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Case:12-24882-ABC Doc#:424 Filed:09/07/12
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IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF COLORADO In re: CORDILLERA GOLF CLUB, LLC, Debtor. ) ) ) ) )
Case No. 12-24882-ABC Chapter 11
THE OFFICIAL COMMITTEE OF UNSECURED CREDITORS' OMNIBUS RESPONSE TO DEBTOR'S MOTIONS: (I) TO VACATE TRIAL DATE AND STAY DISCOVERY ON MOTION TO APPOINT CHAPTER 11 TRUSTEE; AND (II) FOR ENTRY OF PROTECTIVE ORDER REGARDING NOTICED DEPOSITIONS OF MR. ALFRED H. SIEGEL, MR. DANIEL L. FITCHETT, JR., AND THE DESIGNATED REPRESENTATIVE OF DEBTOR CORDILLERA GOLF CLUB, LLC, UNDER F.R.B.P. 30(B)(6), AND RELATED REQUESTS FOR PRODUCTION OF DOCUMENTS The Official Committee of Unsecured Creditors ("Committee") appointed in the above captioned, Chapter 11 bankruptcy case of Cordillera Golf Club, LLC ("Debtor"), by and through its undersigned counsel, respectfully files this Omnibus Response (this "Response") to the Debtor's Motions: (i) to Vacate Trial Date and Stay Discovery on Motion to Appoint Chapter 11 Trustee ("Scheduling Motion"); and (ii) for Entry of Protective Order Regarding Noticed Depositions of Mr. Alfred H. Siegel, Mr. Daniel L. Fitchett, Jr., and The Designated Representative Of Debtor Cordillera Golf Club, LLC, Under F.R.B.P. 30(B)(6), And Related Requests For Production of Documents ("Protective Order Motion" and collectively with the Scheduling Motion, the "Debtor's Motions"), and in support, would respectfully show this Court as follows: I. BACKGROUND 1. On June 26, 2012 ("Petition Date"), the Debtor filed with the United States
Bankruptcy Court for the District of Delaware its voluntary petition for relief under Chapter 11
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of the United States Bankruptcy Code, 11 U.S.C. 101, et seq. (the Bankruptcy Code), thereby initiating its bankruptcy case (assigned Case No. 12-11893), with the Delaware Bankruptcy Court (the Bankruptcy Case). The Debtor remains in control of its business and affairs as a debtor-in-possession pursuant to sections 1107 and 1108 of the Bankruptcy Code. 2. On July 6, 2012, the United States Trustee filed its Notice of Appointment of
Committee of Unsecured Creditors [Docket No. 86], thereby forming the Committee. 3. The Debtor is the owner and operator of "The Club at Cordillera" (the "Club"),
located in within the Cordillera residential community in Edwards, Colorado in Eagle County. See Declaration of Daniel L. Fitchett, Jr. in Support of Chapter 11 Petitions and First Day Relief [Docket No. 4] (Fitchett Declaration), 5. 4. On September 6, 2012, the Debtor filed its Scheduling Motion [Docket No. 416],
pursuant to which the Debtor requests that the schedule previously ordered by the Court to govern the litigation of the Trustee Motion be abated and extended in order to accommodate mediation among the parties. 5. The Debtor contemporaneously requested to expedite the notice period applicable
to the Scheduling Motion, to two (2) days. See Docket No. 417. 6. Also on September 6, 2012, the Debtor filed its Protective Order Motion [Docket
No. 419], seeking the entry of a protective order applicable to discovery to be conducted among the parties with respect to the pending Motion to Appoint a Chapter 11 Trustee ("Trustee Motion") asserted by the Class Representatives, to which requested relief the Committee and
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certain other creditors and parties in interest have joined, including approximately 608 Club member (representing 336 separate memberships).1 7. The Committee generally supports the entry of an appropriate protective order to
safeguard bona fide proprietary, confidential and personal identifying information, consistent with Bankruptcy Code policies favoring public disclosure and transparency, and further supports the parties' efforts to conduct mediation of their disputes. However, the Debtor's Motions are pretextual and contain inaccuracies and self-serving statements that the Committee must respond to and believes this Court should be made aware of. II. RESPONSES A. Scheduling Motion 8. The Debtor's effort to paint the Trustee Motion movants and joining parties as
responsible for the proliferation of discovery and needless cost and delay is simply inaccurate credible. 9. Despite that the Committee did not exist until July 6, 2012, the Debtor has, to
date, propounded SEVENTY-EIGHT requests for documents upon the Committee, through THREE separate rounds of requests (as well as an additional TWNETY-FIVE interrogatories propounded in TWO rounds of requests). True and correct copies of the Debtor's requests for documents to the Committee are attached hereto as Exhibit "A" and incorporated herein by reference for all purposes. The Committee regrets the necessity of being forced to respond in this fashion, but has no choice but to correct the record in light of the Debtor's decision to file only the movant's discovery requests for the purpose of unfairly casting them in a negative light.
Capitalized terms used and not otherwise defined herein have those same meanings as in the Committee's Joinder to the Trustee Motion, filed at Docket No. 341.
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10.
In fact the Committee has not propounded any separate discovery requests upon
the Debtor in connection with the Trustee Motion. Conversely, the Debtor is seeking to depose the designated representative of the statutorily and newly created Committee on the basis that the Committee may have some nonduplicative, independent factual information. The Committee is a statutorily created entity entitled to be heard on any matter in this Bankruptcy Case pursuant to 11 U.S.C. 1103 and 1109. Although the Debtor may technically have the right to conduct this deposition, the Debtor's request is highly unusual and make little practical sense, especially where this estate is already burdened with enormous administrative costs and is operating at a loss. Although the Committee believes it has a valid basis to object to this discovery as harassing and vexatious, the Committee would agree to produce its Chairman for deposition, either on August 13, when he will be in Colorado for mediation(and following same), or otherwise by telephone or f 11. In fact, the Committee offered to stipulate, in lieu of this discovery, that the
Committee would not proffer any documents or witnesses in support of the Trustee Motion, other than: (i) documents appended to the Committee's joinder; (ii) produced by the Debtor; or (iii) rebuttal witnesses. The Committee did so in hopes of cooperating with the Debtor,
minimizing costs, and simplifying the burden upon the Debtor and the estate in litigating the Trustee Motion. The Debtor declined and refused to withdraw its request to depose the
Committee's designated representative.2 12. Needless to say, the Debtor's complaints regarding the proliferation of discovery
ring hollow, and its attempt to utilize these complaints as a basis to delay the trial of the Trustee
Here too the Committee would not ordinarily air the parties' negotiations before the Court, but must resort to this measure to correct the record, because the Debtor has done so.
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Motion should fail, because it is the Debtor that is substantially responsible for these issues and would personally benefit from its own actions in obtaining the requested delay of trial. In re Carbone, 254 B.R. 1, 5 (Bankr. D. Mass. 2000) (reciting Court's unwillingness to allow party to take advantage of delay of its own making); In re Roberts, 210 B.R. 325, 331 (Bankr. N.D. Iowa 1997); In re Paine, 127 F. 246, 248 (W.D. Ky. 1904). 13. The same concerns apply in the context of mediation. Although the Committee
supports the efforts to mediate a global resolution of the disputes in this case, it has little confidence that the Debtor is approaching this mediation with the requisite seriousness and good faith to make it productive. In fact, the Debtor's approach appears primarily directed to
promoting further delays of trial. The Committee's efforts to meet with the Debtor's CRO in August were delayed because Mr. Siegel was allegedly out of the country or otherwise unavailable. Once the Committee was able to obtain some possible arrangement for a meeting with Mr. Siegel in Colorado to take place on August 21st or 22nd, the Debtor informed the Committee that Mr. Siegel could not commit to a live meeting with the Committee's representatives until the day before, August 20th, which plainly provide the Committee's members with unreasonable notice to make arrangements for travel. 14. This Court entered its scheduling order on the Trustee Motion with the consent of
all parties, and the Committee continues to believe that the Trustee Motion must be resolved as quickly as possible, in order to allow this Court and the parties to return focus their attention on other pressing issues in this Bankruptcy Case before the enormous costs of the Debtor's "scorched earth" litigation approach, combined with its own dismal operating performance, finally dooms any hopes for a favorable resolution.
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B.
Responses and Corrections to Protective Order Motion 15. As an initial matter, the Debtor's attempt to make it appear that the Committee has See
refused to consider the entry of any appropriate protective order is also misleading. Protective Order Motion, Exhibit 1 ("Uetz Declaration"), at 7. 16.
The Debtor originally proposed that the Committee (and other parties) accede to
the Debtor's assertion of confidentiality for inappropriate categories of information, including but not limited to the Debtor's bank account information, any documents, material, or information related to audits, projections, budgets, profits and losses, loan agreements, employment contracts, severance payments, contracts for management and/or consulting services, draws, purchase orders, invoices, statements, dividends, payments made by or to any of the Parties, renovation and/or redevelopment of the Valley Club, and future development concepts for Cordillera Golf Club, LLC, and trade secrets. See Debtors Motion for Entry of Protective Order in Regard to Motion to Appoint a Chapter 11 Trustee [Docket No. 235] and the Debtors Objection Thereto [Docket No. 343] [Docket No. 394], at Exh. A, p. 3. 17. Regardless of whether such a protective order might be consensually available in
private litigation proceedings, it is anathema to well-established bankruptcy policies to shield from public disclosure the Debtor's information relating to the foregoing categories of information. See Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282, 1286 (11th Cir.2002) (Full and honest disclosure in a bankruptcy case is crucial to the effective functioning of the federal bankruptcy system. (internal quotation marks omitted)); In re Gitto Global Corp., 422 F.3d 1, 10 (1st Cir. 2005): In re MF Global Holdings Ltd., 2012 WL 734195, *6 (Bankr. S.D.N.Y. 2012). 18. In any event, consideration of a proposed protective order requires that a Court,
"determine whether particularized harm will result from disclosure of information to the
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public[b]road allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not satisfy the Rule 26(c) test." In re Roman Catholic Archbishop of Portland in Oregon, 661 F.3d 417, 424 (9th Cir. 2011) (internal citations and quotations omitted). 19. Notwithstanding (though consistent with) the foregoing principles, the Committee
has invited the Debtor to inform the Committee of any particular, sensitive category of information needing protection from public disclosure, for the Committee's consideration. The Committee has submitted both a proposed nondisclosure agreement and protective order to the Debtor in response to the Debtor's concerns. The Committee's protective order proposal to the Debtor, using a proposed form of order supplied by the Debtor to the Committee, would govern all discovery among the Debtor and Committee with respect to the Trustee Motion, as well as the Debtor's pending motion to obtain post-petition financing on a final basis ("DIP Financing Motion"). 20. The Debtor has recently responded to the Committee's proposed protective order
by the Committee, which response the Committee understands gives rise to only three (3) issues to resolve. A true and correct copy of the Committee's proposed protective order, redlined to show the Debtor's comments to same, is attached hereto as Exhibit "B" and incorporated herein by reference for all purposes. 21. In light of the foregoing, the Committee is hopeful that this matter, at least, is
resolved. As of the time of filing of this Response, the parties are continuing to confer. C. Deposition of Chief Restructuring Officer Siegel 22. Notwithstanding, the Debtor's Motion also seeks to compel creditors and parties
in interest, if they wish to depose the Debtor's CRO, to conduct that deposition in Los Angeles. The Debtor's justification is apparently that the Debtor should not incur the burden of requiring
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the Debtor's own CRO to travel to Colorado, where the Debtor's Club and Bankruptcy case are located and where Mr. Siegel has been employed as a professional of the estate. This position is rather incredible and appears designed to be obstruct access by the estate to the Debtor's CRO. 23. This Debtor in Possession chose to ignore and dispute the objections of parties in
interest as to the Debtor's choice of CRO, insisting in support of its choice that Siegel is a qualified and appropriate officer of the Debtor to oversee its restructuring efforts and to confer with parties in interest with respect to same. Especially in light of this, the Debtor's complaint that it is unfairly burdensome for Mr. Siegel to travel to this jurisdiction to respond to discovery propounded in this Bankruptcy Case should be resoundingly rejected by this Court. DATED: September 7, 2012. HOLLAND & HART LLP /s/ Risa Lynn Wolf-Smith Risa Lynn Wolf-Smith, #15835 Clarissa M. Raney, #40374 HOLLAND & HART LLP 555 Seventeenth Street, Suite 3200 Denver, Colorado 80202 Telephone: 303-295-8000 Facsimile: 303-295-8261 rwolf@hollandhart.com cmraney@hollandhart.com -andMUNSCH HARDT KOPF & HARR, P.C. Russell L. Munsch (admitted PHV) Texas Bar No. 14671500 Joseph J. Wielebinski (admitted PHV) Texas Bar No. 21432400 Jay H. Ong (admitted PHV) Texas Bar No. 24028756 Zachery Z. Annable (admitted PHV)
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Texas Bar No. 24053075 3800 Lincoln Plaza 500 N. Akard Street Dallas, Texas 75201-6659 Telephone (214) 855-7500 Facsimile (214) 978-4335 ATTORNEYS FOR THE OFFICIAL COMMITTEE OF UNSECURED CREDITORS
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CERTIFICATE OF SERVICE I certify that, on September 7, 2012, in addition to service via the Court's CM/ECF system, I personally caused to be served a true and correct copy of this filed document, to be served, via First Class U.S. Mail, postage prepaid and properly addressed, on the parties shown on the attached service list. U.S. Mail, postage prepaid Hand Delivery Fax
Arthur J. Abramowitz, Esq. Cozen O'Connor, PC LibertyView, Suite 300 457 Haddonfield Road Cherry Hill, NJ 08002
Megan M. Adeyemo, Esq. Gordon & Rees LLP 555 17th St., Ste. 3400 Denver, CO 80202
Zachery Z. Annable, Esq. Munsch Hardt Kopf & Harr, P.C. 3800 Lincoln Plaza 500 N. Akard Street Dallas, Texas 75201-6659
Garry R. Appel, Esq. Appel & Lucas, P.C. 1660 17th Street, Suite 200 Denver, CO 80202
Joseph M. Barry, Esq. Young Conaway Stargatt & Taylor LLP Rodney Square 1000 North King Street Wilmington, DE 19801
Mikel Bistrow, Esq. Foley Lardner LLP 402 W. Broadway, Suite 2100 San Diego, CA 92101
William P. Bowden, Esq. Ashby & Geddes, P .A. 500 Delaware avenue, 8th Floor P.O. Box 1150 Wilmington, DE 19899
Donald J. Bowman, Esq. Young Conaway Stargatt & Taylor LLP Rodney Square 1000 North King Street Wilmington, DE 19801
Brad W. Breslau, Esq. Cozen O'Connor, PC 707 17th Street, Suite 3100 Denver, CO 80202
Travis G. Buchanan, Esq. Young Conaway Stargatt & Taylor, LLP 1000 N. King St. Wilmington, DE 19801
Peter A. Cal, Esq. Sherman & Howard L.L.C. 633 17th Street, Suite 3000 Denver, CO 80202
Kathryn M.S. Catherwood, Esq. Foley & Lardner LLP 402 W. Broadway, Ste. 2100 San Diego, CA 92101-3542
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Christopher Celentino, Esq. Foley Lardner LLP 402 W. Broadway, Suite 2100 San Diego, CA 92101
Shaun A. Christensen, Esq. Appel & Lucas, P.C. 1660 17th Street, Suite 200 Denver, CO 80202
Tobey M. Daluz, Esq. Ballard Spahr LLP 919 N. Market Street, 11th Floor Wilmington, DE 19801
Carl A. Eklund, Esq. Ballard Spahr LLP 1225 17th Street, Suite 2300 Denver, CO 80202
Mark L. Fulford, Esq. Sherman & Howard L.L.C. 633 17th Street, Suite 3000 Denver, CO 80202
Tamara A. Hoffbuhr, Esq. Gordon & Rees LLP 555 Seventeenth St., Ste. 3400 Denver, CO 80202
James J. Holman, Esq. Duane Morris LLP 30 South 17th Street Philadelphia, PA 19103
Ericka F. Johnson, Esq. Womble Carlyle Sandridge & Rice, LLP 222 Delaware Avenue, Suite 1501 Wilmington, DE 19801
Kristi A. Katsma, Esq. Dickinson Wright PLLC 500 Woodward Avenue, Suite 4000 Detroit, MI 48226
Benjamin W. Keenan, Esq. Ashby & Geddes, P.A. 500 Delaware Avenue P.O. Box 1150 Wilmington DE 19899
Elizabeth M. Keenen 3773 Cherry Creek North Dr. , Ste. 575 Denver, CO 80209
Michael S. Kogan, Esq. Kogan Law Firm, APC 1901 Avenue of the Stars, Suite 1050 Los Angeles, CA 90067
David L. Lenyo, Esq. Garfield & Hecht, P.C. 601 E. Hyman Ave. Aspen, CO 81611
James T. Markus, Esq. Markus Williams Young & Zimmermann LLC 1700 Lincoln St., Ste. 4000 Denver, CO 80203
Vincent J. Marriott, III, Esq. Ballard Spahr LLP 1735 Market Street, 51st Floor Philadelphia, PA 19103
Melissa Maxman, Esq. Cozen O'Connor, PC 1627 I Street, NW, Suite 1100 Washington, DC 20006
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Dawn Messick, Esq. Foley & Lardner LLP 402 W. Broadway, Suite 2100 San Diego, CA 92101
Mark Minuti, Esq. Saul Ewing LLP 222 Delaware Ave., Ste. 1200 Wilmington, DE 19899
Erika L. Morabito, Esq. Foley Lardner LLP 3000 K Street, N.W., Suite 600 Washington, DC 20007
Benjamin Morris, Esq. Foley & Lardner LLP 402 West Broadway, Ste. 2100 San Diego, CA 92101
Paul Moss, Esq. Office of U.S. Trustee 999-18th Street, Ste. 1551 Denver, CO 80202
Russell L. Munsch, Esq. Munsch Hardt Kopf & Harr, P.C. 3800 Lincoln Plaza 500 N. Akard Street Dallas, Texas 75201-6659
Brittany J. Nelson, Esq. Foley Lardner LLP 3000 K Street, N.W., Suite 600 Washington, DC 20007
Jay H. Ong, Esq. Munsch Hardt Kopf & Harr, P.C. Frost Bank Tower, 401 Congress Avenue, Suite 3050 Austin, Texas 78701-4071
Ricardo Palacio, Esq. Ashby & Geddes, P .A. 500 Delaware Avenue, 8th Floor P.O. Box 1150 Wilmington, DE 19899
Jon T. Pearson, Esq. Ballard Spahr LLP 100 North City Parkway, Suite 1750 Las Vegas, NV 89106-4617
Richard W. Riley, Esq. Duane Morris LLP 222 Delaware Avenue, Suite 1600 Wilmington, DE 19801-1659
Matthew J. Riopelle Foley & Lardner LLP 402 W. Broadway, Ste. 2100 San Diego, CA 92101-3542
Harlan W. Robins, Esq. Dickinson Wright PLLC 15 N. 4th Street Columbus, OH 43215
Sara Schindler-Williams, Esq. Ballard Spahr LLP 1735 Market Street, 51st Floor Philadelphia, PA 19103
Harvey Sender, Esq. Sender & Wasserman, P.C. 1660 Lincoln St., Ste. 2200 Denver, CO 80264
Zachary I. Shapiro, Esq. Richards, Layton & Finger, P.A. One Rodney Square 920 N. King Street Wilmington, DE 19801
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Evan Stone, Esq. 12348 High Bluff Dr., Ste. 100 San Diego, CA 92130
Darnien Tancredi, Esq. Cozen O'Connor, PC 1201 N. Market Street, Suite 1400 Wilmington, DE 19801
Ann Marie Uetz, Esq. Foley & Lardner LLP One Detroit Center 500 Woodward Avenue, Suite 2700 Detroit, Michigan 48226-3489
David V. Wadsworth, Esq. Sender & Wasserman, P.C. 1660 Lincoln Street, Suite 2200 Denver, CO 80264
Matthew P. Ward, Esq. Womble Carlyle Sandridge & Rice, LLP 222 Delaware Avenue, Suite 1501 Wilmington, DE 19801
Gregory W. Werkheiser, Esq. Morris, Nichols, Arsht & Tunnell LLP 1201 N. Market St., 18th Floor P.O. Box 1347 Wilmington, DE 19899-1347
Ronald Wick, Esq. Cozen O'Connor, PC 1627 I Street, NW, Suite 1100 Washington, DC 20006
Joseph J. Wielebinski, Esq. Munsch Hardt Kopf & Harr, P.C. 3800 Lincoln Plaza 500 N. Akard Street Dallas, Texas 75201-6659
John F. Young, Esq. Markus Williams Young & Zimmermann LLC 1700 Lincoln St., Ste. 4000 Denver, CO 80203
Joshua E. Zugerman, Esq. Ballard Spahr LLP 919 N. Market Street, 11th Floor Wilmington, DE 19801
Dan White Cordillera Golf Club, LLC 97 Main Street, Suite E202 Edwards, CO 81632
Colorado Department of Revenue Attn: Bankruptcy Unit 1375 Sherman Street, Room 1375 Denver, CO 80261
Internal Revenue Service Centralized Insolvency Section P.O. Box 7346 Philadelphia, PA 19101-7346
Internal Revenue Service Department of Treasury Ogden, UT 84201-0030 Internal Revenue Service
September 7, 2012 s/Lela Lopez Velasquez Lela Lopez Velasquez

5753838_1.DOCX
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UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF COLORADO In re Case No. 12-24882 ABC
CORDILLERA GOLF CLUB, LLC dba The Club Chapter 11 at Cordillera, Tax ID / EIN: 27-0331317
Debtor.
DEBTORS FIRST REQUEST FOR PRODUCTION OF DOCUMENTS PROPOUNDED TO THE OFFICIAL COMMITTEE OF UNSECURED CREDITORS, IN REGARD TO THEIR JOINDER [DOCKET NO. 341] IN THE MOTION TO APPOINT A CHAPTER 11 TRUSTEE [DOCKET NO. 235] AND THE DEBTORS OBJECTION THERETO [DOCKET NO. 343] The Debtor and Debtor-in-Possession, Cordillera Golf Club, LLC, dba The Club at Cordillera (the Propounding Party), by its undersigned counsel, pursuant to Rules 7033 and 7034 of the Federal Rules of Bankruptcy Procedure (FRBP), hereby submit its First Request for Production of Documents to the Official Committee of Unsecured Creditors {Responding Party), in Regard to their Joinder [Docket No. 341] in the Motion to Appoint a Chapter 11 Trustee [Docket No. 235] and the Debtors Objection Thereto [Docket No. 343]. The Propounding Party requests that the Responding Parties provide the requested documents within fourteen (14) days pursuant to the Courts Scheduling Order set forth on the record at the hearing on August 15, 2012. The documents are to be produced at the offices of Foley & Lardner LLP, 402 West Broadway, Suite 2100, San Diego, California 92101. This discovery is deemed continuing until trial and imposes a duty to supplement as set forth in Federal Rule of Bankruptcy Procedure 7026. If Responding Parties acquire additional knowledge or information with respect to any of these discovery requests after service of responses or production of documents and things, Responding Parties are requested to serve,
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EXHIBIT A
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upon Propounding Party's undersigned counsel, a supplemental response to each such discovery on or before the discovery cutoff of September 26, 2012. DEFINITIONS A. Debtor shall mean Cordillera Golf Club, LLC dba The Club at Cordillera, and
any attorney, accountant, professional, director, officer, employee, agent, servant, representative, subsidiary, affiliate, successor, predecessor, division or any other person or entity acting or purporting to act on behalf of any aforementioned Debtor. B. Class Action shall mean the litigation pending in the District Court for Eagle
County, Colorado, case number 2011 CV 552, captioned Responding Parties: CHERYL M. FOLEY, THOMAS WILNER, JANE WILNER, CHARLES JACKSON, MARY JACKSON and KEVIN B. ALLEN individually and on behalf of all others similarly situated, v. Defendants: CORDILLERA GOLF CLUB, LLC, a Delaware limited liability company; CORDILLERA GOLF HOLDINGS, LLC a Delaware limited Liability Company; WFP CORDILLERA, LLC a Delaware limited Liability Company, WFP INVESTMENTS, LLC a Delaware limited Liability Company, CGH MANAGER, LLC a Delaware limited Liability Company, DAVID A. WILHELM individually, and PATRICK WILHELM, individually, v. IntervenorDefendant/Counterclaimant and Cross-Claimant: ALPINE BANK. C. Movants or Member Representatives, shall refer to Cheryl M. Foley, Thomas
Wilner, Jane Wilner, Charles Jackson, Mary Jackson and Kevin B. Allen, Individually and as Representatives of a Certified Class of Members in the Class Action and any attorney, accountant, professional, director, officer, employee, agent, servant, representative, subsidiary, affiliate, successor, predecessor, division or any other person or entity acting or purporting to act on its behalf. D. Responding Parties, you, or Your shall refer to the Official Committee of
Unsecured Creditors and any attorney, accountant, professional, director, officer, employee,
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agent, servant, representative, subsidiary, affiliate, successor, predecessor, division or any other person or entity acting or purporting to act on its behalf. E. CPOA shall mean the Cordillera Property Owners Association, and any
attorney, accountant, professional, director, officer, employee, agent, servant, representative, subsidiary, affiliate, successor, predecessor, division or any other person or entity acting or purporting to act on its behalf. F. Club shall have the meaning as set forth in the Motion of Cheryl M. Foley,
Thomas Wilner, Jane Wilner, Charles Jackson, Mary Jackson and Kevin B. Allen, Individually and as Representatives of a Certified Class of Members to Appoint Chapter 11 Trustee. G. CTC shall mean the Cordillera Transition Corporation, and any attorney,
accountant, professional, director, officer, employee, agent, servant, representative, subsidiary, affiliate, successor, predecessor, division or any other person or entity acting or purporting to act on its behalf. H. Joining Parties shall mean the CPOA, the Cordillera Metropolitan District, and
the Official Committee of Unsecured Creditors and any attorney, accountant, professional, director, officer, employee, agent, servant, representative, subsidiary, affiliate, successor, predecessor, division or any other person or entity acting or purporting to act on their behalf. I. J. Wilhelm shall mean David Wilhelm. Person shall mean, without limitation, any natural person, corporation,
partnership, proprietorship, group, association, organization, business entity, governmental body, agency and any agents, legal representatives, trustees, officers, directors, servants and employees of the foregoing, along with all others acting or purporting to act on such Person's behalf. K. Date shall mean the exact day, month and year, if ascertainable, or if not, the
best approximation thereof. L. Communication means any writing or any oral conversations of any kind or
character, or other exchange of information transmitted in whatever form from one or more person(s) to one or more person(s) including, by way of example and without limitation, personal 3
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conversations, telephone conversations, letters, electronically encoded words, facsimile transmissions, minutes of meetings, memoranda, telegraphic and telex communications or transmittals of documents, and all documents concerning such writings or such conversations whether they be drafts, facsimiles, copies, or originals. M. Document means, any and all writings and records as defined in the Federal
Rules of Evidence (FRE) Rule 1001, including all originals as defined in FRE Rule 1001(3), duplicates as defined in FRE Rule 1001(4), all drafts prepared in connection with such documents, whether or not used, and any other documents or tangible things as defined in FRCP Rule 34(a). Documents shall be construed as broadly as possible and shall include, without limitation, any information in any written, recorded, graphic or electronic form, whether typed, handwritten, printed, recorded, digitally encoded, photographed, photocopied, placed on microfilm, or otherwise produced or reproduced, including, but not limited to all memoranda, compilations, catalogs, summaries of information or data, notes, memoranda or oral conversations, letters, telegrams, publications, telexes, circulars, releases, articles, books, reports, prospectuses, records, financial statements, contracts, purchase orders, receipts, bills of lading, computer disks, computer tapes, microfiches, microforms, indexes, lists, files, analyses, charts, checks, money orders, account books, summaries, diaries, transcripts, agreements, calendars, orders, tapes or audio recordings, photographs, motion pictures or videotapes, and any drafts or copies of any of the above which are non-identical by virtue of any material appearing thereon, such as handwriting or typewriting or otherwise. N. Things has the broadest meaning prescribed in FRCP Rule 34, and includes
every kind of physical specimen or tangible item, other than a document, in the possession, custody or control of the Responding Parties. O. The terms evidence refer and relate shall be construed in the broadest sense
to mean information which: (i) contains or comprises any communication (including representations, requests, demands, and the like) referred to in these requests; and (ii) discusses, mentions, or refers, whether directly or indirectly, to the subject matter of the request. 4
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P.
The term concerning shall mean referring to, relating to, describing, evidencing,
or constituting. Q. The singular includes the plural and vice versa; the words and and or shall be
interpreted in either the conjunctive or disjunctive sense to bring within the scope of the request the broadest number of documents and greatest amount of information. R. S. Any shall be understood to include and encompass all. Each shall mean each and every. INSTRUCTIONS A. This request applies to all documents in your possession, custody, or control
regardless of their location and regardless of whether such documents are held by your affiliates, agents, employees, representatives, officers, attorneys, or other persons. B. All documents which are physically attached to each other in your files shall be
left so attached. Documents which are segregated or separated from other documents whether by inclusion in binders, files, subfiles, or by use of dividers, tabs or any other methods, shall be left so segregated or separated. Documents shall be retained in the order in which they are maintained and in the file where they were found. C. When asked to identify or to specify the identity of a person, if that person is
an individual, specify the individual's: (i) full name; (ii) last known employer or business affiliation; (iii) last known title or business description; and (iv) last known business and residential address and telephone number. D. When asked to identify or to specify the identity of a business concern,
specify: (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 the its chief executive officer. E. When asked to identify or to specify the identity of a document, for each
identified document specify: (i) the date of the document; (ii) the number of pages in the document; (iii) the identity of all persons who prepared or signed a copy of the document;
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(iv) the identity of all persons designated as addressees of the document; (v) the identity of all persons designated as copy recipients of any copy of the document; (vi) the type of document (e.g., memorandum, pamphlet, report, etc.); (vii) the title of the document; and (viii) the general subject matter of the document. F. When asked to identify or to specify the identity of a communication, specify
the form of communication. If the communication is in written form, identify the communication in conformity with Paragraph N of these Definitions and Instructions. If the communication was not in written form, specify: (i) the manner in which the communication was made (e.g., telephone, personal conversations, etc.); (ii) the identity of each person who participated in or witnessed the communication; (iii) the subject matter and content of the communication; (iv) the date and place of tile communication; and (v) the identity of all documents and things referring or relating thereto. G. The past tense shall be construed to include the present tense, and vice versa to
made these demands inclusive rather than exclusive. H. In the event that any document called for by this Request is withheld from
production under claim of privilege or other claimed immunity from discovery, such document shall be identified in writing by stating: (i) its author; (ii) each addressee; (iii) each person who has seen or received a copy of the document, or with whom such document was discussed; (iv) the document's date, general subject matter, number of pages, attachments or appendices; (v) the present custodian of the document; and (vi) the nature of the privilege or immunity asserted. If the document is not produced under claim of attorney-client privilege, then the name of the attorney, the name of the client, and the basis for the claim of privilege shall also be identified. Additionally, disclose any other information necessary for the Court and undersigned counsel to independently ascertain the legal sufficiency of any reason(s) asserted for withholding the document. Each segregable portion of any document to which the basis for withholding the remainder of the document does not apply shall be produced.
6
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I.
Should Responding Parties enter a written objection to a request listed below,
Responding Parties are required under the FRCP to state specifically what portion of the question or request is objectionable and identify the documents or category of documents that Responding Parties refusing to produce based on that objection. If only a portion of a question is objectionable, Responding Parties required to identify and produce responsive documents to all non-objectionable portions of the request posed. J. Under the FRCP, Responding Parties must separately respond and enter any
objections to each request posed. Responding Parties may not incorporate objections or responses by reference. An evasive or incomplete answer is deemed to be a failure to answer and may subject the Responding Parties, its counsel, or both, to liability under FRCP 37 for expenses of a motion brought pursuant to that rule. K. If any document requested herein has been lost, destroyed, or is otherwise
unavailable for inspection, identify (i) the author(s) and the last custodian thereof, (ii) their business addresses, (iii) the subject matter of the document in detail including the date of preparation or transmittal, and (iv) the circumstances and date of its loss, destruction, or unavailability. L. Each of the authors of a document and/or participants to a meeting or
conversation shall be identified. M. To the extent that Responding Parties deem a request, definition, or instruction
vague or ambiguous, Responding Parties must set forth in Responding Parties response the matter deemed vague or ambiguous and the construction Responding Parties used in responding to the request, including the categories of document not produced due to the objection. N. Please take notice that these demands are continuing and require production of all
responsive materials discovered over a period after your initial response to this request. O. Unless otherwise specified, the time frame applicable for each Document
Requested shall be from at least June 2009 through the present date.
7
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P.
If, at any time, you had possession, custody or control of any documents
requested, but such documents have been lost, destroyed or are otherwise unavailable, please describe each document and the date and circumstances surrounding its loss or destruction, and identify all persons having, at any time, possession, custody or control of the document and all persons having any knowledge of the circumstances by which the document became unavailable. Q. If you are unable to produce a document requested, but are aware of its location,
identify the person in possession, custody or control of the document and state the location of the document. REQUESTS FOR PRODUCTION OF DOCUMENTS 1. All documents that evidence, relate to and/or tend to disprove any fraud engaged
in by the Debtor and/or Wilhelm. 2. All documents that evidence, relate to and/or tend to disprove any
mismanagement engaged in by the Debtor and/or Wilhelm. 3. All documents that evidence, relate to and/or tend to disprove any dishonesty
engaged in by the Debtor and/or Wilhelm. 4. All documents that evidence, relate to and/or tend to disprove any acrimony
between the Debtor and/or Wilhelm and the creditors in this bankruptcy. 5. All documents that evidence, relate to and/or tend to disprove the allegation in
Paragraph 3 of the Motion that the Debtors actions and misdeeds have inevitably soured its relationship with the members and other interested community constituencies, including, but not limited to all documents (a) that evidence or tend to disprove each such alleged misdeed; (b) that identify or relate to the source, nature and extent of any acrimony or ill will in the parties relationship(s); (c) that identify or relate to who is meant by the other interested community constituencies.
8
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6.
All documents that evidence or relate to the alleged exploration between the
CPOA and Wilhelm of alternatives and solutions to the possible sale of Cordillera to the community, as alleged in Paragraph 4 of the Motion. 7. All documents that evidence, relate to and/or tend to disprove that Wilhelm
initiated the lawsuit referenced in Paragraph 5 of the Motion as a brutal business tactic and/or to exert pressure on the community to increase its purchase offer and to mask Wilhelms failures to fulfill his promises to Club members. 8. All documents that evidence, relate to and/or tend to disprove the allegation in
Paragraph 5 of the Motion that Wilhelms lawsuit against the CTC has caused the Cordillera community to view him with scorn and derision, including, but not limited to, all documents identifying each individual meant by the Cordillera community. 9. All documents that evidence any legal costs for the Wilhelm-initiated litigation
paid by the Cordillera community as alleged in Paragraph 5 of the Motion. 10. All documents that evidence, relate to and/or tend to disprove the allegation in
Paragraphs 6 of the Motion that Debtors, Wilhelm, Patrick Wilhelm, and/or any Wilhelm entity breached any contract, including, but not limited to the Club membership agreement, or made any misrepresentation or caused damage to Movants and/or creditors in this bankruptcy. 11. All documents that evidence, relate to and/or tend to disprove the allegation in
Paragraph 6 of the Motion that Wilhelm and Patrick Wilhelm are anathema to the Cordillera community. 12. All documents that evidence, relate to and/or tend to disprove the allegations in
Paragraph 7 of the Motion that homeowners in Cordillera will not deal with the Debtor operated by Wilhelm, and/or that the Debtor has burned its bridges with the homeowners in Cordillera.
9
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13.
All documents that evidence, relate to and/or tend to disprove a causal link
between Wilhelms operation of the Debtor and the homeowners resignations, refusals to pay dues and/or disavowal of membership agreements as alleged in Paragraph 7 of the Motion, including, but not limited to documents identifying each homeowner whose actions are at issue in that paragraph. 14. All documents that evidence, relate to and/or tend to disprove the allegation in
Paragraph 7 of the Motion that members will only return to the Club if Wilhelm is gone, including, but not limited to, all documents that identify each homeowner encompassed by that allegation. 15. All documents that evidence, relate to and/or tend to disprove the allegation that
there were improper actions described in this Motion, as alleged in Paragraph 10 of the Motion and all documents that evidence, relate to and/or tend to disprove that there was a causal link between any such action and/or Wilhelms alleged acquisition of the Debtor and the alleged mass exodus of members. 16. All documents that evidence, relate to and/or tend to disprove that the Clubs
membership has declined drastically from over 600 dues paying members in 2011 to approximately a quarter of that number of dues paying members at the present time, as alleged in Paragraph 10 of the Motion, including, but not limited to, all documents that evidence or tend to disprove that any such decline was attributable to or caused by any act of Wilhelm. 17. All documents that evidence, relate to and/or tend to disprove the allegations in
Paragraph 10 of the Motion that Wilhelm has complete[ly] alienated . . . the membership, or that this has caused a precipitous decline in revenue.
10
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18.
All documents that evidence, relate to and/or tend to disprove the allegations in
Paragraph 7 of the Motion that an appointment of a trustee is in the best interests of creditors and other parties in-interest and that cause exists for the appointment of a trustee. 19. trustee. 20. 21. All non-privileged communications that relate to the Motion. All documents that evidence, relate to and/or tend to disprove the allegation in All non-privileged communications that relate to the possible appointment of a
Paragraph 10 of the Motion that resigned members will not return with Wilhelm in charge of the Debtor. 22. All documents that evidence, relate to and/or tend to disprove the allegation in
Paragraph 10 of the Motion that resigned members are the Debtors only hope for rebuilding its customer base and revenues. 23. All documents that evidence, relate to and/or tend to negate the allegations in
Paragraph 11 of the Motion that Wilhelm made misrepresentations to members? And/or fraudulent[ly] misuse[d] . . . their dues. 24. All documents that evidence, related to and/or tend to disprove that members will
return to the Debtor if a trustee is appointed. 25. All documents that evidence communications between counsel for the state class
members and non-representative members of the class regarding Wilhelm and/or his actions and conduct vis--vis the Debtor. 26. All documents that evidence, relate to and/or tend to disprove any harm or injury
suffered by any of the named Movants or any creditors that he/she attributes to actions of
11
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Wilhelm, including, but not limited to, all documents that evidence or tend to disprove any causal link between any such claimed harm and any act by Wilhelm. 27. All documents that evidence, relate to and/or tend to disprove whether Wilhelm
and/or the Debtor are able to formulate a viable business plan. 28. All documents that evidence, relate to and/or tend to disprove the allegations of
Paragraph 15 of the Motion that Club members requested assurance from the Debtors, how the Debtor allegedly responded to such requests, how Movants and/or other parties-in-interest relied on any such assurance, and whether Movants or any party suffered as a result of any such assurance. 29. All documents that evidence, relate to and/or tend to disprove that the Debtor
and/or Wilhelm acted with anything other than honesty and good faith in sending the e-mail described in Paragraph 15 of the Motion. 30. All documents that relate to the January 20, 2011 e-mail sent by Wilhelm and
Patrick Wilhelm referenced in Paragraph 17 of the Motion, including, but not limited to, any reliance by Movants and any party-in-interest on such e-mail, as well as any losses incurred by Movants or any other party as a result of such reliance. 31. All documents that evidence, relate to and/or tend to disprove that either Wilhelm
or Patrick Wilhelm acted with anything other than honesty and good faith in drafting and sending the e-mail reflected in Paragraph 17 of the Motion, including , but not limited to, any documents showing whether the Wilhelms were not committed to opening all facilities in 2011 at the time. 32. All documents that evidence or relate to the allegation of Paragraph 18 of the
Motion regarding the May 2011 e-mail sent by Wilhelm, including, but not limited to, any
12
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reliance by Movants and any party-in-interest on such e-mail, as well as any losses incurred by Movants or any other party as a result of such reliance. 33. All documents that evidence, relate to and/or tend to disprove that Wilhelm acted
with anything other than honesty and good faith in drafting and sending the e-mail reflected in Paragraph 18 of the Motion, including, but not limited to, any document disputing that Wilhelm was not trying to preserve cash flow at the time. 34. All documents that evidence, relate to and/or tend to disprove the circumstances
under which one additional golf course was opened in July 2011, as alleged in Paragraph 18 of the Motion. 35. All documents that evidence or relate to the alleged Court-ordered audit described
in Paragraphs 19-20 of the Motion, including, but not limited to, all documents relating to the dues allegedly collected and payments made to Wilhelm, his family members and his entities as asserted in these Paragraphs. 36. Motion. 37. All documents that evidence or relate to the payments alleged in Paragraphs 26-27 All documents that relate to the entry of a TRO described in Paragraph 25 of the
of the Motion, including, but not limited to, all documents that evidence why such expenses are not related to the operation of the Clubs golf courses and/or related facilities. 38. All documents that evidence any order of any court finding any violation of the
TRO or act of contempt by either Wilhelm or the Debtor. 39. All documents that evidence, relate to and/or tend to disprove the allegation in
Paragraph 30 of the Motion that the Debtor commenced the adversary proceeding reflected in
13
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that Paragraph so that [Wilhelm] would not have to explain his contemptuous conduct to the Eagle County District Court. 40. All documents that evidence, relate to and/or tend to disprove any finding that
Wilhelm and/or the Debtors acted in contempt of the TRO. 41. All documents that evidence, relate to and/or tend to disprove that the Debtor
and/or Wilhelm engaged in any fraudulent conduct. 42. All documents that evidence, relate to and/or tend to disprove that David Wilhelm
was dishonest with the Clubs members, as alleged in Paragraph 35 of the Motion. 43. All documents that evidence, relate to and/or tend to disprove any allegation in
Paragraph 35 of the Motion that Wilhelm acted with incompetence or the alleged gross mismanagement of Debtors financial affairs. 44. All documents that evidence, relate to and/or tend to disprove the allegation in
paragraph 36 of the Motion that Wilhelms lawsuit was contrived. 45. All documents that evidence, relate to and/or tend to disprove the allegation in
paragraph 37 of the Motion that Wilhelm has demonstrated that he is willing to disregard court orders. 46. All documents that evidence, relate to and/or tend to disprove the allegation in
Paragraph 38 of the Motion that it is a misuse of assets to pay counsel. 47. All documents that evidence, relate to and/or tend to disprove the allegation in
Paragraph 43 of the Motion that Wilhelm had a conflict of interests. 48. All documents that evidence, relate to and/or tend to disprove the allegation in
Paragraphs 37-38 of the Motion that Wilhelm misappropriated or misused funds from the Debtor including, but not limited to, all documents evidencing, relating to or tending negate that
14
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funds used by Wilhelm were for his personal benefit or the benefit of his family or controlled entities and that Wilhelm used such funds without legal right. 49. All documents that evidence, relate to and/or tend to disprove that no plan of
reorganization is confirmable or feasible without the appointment of a trustee. 50. All documents that evidence, relate to and/or tend to disprove any competing plan
that has been or is being devised by Movants and/or constituencies besides the Debtor, including all documents relating to the feasibility or possibility of confirmation of any such plan. 51. All documents that evidence or relate to any projections, forecasts, financials,
business plans, strategic plans, marketing plans and/or operational documents regarding the future operations and prospects for the Debtor or the Club. 52. All non-privileged communications and documents that evidence or reflect the
Joining Parties reasons and decisions to join in the Motion. 53. All documents that evidence or relate to any agreements or terms applicable to the
Joining Parties joinder in the Motion. 54. All document that evidence or relate to any agreements or terms applicable to the
Joining Parties if a trustee is appointed. 55. Any and all documents and/or communications, including e-mail
communications, related to the Class Action Litigation that contain references to Wilhelm. 56. Any and all documents containing communications, including e-mail
communications, from Thomas Wilner, Jane Wilner, Cheryl M. Foley, Charles Jackson, Mary Jackson or Kevin B. Allen to any Member Representative, members or former members of the Club, any members of the CPOA or any members of the CTC relating to the Class Action and/or Wilhelm. .
15
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57.
Any and all documents containing communications, including e-mail
communications, from Thomas Wilner, Jane Wilner, Cheryl M. Foley, Charles Jackson, Mary Jackson or Kevin B. Allen to any Member Representative, members or former members of the Club, any members of the CPOA or any members of the CTC relating to discussion regarding opening all the facilities at Cordillera in 2011. 58. Any and all documents and/or communications, including e-mail
communications, regarding the August 15, 2012 e-mail from the Movants with the subject line Class Members Litigation Update/Response Requested USE THIS VERSION. 59. Any and all documents and/or communications, including e-mail
communications, regarding the document titled Its Time To Decide What do YOU want if the Golf Club is Liquidated Cordillera Metropolitan District and CPOA Boards and the August 10, 2012 and August 14, 2012 letter from the CGC Member Group, Inc. attached to that document. 60. Any and all documents and/or communications, including e-mail
communications, from Linda Vollman to anyone related to the Class Action and/or Wilhelm. 61. Any and all documents and/or communications, including e-mail
communications, related to any efforts to obtain joinder support for the Motion. 62. Motion. 63. Any and all documents and/or communications, including e-mail Any and all document that evidence class members personal joinder in the
communications, related to any discussion about payment or non-payment of dues to the Club. 64. Any and all documents and/or communications, including e-mail
communications, regarding any offers, potential or actual, to purchase the Club.
16
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65.
All non-privileged communications and documents from, to, or generated by
cordilleragolfmemberslawsuit@gmail.com. 66. All non-privileged communications and documents from, to, or generated by
cordilleraflash@cordilleracolorado.com.. 67. All non-privileged communications and documents from, to, or generated by
aperry@cordillerametro.org. 68. Any and all documents and/or communications evidencing who established the
email address cordilleragolfmemberslawsuit@gmail.com, who has access to send email from that email address, and the complete distribution list associated with that email address. 69. Any and all documents and/or communications evidencing who established the
email address cordilleraflash@cordilleracolorado.com, who has access to send email from that email address, and the complete distribution list associated with that email address. 70. Any and all documents and/or communications evidencing who established the
email address aperry@cordillerametro.org, who has access to send email from that email address, and the complete distribution list associated with that email address. 71. Any and all documents and/or communications, including e-mail
communications, relating to the tender of any claims in Cordillera Golf Club, LLC et al. v. Cordillera Transition Corp., Inc. et al., Case No. 2011cv456 pending in the District Court of Eagle County, Colorado, by the CPOA to any insurance carrier and any response from said carrier thereto. 72. Any and all documents and/or communications, including e-mail
communications, relating to the tender of any claims in Cordillera Golf Club, LLC et al. v. Cordillera Transition Corp., Inc. et al., Case No. 2011cv456 pending in the District Court of
17
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Eagle County, Colorado, by the Cordillera Transition Corporation, Inc. to any insurance carrier and any response from said carrier thereto.
Dated: August 27, 2012
SENDER & WASSERMAN, P.C. /s/ Harvey Sender Harvey Sender, #7546 1660 Lincoln Street, Suite 2200 Denver, CO 80264 Telephone: 303-296-1999 Facsimile: 303-296-7600 Email: sender@sendwass.com Counsel for Debtor and Debtor-in-Possession -andChristopher Celentino (CA No. 131688) Mikel Bistrow (CA No. 102978) Dawn A. Messick (CA No. 236941) Admitted Pro Hac Vice 402 West Broadway, Suite 2100 San Diego, California 92101 Telephone: 619-234-6655 Facsimile: 619-234-3510 Email: ccelentino@foley.com Email: mbistrow@foley.com Email: dmessick@foley.com Counsel for Debtor and Debtorin-Possession
18
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CORDILLERA GOLF CLUB, LLC dba The Club Chapter 11 at Cordillera,

Debtor.
DEBTORS SECOND REQUEST FOR PRODUCTION OF DOCUMENTS PROPOUNDED TO THE OFFICIAL COMMITTEE OF UNSECURED CREDITORS, IN REGARD TO THEIR JOINDER [DOCKET NO. 341] IN THE MOTION TO APPOINT A CHAPTER 11 TRUSTEE [DOCKET NO. 235] AND THE DEBTORS OBJECTION THERETO [DOCKET NO. 343] The Debtor and Debtor-in-Possession, Cordillera Golf Club, LLC, dba The Club at Cordillera (the Propounding Party), by its undersigned counsel, pursuant to Rule 7034 of the Federal Rules of Bankruptcy Procedure (FRBP), hereby submit its Second Request for Production of Documents to the Official Committee of Unsecured Creditors {Responding Party), in Regard to their Joinder [Docket No. 341] in the Motion to Appoint a Chapter 11 Trustee [Docket No. 235] and the Debtors Objection Thereto [Docket No. 343]. The Propounding Party requests that the Responding Parties provide the requested documents within fourteen (14) days pursuant to the Courts Scheduling Order set forth on the record at the hearing on August 15, 2012. The documents are to be produced at the offices of Foley & Lardner LLP, 402 West Broadway, Suite 2100, San Diego, California 92101. This discovery is deemed continuing until trial and imposes a duty to supplement as set forth in Federal Rule of Bankruptcy Procedure 7026. If Responding Parties acquire additional knowledge or information with respect to any of these discovery requests after service of responses or production of documents and things, Responding Parties are requested to serve,
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P.
5
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6
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I.
7
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P.
identify the person in possession, custody or control of the document and state the location of the document. REQUESTS FOR PRODUCTION OF DOCUMENTS 1. All non-privileged communications and documents from, to, or generated by
cgcmembersgroup@gmail.com. 2. Any and all documents and/or communications evidencing who established the
email address cgcmembersgroup@gmail.com, who has access to send email from that email address, and the complete distribution list associated with that email address. 3. Any and all documents and/or communications evidencing who established the
domain http://cgc-members-group.com, who has access to post documents or links to that domain, and the purpose for creation of that domain. 4. All non-privileged communications and documents from, to, or generated by
cordillera.acquisition@gmail.com. 5. Any and all documents and/or communications evidencing who established the
email address cordillera.acquisition@gmail.com, who has access to send email from that email address, and the complete distribution list associated with that email address.
8
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Dated: September 4, 2012
SENDER & WASSERMAN, P.C. Harvey Sender, #7546 1660 Lincoln Street, Suite 2200 Denver, CO 80264 Telephone: 303-296-1999 Facsimile: 303-296-7600 Email: sender@sendwass.com Counsel for Debtor and Debtor-in-Possession -and/s/ Benjamin J. Morris Christopher Celentino (CA No. 131688) Mikel Bistrow (CA No. 102978) Dawn A. Messick (CA No. 236941) Benjamin J. Morris (CA No. 260148) Admitted Pro Hac Vice 402 West Broadway, Suite 2100 San Diego, California 92101 Telephone: 619-234-6655 Facsimile: 619-234-3510 Email: ccelentino@foley.com Email: mbistrow@foley.com Email: dmessick@foley.com Counsel for Debtor and Debtorin-Possession
9
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CORDILLERA GOLF CLUB, LLC dba The Club Chapter 11 at Cordillera,

Debtor.
DEBTORS THIRD REQUEST FOR PRODUCTION OF DOCUMENTS PROPOUNDED TO THE OFFICIAL COMMITTEE OF UNSECURED CREDITORS, IN REGARD TO THEIR JOINDER [DOCKET NO. 341] IN THE MOTION TO APPOINT A CHAPTER 11 TRUSTEE [DOCKET NO. 235] AND THE DEBTORS OBJECTION THERETO [DOCKET NO. 343] The Debtor and Debtor-in-Possession, Cordillera Golf Club, LLC, dba The Club at Cordillera (the Propounding Party), by its undersigned counsel, pursuant to Rule 7034 of the Federal Rules of Bankruptcy Procedure (FRBP), hereby submit its Third Request for Production of Documents to the Official Committee of Unsecured Creditors {Responding Party), in Regard to their Joinder [Docket No. 341] in the Motion to Appoint a Chapter 11 Trustee [Docket No. 235] and the Debtors Objection Thereto [Docket No. 343]. The Propounding Party requests that the Responding Parties provide the requested documents within fourteen (14) days pursuant to the Courts Scheduling Order set forth on the record at the hearing on August 15, 2012. The documents are to be produced at the offices of Foley & Lardner LLP, 402 West Broadway, Suite 2100, San Diego, California 92101. This discovery is deemed continuing until trial and imposes a duty to supplement as set forth in Federal Rule of Bankruptcy Procedure 7026. If Responding Parties acquire additional knowledge or information with respect to any of these discovery requests after service of responses or production of documents and things, Responding Parties are requested to serve,
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I.
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P.
identify the person in possession, custody or control of the document and state the location of the document.
REQUESTS FOR PRODUCTION OF DOCUMENTS 78. All documents and communications identified in your response to Debtors
Interrogatory Number 25..
Dated: September 6, 2012
SENDER & WASSERMAN, P.C. Harvey Sender, #7546 1660 Lincoln Street, Suite 2200 Denver, CO 80264 Telephone: 303-296-1999 Facsimile: 303-296-7600 Email: sender@sendwass.com Counsel for Debtor and Debtor-in-Possession -and-
8
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/s/ Benjamin J. Morris Christopher Celentino (CA No. 131688) Mikel Bistrow (CA No. 102978) Dawn A. Messick (CA No. 236941) Benjamin J. Morris (CA No. 260148) Admitted Pro Hac Vice 402 West Broadway, Suite 2100 San Diego, California 92101 Telephone: 619-234-6655 Facsimile: 619-234-3510 Email: ccelentino@foley.com Email: mbistrow@foley.com Email: dmessick@foley.com Email: bmorris@foley.com Counsel for Debtor and Debtorin-Possession
9
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UNITED STATES BANKRUPTCY COURT DISTRICT OF COLORADO
In re CORDILLERA GOLF CLUB, LLC dba The Club at Cordillera, Tax ID / EIN: 27-0331317 Debtor.
Case No. 12-24882 ABC Chapter 11
DEBTORS PROPOSED PROTECTIVE ORDER GOVERNING DESIGNATION AND USE OF CONFIDENTIAL MATERIAL IN REGARD TO MOTION TO APPOINT A CHAPTER 11 TRUSTEE [DOCKET NO. 235], THE DEBTORS OBJECTION THERETO [DOCKET NO. 343], AND DEBTOR'S MOTION FOR FINAL ORDER APPROVING DEBTOR-INPOSSESSION FINANCING, USE OF CASH COLLATERAL AND ADEQUATE PROTECTION [DOCKET NO. 402]
There is good cause for this Protective Order in connection with the above-referenced Motion to Appoint a Trustee and the Motion to Approve DIP Financing (collectively, the Action) because discovery in this Action is anticipated to involve the production of confidential and private information concerning, among other topics, trade secrets and other confidential commercial information, information that relates to third-party Club member records of Debtor and Debtor-in-Possession Cordillera Golf Club, LLC (Debtor), including names, addresses, phone numbers, Social Security numbers, dates of birth, and bank account information; and financial information, as provided for in Rule 26(c) of the Federal Rules of Civil Procedure, as incorporated in these proceedings by Rule 7026 of the Federal Rules of Bankruptcy Procedure. Protection of these categories of information from public disclosure and/or from use for any purpose other than prosecuting or defending this proceeding is warranted. Therefore, entry of a protective order pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, as incorporated in proceedings by Rule 7026 of the Federal Rules of Bankruptcy Procedure, is necessary to protect such confidential information. This Protective Order does not confer blanket protections on all disclosures or responses to discovery and the protection it affords extends only to the limited information or items that are entitled under the applicable legal principles to treatment as confidential. WHEREAS, it appearing to the Court that good cause exists for the entry of this protective order with respect to the Action pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, as incorporated in these proceedings by Rule 7026 of the Federal Rules of
MHDocs 3996166_1 13152.1 4824-9706-6512.16512.3MHDocs 3996166_1 13152.1
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Bankruptcy Procedure, in order to protect trade secrets and other confidential commercial information as well as provide information on third parties. IT IS HEREBY ORDERED that, pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, as incorporated in these proceedings by Rule 7026 of the Federal Rules of Bankruptcy Procedure, the following terms and conditions shall govern the disclosure and use of sensitive and confidential information (including documents, deposition testimony, interrogatory answers, electronic data and other documents and data) produced in the Action. 1. Proceedings and Information Governed. This Protective Order will govern any document, information, or other thing furnished or produced by any party, including thirdparties, to any other party in connection with this Action that might reveal confidential information, including, but not limited to, deposition testimony, discovery responses, or other documents which the Parties or non-parties designate in good faith as CONFIDENTIAL (hereinafter Confidential Material) and is provided to one or more Parties in discovery in the Action. The information protected includes, but is not limited to, information contained in responses to requests for production of documents; responses to form or special interrogatories; responses to requests for admissions; deposition testimony and exhibits; and all copies, summaries, memorandum reports and portions of the foregoing. 2. Confidential Information or Material Defined. For purposes of this Protective Order, Confidential Material shall mean documents and information provided by a Producing Party, as defined below, that are not otherwise available: (a) publicly; or (b) from third parties not subject to any obligation to the Producing Party to maintain the confidentiality of the documents and information in their possession. A Producing Party may designate any information it produces during discovery, or otherwise discloses in the Action, as CONFIDENTIAL, if the Producing Party has a good faith belief that such information constitutes its (or that of another person to whom or which the Producing Party owes a duty of confidentiality) commercially sensitive or otherwise confidential information that should be protected from public dissemination and which the Producing Party would normally not reveal or would cause to be maintained in confidence if revealed including, but not limited to: (a) proprietary information, trade secrets or other confidential commercial information; or (b) non public information of a personal or private nature including, but not limited to, employee personnel files and confidential information regarding persons or entities that are not Parties to the Action, or private personal information of club members. Confidential Material may be produced through: disclosures pursuant to Federal Rules of Civil Procedure 26, 30, 31, 33, 34, 35, 36 or 45 made applicable to this Action under the Federal Rules of Bankruptcy Procedure and other productions pursuant to the order of a court of competent jurisdiction. While a Party may designate previously produced information as Confidential under this provision, the Parties recognize that such materials may already have been disseminated in a manner inconsistent with this Protective Order or may already have been independently provided by the producing/designating Party to a third-party. The Parties shall have no obligation to attempt to locate and retrieve such documents and shall not be found or held to be in violation of this Protective Order as a result of actions that occurred prior to the entry of the Order. Additionally, this Courts Order granting Debtors Motion for Protective Order (Docket Entry 395) shall remain in full force and effect and Debtor shall have no obligation to produce documents as
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provided for therein. Notwithstanding this, the Parties shall use and treat Confidential Material consistent with this Order following the materials designation as such pursuant to this Order. Confidential Material is entitled to protection under F.R.C.P. 26(c). (a) Requesting Party shall mean any Party requesting documents or information pursuant to F.R.C.P. 26(a), conducting a deposition pursuant to F.R.C.P. 30-31, propounding interrogatories pursuant to F.R.C.P. 33, requesting the production of documents pursuant to F.R.C.P. 34 or pursuant to a subpoena duces tecum served upon any person or entity in this proceeding, and/or otherwise seeking discovery in connection with the Action. (b) Producing Party shall mean any person or entity on whom a discovery request, in whatever form, has been propounded in this action. (c) Party or Parties shall mean the named parties in this proceeding.
3. Use of Confidential Material. Except as otherwise ordered by the Bankruptcy Court or other court of competent jurisdiction, Confidential Material shall be used by the Parties to the Action solely in connection with the Action and not for any other purpose. 4. Designation of Confidential Material. In responding to discovery propounded herein, any party may in good faith designate any confidential or proprietary document, material, or information of that designating party produced by it as Confidential Material. In the case of documents, such designation shall be made by stamping the phrase Confidential if the document is Confidential Material on all pages of any document so designated, in a conspicuous place. For documents previously produced, a Party may designate the document as Confidential by designating the document in writing to the opposing Party. In such event, the document shall be deemed to be Confidential under this Protective Order from the date that document is designated as Confidential. For any documents that have been previously filed with a Court, the Parties shall confer to determine whether such documents or parts of such documents should be treated as confidential. If the Parties agree that Confidential Material was publicly filed in error, the Parties will take good faith steps to attempt to remedy such error. In the case of deposition testimony, such designation shall be made by identifying on the record those portions of the transcript designated as Confidential Material. Machine readable media and other non- documentary material shall be designated as Confidential Material by some suitable and conspicuous means, given the form of the particular embodiment. Inadvertent failure to designate material as Confidential at the time of production may be remedied at any time thereafter by supplemental written notice. The designation of material as Confidential Material, in the manner described hereunder, shall constitute a certification by the attorney making such designation that he or she in good faith believes the material to be entitled to protection under F.R.C.P. 26(c). 5. Documents Previously Produced. With respect to documents already produced in the Action, the Producing Person shall, if possible, identify by Bates number the documents it is designating as Confidential Material pursuant to this Agreement, and the Receiving Parties and their counsel shall segregate the documents which have been identified and take steps necessary to assure compliance with the provisions of this Agreement.
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6. Use of Information Designated as CONFIDENTIAL. Except as otherwise provided in this Order, information designated as CONFIDENTIAL may not be given, shown, or disclosed to any person other than: (a) outside counsel for the Receiving Party and all paralegal assistants, stenographic and clerical employees under the direct supervision of such counsel; (b) any person whose testimony is noticed to be taken, including non-party witnesses for purposes of the Action, provided that: (i) there is a reasonable basis for such disclosure; and (ii) such person may only be shown information designated as Confidential Material during or in preparation for his or her testimony and may not retain any such information; (c) persons who were authors of the Confidential Material, or previous recipients of the Confidential Material; (d) (e) the Action; (f) experts or consultants retained by the Receiving Party or its counsel to whom it is necessary that Confidential Material be shown for purposes of the Action; (g) providers of litigation support, duplicating, and auxiliary services of a similar nature, routinely engaged by counsel; (h) any person who the Parties agree, in advance and in writing, may receive such protected information, and such agreement shall not be unreasonably withheld; and (i) Parties and current or former employees of any Party, as reasonably necessary for purposes of the Action, for use only in connection with the Action. 7. Challenges to Designations of Confidential Material. Nothing in this Protective Order constitutes a finding or admission that any Confidential Material or information is in fact confidential, proprietary or otherwise not subject to disclosure. Any Party desiring to challenge a designation of Confidential Material under this paragraph may do so by contacting counsel for the designating party in writing, and attempting to resolve any dispute by mutual agreement. In the event that the parties cannot resolve their dispute as to such designation of allegedly confidential material, the Requesting Party may file a motion for disclosure regarding the information. If the Requesting Party files such a motion, the Requesting Party shall continue to protect the information until the court rules on the motion. The Requesting Party shall be obligated to preserve the confidentiality of the information until further order of the Court. While the Requesting Party may file a motion for disclosure, the party designating the material as Confidential shall have the burden of proving that such information is confidential under applicable state or federal laws. As stated above, this Protective Order does not confer blanket protections on all disclosures or responses to discovery and the protection it affords extends only the court with jurisdiction over the Action; court reporting personnel involved in taking or transcribing testimony in
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to the limited information or items that are entitled under the applicable legal principles to treatment as confidential. 8. Treatment of Confidential Material. All documents, material, and information designated as Confidential Material under paragraph 2 shall be treated in accordance with the provisions of this Order until such designation has been released by the party making it or by order of the Court. 9. Disclosure of Confidential Material. Except as set forth herein, neither the contents nor the substance of Confidential Material may be disclosed to anyone other than the Court, provided that such materials are marked Confidential pursuant to this Protective Order and filed under seal unless otherwise ordered, the parties and their current or former employees with disclosure to employees limited to those employees or former employees deemed by counsel reasonably necessary to assist with the Action, the law firms who represent the Parties, vendors retained by the law firms for copying and other similar services, court reporters performing services in connection with this lawsuit, and expert consultants who assist the law firms in their analysis of the evidence and presentation of the case and the persons referenced in Section6 hereof. For purposes of the preceding sentence the Parties does not include members of Plaintiffs class in the Class Action Lawsuit pending in District Court for Eagle County, Colorado, case number 2011 CV 552, other than the Member Representatives who are the Movants on the Trustee Motion. 10. Disclosure of Confidential Material to Outside Experts, Consultants or Former Employees. Upon the good faith determination by an attorney representing a Party or by a Party that he needs to consult former employees or experts or consultants who have been retained for the purpose of this proceeding, Confidential Material may be disclosed to such persons provided, that prior to disclosure of any Confidential Material to such person, such person shall sign a Statement Regarding Confidentiality in the form attached hereto as Exhibit A, stating the signatorys full name, address, and present employer, and acknowledging his or her understanding of the terms of this Protective Order and his or her agreement to be bound by its terms. Each such signed statement shall be retained by the attorney or Party disclosing any Confidential Material pursuant to this paragraph 10. 11. Use of Confidential Material. Any person who receives or is afforded access to any Confidential Material pursuant to the provisions of this Protective Order shall neither use nor disclose said Confidential Material for any purpose other than the purposes of preparation for and conduct of the Action. Nothing contained herein shall preclude any party from using its own documents, material and information in any manner it deems appropriate, nor shall anything contained herein preclude use of documents, material and information already in the possession of a party or that has been previously publicly disclosed. 12. Trial and Public Proceedings. Confidential Materials and the information in them may be used as is reasonably determined to be necessary in any court proceeding in this case, including depositions, hearings and trial, subject to the rules of evidence, the Federal Rules of Civil Procedure, the Federal Rules of Bankruptcy Procedure and any other applicable law. Such information shall not lose its confidential status through such use, and the Parties shall take
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reasonable steps to protect the confidentiality of such information during its use. Prior to the use of any Confidential Material in a proceeding open to the public, the Party intending to use Confidential Material shall give the Party producing such Confidential Material prompt notice of same, and if reasonably possible without violating legal compulsion at least five (5) days notice, such that the Parties may attempt to reach an agreement upon what actions may be taken to preserve confidentiality of the Confidential Material or the producing Party may object to the publication of the Confidential Material. 13. Except as provided herein or by an order of a Court of competent jurisdiction, Confidential Material quoted in any public filings shall be redacted in the version of the filing filed on the Courts ECF system, and unredacted versions filed with the clerks office as restricted documents without further order of the Court, as provided for in Federal Rule of Civil Procedure 26(c) as incorporated in these proceedings by Rule 7026 of the Federal Rules of Bankruptcy Procedure, and Local Bankruptcy Rule 5005-4. Except as provided herein or by an order of a Court of competent jurisdiction, Confidential Material attached as an exhibit to any filing shall be redacted filed under seal in accordance with the procedures set forth under applicable law. 14. Non-Party Demand; Government Investigations. (a) If any Party that receives Confidential Material is: (i) subpoenaed or served with a document request in another action; or (ii) served with a demand in another action to which it is a party by one not a party to the Action, which seeks the discovery of materials designated CONFIDENTIAL by a Producing Party, the Party receiving such demand shall give written notice to the Producing Party. If the Producing Party does not make a written objection to the subpoena or demand within a reasonable period of time of the written notice described above, which in any event is not more than seven (7) days from receipt of the written notice, or does not file a motion for protective order or other relief within ten (10) days from the receipt of the written notice described above or by the time required of the Party receiving the subpoena to respond to same, the Party receiving the subpoena or demand will be under no further obligation with respect to the production of the Confidential Material. Nothing herein shall be construed to require any Party to challenge or appeal any order requiring the production of Confidential Material by another Party, or to subject itself to any penalties for non-compliance with any judicial order, or to seek any relief from this Court or any other court. 15. Non-Parties. Any non-party subpoenaed or requested by a Requesting Party to produce documents and things or information for purposes of the Action, or to give deposition testimony, shall have the full benefits and protections of this Order, and may designate documents or deposition testimony as CONFIDENTIAL in the manner, and subject to the same protections, as set forth above. 16. Deposition Testimony. Information disclosed at depositions taken in this Action may be designated as Confidential Material by the party disclosing such information by indicating on the record at the deposition that the testimony contains Confidential Material or by providing written notice to opposing counsel of the intent to designate such information as confidential within ten (10) days of receiving the transcript of the deposition, provided however that Parties are under no obligation to presume or anticipate confidentiality pending such designation period.
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The designated testimony shall be marked as confidential and sealed by the court reporter and treated as Confidential Material under the terms of this Order pending further order of the Court or agreement of the Parties. 17. Retention of Privilege. Nothing herein shall in any respect constitute a waiver of any attorney-client, work product, or common interest privilege of any party, nor does any provision herein affect the right of any party to contest any assertion or finding of confidentiality or privilege, and/or to appeal any adverse determination of the Court regarding said confidentiality or privilege. 18. Scope of F.R.C.P. 26. Nothing contained herein is intended to broaden the scope of information that would be entitled to protection under F.R.C.P. 26. 19. Modification. Each Party reserves the right to move to modify the terms of this Protective Order for good cause, and the Court can modify the Protective Order at any time. 20. Retained Jurisdiction. The Court retains jurisdiction subsequent to settlement or entry of judgment to enforce the terms of this Order and the terms of this Protective Order shall remain in effect after the termination of this litigation. Each individual who receives any Confidential Material hereby agrees to be subject to the jurisdiction of this Court for the purpose of any proceedings relating to the performance under, compliance with or violation of this Order. 21. Termination of Action. Within forty-five (45) days of termination of this Action, including all appeals, counsel for Parties in possession of Confidential Material shall, upon request of the Producing Party, cause all such Confidential Material produced in this action by an opposing party, including copies, extracts and summaries, to be destroyed or returned to counsel for the Producing Party. Counsel for the Requesting Party or the Requesting Party shall certify to the Producing Party in writing that it has fulfilled the obligations imposed by this paragraph. Notwithstanding this provision, each counsel may keep one set of all documents produced in the litigation as may be required by applicable law or counsels record retention policy. Documents retained by counsel shall be destroyed as soon as permitted by applicable law and counsels record retention policy. 22. Inadvertent Disclosure. Any inadvertent disclosure or production of Confidential Material without designating it as Confidential, or of documents protected by the attorney-client privilege, common interest privilege, or work-product protection, will not constitute a waiver of any available privilege or protection by the disclosing party. (a) In the event that the receiving party discovers that it has received Confidential Material that was not designated as Confidential, or attorney-client privileged, common interest privileged, or work-product protected documents, it will bring that fact to the attention of the producing party immediately upon discovery. (b) Upon the request of the Producing Party, the Receiving Party will promptly return to the Producing Party any attorney-client privilege, common interest privilege, or work-product-protected document and any copies that the Receiving Party may have made,
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provided however that this provision shall not adversely impact the Receiving Party's right to challenge the assertion of privilege. (c) Upon discovery of any inadvertent disclosure or production of Confidential Material without it having been designated as Confidential, the Producing Party shall have the right to designate such documents or information as Confidential by notifying requesting party of the specific information or documents that it is designating as Confidential. After such designation by the Producing Party, all such information later designated as Confidential following any inadvertent disclosure shall, from and after such designation, be subject to the full protections of this order as if designated Confidential when originally disclosed or produced. (d) Upon the request of the Producing Party, the Receiving Party will promptly disclose the names of any individuals who have read or have had access to the inadvertently disclosed Confidential Material or attorney-client privileged, common interest privileged, or work-product-protected document or information. (e) No such inadvertently produced or disclosed Confidential Information or attorney-client privileged, common interest privileged, or work-product-protected document may be used for any purpose other than Confidential Information being used consistent with this Protective Order or consistent with any other order of the Court. (f) If either party must seek judicial enforcement of this agreement, the costs and reasonable attorneys fees of the party seeking enforcement will be paid by the party against whom such enforcement must be sought, but only if the court finds the existence of a valid privilege and grants enforcement of this Protective Order by ordering the return and nonevidentiary use of the produced document. IT IS SO ORDERED Dated this _____ day of ______________, 2012. BY THE COURT:
____________________________________ United States Bankruptcy Court
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EXHIBIT A I, ______________________________________, state that: 1. My address is _________________________________________________________. 2. My present employer is _________________________________________________. 3. My present occupation or job description is _________________________________. 4. I have received a copy of the Protective Order entered in In re Cordillera Golf Club, LLC dba The Club at Cordillera, Case No. 12-24882 ABC in the United States Bankruptcy Court, District of Colorado. 5. I have carefully read and understand the provisions of the Protective Order. I will comply with all of the provisions, including holding in confidence and not disclosing to any person not qualified under the Protective Order, any Confidential Information. 6. I further agree that any documents, materials, or information furnished to me will be used by me only for the purposes of this litigation and for no other purposes, and will not be used by me in any business affairs of my employer or of my own or be imparted by me to any other person and will be returned to the person who furnished such documents, materials or information to me. 7. I hereby consent to be subject to personal jurisdiction before the above-entitled Court with respect to any proceeding relative to the enforcement of the Protective Order.
_______________________________________ Signature Date: __________________________________
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Document comparison by Workshare Professional on Thursday, September 06, 2012 4:10:36 PM Input: Document 1 ID C:\Documents and Settings\21236\My Documents\NDEcho\CORDILLERA Debtor's Proposed Protective Order re All Discovery(1).doc C:\Documents and Settings\21236\My Documents\NDEcho\CORDILLERA Debtor's Proposed Protective Order re All Discovery(1).doc C:\Documents and Settings\21236\My Documents\NDEcho\CORDILLERA Debtor's Proposed Protective Order re All Discovery.doc C:\Documents and Settings\21236\My Documents\NDEcho\CORDILLERA Debtor's Proposed Protective Order re All Discovery.doc standard
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Case No. 12-24882-ABC Chapter 11

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September 7, 2012 s/Lela Lopez Velasquez Lela Lopez Velasquez

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Should Responding Parties enter a written objection to a request listed below,

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Any and all documents containing communications, including e-mail

communications, regarding any offers, potential or actual, to purchase the Club.