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EXHIBIT 6
GIBSON, DUNN & CRUTCHER LLP
WAYNE W. SMITH, SBN 054593
JOSEPH P. BUSCH, III, SBN 070340
RAFFAELE G. FAZIO, SBN 185378
4 Park Plaza, Suite 1400
Irvine, California 92614-8557
(714) 451-3800
DAVIS POLK & WARDWELL
459 Lexington Avenue
New York, NY 10017
(212) 450-4000
Attorneys for Plaintiff
EMERITUS CORPORATION
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF ORANGE
EMERITUS CORPORATION,
Plaintiff,
v.
ARV ASSISTED LIVING, INC., a California corporation; DAVID P. COLLINS, an
individual; JOHN A. BOOTY, an individual; R. BRUCE ANDREWS, an individual; JAMES
M. PETERS, an individual; MAURICE J. DeWALD, an individual; JOHN J. RYDZEWSKI,
an individual; ROBERT P. FREEMAN, an individual; KENNETH M. JACOBS, an
individual; MURRY N. GUNTY, an individual; and HOWARD G. PHANSTIEL, an
individual.
Defendants.
CASE NO. 787788
ASSIGNED FOR ALL PURPOSES TO JUDGE THOMAS N. THRASHER, DEPT. 13
STIPULATION PURSUANT TO SECTION 2021 OF THE CODE OF CIVIL PROCEDURE MODIFYING
DISCOVERY PROCEDURES
Date of Filing
This Action: December 9, 1997
Trial date: None Set
The parties hereto, by and through their respective attorneys of record, enter
into this stipulation based on the following facts and circumstances:
1. On December 9, 1997, Plaintiff Emeritus Corporation ("Plaintiff")
filed this action, and served Defendants herein.
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2. On December 9, 1997, and prior to noon on that day, counsel for
Emeritus gave notice of the intent of Emeritus to seek ex parte an order
shortening time within which to conduct discovery and for an order preserving
certain documents.
3. On December 9, 1997, Emeritus announced its intention to file a
motion for preliminary injunction on or before January 7, 1998, to be heard on
the Court's regular law and motion calendar on January 22, 1998. With a hearing
on January 22, 1998, and pursuant to Local Rule 520, the briefing schedule will
be as follows:
a. The motion for preliminary injunction and papers in support of
said motion shall be filed and served by personal delivery on or before
January 7, 1998;
b. The papers in opposition to said motion shall be filed and
served by on or before January 15, 1998; and
c. The reply papers in support of said motion shall be filed and
served by on or before January 20, 1998.
4. At least three of the prospective deponents noticed by Emeritus have
travel plans that prevent them from being present during the period from
December 20, 1997, through and including January 2, 1998.
5. The parties are negotiating in good faith regarding the form and
content of a protective order to be entered in this action.
6. The parties have reached an agreement on the ex parte relief sought
by Emeritus.
Based on the foregoing, the parties stipulate as follows:
1. Emeritus will, and hereby does, serve its First Request for
Production of Documents to Defendants (the "First Request").
2. Defendants waive the provisions of Section 2031(b) of the
California Code of Civil Procedure, and agree to produce documents in response
to the First Request on December 16, 1997, at the Orange County offices of
Gibson, Dunn & Crutcher, subject to the following terms and conditions:
a. Defendants' stipulation to this paragraph 2 shall be without
prejudice to any other evidentiary objection that they might otherwise
be entitled to assert; and
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b. The parties have reached an agreement on the form and content
of a protective order for this matter.
3. Emeritus will, and hereby does, serve its Notice of Depositions on
Defendants.
4. Defendants waive the provisions of Section 2025(b)(2) of the
California Code of Civil Procedure, and agree to produce Messrs. Freeman and
Rydzewski for their depositions at the times, dates and places indicated, or at
such other times pursuant to an agreement of the parties.
5. Emeritus agrees that the depositions of Messrs. Freeman and Rydzewski
will be completed on the dates commenced, and that Messrs. Freeman and Rydzewski
will be free to take their previously scheduled trips as long as the depositions
are completed by or before January 5, 1998.
6. Emeritus and Defendants agree that the times, dates and places
noticed for the depositions of Messrs. Booty and Davidson are subject to change,
and that Emeritus will accommodate the needs of the witnesses, counsel for the
Defendants, and counsel for the witnesses as long as the depositions are
completed by on or before January 5, 1998.
7. Emeritus will notify Defendants of the identity of the last person
sought to be deposed by Emeritus by not later than December 19, 1997, after
Emeritus has had an opportunity to review the documents produced by Defendants
on December 16, 1997. Upon the identification of that individual, Defendants
will use best efforts to produce that individual for deposition by on or before
January 5, 1998.
8. Defendants agree to use best efforts, including requesting brokers
and others in possession of relevant information, to preserve documents and
records reflecting the identity of shareholders of ARV as of November 14, 1997
and December 1, 1997.
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9. The parties agree that any papers filed in support of, in opposition
to, or in reply to any motion for a preliminary injunction by Emeritus to be
heard on January 22, 1998, shall be personally served on the day of filing to
counsel for the opposite side at said counsel's offices in Orange County.
DATED: December 11, 1997
GIBSON, DUNN & CRUTCHER LLP
WAYNE W. SMITH
JOSEPH P. BUSCH, III
RAFFAELE G. FAZIO
DAVIS POLK & WARDWELL
MICHAEL P. CARROLL
JAMES H. R. WINDELS
By: /s/ RAFFAELE G. FAZIO
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Raffaele G. Fazio
Attorneys for Plaintiff EMERITUS
CORPORATION
DATED: December 11, 1997
LATHAM & WATKINS
H. STEVEN WILSON
R. BRIAN TIMMONS
By: /s/ R. BRIAN TIMMONS
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R. Brian Timmons
Attorneys for Defendants ARV ASSISTED
LIVING, INC., DAVID P. COLLINS, JOHN A.
BOOTY, R. BRUCE ANDREWS, JAMES M. PETERS,
MAURICE J. DeWALD, JOHN J. RYDZEWSKI,
ROBERT P. FREEMAN, KENNETH M. JACOBS,
MURRY N. GUNTY, and HOWARD G. PHANSTIEL
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DECLARATION OF SERVICE BY FACSIMILE
I, Tara L. Hill, declare as follows:
I am employed in the County of Orange, State of California; I am over
the age of eighteen years and am not a party to this action; my business address
is 4 Park Plaza, Irvine, California 92614, in said County and State; I am
readily familiar with Gibson, Dunn & Crutcher LLP's practice in its
above-described Irvine office for telecopying documents; pursuant to that
practice, documents to be telecopied are placed for collection at a designated
location during designated hours and are telecopied that same day in the
ordinary course of business; on the 12th day of December, 1997, I caused to be
telecopied the attached:
STIPULATION PURSUANT TO SECTION 2021 OF THE CODE OF CIVIL
PROCEDURE MODIFYING DISCOVERY PROCEDURES
by telecopying a copy to each of the persons named below at the address and
telecopier number shown on:
SEE ATTACHED SERVICE LIST
William J. Cernius
R. Brian Timmons
LATHAM & WATKINS
650 Town Center Drive, 20th Floor
Costa Mesa, CA 92626
(714) 540-1235
(714) 755-8290 Facsimile
I declare under penalty of perjury that the foregoing is true and correct
and that this Declaration was executed on this 12th day of December, 1997, at
Irvine, California.
/s/ TARA L. HILL
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Tara L. Hill