agreement" referred to in Paragraph 37 of the Statement of Counterclaim. Response: Respondents object because this request invades the work-product and attorney- client privileges. Subject to and without waiving the forgoing objection, Respondents will produce responsive documents, if any, that may exist. Request No. 21: All documents supporting, contradicting or otherwise concerning the allegations of Paragraphs 24-27 of the Statement of Counterclaim. Response: Respondents object because this request invades the work-product and attorney- client privileges. Subject to and without waiving the forgoing objection, Respondents will produce responsive documents, if any, that may exist. Request No. 22: All documents supporting, contradicting or otherwise concerning the "fraud" alleged in Paragraphs 70-73 of the Statement of Counterclaim. Response: Respondents object because this request invades the work-product and attorney- client privileges. Subject to and without waiving the forgoing objection, Respondents will produce responsive documents, if any, that may exist. Request No. 23: To the extent not called for above, all documents supporting, contradicting or otherwise concerning the allegations contained in the Statement of Counterclaim. Response: Respondents object because this request invades the work-product and attorney- client privileges. FTC further objects to this request as being overly broad, vague, burdensome and potentially seeking information not calculated to lead to the discovery of relevant information. Subject to and without waiving the forgoing objection, Respondents will produce responsive documents, if any, that may exist. Request No. 24: 9 EFTA00729267 All documents concerning any damages alleged in or sought by the Statement of Counterclaim. Response: Respondents object because this request invades the work-product and attorney- client privileges. Subject to and without waiving the forgoing objection, Respondents will produce responsive documents, if any, that may exist. Request No. 25: All documents supporting, contradicting or otherwise concerning the allegations contained in Claimants' Demand for Arbitration or in any of the other pleadings in this matter. Response: Respondents object because this request invades the work-product and attorney- client privileges. FTC further objects to this request as being overly broad, vague, burdensome and potentially seeking information not calculated to lead to the discovery of relevant information. Subject to and without waiving the forgoing objection, Respondents will produce responsive documents, if any, that may exist. Request No. 26: To the extent not called for above, all documents relating to this Arbitration. Response: Respondents object because this request invades the work-product and attorney- client privileges. FTC further objects to this request as being overly broad, vague, burdensome and potentially seeking information not calculated to lead to the discovery of relevant information. Subject to and without waiving the forgoing objection, Respondents will produce responsive documents, if any, that may exist. Dated: New York, New York September 2010 Respectfully submitted, SUSMAN GODFREY L.L.P. Stephen D. Susman Seth Ard 654 Madison Avenue, 5'h Floor 8440 Fax: (212 336-8340 E-mail: E-mail: 10 EFTA00729268 Harry P. Susman SUSMAN GODFREY L.L.P. 1000 Louisiana Street, Suite 5100 Attorneys for Respondent Counter-Claimants Financial Trust Company, Inc. and Jeepers, Inc. 11 EFTA00729269