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  • UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF COLORADO SUBPOENA IN A CASE UNDER THE BANKRUPTCY CODEIn re: Case No. 12-11893 (CSS)Cordillera Golf Club, LLC, (Bankr. D. Del.) dba The Club at Cordillera, Chapter 11 Debtor.To: John L. Emmerling c/o Vincent J. Marriott III, Esq. Ballard Spahr LLP 1735 Market Street, 5lt Floor Philadelphia, Pennsylvania 19103-7599 0 YOU ARE COMMANDED to appear in the United States Bankruptcy Court at the place, date, and time specified belowto testify in the above case. PLACE OF TESTIMONY I COURTROOM DATE AND TIME ~ YOU ARE COMMANDED to appear at the place, date, and time specified below to testify at the taking of a deposition in the above case. PLACE OF DEPOSITION: Ballard Spahr LLP DATE AND TIME 1225 17th Street, Suite 2300 July 18, 2012, at 9:00 a.m. (MT) Denver, CO 80202-5596 [gl YOU ARE COMMANDED to produce and permit inspection and copying of the documents listed on the attached Schedule of Requested Documents at the place, date, and time specified below by electronic medium and transmission, overnight courier, or such other methods as the parties may direct. PLACE: Young Conaway Stargatt & Taylor, LLP Rodney Square DATE AND TIME 1000 North King Street July 16, 2012, at 5:00 p.m. (ET) Wilmington, DE 19801 Attn: Travis G. Buchanan YOU ARE COMMANDED to produce and permit inspection of the following premises at the date and time specified below. PREMISES DATE AND TIME Date: July 9, 2012 Issuing Officers Name, Address, and Phone Number Travis G. Buchanan Young Conaway Stargatt & Taylor, LLP, Rodney Square, 1000 N. King Street, Wilmington, DE, 19801 (302) 571-5024 (See Rule 45, Federal Rules of Civil Procedure Parts C & D on Reverse)01:12266724.5
  • PROOF OF SERVICE DATE PLACE July 9, 2012 SERVED Served electronically by agreement of Ballard Spahr LLP and to Ballard Spahr LLP 1735 Market Street, 51 1 Floor Philadelphia, Pennsylvania 19103-7599 SERVED ON (PRINT NAME) MANNER OF SERVICE Vincent J. Marriott III E-mail to marriott@ballardspahr.com as agreed to by Ballard Spahr LLP and via Federal Express SERVED BY (PRINT NAME) TITLE Travis G. Buchanan Counsel for the Debtor 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 lj v DAT J l, z._c. ( 2._ Young Conaway Stargatt & Taylor, LLP Rodney Square, 1000 N. King Street, Wilmington, DE 19801 ADDRESS OF SERVER(c) Protecting a Person Subject to a Subpoena. (1) Avoiding Undue Burden or Expense; Sanctions. A part or attorney responsible for issues and serving a subpoena musttake reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena. The issuing court mustenforce this duty and impose an appropriate sanction-which may include lost earnings and reasonable attorneys fees-on a partyor attorney who fails to comply. (2) Command to Produce Materials or Permit Inspection. (A) Appearance Not Required. A person commanded to produce documents, electronically stored information, ortangible things, or to permit the inspection of premises need not appear in person at the place of production or inspection unlessalso commanded to appear for a deposition, hearing, or trial. (B) Objections. A person commanded to produce documents or tangible things or to permit inspection may serve onthe party or attorney designated in the subpoena a written object to inspecting, copying, testing or sampling any or all of thematerials or to inspecting the premises - or to producing electronically stored information in the form or forms requested. Theobjection must be served before the earlier of the time specified for compliance or 14 days after the subpoena is served. If anobjection is made, the following rules apply: (i) At any time, on notice to the commanded person, the serving party may move the issuing court for an order compelling production or inspection. (ii) These acts may be required only as directed in the order, and the order must protect a person who is neither a party nor a partys officer from significant expense resulting from compliance. (3) Quashing or ModifYing a Subpoena. (A) When Required. On timely motion, the issuing court must quash or modify a subpoena that- (i) fails to allow a reasonable time to comply; (ii) requires a person who is neither a party nor a partys officer to travel more than 100 miles from where that person resides, is employed, or regularly transacts business in person- except that, subject to Rule 45(c)(3)(B)(iii), the person may be commanded to attend a trial by traveling from any such place within the state where the trial is held; (iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or 2
  • (iv) subjects a person to undue burden. (B) When Permitted. To protect a person subject to or affected by a subpoena, the issuing court may, on motion,quash or modify the subpoena if it requires; (i) disclosing a trade secret or other confidential research, development, or commercial information; (ii) disclosing an unretained experts opinion or information that does not describe specific occurrences in dispute and results from the experts study that was not requested by a party; or (iii) a person who is neither a party nor a partys officer to incur substantial expense to travel more than 100 miles to attend trial. (C) SpecifYing Conditions as an Alternative. In the circumstances described in Rule 45©(3)(B), the court may,instead of quashing or modifying a subpoena, order appearance or production under specified conditions if the serving party: (i) shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship; and (ii) ensures that the subpoenaed person will be reasonably compensated.(d) Duties in Responding to a Subpoena. (1) Producing Documents or Electronically Stored Information. These procedures apply to producing documents orelectronically stored information. (A) Documents. A person responding to a subpoena to produce documents must produce them as they are kept in theordinary course of business or must organize and label them to correspond to the categories in the demand. (B) Form for Producing Electronically Stored Information Not Specified. If a subpoena does not specify a form forproducing electronically stored information, the person responding must produce it in a form or forms in which it is ordinarilymaintained or in a reasonable usable form or forms. (C) Electronically Stored Information Produced in Only One Form. The person responding need not produce thesame electronically stored information in more than one form. (D) Inaccessible Electronically Stored Information. The person responding need not provide discovery ofelectronically stored information from sources that the person identifies as not reasonably accessible because of undue burden orcost. On motion to compel discovery or for a protective order, the person responding must show that the information is notreasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery fromsuch sources if the requesting party shows good cause, considering the limitations of Rule 26(b )(2)(C). The court may specifyconditions for that discovery. (2) Claiming Privilege or Protection. (A) Information Withheld. (i) expressly make the claim; and (ii) describe the nature of the withheld documents, communications, or tangible things in a manner that, without revealing information itself privileged or protected, will enable the parties to assess the claim. (B) Information Produced. If information produced in response to a subpoena is subject to a claim of privilege or ofprotection as trial preparation material, the person making the claim may notify any party that received the information of theclaim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information andany other copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrievethe information if the party disclosed it before being notified; and may promptly present the information to the court under sealfor a determination of the claim. The person who produced the information must preserve the information until the claim isresolved.(e) Contempt. The issuing court may hold in contempt a person who, having been served, fails without adequate excuse to obeythe subpoena. A non partys failure to obey must be excused if the subpoena purports to require the nonparty to attend orproduce at a place outside the limits of Rule 45(c)(3)(A)(i). 3 View slide
  • IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWAREIn re: Chapter 11Cordillera Golf Club, LLC,1 Case No. 12-11893 (CSS) dba The Club at Cordillera, Debtor. SCHEDULE OF REQUESTED DOCUMENTS DIRECTED TO JOHN L. EMMERLING AT TROPHY PROPERTY COMPANY, INC. DEFINITIONS As used in these Document Requests, the meanings ascribed to the followingterms are to be interpreted in accordance with the below definitions. Undefined terms shall havethe meanings ascribed to them in the Debtor’s Motion (as defined below) or in the Declaration ofDaniel L. Fitchett, Jr. in Support of the Chapter 11 Petition and First Day Relief (the “FitchettDeclaration”) filed on June 26, 2012 [Docket No. 2]. A. The term “Alpine Prepetition Collateral” shall have the meaning ascribedto it in the Motion and includes, without limitation, the Real Property and the Personal Property. B. The terms “and” and “or” shall be construed either disjunctively orconjunctively, as necessary, to bring within the scope of these Requests any information thatmight otherwise be construed to be outside its scope. C. The term “Appraisal” shall mean and refer to the appraisal prepared byJohn L. Emmerling, President, Trophy Property Company, Inc., 2224 S. Queen St., Lakewood,Colorado 80227, regarding the Debtor’s Real Property, Personal Property, and/or the AlpinePrepetition Collateral.1 The Debtor in this chapter 11 case, and the last four digits of its employer tax identification number, is: XX-XXX1317. The corporate headquarters address for the Debtor is 97 Main Street, Suite E202, Edwards, CO 81632.01:12266722.4 View slide
  • D. The term "Bankruptcy Case" shall mean and refer to In re Cordillera GolfClub, LLC, .dba The Club at Cordillera, Case No. 12-11893 (CSS) in the United StatesBankruptcy Court for the District of Delaware. E. The term "Bankruptcy Code" shall mean Title 11, United States Code, 11U.S.C. §§ 101 et. seq., as in effect on the Petition Date as amended. F. The term "Bankruptcy Court" shall mean the United States BankruptcyCourt for the District of Delaware. G. The term "Communication" shall mean any oral or written statement orexchange of words, thoughts or ideas, conveyed or made by one person or entity to anotherperson or entity in person, by telephone, letter, telex or by another process, electric, electronic orotherwise, or any documents delivered by one person or entity to another person or entity. H. The term "Debtor" shall mean and refer to Cordillera Golf Club, LLC, dbaThe Club at Cordillera, which has filed a voluntary petition for bankruptcy relief under Chapter11 in this Bankruptcy Case. I. The term "Documents" shall have the full meaning stated in Fed. R. Civ.P. 34(a), including, but not limited to the original and any non-conforming copies of any and allwritings, drawings, graphs, charts, photographs, phone records, computer records, other datacompilations from which information can be obtained or translated, and visual or otherwiserecorded matter of any kind or nature, however produced or reproduced, including non-identicalcopies, whether different from the original by reason of any notation made on such copies orotherwise, including preliminary, intermediate or final drafts, writings, drawings, or recordingsof every kind and description, whether inscribed by hand or by mechanical, electronic,microfilm, photographic or other means, as well as audio or visual reproduction of all statements,conversations or events, including but not limited to: agreements, appointment books or diaries, 201:12266722.4
  • bids, calendars, checks, contracts, correspondence, statements, telegrams, telexes, receipts,accounting records, including ledgers, vouchers, and books of account, computer records,drawings and charts, including additions and revisions, estimates, evaluations, financialstatements and records, instructions, inter- and intra-office communications, invoices, logs ormemoranda of any kind, minutes of all meetings, notes of all kinds, questionnaires and surveys,schedules, statistical records, reports, analyses or studies of any kind, tape recordings, includingany form of recording of any telephone or other conversations, interviews, conferences, ormeetings. A reference herein to any one or more of these types of documents shall be construedto include all other types of documents without limitation. 1. The term "Hearing" shall mean the hearing in connection with the Motionwhich is currently scheduled for July 19, 2012 at 2:00p.m. (ET). K. The term "identify" shall mean: 1. When used in reference to a natural person, to state (i) his or her full name, (ii) present or last known home and business addresses, (iii) present or last known home and business telephone numbers, and (iv) present or last known employer and job title. 2. When used in reference to a business concern, to state (i) the full name of the business, (ii) its last known address and main telephone number, (iii) the nature of such business concern, and (iv) the name of its chief executive officer. 3. When used in reference to a document, to state (i) the name or title of the document, (ii) its date, (iii) its author(s), (iv) its recipient(s) or the person(s) for whom it was prepared, (v) the type of document (e.g., letter, agreement, plan, memorandum, chart, email, etc.), (vi) its present location or custodian, (vii) a summary of its contents, including the specific provisions of such document that you relied on for any of your objections and contentions, and (viii) any other information necessary to render the document distinguishable from all others and subject to ready location. In lieu of identifying a document, a copy of the document may be supplied. 301:12266722.4
  • 4. When used in reference to a communication or action, to state (i) the persons present when the communication or act occurred, (ii) the date and location of such communication or act, (iii) the substance of such communication or act, and (iv) all documents that record, refer to or otherwise concern such communication or act. L. The term "Motion" shall mean the Emergency Motion for Entry of Interimand Final Orders Pursuant to 11 US. C.§§ 105, 361, 362, 363(c), 364(c), 364(d), and 364(e)and Fed. R. Bankr. P. 2002, 4001 and 9014 (I) Authorizing Debtor to Obtain Post-PetitionSecured Financing, (II) Granting Security Interests and Superpriority Administrative ExpenseClaims, (III) Granting Adequate Protection to Pre-Petition Secured Parties, (IV) Authorizing theUse of Cash Collateral as Provided Herein, and (V) Scheduling a Final Hearing, filed in theBankruptcy Case by the Debtor on July 2, 2012, and entered at Docket No. 59. M. The term "person" shall mean any individual, corporation, proprietorship,partnership, trust, association, or other entity. N. The term "Personal Property" shall have the meaning ascribed to it in theMotion. 0. The term "property" shall mean all owned, hereinafter acquired or existingproperty of the Debtors estate of any kind or nature, real or personal, tangible or intangible,including, without limitation, all of the Debtors present and future accounts; instruments;investment property; contract rights; chattel paper; documents; general intangibles, including,without limitation, intellectual property; inventory; equipment; deposit accounts; motor vehicles;licenses; and real property and fixtures; and the products and proceeds thereof. P. The terms "pertain to," "pertaining to," or "regarding" means relates to,refers to, contains, concerns, describes, embodies, mentions, constitutes, constituting, comprises, 401:12266722.4
  • comprising, supports, corroborates, demonstrates, proves, evidences, shows, refutes, disputes,rebuts, controverts or contradicts. Q. The "Petition Date" shall mean June 26, 2012, the date the Debtor filed itsBankruptcy Case. R. The term "Real Property" shall have the meaning ascribed to it by thatDeed of Trust dated June 26, 2009, and recorded in the Eagle County Records Office on June29, 2009, as Document No. 200912623. S. The terms "relate to," "relating to" or "relates to," shall mean consist of,referred to, reflect or be in any way logically or factually connected with the matter discussed. T. The terms "You," "Your," and "Alpine Bank" shall include Alpine Bank,its attorneys, agents, and employees, and all persons or entities acting or purporting to act on itsbehalf and/or under its direction or control. INSTRUCTIONS A. The preceding definitions apply to these instructions and each of theDocument Requests. B. Where knowledge or information in possession of parties is requested,such request includes knowledge of the partys agents, representatives, accountants, advisors andunless privileged, his or her attorneys. C. Where Documents are requested, such request includes Documents inpossession or control of the partys agents, representatives, accountants, advisors and unlessprivileged, his or her attorneys. D. If no Documents responsive to a request exist, you should so state inresponse to such request. 501:12266722.4
  • E. If a Document is responsive to a Document Request and is in Yourcontrol, but is not in Your possession or custody, state the full name, present (or last known)address and telephone number of: (a) the person with current possession or custody of suchDocument; and (b) each person that has had possession or custody of such document (includingthe dates, or approximate dates) of such possession or custody. F. If a Document is responsive to a Document Request and was, but is nolonger, in Your possession, custody or control, state what disposition was made of it, by whom,the date(s), or approximate date(s), on which such disposition was made, and why. G. If a Document Request, or any part thereof, asks for information whichcould have at one time been supplied by consulting documents which are no longer in existencebecause they were destroyed, then in answer to such request or part thereof, for each suchDocument: 1. identifY the Document; 11. state the time period during which it was maintained; 111. state the circumstance Uflder which it ceased to exist, and the date thereof; IV. identity each person having knowledge of the circumstances described in response to subsection (iii) above; and v. identity each person who has possession, custody or control of the Document, or to whom it was available or who had knowledge of the Document and/or the contents thereof. H. If the answer to a Document Request is based upon information and belief,set forth the sources of the information and the grounds of the belief. I. If You cannot fully answer any interrogatory or part thereof afterexercising due diligence to secure the information needed to do so, state an answer to the extentpossible, specifying the reasons not subject to a claim of privilege for Your inability to answer 601:12266722.4
  • the remainder and stating whatever information or knowledge You have concerning theunanswered portions. J. In the event You are able to produce only some ofthe writings called forin a particular request, please produce all writings You are able to produce. K. To the extent that any of the following Document Requests calls for whatYou believe to be information subject to a claim of privilege, answer so much of each DocumentRequest, and each part thereof as does not request, in Your view, privileged information and withrespect to each document or communication or portion thereof that the respondent does notproduce or divulge based upon a claim of privilege or for any other reason, prepare a privilegelog which states the following: (a) the name and address of the originator or sender ofthedocument or communication; (b) the name and address of the author of the document orcommunication; (c) the name, and address of each person or entity to whom the document wasdirected or addressed; (d) the name and address of each person or entity to whom a copy of thedocument was directed or sent; (e) the name and address of each person or entity who has seenthe document, any copy of the document, participated in communications about the document, orparticipated in the communication; (f) the job title of each person listed in items (a) through (e)above; (g) the date of the document or communication; (h) the length of the document orcommunication; (i) whether the document or communication contained any attachments, exhibitsor appendices; G) a general description of the nature and subject matter of the document orcommunication; (k) the present custodian of the document or communication; (1) the date that thedocument, or a copy thereof, was received by each person or entity having possession of thedocument or a copy thereof; and (m) the reason the document or communication was notproduced. 701:12266722.4
  • L. Whenever a Document Request is framed in the conjunctive, it shall alsobe taken in the disjunctive and vice versa. Whenever a Document Request is framed in thesingular, it shall also be taken in the plural, and vice versa. The use of any tense of any verbshall be considered also to include within its meaning all other tenses of the verb so used. M. Documents attached to each other should not be separated. Documentsthat are located in files, folders, binders and the like must be produced in a manner that enablesthe Debtor to determine which particular pages were contained in a given file, folder or binder.The labels of any files, folders or binders that contain responsive Documents must also becopied. N. All electronic documents should be produced as TIFFs with load filesincluding all standard metadata information associated with the document (including searchabletext when available) or in PDF-searchable format, except that the Debtor requests that electronicdocuments be produced in a native format where the native format includes relevant informationnot available with a TIFF or PDF file or where a TIFF of PDF file is relatively cumbersome toview. For example, Excel spreadsheets often contain important information, such as formulas,that are unviewable in a TIFF format. As another example, relevant audio, video, or executablefiles would not be viewable in TIFF format. 0. For each TIFF file provided the following instructions shall apply: 1. TIFFs. Single-page Group IV TIFFs should be provided, at least 300 dpi. Include a Concordance image load file for Opticon. 11. Text Files. For each document, a text file should be provided along with the TIFF. The text of native files should be extracted directly from the native file. 111. Unique IDs. Each image should have a unique file name - bates number. 801:12266722.4
  • IV. Metadata Fields. The following metadata should be provided if they exist: 1. Begin Bates, End Bates 2. Begin Attachment, End Attachment (Used to determine Parent- child relationships (the association between an attachment and its parent document)) 3. Date Sent, Date Created, Date Modified (maintained in GMT) 4. Document type (i.e. Email, Word, Excel) and Page Count 5. Author, To, From, Copy, BCC 6. Custodian or source of documents P. If there are tape or voice recordings that are responsive to any request,then You must produce the tape itself (or an accurate copy thereof) and any existingtranscriptions thereof. Production of a transcription alone will not be considered sufficient. Q. If You object to any part of any specific Document Request, You shallstate fully the nature of the objection. Notwithstanding any objections, You must comply fullywith the other parts of the Document Request not objected to. R. Some of the specific Document Requests may call for a category ofDocuments "including, but not limited to" a designated subcategory of Documents. Thespecified subcategory shall not be construed to restrict the generality of such Document Request.You must produce all Documents responsive to the general category identified in the DocumentRequest, even if You think that the subcategory does not fall within the scope of the generalcategory. And You must produce all Documents responsive to the identified subcategories, evenif You think that they do not fall within the scope ofthe general category. S. Unless otherwise indicated by the language of a particular DocumentRequest, each Document Request refers to and includes the time period from January 1, 2008through the date of the Hearing. 901:12266722.4
  • T. These Document Requests are continuing so as to require immediatesupplemental answers and responses if you or your attorney or other representatives obtainfurther information or responsive documents between the time your answers and responseshereto are served and the time of the Hearing. DOCUMENTS REQUESTED Please produce the following: 1. Identify and produce the Appraisal(s) or any other evaluation(s) oropinion(s) you prepared for or on behalf of Alpine Bank regarding the value of the Debtors RealProperty, Personal Property, and/or the Alpine Prepetition Collateral. 2. Identify and produce any and all documents and communications relatingto or pertaining to the Appraisal(s) or any other evaluation(s) or opinion(s) regarding the value ofthe Debtors Real Property, Personal Property, and/or the Alpine Prepetition Collateral,including, but not limited to, documents supporting the Appraisal(s), evaluation(s), or opinion(s)and the conclusions contained therein. 3. Identify and produce any and all documents reviewed, relied on, or used toprepare the Appraisal(s) related to the Debtors Real Property, Personal Property, and/or theAlpine Prepetition Collateral. 4. Identify and produce any and all documents and communications providedto you by Alpine Bank related to or pertaining the Appraisal(s), evaluation(s), or opinion(s). 1001:12266722.4