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Securities class action plaintiffs suing Tyco International Ltd. have added to the controversy surrounding Boies, Schiller & Flexner and a document production company by accusing Boies Schiller client Tyco of using the company to “dump” 77 million pages of mostly unresponsive discovery documents on them within the last few months. But the latest complaints also have put an earlier critic in an odd position. Cravath, Swaine & Moore, one of whose partners recently called the use of the document company, Amici, a “disaster” in another matter, is co-counsel to Tyco with Boies Schiller. Armonk, N.Y.-based Boies Schiller was co-founded by star litigator David Boies. Amici has attracted controversy because the company, which places documents in electronic databases to be used by parties in discovery, is partly owned by four of Boies’ children, three of whom are lawyers at his firm. The alleged conflict of interest created by the connection and the firm’s failure to disclose it were cited by former Boies Schiller client Adelphia Communications in its August request that the firm resign as its counsel. In documents filed Friday in federal court in New Hampshire, plaintiffs represented by Milberg, Weiss, Bershad & Schulman, called Tyco’s discovery conduct sanctionable and said the “egregiousness of Tyco’s document dump is further compounded by the previously undisclosed relationship between the family of [senior Boies Schiller partner] David Boies and Amici.” The plaintiffs also complained about the expense of using Amici, estimating the ultimate cost of obtaining documents from Tyco would be close to $4 million, of which they claimed $3.3 million would go to Amici. The filings, which include the plaintiff’s agenda for a discovery conference scheduled for Tuesday, in many ways echo a letter written last month by Cravath partner Max Shulman, who is representing accounting firm Deloitte & Touche in litigation adverse to Adelphia. On Sept. 6, Shulman wrote Southern District Bankruptcy Judge Robert Gerber, who is overseeing Adelphia’s Chapter 11 bankruptcy, to similarly complain about his client being “vastly overcharged” by Amici. He said the charges included those associated with “hundreds of thousands (perhaps even millions) of pages of useless, irrelevant documents that Boies Schiller has dumped onto Amici.” Shulman also called Amici’s service “substandard” and said it was “particularly irritating” that members of the Boies family were enriched by the company. In response to Shulman’s letter, Boies Schiller partner Philip Korologos wrote to Judge Gerber that Shulman was engaging in a “smear campaign” designed to draw attention from his weak case. But the Tyco securities plaintiffs, using the Cravath partner’s words against his firm, said, “Mr. Shulman’s letter may again be prophetic in this case.” In a Sept. 29 letter to Milberg Weiss partner Paul Young, Cravath partner Stephen Madsen rejected the Tyco plaintiffs’ discovery complaints. He said the large production resulted from the breadth of the plaintiffs’ own discovery requests. He also said the database of documents was easily searchable. Madsen also defended the cost structure of the document production as appropriate and said Tyco had gone “out of its way” to satisfy the plaintiffs in the discovery process. “In light of Tyco’s efforts, you do not have any reasonable basis for complaining,” he wrote.

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