27 September 2002 – Two separate motions have been filed in US courts this week aimed at bringing into the public arena documents related to the Enron fraud.
As a preliminary step to conducting discovery in the Enron shareholders’ class action suit, the University of California filed a motion in federal court Tuesday to oppose any efforts by defendants to keep documents hidden from the public under the cloak of confidentiality claims. Thursday, a separate motion was filed jointly with a number of defendants to establish the protocol for access to the Enron document depository, which is expected to house as many as 20 million documents in the coming months.
Both motions were filed in the US District Court for the Southern District Court of Texas in Houston.
“In light of the singular importance of this case for investors, pension funds, class members, business leaders, historians, journalists, policy makers and regulators, it is essential that these groups have full access to these proceedings,” said James E. Holst, UC’s general counsel. “The facts behind Enron’s collapse have broad ramifications of the greatest public importance and should not be kept hidden from public view.”
The protocol determines what documents are maintained in the depository, the proper format for the documents, and the parties who may have access to them. Access to the document depository is limited to the parties in the Enron securities and 401(k) cases. The depository will not be directly open to reporters and individual members of the public; however, if UC’ s motion regarding confidentiality is granted, the content of documents may be disclosed in court pleadings and designated interested parties, such as attorneys in the case, may communicate this information to the public.
Judge Melinda Harmon ordered the creation of the document depository on February 28, 2002. Lex Solutio, a Phoenix-based document management company, has been contracted to serve as the depository’s administrator.
“The members of the class we represent have a particular interest in monitoring and evaluating the prosecution of this case,” Holst said. “They cannot do so if they do not have access to the facts.” The losses of the plaintiffs in the shareholders class action, who purchased Enron equity and debt securities between October 19, 1998, and November 27, 2001, are estimated at more than $25bn.
“This case is ultimately about a spectacular failure of public disclosure — disclosure that is the very purpose of the securities laws,” said William S. Lerach, a partner with the firm of Milberg, Weiss, Bershad, Hynes & Lerach, the lead counsel for the Enron shareholder plaintiffs. “It would be ironic and perverse if public disclosure were to be blocked in this litigation.”
In April, the University of California, as the lead plaintiff in the shareholders lawsuit, filed a consolidated complaint, adding nine financial institutions, two law firms and other new individual defendants to a list that already included 29 current and former Enron executives and the accounting firm of Arthur Andersen LLP.
The complaint names J. P. Morgan Chase, Citigroup, Merrill Lynch, Credit Suisse First Boston, Canadian Imperial Bank of Commerce (CIBC), Bank America, Barclays Bank, Deutsche Bank and Lehman Brothers as key players in the Enron scheme. Two law firms were also added to the list of defendants because of their significant and essential involvement in the fraud — Enron’s Houston-based corporate counsel Vinson & Elkins, as well as Chicago-based Kirkland & Ellis, which Enron used to represent a number of so-called “special purpose entities.”
A copy of the motions and background materials are available online at https://ucop.edu/news/enron.