Case:12-24882-ABC Doc#:427 Filed:09/10/12

Entered:09/10/12 11:01:40 Page1 of 9

UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF COLORADO In re: ) ) CORDILLERA GOLF CLUB, LLC ) Case No. 12-24882 (ABC) dba The Club at Cordillera, ) ) Chapter 11 Debtor. ) ______________________________________________________________________________ CLASS REPRESENTATIVES MOTION FOR PROTECTIVE ORDER REGARDING DEPOSITIONS ______________________________________________________________________________ Cheryl M. Foley, Thomas and Jane Wilner, Charles and Mary Jackson and Kevin B. Allen, as representatives of a certified class in Case Number 11CV552, pending in the District Court of Eagle County, Colorado (collectively, Member Representatives), by their attorneys Appel & Lucas, P.C., hereby move the Court, pursuant to Federal Rule of Bankruptcy Procedure 26(c)(1), to enter a Protective Order that will prohibit the Debtor from proceeding with depositions as presently noticed for each of the Member Representatives. In support of this motion, the Member Representatives state as follows: CERTIFCATION PURSUANT TO FRBP 7026(c)(1) 1. The Member Representatives certify that they have conferred with counsel for the

Debtor on the issues raised in this Motion in good faith and have been unsuccessful in resolving this dispute. INTRODUCTION 2. The Member Representatives filed their Motion to appoint a Chapter 11 trustee

(Trustee Motion) on July 24, 2012 (Docket #235). The Trustee Motion was joined by nearly
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every major creditor constituency in this case, including the Official Committee of Unsecured Creditors. In addition, On September 4, 2012, the Member Representatives filed with the Court 608 Personal Joinders to the Trustee Motion. 3. In connection with the Trustee Motion, the Debtor has noticed depositions for

each of the Member Representatives as follows. Witness Charles Jackson Mary Jackson Cheryl Foley Tom Wilner Jane Wilner Kevin Allen Date of Deposition Noticed by the Debtor September 13, 2012 September 13, 2012 September 11, 2012 September 12, 2012 September 12, 2012 September 11, 2012

4.

A mediation is scheduled for September 12, 2012 and September 13, 2012. The

depositions of Charles Jackson, Mary Jackson, Tom Wilner and Jane Wilner, scheduled for the same dates as the mediation, cannot take place on those dates. The depositions of Kevin Allen and Cheryl Foley are both scheduled for September 11, 2012, the day before the mediation will begin. In the case of Mr. Allen, he is not available for a deposition on that date. In addition, as to both Mr. Allen and Ms. Foley, the September 11th date is impossible because counsel and the deponents will be working on responses to extensive Interrogatories served by the Debtor which are due that same day and preparing for the mediation, which commences the next day.

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5.

The Member Representatives have repeatedly requested that the Debtor

reschedule these depositions to dates that do not conflict with the mediation and which are convenient for the deponents and counsel. The Debtors only response has been to demand a

stay of all discovery and that the hearing date on the Trustee Motion be vacated. Specifically, Debtors counsel stated in an email of September 6, 2012 that: Shaun (and others): As I think you know, Debtors[sic] prefer to stay all discovery and vacate the trial date in order to improve the chance for an effective mediation and/or plan confirmation. We will not agree to delay only the discovery sought by the Debtors, viz, the deposition currently scheduled for next week, as youve requested. We think, however, that it makes sense to stay all discoveryincluding what has been served by the Debtors. We also think that, unless and until discovery is stayed, it does not make sense for a telephone conference to discuss the deposition calendar. There have been many, many communication on that schedule and we should all be clear on who is confirmed when and where. So please let us know if you convene that call and we will of course participate. Ive added Peter Cal to this string since he has communicated with me concerning discovery. A copy of this email is attached hereto as Exhibit A. 6. The Debtors position stated in this email is mystifying, given that it is only the

Debtor who proposes to conduct discovery that conflicts with the mediation. The Member Representatives had noticed depositions of the Debtors employees (and of the Debtor pursuant to FRBP 7030(b)(6)) during the prior week of September 3-7, 2012. Those depositions have not taken place because the Member Representative voluntarily continued the depositions and suggested that they be continued to the third week of September on dates convenient to the deponents and to counsel.

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7.

Bankruptcy Rule 7026(c)(1) permits the Court, for good cause, to issue an order

to protect a party from whom discovery is sought from, among other things, oppression or undue burden. For the reasons articulated in paragraph 4, above, the depositions noticed for the days of the mediation and the day before the mediation are oppressive and impose an undue burden. A protective order is therefore appropriate. The Member Representatives do not seek an order prohibiting this discovery, but only requiring that the depositions not be conducted on the dates they have been noticed. WHEREFORE, the Member Representatives request that the Court enter a Protective Order, the form of which is submitted herewith, that requires the depositions of the Member Representatives to be taken on dates that do not conflict with the mediation and on dates that are convenient to the deponents. Dated this 10th day of September, 2012. /s/ Shaun A. Christensen Garry R. Appel Shaun A. Christensen, Reg. No. 23131 Appel & Lucas, P.C. 1660 17th Street, Ste 200 Denver, CO 80202 Telephone: 303-297-9800 Appelg@appellucas.com Christensens@appellucas.com Attorneys for Cheryl Foley, Thomas and Jane Wilner, Charles and Mary Jackson and Kevin Allen

RE: Cordillera Golf Club - Case No. 12-24882- Deposition dates Page 1 of 2 Case:12-24882-ABC Doc#:427 Filed:09/10/12 Entered:09/10/12 11:01:40 Page5 of 9
EXHIBIT A

RE: Cordillera Golf Club - Case No. 12-24882- Deposition dates

Uetz, Ann Marie [AUetz@foley.com]
Sent: Thursday, September 06, 2012 2:28 PM To: Cc: Shaun Christensen Catherwood, Kathryn M.S. [KCatherwood@foley.com]; Goroff, David B. [DGoroff@foley.com]; Ong, Jay [jong@munsch.com]; Celentino, Christopher [CCelentino@foley.com]; Garry Appel; Brown, Zhonette [ZBrown@BHFS.com]; Cal, Peter A. [PCAL@shermanhoward.com]; Goroff, David B. [DGoroff@foley.com]; Day, Renee A. [RDay@foley.com]; Morris, Benjamin J. [BMorris@foley.com]; Bistrow, Mikel R. [MBistrow@foley.com]

Shaun (and others): As I think you know, Debtors prefer to stay all discovery and vacate the trial date in order to improve the chance for an effective mediation and/or plan confirmation. We will not agree to delay only the discovery sought by the Debtors, viz, the depositions currently scheduled for next week, as you've requested. We think, however, that it makes sense to stay all discovery -- including what has been served by the Debtors. We also think that, unless and until discovery is stayed, it does make sense for a telephone conference to discuss the deposition calendar. There have been many, many communications on that schedule and we should all be clear on who is confirmed for when and where. So please let us know if you convene that call and we will of course participate. I've added Peter Cal to this string since he has communicated with me previously concerning discovery. (Note to Jay: You called Foley yesterday to discuss discovery as well and I will call you back this afternoon.) Thank you. AM

Ann Marie Uetz

Vice-Chair, National Bankruptcy & Business Reorganizations Practice

FOLEY & LARDNER LLP

500 Woodward Avenue, Suite 2700 | Detroit, MI 48226 tel: 313.234.7114 | cell: 313.384.3322 | fax: 313.234.2800 email: auetz@foley.com

From: Shaun Christensen [mailto:christensens@appellucas.com] Sent: Wednesday, September 05, 2012 5:47 PM To: Uetz, Ann Marie Cc: Catherwood, Kathryn M.S.; Goroff, David B.; Shaun Christensen; 'Ong, Jay'; Celentino, Christopher; Garry Appel; Brown, Zhonette Subject: Cordillera Golf Club - Case No. 12-24882- Deposition dates

AnnMarie, IwriteconcerningthedepositionsthathavebeennoticedbythedebtorinregardtotheMember Representativesmotiontoappointachapter11trusteeforCordillera.Youareprobablyawarethattheparties havescheduledamediationfornextweek.TheDebtorhasalsonoticeddepositionsoftheMember Representativesfornextweek.WeexpectthattheDebtorwillagreetoconductthosedepositionsondates followingthemediation(unlessasettlementisachieved)justastheMemberRepresentativehaveagreedto takedepositionsofthedebtorspersonnelondatesduringthefollowingweek.Ifyoudonotagree,andstill intendtotakedepositionsnextweekwhilethepartiesaremediating,pleaseletusknowthatimmediately. Toallcounsel,

RE: Cordillera Golf Club - Case No. 12-24882- Deposition dates Page 2 of 2 Case:12-24882-ABC Doc#:427 Filed:09/10/12 Entered:09/10/12 11:01:40 Page6 of 9

Isuggestthatwehaveaconferencecallamongallpartiesinthenearfuturetoarrangeagreeddates, timesandlocationsforallofthedepositionsthathavebeennoticedinthiscase,includingeachoftheRule30 (b)(6)depositions(otherthanthoseofnonparties,althoughtheyarewelcometoparticipateintheconference calliftheysoelect).Eachcounselwillneedtohaveavailabledatesfromtheirclientsbeforethatcall. Regards, ShaunA.Christensen,Esq. Appel&Lucas,P.C. 166017thStreet,Suite200 Denver,Colorado80202 3032979800

The preceding email message may be confidential or protected by the attorney-client privilege. It is not intended for transmission to, or receipt by, any unauthorized persons. If you have received this message in error, please (i) do not read it, (ii) reply to the sender that you received the message in error, and (iii) erase or destroy the message. Legal advice contained in the preceding message is solely for the benefit of the Foley & Lardner LLP client(s) represented by the Firm in the particular matter that is the subject of this message, and may not be relied upon by any other party. Internal Revenue Service regulations require that certain types of written advice include a disclaimer. To the extent the preceding message contains advice relating to a Federal tax issue, unless expressly stated otherwise the advice is not intended or written to be used, and it cannot be used by the recipient or any other taxpayer, for the purpose of avoiding Federal tax penalties, and was not written to support the promotion or marketing of any transaction or matter discussed herein.

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CERTIFICATE OF SERVICE The undersigned certifies that on September 10, 2012, I served by prepaid first class mail, a true and copy of the foregoing on the following: Paul Moss, Esq. Office of U.S. Trustee 999 18th Street, Ste. 1551 Denver, CO 80202 Arthur J. Abramowitz, Esq. Cozen O'Connor, PC Liberty View, Suite 300 457 Haddonfield Road Cherry Hill, NJ 08002 Joseph M. Barry, Esq. Donald J. Bowman, Esq Travis G. Buchanan, Esq. Young Conaway Stargatt & Taylor LLP 1000 North King Street Wilmington, DE 19801 William P. Bowden, Esq. Ashby & Geddes, P .A. 500 Delaware Avenue, 8th Floor P.O. Box 1150 Wilmington, DE 19899 Brad W. Breslau, Esq. Cozen O'Connor, PC 707 17th Street, Suite 3100 Denver, CO 80202 Mikel Bistrow, Esq. Kathryn M.S. Catherwood, Esq. Christopher Celentino, Esq. Foley Lardner LLP 402 W. Broadway, Suite 2100 San Diego, CA 92101 Peter A. Cal, Esq. Mark L. Fulford, Esq. Sherman & Howard L.L.C. 633 17th Street, Suite 3000 Denver, CO 80202 Tobey M. Daluz, Esq. Joshua E. Zugerman, 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 James J. Holman, Esq. Duane Morris LLP 30 South 17th Street Philadelphia, PA 19103 Ericka F. Johnson, Esq. Matthew P. Ward, 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. Ricardo Palacio, Esq. Ashby & Geddes, P.A. 500 Delaware Avenue P.O. Box 1150 Wilmington DE 19899
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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 Vincent J. Marriott, III, Esq. Sara Schindler-Williams, 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 Mark Minuti, Esq. Saul Ewing LLP 222 Delaware Ave., Ste. 1200 Wilmington, DE 19899 Erika L. Morabito, Esq. Brittany J. Nelson, Esq. Foley Lardner LLP 3000 K Street, N.W., Suite 600 Washington, DC 20007 Russell L. Munsch, Esq. Zachery Z. Annable, Esq. Joseph J. Wielebinski, Esq. Munsch Hardt Kopf & Harr, P.C. 3800 Lincoln Plaza, 500 N. Akard Street Dallas, Texas 75201-6659 Jay H. Ong, Esq. Munsch Hardt Kopf & Harr, P.C. 600 Congress Ave., Ste. 2900 Austin, Texas 78701-3057
6

Jon T. Pearson, Esq. Ballard Spahr 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 Harlan W. Robins, Esq. Dickinson Wright PLLC 15 N. 4th Street Columbus, OH 43215 Harvey Sender, Esq. David V. Wadsworth, 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 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 Gregory W. Werkheiser, Esq. Morris, Nichols, Arsht & Tunnell LLP 1201 N. Market St., 18th Floor P.O. Box 1347 Wilmington, DE 19899-1347

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Ronald Wick, Esq. Cozen O'Connor, PC 1627 I Street, NW, Suite 1100 Washington, DC 20006 Risa Lynn Wolf-Smith Clarissa Raney Holland & Hart LLP 555 17th St. Ste. 3200 Denver, CO 80201 Tamara Hoffbuhr Seelman Megan M. Adeyemo GORDON & REES LLP 555 Seventeenth Street, Suite 3400 Denver, CO 80202

John F. Young James T. Markus Markus Williams Young & Zimmermann 1700 Lincoln St., Suite 4000 Denver, Colorado 80203 Evan Stone Jeffrey Rush, M.D. Pacific Medical Buildings 12348 High Bluff Dr, Ste 100 San Diego, CA 92130 Elizabeth Keenen Keenen Law LLC 3773 Cherry Creek North Dr, Suite 575 Denver, CO 80209

Dated: September 10, 2012. /s/ John Nunnally

Case:12-24882-ABC Doc#:427-1 Filed:09/10/12

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UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF COLORADO In re: ) ) CORDILLERA GOLF CLUB, LLC ) Case No. 12-24882 (ABC) dba The Club at Cordillera, ) ) Chapter 11 Debtor. ) ______________________________________________________________________________ ORDER GRANTING CLASS REPRESENTATIVES MOTION FOR PROTECTIVE ORDER REGARDING DEPOSITIONS ______________________________________________________________________________ THIS MATTER is before the Court on the Motion of Cheryl M. Foley, Thomas and Jane Wilner, Charles and Mary Jackson and Kevin B. Allen, as representatives of a certified class, for Protective Order Regarding Depositions (the Motion). The Court has reviewed the Motion and it appearing that there is good cause pursuant to F.R.B.P. 26(c)(1) for the relief requested, it is hereby ORDERED that the Motion is GRANTED and the Debtor is hereby prohibited from taking the depositions of Cheryl M. Foley, Thomas and Jane Wilner, Charles and Mary Jackson and Kevin B. Allen on September 11-13, 2012. The parties are directed to attempt to agree upon dates for the depositions after the mediation takes place, failing which the Court will determine appropriate dates upon the filing of a further motion.

Dated this ___ day of __________, 2012. BY THE COURT:

_________________________________________ United States Bankruptcy Judge