Counsel to Joint Liquidators of Kingate Global Fund Ltd ...

QUINN EMANUEL URQUHART & SULLIVAN, LLP

Susheel Kirpalani

Robert S. Loigman

Rex Lee

Lindsay M. Weber

51 Madison Avenue, 22nd Floor

New York, New York 10010

Telephone: (212) 849-7000

Telecopier: (212) 849-7100

Counsel to Joint Liquidators of Kingate Global

Fund Ltd. and Kingate Euro Fund Ltd.

UNITED STATES BANKRUPTCY COURT

SOUTHERN DISTRICT OF NEW YORK

SECURITIES INVESTOR PROTECTION

CORPORATION,

Plaintiff-Applicant,

v.

BERNARD L. MADOFF INVESTMENT

SECURITIES LLC,

Defendant.

No. 08-01789 (SMB)

SIPA LIQUIDATION

(Substantively Consolidated)

In re:

BERNARD L. MADOFF,

Debtor.

IRVING H. PICARD, Trustee for the Liquidation

of Bernard L. Madoff Investment Securities LLC,

Plaintiff,

v.

FEDERICO CERETTI, et al.

Defendants.

Adv. Pro. No. 09-1161 (SMB)

DECLARATION OF ROBERT LOIGMAN IN SUPPORT OF THE KINGATE

FUNDS’ OPPOSITION TO THE TRUSTEE’S MOTION TO COMPEL DISCOVERY

09-01161-smb Doc 263 Filed 05/20/16 Entered 05/20/16 17:16:12 Main Document Pg 1 of 3

2

I, Robert S. Loigman, hereby declare:

1. I am a member of the bar of the State of New York and a partner with Quinn

Emanuel Urquhart & Sullivan, LLP, attorneys for the Joint Liquidators for defendants Kingate

Global Fund Limited (“Kingate Global”) and Kingate Euro Fund Limited (“Kingate Euro” and,

together with Kingate Global, the “Kingate Funds” or “Funds”).

2. This declaration is being submitted to provide the Court with certain materials in

support of the Kingate Funds’ opposition to the Trustee’s motion to compel discovery.

3. Attached as Exhibit 1 is a true and correct copy of a letter from K. Tornari to A.

Potts dated March 11, 2016.

4. Attached as Exhibit 2 is a true and correct copy of a letter from E. Valentine dated

May 19, 2016.

5. Attached as Exhibit 3 is a true and correct copy of a letter from J. Kleinick dated

May 19, 2016.

6. Attached as Exhibit 4 is a true and correct copy of a letter from T. Harkness dated

May 19, 2016.

7. Attached as Exhibit 5 is a true and correct copy of an email from Lindsay Weber

to Geraldine Ponto dated February 29, 2016.

8. Attached as Exhibit 6 is a true and correct copy of a letter from William R. Tacon

to FIM Advisers dated September 25, 2009.


to Kingate Management Limited dated August 28, 2009.


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as Joint Provisional Liquidator of Kingate Global to Citi Hedge Fund Services Ltd. dated May

11, 2009.


as Joint Provisional Liquidator of Kingate Euro to Citi Hedge Fund Services Ltd. dated May 11,

2009.

12. Attached as Exhibit 10 is a true and correct copy of a letter from William R.

Tacon as Joint Provisional Liquidator of Kingate Global to The Bank of Bermuda Limited dated

May 11, 2009.

13. Attached as Exhibit 11 is a true and correct copy of a letter from William R.

Tacon as Joint Provisional Liquidator of Kingate Euro to The Bank of Bermuda Limited dated

May 11, 2009.

14. Attached as Exhibit 12 is a true and correct copy of Trustee’s Responses and

Objections to Kingate Global’s and Kingate Euro’s First Requests for Production dated

December 7, 2015.

15. Attached as Exhibit 13 is a true and correct copy of an email from Lindsay Weber

to Geraldine Ponto dated March 30, 2016.

I declare under penalty of perjury under the laws of the State of New York that the

foregoing is true and correct.

Executed on May 20, 2016, at New York, New York.

/s/ Robert S. Loigman

Robert S. Loigman


EXHIBIT 1

09-01161-smb Doc 263-1 Filed 05/20/16 Entered 05/20/16 17:16:12 Exhibit 1 Pg 1 of 2


EXHIBIT 2


CHAFFETZ LINDSEY LLF°1 700 BROADWAY, 33Rd FLOOR, NEW YORK, NY 10019

MAIN: +I 212 257 6960 ~ FAX: +I 212 257 6950

ERIN VALENTINE, ASSOCIATEDIRECT: +I 212 257 6932

[email protected]

May 19, 2016

Robert S. Loigman

Quinn Emanuel Urquhart &Sullivan, LLP51 Madison Avenue, 22"d Floor

New York, New York 10010

Re: Picard v. Ceretti, et. al., Adv. Pro. Na 09-1161 (SMB)(Bankr. S.DN.Y)

Dear Mr. Loigman:

I write in response to your clients' First Request for Production to Kingate ManagementLimited dated April 15, 2016 (the "Request"). In the Request, you seek all documents producedby KML to the Funds (your clients) in the ongoing Bermuda action, captioned Kingate GlobalFund Limited (In Liquidation) and Kingate Euro Fund Limited (In Liquidation) v. KingateManagement Ltd., et. al., Supreme Court of Bermuda, Civil Jurisdiction, Commercial Court,2010: No. 454 (the "Bermuda Action").

KML has no obligations to respond to the Request at this time as the Request has notbeen properly served in accordance with Rule 26(d). The parties have not held a Rule 26(~conference or agreed to a Rule 26(~ Stipulation and Proposed Order Regarding DiscoveryProtocols. KML reserves its right to respond and object to the Request when so required.

As you are aware, the Trustee has moved to compel KML to produce the very samedocuments sought in the Request. As will be set out in opposition to the Trustee's motion tocompel, KML is not obligated to produce documents or participate in a Rule 26(~ conference atthis time.

For the avoidance of doubt, KML does not agree to release the Funds from the impliedundertaking under Bermuda law that prevents the Funds from turning KML's documents over toany non-party to the Bermuda Action or using the documents for any purpose whatsoever outsidethe context of the Bermuda Action.

Sincerely, ~ r~

i~~

~~-~ ~_./...~

Erin Valentine

W W W.CHAFFETZLINDSEY.COM


EXHIBIT 3




EXHIBIT 4



EXHIBIT 5


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Rex Lee

From: Lindsay Weber

Sent: Monday, February 29, 2016 8:21 PM

To: 'Ponto, Geraldine E.'

Cc: Jenson, Karin Scholz; Usitalo, Michelle R.; Robert Loigman; Rex Lee

Subject: RE: Picard v. Ceretti, et al., Adv. Pro No. 09-01161 (SMB)

Gerry,

Your attempt to unilaterally limit the scope of discovery in this case is unacceptable. Regardless of whether the Trustee

has provided the Funds access to his data rooms (which, as you acknowledge, contain millions of responsive and

unresponsive documents), the Funds are entitled to discovery from the BLMIS Database. In other words, the data rooms

do not relieve the Trustee of his obligation to perform a comprehensive search for responsive materials within his

exclusive possession, custody, or control. If the Trustee cannot work with us in good faith to resolve the Funds’ January 5

search proposal in a way that is satisfactory, we will seek the Court’s assistance.

Documents stored in the BLMIS Database, including emails and other electronic documents from key custodians at

BLMIS, are indisputably relevant and responsive to the Funds’ document requests. Indeed, at the very start of discovery,

you agreed to produce documents to the Funds from the BLMIS Database using a negotiated set of search terms. See

Oct. 5, 2015 Letter from K. Jenson to R. Loigman at 4. We provided you a proposed search list on January 5, 2016. Now,

two months later—and despite your explicit representation to the Court that the Trustee was preparing documents for

production in response to the Funds’ terms—no progress has been made. The Trustee’s continued delay, including your

most recent failure to provide the information necessary to understand the burdens associated with our search request,

is unjustified and prejudicial to the Funds.

To ensure that the Funds receive the discovery to which they are entitled the parties need to finalize these terms

immediately. We request a complete response to our January 5 email by no later than Thursday, March 3, as well as a

meet-and-confer on Friday, March 4, to discuss this issue. Throughout this litigation, the Funds have taken seriously

their obligation to communicate with the Trustee to resolve expeditiously disputes related to discovery. We expect, and

the Rules require, that the Trustee do the same.

Kind regards,

Lindsay

From: Ponto, Geraldine E. [mailto:[email protected]]

Sent: Friday, February 26, 2016 12:49 PM

To: Lindsay Weber <[email protected]>

Cc: Jenson, Karin Scholz <[email protected]>; Usitalo, Michelle R. <[email protected]>; Robert Loigman

<[email protected]>; Rex Lee <[email protected]>


Lindsay,

We had too little notice to schedule a conference this afternoon. As to your point that we have not produced many

documents, again, we point out to you that the Court has authorized our production under the Rules through data

rooms. Thus, we have produced through this platform nearly 9 million documents to the Funds. Last week the Funds

requested production of more than 100,000 documents from the Third-Party Data Rooms from more than 60 producing

parties, the vast majority of which we expect will be released to you after the notice period set forth in the data room

orders.


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Further, the Funds have not accessed the data room related to BLMIS operational documents since shortly after the

New Year. As we stated in our responses and explained to Rex in a subsequent telephone conference, defendants, the

Funds included, have access to the non-case specific documents through E-Data Room 1. We do not produce

documents relating to subjects that are already covered in E-Data Room 1. That is the reason we will not run the Funds

non-case specific terms at this time. We are happy to confer after you have reviewed the millions of documents we put

in E-Data Room 1. Presently, you have not provided a reason for the Trustee to undertake further work to locate

additional documents.

Best wishes,

Geraldine E. Ponto | BakerHostetler 45 Rockefeller Plaza | New York, NY 10111-0100T 212.589.4690 | F 212.589.4201 [email protected]

From: Lindsay Weber [mailto:[email protected]]

Sent: Wednesday, February 24, 2016 6:08 PM

To: Ponto, Geraldine E. Cc: Jenson, Karin Scholz; Usitalo, Michelle R.; Robert Loigman; Rex Lee


Gerry,

We are disappointed that the search proposal we advanced in our January 5 email was not received in the cooperative

manner in which it was intended, but was instead met with empty and unfair criticism by the Trustee. Had you simply

been more diligent in responding to our email, we could have addressed the Trustee’s purported objections to our

search terms at the outset. Instead, you waited more than a month and a half to respond to our offer to meet and

confer. Further, you ignored (and continue to ignore) our requests for basic diagnostic information, which would allow

us to assess the burdens associated with each term and craft appropriate limitations. Thus, the “wasteful activities” that

you complain of in your February 22 email are entirely of the Trustee’s own making.

Over the past several months, the Funds have spent considerable time responding to your repeated questions, and

making sure that their own documents can be made available for production to the Trustee. To date, those efforts have

resulted in the production of more than 24,000 documents. As you know, we hope to be in a position to produce

hundreds of thousands more, in the near future. Meanwhile, in contrast, the Trustee has produced in total 10,214

documents to the Funds. Quite simply, the rate at which the Trustee is producing documents in this litigation causes

concern.

To move forward, and in light of the other questions we have (including those still unanswered from our January 5

email), we recommend that the parties meet and confer Friday, February 26 at 1:30 pm. In advance of that meet and

confer, we ask that you provide us document hit counts for the 33 terms you excluded from the chart provided in your

February 22 email. While we are open to discussing your “case-specific” objections as to these terms, we think it would

be more productive to have document counts ahead of those discussions. We ask that you also let us know if the

Trustee is amenable to sharing BLMIS organizational charts for purposes of identifying specific custodians, as requested

in our January 5 email. If you unable to meet and confer on the date/time we’ve proposed, please provide two

alternative suggestions.


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Thanks,

Lindsay


Sent: Monday, February 22, 2016 5:15 PM





Lindsay,

Consistent with the Trustee’s Responses and Objections to Defendants Kingate Global Fund Limited’s and Kingate Euro

Fund Limited’s First Requests for Production to the Trustee, a meet and confer would be necessary to tailor the 77

additional search terms you provided. But as we have to date, the Trustee and his counsel are doing everything possible

to expedite discovery and avoid any wasteful activities. Of the 77 search terms you provided, only 44 were arguably

case-specific. The chart immediately below reflects the number of hits resulting from running those terms, totaling

approximately 731,442 documents, excluding “families” of documents. From that list, we reviewed approximately 9,500

documents, and using the broadest possible definition of relevant/relevance, determined that only 404 documents had

any relevance to the above-referenced proceeding. Of those 404, we already produced 245 documents, or roughly

60%. This is reflected in the second chart below.

Hereafter, we will not indulge your wasteful activities, running a search on a term such as “FC,” destined to result in tens

of thousands of totally irrelevant false positives and other burdensome and time-consuming searches. Hereafter, we

will need to agree in advance upon narrowly tailored search terms that are geared to the claims and defenses in this

proceeding.

Search Term as RunSearch Term as RunSearch Term as RunSearch Term as Run Documents with hitsDocuments with hitsDocuments with hitsDocuments with hits Alpine 11,086 BankBermuda 0 Bank w/3 Bermuda 5,738 Bolo 413 BISYS 7,110 Carlo 49,899 Duchesne 90 Federico 2,098 CG 45,847 FC 88,923 Citi w/2 Hedge 322 FIM 8,418 First w/2 peninsula 23 Hemisphere 9,384 Healy 4,851


4

Hercules 26,598 sebah 6 robertson 13,856 chapman 14,248 d’oria 4 doria 1,545 HSBC 103,691 KEF 1,329 KGF 8,395 Manzke 602 Mankze 0 Mark w/2 kelly 280 Pw 252,480 Pricewaterhouse 1,682 Price w/2 water 1,947 Tannenbaum 8,241 Tremont 6,492 Vickers 2,048 Watson w/2 brown 66 Alessandro 8,175 Albrighi 0 Shazieh 1 Salahuddin 71 Lazear 277 Wetherhill 115 Cook 41,802 Epps 546 McGowan 2,723 Cunnane 20

Search Term Already Produced Relevant Total Hit Count

Cunnane 0 0 19

D’Oria 0 0 4

Doria 18 18 171

Duchesne 11 11 90

FIM 144 177 8,404

First w/2 peninsula 6 6 23

Lazear 5 31 277


5

Mark w/2 kelly 0 11 273

Salahuddin 6 6 71

Sebah 3 3 3

Shazieh 1 1 1

Watson w/2 brown 30 33 66

Wetherhill 21 107 115

Geraldine E. Ponto | BakerHostetler 45 Rockefeller Plaza | New York, NY 10111-0100T 212.589.4690 | F 212.589.4201 [email protected]


Sent: Monday, February 22, 2016 10:01 AM



Gerry,

We do not understand the delay in providing us with feedback on our proposed set of search terms. We sent you our list

more than six weeks ago, and you still have not provided, as you agreed at our October 1 meet and confer and as we

requested in our January 5 email, the number of hit results generated by each term. While we remain open to discussing

any legitimate concerns the Trustee may have with respect to breadth, until you give us this basic information we think a

meet and confer will be largely unproductive.

Please let us know as soon as possible, and by no later than February 24, when we can expect to receive document

counts from the Trustee. Once we have this information, we will suggest dates and times for a meet and confer.

Thanks,

Lindsay


Sent: Friday, February 19, 2016 3:06 PM





Hi Lindsay,

We have devoted considerable time to be in a position of responding to the 77 supplemental search terms since

receiving that list from you consistent with the Trustee’s Responses and Objections to Defendants Kingate Global Fund

Limited’s and Kingate Euro Fund Limited’s First Requests for Production to the Trustee. This process naturally takes time

in light of the 25 million electronic documents in the BLMIS database, excluding hard copies.


6

We call your attention generally to the Trustee’s Response to Request No. 1, which objects to your Request No. 1 “to the

extent it calls for Redundant, Cumulative, and Marginally Relevant Documents (Objection No. 2), and to the extent it

calls for documents not relevant to resolving the claims or defenses in the proceeding.”

Subparagraph d. of the Trustee’s Response to Request No. 1 states in part: “Production under this subparagraph d is

conditioned on the parties’ agreeing to narrowly tailored search terms and parameters that target Documents relevant

to claims or defenses and proportional to the needs of the case. The Trustee will not incur the burden and expense of

reviewing Documents in these categories until agreement is reached. Production will begin within 30 days of the

agreement, and an end date for the production will be provided after the volume of documents is identified. “

The best way to proceed would be at a meeting or telephone conference to discuss next steps. Please provide us with

two alternate dates and times next week to confer telephonically or meet in person on this issue. Thank you and have a

nice weekend.

Gerry Geraldine E. Ponto | BakerHostetler 45 Rockefeller Plaza | New York, NY 10111-0100T 212.589.4690 | F 212.589.4201 [email protected]


Sent: Thursday, February 18, 2016 11:25 AM



Dear Gerry:

I write to follow up on our January 5, 2016 email regarding the BLMIS Searchable Database.

Although you acknowledged receipt of our search terms at the most recent conference before the Court and advised

that the Trustee would be producing documents in response to them, we have yet to receive a formal response to our

email of January 5. To that end, please confirm by no later than February 22 the Trustee’s agreement to produce

documents to the Funds from the BLMIS Searchable Database using the full set of search terms attached to our January

5 email. Please also let us know when we can expect to receive that production.

Best,

Lindsay

Lindsay Weber

Associate

Quinn Emanuel Urquhart & Sullivan, LLP 51 Madison Avenue, 22nd Floor New York, NY 10010 212-849-7277 Direct 212-849-7000 Main Office Number 212-849-7100 FAX [email protected] www.quinnemanuel.com

NOTICE: The information contained in this e-mail message is intended only for the personal and confidential use of the recipient(s) named above. This message may be an attorney-client communication and/or work product and as such is privileged and confidential. If the reader of this message is not the intended recipient or agent responsible for delivering it to the intended recipient, you are hereby notified that you have received this document in error and that any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately by e-mail, and delete the original message.


7

From: Rex Lee

Sent: Tuesday, January 05, 2016 5:00 PM

To: Jenson, Karin Scholz <[email protected]>

Cc: Robert Loigman <[email protected]>; Lindsay Weber <[email protected]>; Ponto,

Geraldine E. <[email protected]>; Usitalo, Michelle R. <[email protected]>

Subject: Picard v. Ceretti, et al., Adv. Pro No. 09-01161 (SMB)

Karin:

Happy New Year. With respect to the BLMIS Searchable Database, we attach a list of search terms we propose applying

in addition to those terms the Trustee identified in his responses and objections to the Kingate Funds’ first request for

production. We can meet and confer to discuss of any of the proposals to which you have questions or

disagreements. Before we do so, it will be helpful if you could provide the number of hit results generated by each of

these terms as that will provide us with the context of any objections based on breadth. In addition, in preparing this

list, we realized that it may be more useful to discuss proposed search terms in the context of specific custodians at

BLMIS, which may obviate the need to seek certain search parameters or the application of terms across the board. To

that end, please let us know if the Trustee amenable to sharing BLMIS organizational charts to further the parties’

discussions. Thanks, and we look forward to discussing the attached with you.

Rex Lee

Of Counsel

Quinn Emanuel Urquhart & Sullivan, LLP

51 Madison Avenue, 22nd Floor New York, NY 10010 212-849-7163 Direct 212-849-7000 Main Office Number 212-849-7100 FAX [email protected] www.quinnemanuel.com


This email is intended only for the use of the party to which it is addressed and may contain information that is privileged, confidential, or protected by law. If you are not the intended recipient you are hereby notified that any dissemination, copying or distribution of this email or its contents is strictly prohibited. If you have received this message in error, please notify us immediately by replying to the message and deleting it from your computer. Any tax advice in this email is for information purposes only. The content of this email is limited to the matters specifically addressed herein and may not contain a full description of all relevant facts or a complete analysis of all relevant issues or authorities. Internet communications are not assured to be secure or clear of inaccuracies as information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete, or contain viruses. Therefore, we do not accept responsibility for any errors or omissions that are present in this email, or any attachment, that have arisen as a result of e-mail transmission.


EXHIBIT 6


ZoLFO Cooper

25 September 2009

P.O. Box 45712'"* Floor, Palm Grove House Wickhams Cay, Road Town TortolaBritish Virgin Islands VGnio t; +1 284494 9600 f: +1 284 494 9601 www.zolfocooper.com

FIM Advisers LLP 20 St. James’s Street London SW1A1ES United Kingdom

By email

Dear Sirs

Kingate Global Fund, Ltd. and Kingate Euro Fund, Ltd - in Liquidation (the “Funds”)

I arn writing to you in your capacity as consultant to the Funds’ manager, Kingate Management Limited, (“KML”), and further to my letter of 11 May 2009 (a copy of which is enclosed).

In my letter of 11 May 2009, I advised you that on 8 May 2009, Richard E. F. Fogerty and I had been appointed Joint Provisional Liquidators (‘‘JPLs") of the Funds by an Order of the Eastern Caribbean Supreme Court in the High Court of Justice British Virgin Islands ("the Court”), pursuant to section 170 of the British Virgin Islands Insolvency Act, 2003 ("the Insolvency Act”).

On 4 June 2009, Richard E. F. Fogerty and 1 were appointed Joint Liquidators of the Funds, pursuant to section 162 of the Insolvency Act.

I met Messrs. Ceretti and Grosso at your office in London on 4 June 2009, when they provided with copies of a consulting agreement in respect of each fund, between FIM Limited and KML and subsequent novation agreements replacing FiM Limited with FIM Advisers LLP.

In my letter of 11 May, I requested that any books and records in FIM’s possession, relating to the Funds, be secured and held to the order of the JPLs.

In order that I may carry out my duties as Liquidator, in particular to investigate the affairs of the Funds, I now write to ask you to provide me with all papers, books and records (whether in physical or electronic form) in your possession, custody or power relating to the Funds, and to provide the information set out below.

As a first step, I suggest that, in order to limit this task as much as reasonably possible and to avoid any unnecessary work, you please let me have a list of all files that have been maintained by you relating to the Funds, together with a sufficient description to determine their contents and enable me to decide whether or not they are likely to be relevant to my enquiries.

me

1


http://www.zolfocooper.com

ZoLFO Cooper

As a preliminary measure (but this list should not, of course, be in any way regarded as exhaustive) I would expect the files listed to include the following topics. When 1 refer below to “the Funds", I refer to the Funds or either of them.

All reports relating to the Funds provided by FIM Advisers LLP, FiM Limited and/or FIM Management Limited (together the “FIM Entities") to Kingate Management Limited (“KML”);

All marketing materials relating to the Funds produced and/or used and made available by the FIM Entities for and/or distributed to actual and potential investors;

Marketing of the Funds to potential and actual investors;

Any finandal arrangements between FIM Entities and investors in the Funds procured by or introduced by or through FIM Entities;

Details of all fees paid to the FIM Entities by KML and the Funds, including all invoices;

Agendas and notes and/or reports of all meetings scheduled and/or held between representatives of FIM Entities (and/or at which those representatives were present) and Bernard L Madoff (‘Madoff’) and /or staff employed by him or any entities associated with him;

All materials and inforrnation provided by Madoff concerning his business and/or that of any entity associated with him relating in any way to the business or investments of the Funds;

The participation of FiM Entities in the Board meetings of KML and the Funds;

Dealings between FIM Entities and KML relating to the Funds;

Details of all and any investments held by the FiM Entities, whether directly or indirectly, in the Funds. Please provide full details of the names of any nominees used and also the dates and amount of all subscriptions and redemptions since the launch of the Funds and any predecessors; -

In addition to these documents, please provide me with information on the following matters:

• What were the circumstances in which and the reasons why (and the precise extent to v/hlch) FIM Advisers LLP took over the relationship between FIM Ltd and KML in relation to the Funds?

• Why did the FIM Entities contract with KML, rather than the Funds themselves?

• What benefits did FIM Entities or their associates derive from KML apart from and in addition to the fees due under the contracts between KML and FIM Entities?

• What part did the FIM Entities or their associates play in the establishment of the Funds?

• What part did the FIM Entities or their associates play in the establishment or engagement of KML as manager of the Funds?

• Why were the activities of the Funds structured in this way?

• What was the role of Tremont in the management of the Funds, and its relationship to KML and to the FIM Entities?

• What investments in the Funds were made by investors introduced by the FIM Entities, and what is the total of such investments?

I will need to compile a complete history of the FIM Entities’ (and any associated predecessors’) involvement with the Funds since their incorporation, and your assistance with the documents and matters mentioned above will enable me to make a start on that. I look toward to hearing from you

2


ZoLFO Cooper

and trust that I will receive your voluntary cooperation. 1 am sure that you are aware, and have been advised, that if your co-operation is not forthcoming, the Joint Liquidators will be able to invoke the assistance of the Court.

It would not be appropriate to set any deadlines in this letter, but I would ask for at least a preliminary substantive response from you by 16 October 2009 and your confirmation by return that you will provide the information I am seeking on a voluntary basis.

If you have any questions with regard to this letter, kindly contact Mr. Richardson on +1 284494 9600 or [email protected].

Yours faithfully

WRTaconLiquidatorEnel: Copy of Letter dated 11 May 2009

3


mailto:[email protected]

ZoLFO Cooper

11 May 2009 P,0. Box 45712'"* Floor, Palm Grove House Wickhams Cay, Road Town TortolaBritish Virgin islands VGmo t: +1 284 494 9600 f;+i 2844949601 www^zolfocooper.com

HIM Advisers LLP 20 St. James Street London SW1A1E5 United Kingdom

For the attention of Mr. Federico M. Ceretti and Mr. Carla Grosso

Dear Sirs

Kingate Global Fund, Ltd. - In Provisional Liquidation

1 understand that FIM Advisers LLP ("FIM”) acted as Investment Consultant to Kingate Global Fund, Ltd. ("the Fund”).

I write to notify you that on 8 May 2009, Richard E. F. Fogerty and 1 were appointed Joint Provisional Liquidators (“JPLs”) of the Fund by an Order of the Eastern Caribbean Supreme Court in the High Court of Justice British Virgin Islands ("the Court”), pursuant to section 170 of the British Virgin islands Insolvency Act, 2003 (“the Insolvency Act”).

The powers of JPLs are sent out in the attached Order, in brief, the JPLs have all of the rights and powers of Liquidators, to the extent necessary to maintain the value of the assets owned or managed by the Funds, or to carry on the functions for which the JPLs were appointed.

With effect from the date of appointment, the directors of the Fund remain in office but cease to have any powers, functions or duties other than those required or permitted under the Insolvency Act or authorised by the JPLs.

1 confirm that the Fund’s investment Manager, Kingate Management Limited, and FIM will remain in place until further notice. However, please confirm by return email to David Griffin at [email protected] that FIM will not accept any further Instructions from either the directors, Investment Manager or any other person, or take any actions on behalf of the Fund, without the JPLs’ express prior written authority. You should not incur any costs without my express written authorisation.

In addition, please confirm that any books and records in FIM’s possession relating to the Fund will be secured and held to the order of the JPLs.

In order to assist me in carrying out my duties 1 would like to arrange a meeting with Fltt's representatives in Bermuda. 1 will be in Bermuda and available to meet on either Wednesday, 13 May, or Thursday, 14 May. Arrangements can be made with Mr. Griffin by email. At this meeting, I would ask that you have available the information set out in the attached list.

It may be necessary to meet with you at your offices in London; however, 1 will revert to you following the meeting in Bermuda next week.

Zoifo Cooi>er (3Vl) Umlled U acampsnjrlncarfMmiifiin tbABrldshVirgin blwirfs



ZoLFo CooperPage 2 11 May20D9 FIM Advisers LLP

Should you have any queries in relation to the JPLs’ appointment, please do not hesitate to contact me at [email protected] or alternatively on +1 284 494 9600.

Yours faithfully

William RTaconJoint Provisional Liquidator

r

I

Zoifo Coopif (8V!J UmUtd it ■ compjn/li>cofppnied Itj ibe Hikish Virgin hbrriJj:



Kingate Global Fund, Ltd. - in Provisional Liquidation (the “Fund”)

Information and documentation required from FIM Advisers LLP (“FIM")

1. Copy of any Consultancy Agr eement {together with any amended agreements) between FIM and the Fund.

2. Full details of FIM’s role in relation to the Fund and the specific services provided.3. Full details of all accounts held with brokers and custodians in the name or on behalf of

the Fund.4. Copies of statements (in PDF and Excel formats, if available) for all accounts held by

the Fund for the last 3 years.5. A detailed explanation as to the nature of any remaining investments held by the Fund.6. A summary of the investments made by the Fund over the last three years.7. Original investment files for all investments currently held or made by the Fund within

the previous 3 years.8. Full details and copies of any side letters entered into with investors during the last 3

years.9. Details, Including full contact details of any professional advisors instructed on behalf

of the Fund within the last 3 years, together with a summary of the advice sought.10. Details, including full contact details, of all other service providers instructed by the

Fund within the last 3 years.11. Details of all management, incentive and consultancy fees charged over last three

years and confirmation of any amounts currently outstanding.12. Confirmation whether the Fund has filed, or has taken any steps to file, a claim with

the Trustee for Liquidation of Bernard L. Madoff Investment Securities, LLC, under the SiPC scheme.

13. Please provide details of all other documents you hold with respect to the Fund not included above.


EXHIBIT 7


ZoLFO Cooper

28 August 2009 P.O. Box 45712"“* Floor, Palm Grove House Wickhams Cay, Road Town Tortola 'British Virgin Islands VGino t; +1 284494 9600 f:+i 2844949601 www.zolfocooper.com

Kingate Management Limited 99 Front Street Hamilton HM11 Bermuda

For the attention of Mr. Christopher Wetherhill

Dear Sirs

Kingate Global Fund Limited and Kingate Euro Fund Limited - In Liquidation (the “Funds")

I write further to previous correspondence and telephone conversations in relation to the electronic books and records which Kingate Management Limited (“KML") holds on behalf of the Funds, together with those which it holds in its capacity as the Manager of the Funds.

As you ye aware, forensic images of KML’s computer server and three laptop computers were taken by my staff when they attended the offices of KML on 13, 14 and 15 May 2009. The imaging process was mdertaken to retain the integrity of the records, constituting as they do part of the histories of the Funds which It IS my duty as Liquidator to preserve and examine. At that time, I was informed by representatives of KML that its server contained data which either did not relate to the Funds or were the property of KML to which the Funds therefore had no right of access.

KML's legal adviser's in Bermuda, Wakefield Quin, would not allow the images to leave their, or their clieiit s, conti-ol without first having reviewed the content to enable them to identify and remove any privileged KML i-ecords and/or data not relating to the Funds. To facilitate the review process, our computer forysy examiners saved a copy of the four images to a single drive. All the images, together

P/e-imaged server file, were then delivered to Wakefield Quin. These images were to be held by Wakefield Quin until such time Liquidators governing the review process.

InT h '-’tDwyer of Wakefield Quin, contacted my colleague, David Griffin, and asked whether the Liquidators would be prepared to withdraw their request for KML to review the imaged records as he indicated it would be a time consuming and costly exerdse. As an alternative, Mr. Dwyer suggested thy ^e Liquidators could seek copies of the Fund’s books and records from the Funds’ Adinmistrator Citi Hedge Fund Services Limited (“Citi’’). I can confirm that the books and records held by Citi are held to my order and available to me. Nonetheless, I still require access to the electronic files relating to the Funds held by KML.

I now require KML to release to me all of the records held by it, insofar as they relate to the Funds. Under the provisions of Section 282 of the BVI Insolvency Act (the "Act’’), the Liquidators have the power to reiyire any person who has been involved in the promotion or formation of the Funds or any pyson who has beeri employed by the Funds under a contract for services, to provide them with such informatioii concerning the Funds, including their promotion, formation, business dealings, accounts assets and liabilities as they reasonably require. It seems likely that such information will be contained

(VV. •

( a protocol could be agreed between KML and theas

rolfo Cooper (8VJ) Umiled b a company incctporaled in tha SdKsh Virgin Islantli


http://www.zolfocooper.com

ZoLFO CooperPage 228 August 2009Kingate Management Limited

in the imaged files and I now require all of the electronic data contained in the images, save for those materials which are either privileged or relate only to clients of KML other than the Funds to be made available. This will include all electronic files held on behalf of the Funds, together with all records held by KML in its capacity as the Manager of the Funds or by virtue of the services provided to the Funds under the management agreements with KML. 1 accept that a process for reviewing and separating the content of the imaged files still needs to be agreed.

Please also note that that the Liquidators have filed petitions in the Supreme Court of Bermuda to wind the Funds up in Bermuda. Should those petitions be granted by the Bermuda Court, a similar request will be made to KML under the powers available to liquidators under the Bermuda Companies Act 1981.

Please instruct Wakefield Quin to contact my colleague, Gwynn Hopkins, by email at [email protected] or by telephone on +1 345 946 0081, to discuss the process for the review of the images and the removal of any information which KML believes to be either confidential or privileged. Mr Hopkins managed the imaging process and he must be involved in the separation process.

Should you have any queries regarding the content of this letter, please do not hesitate to contact me or David Griffin.

..Jfours faithfully

/W ^acon Joint'Liquidator

cc. Denis Dwyer, Wakefield Quin - by emailMark Chudleigh, Sedgwick Chudleigh - by e mail Gwynn Hopkins, Zolfo Cooper - by email



EXHIBIT 8






EXHIBIT 9






EXHIBIT 10





EXHIBIT 11





EXHIBIT 12


UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK

SECURITIES INVESTOR PROTECTION CORPORATION,

Plaintiff-Applicant,

v .

BERNARD L. MADOFF INVESTMENT SECURITIES LLC,

Defendant.

No. 08-01789 (SMB) SIPA LIQUIDATION (Substantively Consolidated)

In re:

BERNARD L. MADOFF,

Debtor.

IRVING H. PICARD, Trustee for the Liquidation of Bernard L. Madoff Investment Securities LLC,

Plaintiff,

v .

FEDERICO CERETTI, et al.

Defendants.

Adv. Pro. No. 09-1161 (SMB)

TRUSTEE IRVING H. PICARD’S RESPONSES AND OBJECTIONS TO DEFENDANTS

KINGATE GLOBAL FUND LIMITED’S AND KINGATE EURO FUND LIMITED’S FIRST REQUESTS FOR PRODUCTION TO THE TRUSTEE


Irving H. Picard (the “Trustee”), as trustee for the liquidation of Bernard L. Madoff

Investment Securities LLC (“BLMIS”), under the Securities Investor Protection Act, 15 U.S.C.

§§ 78aaa-78lll (“SIPA”), and the estate of Bernard L. Madoff, by and through the Trustee’s

counsel, Baker & Hostetler LLP, hereby provides the following Responses and Objections to

Kingate Global Fund Limited’s and Kingate Euro Fund Limited’s (collectively the “Kingate

Funds”) First Set of Requests for Production of Documents dated November 6, 2015

(“Request(s)”).

OBJECTIONS TO DEFINITIONS

1. The Trustee objects to the terms “any” and “all” in Definition No. 3 as inconsistent with

Local Rule 26.3(d)(1) of the United States District Court for the Southern District of New

York and this Court. The Trustee will respond to Requests containing “any” and “all” as

they are defined by Local Rule 26.3(d)(1).

2. The Trustee objects to the term “BLMIS” in Definition No. 4 to the extent that it

incorporates people or entities that are not within the purview of the SIPA Liquidation.

3. The Trustee objects to the term “Communication” in Definition No. 9 as inconsistent

with Local Rule 26.3(c)(1). The Trustee will respond to Requests containing

“Communication” as it is defined by Local Rule 26.3(c)(1).

4. The Trustee objects to the term “Draft” in Definition No. 10 as inconsistent with Local

Rule 26.3(c)(2). The Trustee will respond to Requests containing “Draft” as incorporated

within the definition of “Document” under Local Rule 26.3(c)(2).

5. The Trustee objects to the terms “Each” and “All” in Definition No. 11 as inconsistent

with Local Rule 26.3(d)(1). The Trustee will respond to Requests containing

“Communication” as defined by Local Rule 26.3(d)(1).


2

6. The Trustee objects to the term “Person” in Definition No. 17 as inconsistent with Local

Rule 26.3(c)(6). The Trustee will respond to Requests containing “Communication” as

defined by the Local Rule 26.3(c)(6).

OBJECTIONS TO INSTRUCTIONS

1. The Trustee will respond to these Requests consistent with Rules 26 and 34 of the

Federal Rules of Civil Procedure (as amended on December 1, 2015) (the “Federal

Rules”), Rules 7026 and 7034 of the Federal Rules of Bankruptcy Procedure (the

“Bankruptcy Rules”), applicable Local Civil Rules of the United States District Court for

the Southern District of New York and this Court (the “Local Rules”), and any applicable

orders of the Court, including the Court’s October 17, 2013 Order on the Third-Party

Data Rooms [ECF No. 5475] (“Third-Party Data Room Order”).

2. The Trustee objects to Instruction No. 8 to the extent it calls for documents from

December 11, 2008 to May 7, 2009, consistent with Objection No. 1 below.

SOURCES OF INFORMATION RELEVANT TO THE CLAIMS AND DEFENSES IN THE TRUSTEE’S POSSESSION, CUSTODY OR CONTROL

1. Hard-copy documents from the offices of BLMIS, offsite storage used by BLMIS, and

other locations (“Hard-Copy BLMIS Documents”).

2. Electronic documents obtained from among approximately 20,000 pieces of media from

the offices of BLMIS, offsite storage used by BLMIS, and other locations (“BLMIS

Electronic Documents” or “BLMIS ESI”).

3. Documents produced by third parties to the Trustee during his investigation or adversary

proceedings (“Third-Party Documents”).


3

I. BLMIS DOCUMENTS

From the Hard-Copy BLMIS Documents and BLMIS ESI (collectively, “BLMIS

Documents”), the Trustee created a searchable electronic database containing approximately 4.7

million Hard-Copy BLMIS Documents and 25 million BLMIS Electronic Documents (“the

BLMIS Searchable Database”). Defendants do not have direct access to the BLMIS

Searchable Database because it contains documents relating to thousands of customers, many of

which are not relevant to this proceeding. Instead, the Trustee provides all defendants in these

proceedings with documents as described below:

A. Proof of BLMIS’s Fraud and Insolvency: The Trustee created E-Data Room 1 from

documents in the BLMIS Searchable Database as well as some Third-Party Documents.

E-Data Room 1 contains documents relevant to the issues of the fraud conducted at

BLMIS and its insolvency, and includes documents relating to BLMIS operations,

regulatory disclosures, and financial records. See Appendix A for a description of

documents available to defendants in E-Data Room 1.

B. BLMIS Core Account Documents: The Trustee identified and segregated BLMIS core

account documents for all customers (“Core Account Documents”). These Core Account

Documents include account opening agreements, correspondence to and from BLMIS,

transfer and/or redemption requests, customer statements, Portfolio Management and/or

Portfolio Management Transaction Reports, which contain transaction history, and other

documents that were specific to each account, and/or the Trustee’s calculation of net

equity of a particular BLMIS account.

C. Proof of Transfers: In addition to the Core Account Documents relevant to transfers

described above, the Trustee identified and segregated BLMIS bank account records that

reflect transfers to customers.


4

D. Other Documents: The Trustee preserved the nearly 20,000 pieces of BLMIS ESI and

millions of pages of BLMIS Hard-Copy Documents in his possession, but did not include

all such documents in the BLMIS Searchable Database. The Trustee did not process or

scan, for example, backup tapes believed to contain redundant data, some floppy disks or

CDs, and broken media. In responding to document requests, the Trustee does not search

for BLMIS documents outside of the BLMIS Searchable Database. The Trustee will

produce additional BLMIS Documents (meaning other than those described in

Paragraphs A and B) from the BLMIS Searchable Database provided that the parties

agree to narrowly tailored search terms and parameters that target documents relevant to

the claims or defenses and proportional to the needs of the case in accordance with

Federal Rule 26(b)(1). See Appendix B for a description of sources of documents in the

BLMIS Searchable Database.

II. THIRD-PARTY DOCUMENTS

Certain defendants with proper credentials have direct access to millions of Third-Party

Documents in the Trustee’s possession. These documents are governed by the Third-Party Data

Room Order. See Appendix C for Third-Party Documents that are included in, and excluded

from, the Third-Party Data Rooms.

Pursuant to Paragraph 8 of the Third-Party Data Room Order, “By making the Third-

Party Documents available to defendants in non-Avoidance Actions1 through their Outside

Litigation Counsel,2 the Trustee will have satisfied his obligations under Federal Rules of Civil

Procedure 26 and 34 to make documents available to defendants in non-Avoidance Actions.” In

1 This term includes this avoidance and recovery proceeding. 2 The capitalized terms in this section are defined in the Third-Party Data Room Order.


5

responding to these Requests, the Trustee will endeavor to identify the Producing Parties of

responsive Third-Party Documents.

III. THE SQL DATABASES

Information contained in certain BLMIS Hard-Copy Documents, BLMIS ESI, and certain

Third-Party Documents was processed and input into multiple Microsoft Structured Query

Language (“SQL”) Server tables and databases (the “SQL Databases”). To the extent feasible,

the underlying documents used to build the SQL Databases are contained in E-Data Room 1.

Some or all of the data in the SQL Databases is responsive to most of the Requests. SQL

Databases are used by the Trustee’s experts and are available for production to any defendant

upon request. Use of the SQL Databases requires some technical expertise. See Appendix D for

the sources of data loaded into the SQL Databases.

THE TRUSTEE’S OBJECTIONS

A. Materials Prepared Post-December 11, 2008: The Trustee will not produce or log

Documents prepared by and/or received by him, his counsel, his professionals and/or

other agents from on or after December 11, 2008 that are not relevant and/or are

protected by the attorney work product doctrine, the attorney-client privilege, and/or any

other applicable privileges or protections (“Materials Prepared Post-December 11,

2008”).

B. Redundant, Cumulative, and Marginally Relevant Documents: The BLMIS

Searchable Database may contain documents that are responsive to the Requests but

which are redundant, cumulative, or marginally relevant (for example, the defendants’

names or account numbers appear on a list of customer names or account numbers and

there is no other unique information). The Trustee objects to the production of these

Documents to the extent that such production is not proportionate to the needs of the case


6

under Federal Rule 26(b)(1) (“Redundant, Cumulative, and Marginally Relevant

Documents”).

DOCUMENTS PRODUCED TO THE KINGATE FUNDS

1. On November 12, 2015, the Trustee produced to the Kingate Funds the Core Account

Documents for BLMIS Account 1FN061 (Kingate Global Fund Ltd. c/o Bank of

Bermuda Ltd. a/c/f Kingate Global Fund) and BLMIS Account 1FN086 (Kingate Euro

Fund Ltd.) (“the Kingate Core Account Documents”) with indices summarizing the

production. See Appendix E for the indices.

2. On November 12, 2015, the Trustee produced to the Kingate Funds the bank documents

reflecting transfers for BLMIS Account 1FN061 (Kingate Global Fund Ltd. c/o Bank of

Bermuda Ltd. a/c/f Kingate Global Fund) and BLMIS Account 1FN086 (Kingate Euro

Fund Ltd.) (“the Kingate Bank Transfer Documents”) with indices summarizing the

production. See Appendix F for the indices.

3. On November 24, 2015, the Trustee provided the Kingate Funds’ counsel with

credentials to access E-Data Room 1.

4. On November 24, 2015, the Trustee provided the Kingate Funds’ counsel with

credentials to the Third-Party Data Rooms.

REQUESTS FOR PRODUCTION OF DOCUMENTS

REQUEST NO. 1

All documents concerning any of the Defendants.

RESPONSE TO REQUEST NO. 1

The Trustee objects to this Request to the extent it calls for Materials Prepared Post-

December 11, 2008 (Objection No. 1). The Trustee will not search for, review, or produce such

Documents.


7

In addition, the Trustee objects to this Request to the extent it calls for Redundant,

Cumulative, and Marginally Relevant Documents (Objection No. 2), and to the extent it calls for

documents not relevant to resolving the claims or defenses in the proceeding. The Trustee is not

currently withholding Documents pursuant to any objection other than Objection

No. 1. However, a Request for “all” Documents concerning the subject of this Request not

already produced or accessible to the Kingate Funds through the Trustee’s data rooms is not

reasonable or proportional.

The Trustee further responds as follows:

a. On November 12, 2015, the Trustee produced the Kingate Core Account Documents and Kingate Bank Account Documents.

b. Responsive Third-Party Documents are available in the Third Party Data Rooms. The Trustee further responds that there are Documents produced by the following parties in the Third-Party Data Rooms upon which the Trustee may rely at trial: FIM Advisers LLP, the Kingate Funds, and the U.S. Securities and Exchange Commission.

c. By January 15, 2016, the Trustee will produce responsive documents in the BLMIS Searchable Database that hit on the following search terms: 1FN061, 1FN086, Ceretti, Grosso, Kingate, KML, Ashby, “El Prela,” “Port of Hercules,” “Alpine Trustees,” “First Peninsula,” “Citi Hedge,” Fimltd, and “fim-group.”

d. The Trustee will also produce the following:

i. Any other Documents in the BLMIS Searchable Database; and

ii. Documents that are excluded from the Third-Party Data Rooms per Paragraph 4 of the Third-Party Data Room Order.

Production under this subparagraph d is conditioned on the parties’ agreeing to narrowly tailored search terms and parameters that target Documents relevant to the claims or defenses and proportional to the needs of the case. The Trustee will not incur the burden and expense of reviewing Documents in these categories until agreement is reached. Production will begin within 30 days of the agreement, and an end date for the production will be provided after the volume of Documents is identified.


8

REQUEST NO. 2

All documents concerning the Transfers.




Documents.


Cumulative, and Marginally Relevant Documents (Objection No. 2).

On November 12, 2015, the Trustee produced the Kingate Core Account Documents and

Kingate Bank Account Documents, which contain Documents relating to the Transfers. The

Trustee will not search for or produce additional Documents in response to this Request.

REQUEST NO. 3

All documents concerning communications between BLMIS and any of the Defendants.




Documents.



On November 12, 2015, the Trustee produced the Kingate Core Account Documents,

which contain communications between BLMIS and the Defendants.

The Trustee is not currently withholding Documents pursuant to any objection other than

Objection No. 1. However, a Request for “all” Documents concerning the subject of this

Request not already produced or accessible to the Kingate Funds through the Trustee’s data


9

rooms is not reasonable or proportional. The Trustee will not incur the burden and expense of

reviewing Documents from the categories described above in Response 1(d)(i) and (ii) until the

parties reach an agreement regarding reasonable search terms and parameters. Production will

begin within 30 days of the agreement, and an end date for the production will be provided after

the volume of Documents is identified.

REQUEST NO. 4

All contracts between BLMIS and Defendants.


The Trustee objects to this Request to the extent it calls for Redundant, Cumulative, and

Marginally Relevant Documents (Objection No. 2).

On November 12, 2015, the Trustee produced the Kingate Core Account Documents,

which contain contracts between BLMIS and the Defendants.

The Trustee is not currently withholding Documents pursuant to any objection other than

Objection No. 1. However, a Request for “all” Documents concerning the subject of this

Request not already produced or accessible to the Kingate Funds through the Trustee’s data

rooms is not reasonable or proportional. The Trustee will not incur the burden and expense of

reviewing Documents identified in Response 1(d)(i) and (ii) until the parties reach an agreement

regarding reasonable search terms and parameters. Production will begin within 30 days of the

agreement, and an end date for the production will be provided after the volume of Documents is

identified.

REQUEST NO. 5

All documents concerning the Kingate Global Account and the Kingate Euro Account.


10


The Trustee repeats his response to Request No. 1 in response to this Request and will

produce Documents accordingly.

REQUEST NO. 6

All documents concerning any contribution to or withdrawal or distribution from any of

the Funds’ BLMIS accounts.




REQUEST NO. 7

All documents concerning the Trustee’s allegation that BLMIS made each of the

Transfers with actual intent to hinder, delay or defraud some or all of BLMIS’s creditors.




Documents.

On November 12, 2015, the Trustee produced the Kingate Core Account Documents and

Kingate Bank Account Documents, which evidence the Transfers.


Cumulative, and Marginally Relevant Documents (Objection No. 2). Documents reflecting the

fraud at and insolvency of BLMIS are in E-Data Room 1. In addition, to the extent the Trustee’s

experts considered Documents that are not in E-Data Room 1 but are responsive to this Request,

those documents are available to the Kingate Funds upon request in expert discovery. The

Trustee will not search for and produce additional Documents in response to this Request.


11

REQUEST NO. 8

All documents concerning the Trustee’s allegation that BLMIS was insolvent at the time

each of the Transfers was made or became insolvent as a result of the Transfers.


The Trustee repeats his response to Request No. 7 in response to this Request.

REQUEST NO. 9

All documents concerning the Trustee’s allegation that, at the time each of the Transfers

was made, BLMIS was engaged in a business or a transaction, or was about to engage in a

business or transaction, that would leave BLMIS with unreasonably small capital.



REQUEST NO. 10

All documents concerning the Trustee’s allegation that, at the time each of the Transfers

was made, BLMIS intended to incur, or believed that it would incur, debts that would be beyond

BLMIS’s ability to pay as such debts matured.



REQUEST NO. 11

All documents concerning the Trustee’s allegation that BLMIS received less than

reasonably equivalent value in exchange for each of the Transfers.




12

REQUEST NO. 12

All documents concerning the Trustee’s allegation that BLMIS did not receive fair

consideration for each of the Transfers.



REQUEST NO. 13

All pleas or allocutions in connection with BLMIS entered by any person, including

BLMIS officers, employees, agents or investors.


Documents responsive to this Request are in E-Data Room 1, including the criminal plea

allocutions of Madoff, Frank DiPascali, Irwin Lipkin and David Kugel. The Trustee will

produce any pleas or allocutions that are not in E-Data Room 1 on January 15, 2016.

REQUEST NO. 14

Documents sufficient to show the aggregate assets and liabilities of BLMIS customer

accounts on each day that the Transfers were made.



REQUEST NO. 15

Documents sufficient to show the actual value of each of the Funds’ BLMIS accounts on

each day that the Transfers were made.




13

REQUEST NO. 16

All communications prior to December 11, 2008, between BLMIS, on the one hand, and

any person, including prospective and current investors or their agents, any governmental entity,

or journalists, on the other hand, concerning the “split-strike conversion” strategy.




Documents.



documents not relevant to resolving the claims or defenses in this proceeding.

Documents concerning the split-strike conversion strategy are in E-Data Room 1.

Additional Documents may be located in the Third-Party Data Rooms. The Trustee will not

search for and produce additional Documents in response to this Request.

REQUEST NO. 17

All documents evidencing, reflecting, or showing BLMIS’s or Madoff’s use of the money

deposited by the Funds into their respective BLMIS accounts.



REQUEST NO. 18

All documents concerning any of sums contributed by the Funds to their BLMIS

accounts that were paid or transferred to other BLMIS investors.


14


As there are no transfers from the Kingate Funds’ BLMIS accounts to other BLMIS

customers, there are no responsive Documents to that part of this Request. With respect to

BLMIS’s use of sums contributed by the Kingate Funds to their accounts, the Trustee repeats his

response to Request No. 7 in response to this Request.

REQUEST NO. 19

The Uniform Application for Investment Adviser Registration filed by BLMIS in or

about January 2008, and all communications with any person concerning it.


The Uniform Application is in E-Data Room 1 and is Bates labeled PUBLIC0003834.

With respect to communications about the Uniform Application, BLMIS regulatory

documents are in E-Data Room 1. Additional Documents may be located in the Third-Party

Data Rooms. The Trustee will not search for and produce additional Documents in response to

this Request.

REQUEST NO. 20

The Form ADV filed by BLMIS with the SEC in 2006.


The Form ADV is in E-Data Room 1 and is Bates labeled PUBLIC0003729.

REQUEST NO. 21

All documents concerning the Trustee’s allegation that Defendants cooperated in or

facilitated any fraud at BLMIS.





15

REQUEST NO. 22

All documents concerning the allegation in paragraph 162 of the Complaint that Madoff

claimed that trades were private over-the-counter transactions.




Documents.



Documents not relevant to resolving the claims or defenses in this proceeding.

Responsive Documents are in E-Data Room 1 and the Third-Party Data Rooms,

including documents produced by Reliance International Research and Lagoon Investment

Limited. The Trustee will not search for and produce additional Documents in response to this

Request.

REQUEST NO. 23

Documents sufficient to show whether BLMIS was a hedge fund.




REQUEST NO. 24

All documents concerning the allegations in the Complaint that the BLMIS fraud was not

reasonably discoverable by at least one unsecured creditor of BLMIS.


16




Documents.



Documents responsive to this Request come from the books and records of BLMIS and

from Paul A. Goldberg and Caren Goldberg, Marsha Moskowitz, and S. Joel Pelzner and Carol

A. Pelzner, the creditors upon whom the Trustee may rely at trial to establish that the BLMIS

fraud was not reasonably discoverable by at least one unsecured creditor of BLMIS. The Trustee

will produce these Documents by January 15, 2016. The Trustee will not search for and produce

additional Documents in response to this Request.

REQUEST NO. 25

All documents concerning any due diligence, investigation, or analysis of BLMIS

performed by the Funds.




REQUEST NO. 26

All documents concerning any due diligence, investigation, or analysis of BLMIS

performed by any Defendant, other than the Funds.





17

REQUEST NO. 27

All communications at BLMIS concerning any due diligence, investigation, or analysis of

BLMIS that was being performed by Defendants.




REQUEST NO. 28

All communications between BLMIS, on the one hand, and any Defendants, on the other

hand, concerning, reflecting, evidencing, or describing the BLMIS Ponzi scheme.




REQUEST NO. 29

All documents concerning any allegation that Defendants were on inquiry notice of the

allegedly fraudulent purpose of any of the Transfers.




REQUEST NO. 30

All documents concerning the allegation that a diligent investigation concerning BLMIS

would have discovered the allegedly fraudulent purpose of any of the Transfers.


18



produce Documents accordingly. In addition, the Trustee states that responsive Documents are

in E-Data Room 1.

REQUEST NO. 31

Documents sufficient to identify all persons not employed, retained, or compensated by

BLMIS who knew or discovered the BLMIS fraud prior to December 11, 2008.




Documents.


Cumulative, and Marginally Relevant Documents (Objection No. 2), and on the ground that it

calls for Documents not relevant to the claims or defenses in this proceeding. The standard for

knowledge is subjective; the knowledge of the individuals described in this Request is irrelevant

to this proceeding. Documents may exist in E-Data Room 1 or the Third-Party Data Rooms.

The Trustee will not search for any additional responsive Documents to this Request.

REQUEST NO. 32

All documents concerning whether Defendants, defendants in any other adversary

proceeding in this SIPA Liquidation, or any other BLMIS customers could have or should have

discovered the BLMIS fraud.


The Trustee repeats his response to Request No. 1 with respect to the portion of this

Request that applies to the Defendants and will produce Documents accordingly.


19

With respect to the portion of this Request that applies to defendants in any other

adversary proceeding in this SIPA Liquidation, or any other BLMIS customers, the Trustee

objects to this Request to the extent it calls for Redundant, Cumulative, and Marginally Relevant

Documents (Objection No. 2), and on the ground that it calls for Documents not relevant to the

claims or defenses in this proceeding. The standard for knowledge is subjective; the knowledge

of the individuals described in this Request is irrelevant to this proceeding. Documents may

exist in E-Data Room 1 or the Third-Party Data Rooms. The Trustee will not search for any

additional responsive Documents to this Request.

REQUEST NO. 33

Documents sufficient to identify all regulatory or government entities who knew or

discovered the BLMIS fraud prior to December 11, 2008.



REQUEST NO. 34

All documents concerning whether any regulatory or government entity could have or

should have discovered the BLMIS Ponzi scheme.



REQUEST NO. 35

All documents concerning any inquiry, investigation, examination, audit or review of

BLMIS, or requests for documents or information submitted to BLMIS, prior to December 11,

2008, by any person, including the SEC, SIPC, any other regulatory or government entity, or any

existing or prospective BLMIS customer or such customer’s agent.


20




Documents.


Cumulative, and Marginally Relevant Documents (Objection No. 2). Documents responsive to

this Request, including Documents produced by Wilmer Hale and FINRA, are in E-Data Room

1. Responsive Documents are also in the Third-Party Data Rooms, including Documents

produced by FIM Advisers LLP and the SEC. The Trustee will not search for and produce


REQUEST NO. 36

All documents concerning all interviews, telephone calls, on-site visits or other

communications with Madoff or other BLMIS associates, officers, or employees, prior to

December 11, 2008, by the SEC, SIPC, or any other governmental or quasi-governmental entity,

including all documents concerning anticipated questions and BLMIS’s responses.




Documents.



this Request, including documents produced by Wilmer Hale and FINRA, are located in E-Data

Room 1. Responsive Documents are also in the Third-Party Data Rooms. The Trustee will not

search for and produce additional Documents in response to this Request.


21

REQUEST NO. 37

All documents constituting or concerning the SEC OCIE document request to BLMIS

dated January 6, 2004 and BLMIS’s response thereto dated January 16, 2004.




Documents.

The Trustee objects to this Request to the extent it calls for Redundant, Cumulative, and

Marginally Relevant Documents (Objection No. 2). The Trustee will produce the January 6,

2004 letter from the SEC OCIE by January 15, 2016. BLMIS’s unsigned January 16, 2004

response is at MADTBB03343559 and is in E-Data Room 1. Other documents related to this

Request may be in E-Data Room 1. The Trustee will not search for and produce additional

Documents in response to this Request.

REQUEST NO. 38

All documents constituting or reflecting communications prior to December 11, 2008,

between the SEC, SIPC, or any other regulatory or government entity, on the one hand, and any

other individual or entity, on the other hand, concerning any actual or potential fraud by BLMIS

or Madoff.



REQUEST NO. 39

All documents concerning communications, interviews or meetings between the Trustee

or his retained professionals, on the one hand, and the SEC, FBI, the Department of Justice, the

Office of the United States Attorney or SIPC, on the other hand, regarding: (a) any of Defendants


22

or Defendants’ BLMIS accounts, (b) this adversary proceeding, (c) claims by the Trustee against

BLMIS redeeming customers; (d) any investigation, inquiry or examination concerning BLMIS

by the SEC or any other governmental agency, person or entity conducted prior to December 11,

2008, (e) whether any person or entity discovered or could have discovered the BLMIS Ponzi

scheme or fraudulent purpose of any transfer from BLMIS, or (f) the Trustee’s decision to assert

claims against investors for the avoidance and recovery of withdrawals of investment principal

as opposed to fictitious profits.


The Trustee objects to this Request because it calls for Materials Prepared Post-


Documents.

REQUEST NO. 40

All documents concerning communications, interviews or meetings between the Trustee

or his retained professionals, on the hand, and (a) any BLMIS investor or customer, (b) current

or former BLMIS officers, employees, agents, or auditors (including Friehling & Horowitz), (c)

Madoff’s family members or associates, or (d) officers or employees of BLMIS “feeder funds,”

including those funds which have been named as defendants in other adversary proceedings, on

the other hand, concerning the BLMIS Ponzi scheme or Defendants.


The Trustee objects to this Request because it calls for Materials Prepared Post-


Documents.


23

REQUEST NO. 41

All reports, analyses, summaries, memoranda or opinions prepared by any law

enforcement, regulatory or other government or quasi-government agency, including the SEC,

FBI, DOJ or SIPC, concerning BLMIS.




Documents.



this Request are located in E-Data Room 1 and the Third-Party Data Rooms. The Trustee will

not search for and produce additional Documents in response to this Request.

REQUEST NO. 42

All transcripts of any testimony, deposition or interview taken in connection with this

SIPA Liquidation, including any deposition taken in any adversary proceeding or taken pursuant

to Rule 2004 of the Federal Rules of Bankruptcy Procedure.




Documents.


Cumulative, and Marginally Relevant Documents (Objection No. 2). Depositions and Rule 2004

examination transcripts are in the Third-Party Data Rooms. The Trustee will not search for and

produce additional Documents in response to this Request.


24

REQUEST NO. 43

All transcripts or notes of any testimony, deposition, or interview of Madoff or other

former BLMIS officers, employees, or agents concerning BLMIS.




Documents.



The Trustee is in possession of one transcript of a deposition of Bernard Madoff, and will

produce that transcript. In addition, the criminal plea allocutions of Madoff, Frank DiPascali,

Irwin Lipkin and David Kugel are in E-Data Room 1. The Trustee will produce pleas and

allocutions as requested in Request No. 13 by January 15, 2016.

REQUEST NO. 44

All subpoenas or other formal or informal requests for documents issued by the Trustee

pursuant to Rules 2004 or 9016 of the Federal Rules of Bankruptcy Procedure, Rule 45 of the

Federal Rules of Civil Procedure, or otherwise.



December 11, 2008 (Objection No. 1), and on the ground that the Trustee’s subpoenas or

requests for Documents are not relevant to the claims or defenses in this proceeding. The

Trustee will not search for, review, or produce such Documents.

REQUEST NO. 45

All documents received from the New York Attorney General concerning Defendants.


25


There are no responsive Documents to this Request.

REQUEST NO. 46

All documents on which the Trustee relied in preparing all prior complaints to the

Complaint in this adversary proceeding.




Documents.

Responsive documents are in the Third-Party Data Rooms, including Documents

produced by FIM Advisers LLP, Tremont, the Kingate Funds, and the SEC. All other responsive

Documents have been produced in the Kingate Core Account Documents or Kingate Bank

Account Documents, or will be included in the Trustee’s production to be made by January 15,

2016.

REQUEST NO. 47

All documents on which the Trustee relied in preparing the Complaint.



REQUEST NO. 48

All documents supporting, refuting, or otherwise concerning the allegation in paragraph

93 of the Complaint that “[t]he Kingate Funds were part of BLMIS’s expansion to European

investors.”


26




REQUEST NO. 49


120 of the Complaint that “a fund manager’s persistent refusal to meet investors ... prompted

FIM to recommend liquidating the holdings with the fund manager.”



produce Documents accordingly. Responsive documents in the Third-Party Data Rooms include

documents produced by FIM Advisers LLP. In addition, the Trustee will produce a Document

that is excluded from the Third-Party Data Rooms by the Third-Party Data Room Order.

REQUEST NO. 50


127 of the Complaint that “FIM recommended liquidating an investment that its analysts

described as ‘too good to be true’ and had ‘a limited downside’ that made them feel ‘uneasy.’”




REQUEST NO. 51


148 of the Complaint that “FIM compared the Kingate Funds’ performance against Standard &

Poor’s 500 Index (“S&P 500 Index”), which is highly correlated to the performance of the S&P

100 Index.”


27




REQUEST NO. 52


148 of the Complaint that “FIM also tracked the Kingate Funds’ results against the results of

other Madoff feeder funds, such as Fairfield Sentry and Tremont.”




REQUEST NO. 53


155 of the Complaint that “the options trading volume that BLMIS reported for the Kingate

Funds’ accounts alone exceeded the total number of OEX options traded on the Chicago Board

Options Exchange.”




Documents.



On November 12, 2015, the Trustee produced the Kingate Core Account Documents. In

addition, responsive Documents are in E-Data Room 1. Responsive Documents may also exist

in the Third-Party Data Rooms, including in the Chicago Board of Options Exchange production.


28

Other responsive Documents will be included in the Trustee’s production to be made by January

15, 2016. The Trustee will not search for or produce additional Documents in response to this

Request.

REQUEST NO. 54

All documents concerning Defendants’ knowledge that BLMIS traded OEX options on

the Chicago Board Options Exchange, and not in the over-the-counter market.




REQUEST NO. 55


163 of the Complaint that “In January 2000, Ceretti had information that BLMIS’s assets under

management were estimated at $10 billion.”




Documents.



Responsive documents are in the Third-Party Data Room, including documents produced

by FIM Advisers LLP, such as FADSAD0005861. The Trustee will not search for or produce



29

REQUEST NO. 56


167 of the Complaint that “Ceretti, Grosso, the Kingate Funds, the Management Defendants, and

Citi Hedge thus knew that BLMIS was purportedly trading over 70% of the shares of WFC

traded that day.”



produce Documents accordingly. In addition, responsive Documents are in E-Data Room 1.

REQUEST NO. 57


180 of the Complaint that “[t]he Kingate Funds’ account statements and trade confirmations

indicate that from 1998 to 2008, approximately 81% of equity buys occurred in the lower half of

the daily price range, and approximately 74% of equity sales occurred in the upper half of the

daily price range.”




REQUEST NO. 58


186 of the Complaint that “[o]n 126 occasions, the Kingate Funds’ account statements purported

to show gains resulting from transactions inconsistent with the SSC strategy.”





30

REQUEST NO. 59


188 of the Complaint that “[b]etween 1996 and 2008, Kingate Global and Kingate Euro

purportedly achieved gains over $136 million and $32 million, respectively, from such trades,

which were inconsistent with the SSC strategy.”




REQUEST NO. 60


192 of the Complaint that “[a]t least 555 of the 2,149 total options contracts reportedly executed

for the Kingate Funds between 1998 and 2008 settled outside the normal period of T+1.”



produce Documents accordingly. In addition, responsive Documents are in E-Data Room 1.

REQUEST NO. 61


209 of the Complaint that “[t]o execute the SSC strategy with at least $8 billion of assets under

management, BLMIS would have needed approximately $8 billion in notional value in call

options.”




Documents.


31


Cumulative, and Marginally Relevant Documents (Objection No. 2). Responsive Documents to

this Request are in E-Data Room 1. The Trustee will not search for or produce any additional


REQUEST NO. 62


212 of the Complaint that “[n]o experienced investor or financial institution ... would knowingly

accept the excessive risk of unidentified counterparties to options contracts.”




Documents.


Cumulative, and Marginally Relevant Documents (Objection No. 2). Responsive documents to

this Request are in E-Data Room 1. The Trustee will not search for or produce any additional


REQUEST NO. 63


222 of the Complaint that “Ceretti, Grosso, the Kingate Funds, the Management Defendants, and

Citi Hedge knew or willfully blinded themselves to the fact that BLMIS lacked the personnel

necessary to conduct research on the investment opportunities, execute the purported trades in

the IA Business, and manage the billions in assets it purportedly had under management.”


32




REQUEST NO. 64

All communications between BLMIS and any regulatory or government entity

concerning BLMIS’s lack of personnel “necessary to conduct research on the investment

opportunities, execute the purported trades in the IA Business, and manage the billions in assets

it purportedly had under management.”


The Trustee objects to this Request to the extent it calls for Documents that are not

relevant to the claims or defenses in this proceeding.

Paragraph 222 of the Amended Complaint, which is the source of the quote in the

Request, states that, “In light of their own experience and knowledge of the industry, the

knowledge acquired through frequent contacts with Madoff, people in his inner circle and

representatives of other funds investing with BLMIS, and visits to the IA Business premises,

Ceretti, Grosso, the Kingate Funds, the Management Defendants, and Citi Hedge knew or

willfully blinded themselves to the fact that BLMIS lacked the personnel necessary to conduct

research on the investment opportunities, execute the purported trades in the IA Business, and

manage the billions in assets it purportedly had under management.” Paragraph 222 does not

refer to or implicate communications between BLMIS and any regulatory or government entity

regarding BLMIS’s lack of personnel. Responsive Documents may exist in E-Data Room 1

and/or the Third-Party Data Rooms. The Trustee will not search for or produce additional



33

REQUEST NO. 65

All communications between BLMIS and any regulatory or government entity

concerning whether “Friehling & Horowitz was adequately staffed, technically equipped,

professionally qualified, or otherwise capable of providing large-scale domestic and international

auditing services to BLMIS.”


The Trustee objects to this Request to the extent it calls for documents that are not

relevant to the claims or defenses. Responsive Documents may exist in the Third-Party Data

Room in the Friehling & Horowitz production and/or in E-Data Room 1. The Trustee will not

search for or produce additional Documents in response to this Request.

REQUEST NO. 66

All documents concerning Defendants’ knowledge that “Friehling & Horowitz had

avoided peer review since 1993 by representing that it did not perform any audit work.”




REQUEST NO. 67


239 of the Complaint that Madoff “inexplicably” did not charge management fees.




Documents.


34


Cumulative, and Marginally Relevant Documents (Objection No. 2). Responsive documents are

in E-Data Room 1. Responsive documents may also exist in the Third-Party Data Rooms. The

Trustee will not search for or produce additional Documents in response to this Request.

REQUEST NO. 68

All documents concerning any “undiscovered fraudulent transfers” alleged in the Eighth

Count of the Complaint.




Documents.



The Trustee will produce documents sufficient to establish undiscovered fraudulent

transfers upon discovery of them.

REQUEST NO. 69

All other documents upon which the Trustee may rely in support of any of its allegations

or claims set forth in the Complaint or in defense against any affirmative defense raised in any

answer filed by any of the Defendants.


The Trustee will produce responsive Documents by January 15, 2016.

REQUEST NO. 70

All documents produced to any other Defendant in this adversary proceeding, to the

extent not otherwise produced in response to the foregoing requests.


35



REQUEST NO. 71

All documents on which you intend to rely at trial.



REQUEST NO. 72


330 of the Complaint about “the Kingate Funds’ inequitable conduct.”




REQUEST NO. 73


330 of the Complaint that “[t]he Kingate Funds’ conduct ... resulted in injury to all customers

and creditors of the BLMIS estate, and conferred an unfair advantage on the Kingate Funds.”




REQUEST NO. 74

All documents, including all reports, analyses, or opinions prepared by any expert

retained by the Trustee, and who has submitted a report pursuant to Federal Rule of Civil

Procedure 26, concerning each and every allegation of the Complaint.


36


These Documents will be produced when required under Federal Rule 26.

REQUEST NO. 75

All expert reports submitted in connection with any adversary proceeding in this SIPA

Liquidation.


These Documents will be produced during expert discovery.

Date: December 7, 2015 BAKER & HOSTETLER LLP

New York, New York By: /s/ David J. Sheehan 45 Rockefeller Plaza New York, New York 10111 Telephone: (212) 589-4200 Facsimile: (212) 589-4201 David J. Sheehan

Email: [email protected] Geraldine E. Ponto Email: [email protected] Karin S. Jenson Email: [email protected] Michelle R. Usitalo Email: [email protected]

Attorneys for Irving H. Picard, Trustee for the substantively consolidated SIPA Liquidation of Bernard L. Madoff Investment Securities LLC and the estate of Bernard L. Madoff


EXHIBIT 13


1

Rex Lee

From: Lindsay Weber

Sent: Wednesday, March 30, 2016 4:40 PM

To: Ponto, Geraldine E.

Cc: Robert Loigman; Rex Lee; Sheehan, David J.; Zeballos, Gonzalo S.; Usitalo, Michelle R.

Subject: RE: Picard v. Ceretti, Adv. Pro. No. 09-01161 (SMB)

Gerry,

I write in response to your letter of March 28.

While you continue to demand documents from the Funds dated after May 9, 2009, you have not articulated a sound

basis for their production. Moreover, you say that, contrary to our March 21 letter, the Trustee has agreed to produce to

the Funds relevant, non-privileged documents for the period post-December 11, 2008. This statement is incorrect. In

response to nearly every one of the Funds' document requests, the Trustee has expressly refused to “search for, review,

or produce” documents dated after December 11, 2008. See responses to requests 1, 2, 3, 5, 6, 7, 8, 9, 10, 11, 12, 14, 15,

16, 17, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 46, 47, 48, 49, 50, 51, 52,

53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 66, 67, 68, 72, 73. Your assertion that the Funds’ post-liquidation documents are

relevant to matters at issue in these proceedings, while simultaneously claiming that the post-bankruptcy documents of

BLMIS are not, is, to use your word, unfounded.

Best,

Lindsay

Lindsay Weber

Associate

Quinn Emanuel Urquhart & Sullivan, LLP 51 Madison Avenue, 22nd Floor New York, NY 10010 212-849-7277 Direct 212-849-7000 Main Office Number 212-849-7100 FAX [email protected] www.quinnemanuel.com


From: Graham, Sonya [mailto:[email protected]]

Sent: Monday, March 28, 2016 2:54 PM


Cc: Robert Loigman <[email protected]>; Rex Lee <[email protected]>; Sheehan, David J.

<[email protected]>; Zeballos, Gonzalo S. <[email protected]>; Usitalo, Michelle R.

<[email protected]>

Subject: Picard v. Ceretti, Adv. Pro. No. 09-01161 (SMB)


2

Dear Ms. Weber:

Please see the attached correspondence from Ms. Ponto.

Sonya M. Graham Assistant to: Irving H. Picard Geraldine E. Ponto

45 Rockefeller Plaza New York, NY 10111-0100 T 212.847.2809 [email protected] bakerlaw.com

This email is intended only for the use of the party to which it is addressed and may contain information that is privileged, confidential, or protected by law. If you are not the intended recipient you are hereby notified that any dissemination, copying or distribution of this email or its contents is strictly prohibited. If you have received this message in error, please notify us immediately by replying to the message and deleting it from your computer. Any tax advice in this email is for information purposes only. The content of this email is limited to the matters specifically addressed herein and may not contain a full description of all relevant facts or a complete analysis of all relevant issues or authorities. Internet communications are not assured to be secure or clear of inaccuracies as information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete, or contain viruses. Therefore, we do not accept responsibility for any errors or omissions that are present in this email, or any attachment, that have arisen as a result of e-mail transmission.


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