EFTA01077400.pdf
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Case 0:11-cv-61338-JIC Document 53 Entered on FLSD Docket 11/10/2011 Page 1 of 6
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
(FORT LAUDERDALE DIVISION)
CASE NO. 11-61338- CIV-COHN
In re:
ROTHSTEIN ROSENFELDT ADLER, P.A.,
Debtor.
TRUSTEE'S EXPEDITED MOTION TO AMEND
WRIT OF HABEAS CORPUS AD TESTIFICANDUM
Trustee, Herbert Stettin ("Trustee"), through his undersigned counsel, hereby moves this
Court to Amend its Writ of Habeas Corpus Ad Testificandzon (D.E. #52) pertaining to the
deposition of Scott Rothstein ("Rothstein"), and states:
I. On September 13, 2011, this Court issued its Writ of Habeas Corpus Ad
Testificandum (D.E. #52) (the "Writ") which provided for, among other things, Rothstein's
deposition to commence on December 12, 2011. Circumstances described below are such that
the Writ needs amendment or a supplement.
2. The Court will also recall that in the underlying bankruptcy proceeding of In Re
Rothstein, Rosenfeldt and Adler, Case No. 09-34791- BKC RBR, Judge Ray entered a detailed
Agreed Order ("Order") at D.E. #1751, which set forth defined protocol to govern both the
Bankruptcy Rule 2004 Examination of Rothstein and the Bankruptcy Rule 7030 Deposition of
Rothstein related to pending adversary proceedings filed in the RRA bankruptcy case.
3. At the time the Order was entered, the Trustee was the plaintiff in approximately
20 adversary proceedings pending in this Court. Since the date of the Order, the Trustee has
filed approximately 46 new adversary proceedings, many of those just in the past two weeks.
The Trustee intends to file additional adversary proceedings as well. The impact of these new
BE RG ER SI NGlaw
E RMAN Bora Ratan For: Lauderdale Miami Tallahassee
attorneys at
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Case 0:11-cv-61338-JIC Document 53 Entered on FLSD Docket 11/10/2011 Page 2 of 6
case filings is material as it pertains to the Rothstein depositions. In practical terms, most of the
defendants in the Trustee's adversary proceedings that have been filed after the date of the Order
have been served only recently. Typically, the defendants in the Trustee's adversary
proceedings—indeed as in most cases- will seek an extension of time to respond to the Trustee's
complaint. The Trustee expects that many of the defendants in the adversary proceedings filed
after the date of the Order may not have even responded to their respective complaints by
December 12, 2011, the date that Rothstein's deposition is presently scheduled to commence.
4. The Trustee wishes to promptly and efficiently prosecute his cases for the benefit
of RRA's creditors. However, the Trustee recognizes that by December 12, 2011, counsel for
the defendants in the adversary proceedings filed after the date of the Order: (i) will be entering
these cases knowing little about their respective adversary proceedings, (ii) will not have
exchanged discovery or Rule 26 disclosures with the Trustee, and (iii) may not have conducted
their own case specific factual investigations or legal research regarding defenses. While the
Trustee is not here to argue for any of these new adversary complaint defendants, the Trustee
does not wish to incur additional expense responding to arguments which the counsel to the
defendants may raise that the defendants' rights have been impaired by not having meaningful
access to Rothstein or that the Trustee should not be permitted to introduce into evidence the
deposition testimony of Rothstein.
5. Further complicating this issue is whether the defendants sued in these new
adversary proceedings are charged with knowledge of paragraph 2 of Judge Ray's seven-page
Order, entered five months ago, which sets forth certain requirements of a party before appearing
at the deposition, notwithstanding the Trustee's above concern about lack of notice as to the
timing of the deposition itself. Notably, the vast majority of the new adversary proceeding
BERGER SINGERMAN Bora Ratan Fort Lauderdale Miami Tallahassee
attorneys at law
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Case 0:11-cv-61338-JIC Document 53 Entered on FLSD Docket 11/10/2011 Page 3 of 6
defendants are not listed in the RRA creditor matrix (meaning they have not filed claims in the
RRA bankruptcy), and thus, would not have ever received notice of the Order.
6. Three additional points are relevant to resolving present issues regarding the
Rothstein deposition. First, the Trustee has strong reason to believe that the United States is of a
firm mindset not to produce Rothstein for two depositions, but rather, only once. Thus, holding
only one deposition beginning on December 12, 2011, potentially creates the due process issue
for the new adversary defendants that the Trustee wishes to avoid. However, ultimately, this
Court does have jurisdiction to issue a second or amended Writ of Habeas Corpus Ad
Testificandum, that would provide for a second Rothstein deposition, if the Court deems it
appropriate.
7. Second, on or about November 4, 2011, the United States advised that all
attorneys participating in the Rothstein deposition were required to submit certain personal
information by November 8, 2011, in order to get security clearance to attend the Rothstein
deposition. The Trustee and his counsel went through this same procedure for their interview
with Rothstein that occurred in August, and at that time, more than one month's notice for this
information was required for the U.S. Marshal to secure clearance. It is unclear whether all
present counsel of record in various RRA cases have even been notified of this requirement.
Clearly, counsel in many of the adversary proceedings filed since the date of the Order could not
have complied with this security clearance requirement; many may not have been retained as of
this date. This issue suggests that numerous attorneys potentially could be denied access to the
deposition if they have not been timely vetted. Complicating this further, it was initially
believed that the U.S. Marshal would need to provide a deposition room for about 30 people,
which on information and belief is not easy to find given the circumstances, and it would now
BERGER SINGERMAN Bora Raton Fort Lauderdale Miami Tallahassee
attorneys at law
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Case 0:11-cv-61338-JIC Document 53 Entered on FLSD Docket 11/10/2011 Page 4 of 6
seem that such sized room is too small to accommodate the needs of what may be a more widely
attended deposition.
8. Third, Trustee's counsel has had numerous discussions with Rothstein's lawyer,
Marc Nurik ("Nurik") who is presently in the midst of a federal criminal trial in Boston. The
undersigned counsel has been advised by Nurik that his trial will unequivocally extend at least
through the entire week of December 12, 2011. This fact materially complicates the timing of
the Rothstein deposition since, upon information and belief, Rothstein wishes to have Nurik
present at the deposition. The Trustee and presumably everyone else would not want to travel to
a remote location for Rothstein's deposition, only to find out that he was unwilling to testify due
to lack of counsel.
9. The Trustee also advises this Court that he is filing a similar motion
contemporaneously herewith before Judge Ray, given his jurisdiction over the Rothstein
deposition protocol, to discuss protocol issues apart from this Court's exclusive jurisdiction over
Rothstein and the Writ of Habeas Corpus Ad Testificandum. Accordingly, it seems that there
will probably need to be a reconciling of both courts' interest in reaching an equitable and
practical result in dealing with scheduling Rothstein's deposition.
10. Accordingly, given the foregoing circumstances, the Trustee submits two
alternative positions. First, the Court can continue the Rothstein deposition to a future date that
assures all defendants in RRA related adversary proceedings receive appropriate and fair notice
of the deposition. Second, the Court can bifurcate the deposition so that the first part commences
as scheduled on December 12. 2011, with the Court either amending or issuing a new Writ of
Habeas Corpus Ad Testificandum that requires the appearance of Rothstein at a second
deposition at a time when the new adversary defendants can participate.
BERGER SINGERMAN Bora Raton For: Lauderdale Miami Tallahassee
attorneys at law
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Case 0:11-cv-61338-JIC Document 53 Entered on FLSD Docket 11/10/2011 Page 5 of 6
11. Finally, the Trustee is very mindful of numerous parties in interest having varying
legitimate concerns about taking the deposition as scheduled for December 12, 2011. The
Trustee is not advocating their positions in this submission. This motion is not brought for
purposes of delay and indeed, the Trustee respectfully asks the Court to address these issues at its
earliest practicable date, given the fact that the Rothstein deposition is now approximately only
one month away, and numerous parties in interest are impacted by this issue.
Dated: November 10, 2011. Respectfully submitted,
BERGER SINGERMAN, P.A.
Attorneys for the Trustee, Herbert Stettin
Berger Singerman
350 East Las Olas Boulevard, Suite 1000
Fort Lauderdale, Florida 33301
Main Line:
Direct Line:
By: /s/ Charles H. Lichtman
Charles H. Lichtman
Florida Bar No. 501050
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been served, as
indicated, on the Service List below on this 10th day of November, 2011.
By: /s/ Charles H. Lichtman
Charles H. Lichtman
BERGER SINGERMAN Bora Raton For: Lauderdale Miami Tallahassee
attorneys at law
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Case 0:11-cv-61338-JIC Document 53 Entered on FLSD Docket 11/10/2011 Page 6 of 6
SERVICE LIST
Electronic Mail Notice List
The following is the list of parties who are currently on the list to receive e-mail notice/service
for this case and who therefore will be served via the Court's Notice of Electronic Filing:
• David Charles Cimo
• Joseph A. DeMaria
• David L. Gay
• Jordi Guso
• Lawrence D. LaVecchio
• Charles Howard Lichtman
• Noticing Bankruptcy Court
• Marc S. Nurik
• Claudio Riedi
• C. Thomas Tew , Jr
• Bryan Thomas West
4025096-I
BERGER SINGERMAN Bora Ratan Fort Lauderdale Miami Tallahassee
attorneys at law
EFTA01077405
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