Document 3eZqb5X3KBr3xEmBOEa3eOoyn

-- 92 T H U S I3 1 CAUL BEFORE SENDING *L-L c>; ik-t^tsA R_1 ts?U^ &c?kr*J (ZUfzStS fb&ffiTZ TrVrC ' k t ,;, ' M, ` t , i J \ A P R - 2-3-----9 -2 T U J J _____ JB Mm = 31 CALL BEFORE SEND I HG R _ 2 Datei April 23# 1992 Toi Nevada Power Litigation Team (Bill# please forward! From; P. Herre11 Re Suggested motion for partial summary judgment David called yesterday and sought my opinion on the advisability of a motion for summary judgment- As a tactical move# I believe a motion for partial summary judgment would be excellent# so long as it is confined to the issues of fraudulent concealment and liability for fraudulent misrepresentation and failure to warn# reserving the Issues of damages and punitive damages for trialI* d appreciate it if you would each play devil's advocate and share your tboughts. As I read the Ninth Circuit's opinion# it has ruled that we bave suffoleht evidence to go to the jury on fraudulent misrepresentation .and failure to warn. Whether it went that far'on the fraudulent'concealment or~only ruled on the sufficiency of the complaint for that issue is less clear; however# the overlap of the misrepresentation ruling with fraudulent concealment issues has the effect of entitling us to go to the jury on that Issue as well- 1 therefore see little risk in us filing a motion for partial summary judgment on those "issues# certainly no greater risk than we will face at trjaV- k i 3- I At the same time#, the Ninth Circuit clearly has not said that the defendants are eniitled"t^ go to the jury on these issues- In fact# the hav offered no evidence on these issues other than deposition testimony,of Nevada Power officials- From a proceaurai purlstsT point of view# th defendants might be entitled simply to |argue| that opposing Inferences can be drawn from the faots |already in jtW record- However# we are all agreed that they; canj; not "risk``afj fraud judgment# which would have disastrous1repercussions for^them. Therefore# I believe that they would have no1choice but t e a r i n g forward their opposing theories and evidence*' Forcing them to 1identify their theories and evidence at this point gives; us. several^ advantages: --' fiPR-23-92 THU As a! disoovery devloe; such a motion would almost certainly .be''the, Vest discovery response we will obtain in this litigation,1. They will be forced to bring forward whatever evidence' they have of warnings# limited warranties# `toi-# nhnd perhaps most Importantly# their state-of mind. X 'anticipate that they would have to establish their state of mind with affidavits of former high officials. Once they have done so# they can no longer effectivet^f*oppose us in taking those people's t . 'V. ' C . : . 3120 y-*:i. 503 529 7151 P.01 FROM 503 528 7151 , !.. j P2 - ' ..l l ftRR -- ^ 3 -- sa T H U S =3 2 i /fr>. c fti_i_ B iEv F O R E S E N E I N G R -e 3 depositIona. Furthermore, we learn what evidence we will have to meet at trial*- without the normal tooth-pulling Involved In discovery against multinational corporations* By forcing them to prove that there Is a jury Issue* they undercut arguments for postponing trial; !* It's difficult to tell the judge In one breath that you have enough evidence to withstand summary judgment and In the next breath olalm that you laok sufficient discovery for trial. By talcing the high ground# we flush out whatever summary judgment strategy they may still have up their sleeves at a time when their possible cross-motion for summary judgment will not delay the trial. He take control of the litigation rather than waiting for them to throw the next punch# which would almost certainly be a blow aimed at delaying the trial* He get an early opportunity to begin educating our judge to the new posture and realities of the case Defendants* outside, counsel have almost without a doubt been Instructed`(;ljy"now to provide the defendants' inhouse* counsel with^copies of any dispositive motions and draft's of aiiy proposed responses. By filing for summary judgment on.the issue of fraud liability# we force a dialogu between; buts 1de and in-house counsel on the thinness of' their, evidence and their likelihood of success1not]only*pn^summary judgment# but also at trial. This should sparftconsideration by in-house counsel of whether prolonging`the litigation simply means giving outside counsel an opportunity to bill more hours. Thus# our motion would rienhance the 1ikel ihood of prompt settlement." <Pao be particularly critical of this forecast!> ^ Our motion would likely force the defendants to begin calling each other.names* thus dividing the united front we have faced up."to now. <We may wish to consider briefing the issg of conspiracy and its supporting evidence in the summary judgment motion and simultaneously moving to amend the complaint accordingly; this shouldrforcythe defendants to point the finger at each other ratherthan risking summary judgment on the conspiracy issue. ) <Note for any of you who have not ii researched conspiracy before. It is not a separate causa of .action. It is:.1* rule of evidence that allows us to attribute conduct:of one defendant to the others* as well aa a. rule of liability establishing joint and several liability for separate acts taken in furtherance of the conspiracy's goals. 0 APR -2 3 -92 THU 3! 21 I : iz-M 503 528 7151 P.02 APR- FRO ~^2 THU 503 528 7151 _a.= 3 3 CALL BEFOR SENDING P . 04 P3 Our motion almost certainly would heighten tensions between outside oounsel and their clients. If our summary judgment motion came hard on the heels of a settlement proposal/ it would almost certainly result In in-house oounsel wanting to cover their asses by talcing both the proposal and their evaluation of the likelihood of success to company managers* If needed# we gain an opportunity to supplement the district court record with new evidence before the running of defendants' deadline for petitioning for certiorari. (However# query whether it could be considered by thi Supreme Court; I believe it could but have not researched the precise issue.) He would all probably enjoy the reaction. I'd appreciate whatever thoughts each of you may have on this subject. I am unavailable today# en route from Oregon to Knoxville. Beginning Friday# I will be available by telephone at <615) 525-7020 and by telefax at <615) 525-4679. There is three hours time difference from the West Coast. .'hii: I y.\\ C >!J. :ii *i-t "iN!iil1 I kS n ruIh :"n `1