Fwd: Follow up - Zwirn redemption - attorney-client communication

As I sensed and spoke with you about before I left for vacation, Davis Polk is not taking this case very seriously.

 

From the outset, I have been unhappy with how our matter is being handled by DP.  I first spoke with Mike Carroll midday on April 15, 2008, at which time Mike promised to send an associate over for an information and document dump.  Although I left messages for Mike (who I could not reach by telephone) asking why no one had yet arrived at our office, I did not receive a response until 7:12 PM that evening, when Dom e-mailed me.  In his e-mail Dom stated that Mike asked Dom to contact me, and Dom asked if he could come by the office that evening (after 7:00 PM?) or the following day to get info and documents on the case.  Dom also apologized for sending me an e-mail, claiming that he tried to leave me a voice mail message, but my voice mailbox was full.  I cannot say why Dom got a message that my voice mail box was full because it was not full.  As I told you, the whole thing sat uncomfortably with me.  I felt like DP was not being responsive and was being dishonest about it at the same time. 

 

In any event, I gave Dom documents and spent two days going over the case with him.  I even gave him significant face time with you to obtain the necessary facts of the case.  I asked Dom to provide me with DP's retainer agreement, to review the materials and information we gave him with Mike and to provide me with a written plan of attack.  That was almost two weeks ago. 

 

While I was away on vacation, I called and traded e-mails with Dom who e-mailed me on April 22 that Dom and Mike met briefly and would send me an action plan by April 23.  I e-mailed Dom on April 24 that I still have not received the action plan and want to move forward immediately.  I received a reply e-mail from Dom on April 24 apologizing for the delay, claiming that Dom was checking in with Mike about the status of the action plan and would let me know as soon as Dom heard something.  I spoke with Dom on Friday, but still had no action plan.  I only received the action plan this morning and am obviously unhappy with it.

 

This plan of attack is a joke and I told Mike Carroll's associate, Dom, that this level of work was unacceptable. 

 

3-4 days for a retainer agreement?  I told Dom that we should have already received the retainer agreement. 

 

2-4 weeks to research basic contract issues?  I told Dom that the research should already have been finished especially since I gave Dom a draft letter (never sent to Zwirn) outlining several theories of the case and spoke with Dom about additional theories almost two weeks ago. 

 

No contact with Zwirn before the research is finished?  That is idiotic.  DP does not need to research the fine points of the case to determine whether the theories I provided are sufficient or to develop DP's own theories.  The initial conversation should be based on the theories, the facts and the documents, which you and I have already devoted considerable time providing to DP.  I told this to Dom as well.

 

Now, Mike Carroll wants to meet with you for an hour Wed or Thurs to discuss the case?  What are you going to tell him that we have not already told to Dom?  I asked this question of Dom and asked him to find out from Mike why Mike wanted such a long meeting?  My interpretation -- Mike Carroll has not yet had time to focus on the case and wants to put off doing so until he is finished with his current matter.  He requests an appointment Wed or Thurs to appease us and at the same time provide him some additional time to finish what he is working on.  Classic big firm stall techniques when working on other matters that are taking precedence over ours. 

 

My problem with this is that we are already starting with a level of bull sh--t and unprofessionalism before we even get started on the case.  It does not bode well for what we can expect from DP down the line.

 

I was pretty hard on Dom this morning when I received his e-mail.  He continues to tell me that he is trying to get Mike's input, but Mike is in depositions all day today and tomorrow.  Dom tells me that Mike was unexpectedly immersed in the matter he is currently working on and Dom is trying to focus Mike on our matter.  In other words, Dom has no authority and no power to do anything right now.  I told Dom that we expected Mike to be working on this matter asap.  If this is not possible, then I told Dom to let me know immediately. 

 

Either we need to find someone else at DP who will devote time to this matter or we need to walk.  Dom told me that Mike has been on the other side of the table from Zwirn on other matters, but he would not specify further.  Dom also intimated that Zwirn would take Mike very seriously and may be intimidated by Mike.  If we do meet with Mike Carroll this week, and we might as well, we should find out more about what Dom was referring to.  Pending the outcome of this meeting, we may wish to give Storch the matter to handle.

 

As to the subpoena, I sent it over to Dom today.  Dom wants permission to contact the Government and ask for more time to respond.  You may recall that the return date for the subpoena, dated April 16, 2008, is April 30, 2008.  The SEC did not provide us with very much time to respond to begin with.  May Dom request additional time to respond?