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Date: Tue, 27 Nov 2001 13:29:04 -0800 (PST)
From: britt.davis@enron.com
To: andrew.edison@enron.com, b..sanders@enron.com
Subject: RSM v. El Paso
Cc: charles.cheek@enron.com, robert.vote@enron.com, lisa.robichaux@enron.com, 
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=09This will update you on the matters discussed during the joint defense c=
onference call held this afternoon:

=091.  One defendant group has approached the plaintiff's lead attorney reg=
arding a non-suit prior to the December 5 deadline for moving, answering or=
 otherwise pleading, but has heard nothing.  Others intend to do so before =
December 5 as well.  I am trying to quickly wrap up my due diligence on Int=
ratex, and once that is done, plan to approach the plaintiffs for a non-sui=
t of at least Enron Corp. and, depending on the results of the due diligenc=
e, on Intratex as well.  EGM has still not been served to our knowledge.

=092.  After discussion, counsel for the defendant holding companies have a=
greed to file on December 5 bare-bones motions to transfer venue to Harris =
County, with the intention of waiving them if plaintiffs appear disposed to=
 push back on them.  This is because of the problem I mentioned in my earli=
er e-mail today with a venue challenge opening the defendants up to discove=
ry on the merits of the "in concert" allegations.  I will be drafting a pro=
posed motion to transfer venue for at least Enron Corp., and will circulate=
 it among the defendants for them to use as a guide.  I may also draft a mo=
tion to sever (one is arguably necessary for a motion to transfer venue to =
be effective in a case like this), although it too would be bare-bones.  On=
e of the three required grounds for a motion to sever is that the severed a=
nd the remaining causes must not be so intertwined as to involve the same f=
acts and issues.  Accordingly, I see pursuing a motion to sever on behalf o=
f Enron Corp. to be highly problematic as well.   =20

=093.   All agreed to join in a motion to require Grynberg to show authorit=
y.  I have previously e-mailed you a draft prepared by F&J.  We see no down=
side to filing it and considerable upside, such as using it at least to blo=
ck discovery by Grynberg until it is resolved.  Please let me know if I hav=
e your authority to sign the motion.  It will be filed no earlier than Dece=
mber 6, and expressly subject to earlier-filed motions to transfer venue.

=094.  I will be working on a plea to the jurisdiction, answer, and affirma=
tive defenses to file on behalf of Enron Corp and Intratex, subject to any =
motion to transfer venue, and will circulate them to you for your review an=
d approval.  During the conference call, I raised the issue of adding a spe=
cial exception to the effect that the petition fails to state a claim, whic=
h is the proper procedural vehicle for what is essentially a Rule 12(b)(6) =
motion under the Texas Rules.  One attorney expressed concern that filing a=
 special exception could be viewed as somehow prejudicing a motion to trans=
fer venue.  As you can clearly raise a special exception later, we decided =
not to include a special exception in the pleadings we were filing on Decem=
ber 5.  We can always file it later.

=095.   On Friday, November 30, at 1:30 p.m ., there will be another joint =
defense conference call.  The discussion will be centered around whether La=
zaro was able to find any retainer agreement between the Zapata County Inde=
pendent School District and RSM (we only have a contract between Zapata Cou=
nty and RSM).  If Lazaro is unable to find a properly-filed contract, that =
may in itself be a breach of the Texas Open Meetings Act, and an additional=
 ground for our motion to challenge authority.

=09I will keep you advised.

=09Britt

=09   