Case 0:09-cv-60136-PAS Document 645 Entered on FLSD Docket 06/27/2012 Page 1 of 5

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 09-60136-CIV-SEITZ/SIMONTON LEOR EXPLORATION & PRODUCTION LLC, PARDUS PETROLEUM LLC, and WILLIAM NATBONY, as Trustee of the Dafna Kaplan 2003 Eight-Year Grantor Retained Annuity Trust and Thomas Kaplan 2004 Ten-Year Grantor Retained Annuity Trust, Plaintiffs, v. GUMA AGUIAR, Defendant. / PLAINTIFFS MOTION FOR ORDER PRESERVING ELECTRONIC DATA AND COMMUNICATION DEVICES Plaintiffs move on an expedited basis for the entry of an order directing Defendant, Guma Aguiar (Aguiar), and third parties, Ellen Aguiar, America Online and AT&T, to (a) preserve the electronic data and communications (hereinafter, electronic data) associated with Aguiars and Ellen Aguiars cellular telephone numbers/accounts and email accounts and (b) secure the devices (including computers and cellular telephones) on which electronic data is stored. Plaintiffs request for preservation is limited to electronic data created on or after April 1, 2012. Memorandum of Law 1. On or about June 19, 2012, Aguiar disappeared under suspicious circumstances

after taking his boat out into the Atlantic Ocean. See Motion to Stay Proceedings and Request for Status Conference (D.E. 635). The parties remain hopeful that Aguiar is alive. Aguiars mother, Ellen Aguiar, has indicated that she believes he may be alive but in a psychotic state. 2. The parties and the Court have an interest in determining Aguiars whereabouts

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and the circumstances surrounding his disappearance. Accordingly, it is essential that any electronic data relating to Aguiars disappearance, including any electronic communications between Aguiar and Ellen Aguiar, be preserved. It is equally important to sequester any

telephone or computer devices on which electronic data is stored. The Courts inherent authority permits it to enter a preservation order directed to Aguiar, Ellen Aguiar, their cellular service providers, and their email service providers. See, e.g., United Medical Supply Co., Inc. v. United States, 73 Fed. Cl. 35, 36-37 (2006) (recognizing a federal courts inherent authority to enter preservation orders). Absent a preservation order, relevant electronic data will be inaccessible if it is deleted or erased in the ordinary course of events by the service providers or the Aguiars. 3.. In the alternative, Plaintiffs request leave of Court to serve subpoenas duces

tecum requiring Ellen Aguiar, AT&T and America Online to preserve the pertinent electronic data and hardware pending a further order from this Court. See Gervis v. Berg, 2005 WL 3299436, *2-3 (E.D.N.Y. Nov. 29, 2005) (noting that it is not uncommon for courts to grant a plaintiff leave to issue subpoenas that give specified third parties notice of the action and impose upon them a duty to preserve certain relevant evidence in their possession) (citation omitted); In re Grand Casinos, 988 F. Supp. 1270, 1273 (D. Minn. 1997) (plaintiffs granted leave to issue subpoenas to third parties imposing upon them a duty to preserve evidence pending further court order). 4. A preservation order will not create any burden, let alone an undue burden, on

Aguiar or any of the third parties. It simply requires that they refrain from deleting or destroying evidence that may be relevant in this action. 1 WHEREFORE, Plaintiffs respectfully request Court to enter an order directing Aguiar,
1

Any issues concerning the discoverability of, or the applicability of a privilege to, the electronic data can be addressed when the electronic data is produced. 2

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Ellen Aguiar, America Online, and AT&T and their representatives, agents and attorneys to (a) preserve the electronic data associated with Aguiars and Ellen Aguiars cellular telephone numbers/accounts and email accounts and (b) secure the devices (including computers and cellular telephones) on which electronic data is stored. Alternatively, the Court is requested to authorize Plaintiffs to serve subpoenas duces tecum on Ellen Aguiar, America Online, and AT&T to preserve all the pertinent electronic data and the devices on which such data is stored pending a further order of this Court. Plaintiffs further respectfully request the grant of such other relief as the Court deems just and proper. Dated: June 27, 2012 s/ Brian J. Stack Brian J. Stack, Esq. Email: bstack@stackfernandez.com Stack Fernandez Anderson & Harris, P.A. 1200 Brickell Avenue Suite 950 Miami, Florida 33131 Tel. (305) 371-0001 Fax. (305) 371-0002 Stephen M. Rathkopf, Esq. Email: srathkopf@herrick.com Marisa A. Leto, Esq. Email: mleto@herrick.com Herrick, Feinstein LLP 2 Park Avenue New York, NY 10016 Tel. (212) 592-1415 Fax. (212) 545-3444 Attorneys for William Natbony, as Trustee of the Dafna Kaplan 2003 Eight-Year Grantor Retained Annuity Trust and the Thomas Kaplan 2004 Ten-Year Grantor Retained Annuity Trust Respectfully submittted, Harley S. Tropin, Esq. Email: hst@kttlaw.com Thomas A. Tucker Ronzetti, Esq. Email: tr@kttlaw.com Kozyak Tropin & Throckmorton, P.A. 2525 Ponce de Leon Boulevard, 9th Floor Coral Gables, Florida 33134 Tel. (305) 372-1800 Fax. (305) 372-3508 Michael Carroll, Esq. Email: michael.carroll@davispolk.com Frances Bivens, Esq. Email: frances.bivens@davispolk.com Jonathan Martin, Esq. Email: jonathan.martin@davispolk.com Lara Samet, Esq. Email: lara.samet@davispolk.com Davis Polk & Wardwell, LLP 450 Lexington Avenue New York, NY 10017 Tel. (212) 450-4351 Fax. (212) 701-5351 Jonathan B. Rubenstein, Esq. Email: jonathan.rubenstein@bakerbotts.com Baker Botts L.L.P. 2001 Ross Avenue

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Dallas, Texas 75201 Tel. (214) 953-6594 Fax. (214) 661-4594 Attorneys for Leor Exploration & Production LLC, Pardus Petroleum L.P., Pardus Petroleum LLC, and William Natbony, as Trustee of the Dafna Kaplan 2003 Eight-Year Grantor Retained Annuity Trust and the Thomas Kaplan 2004 Ten-Year Grantor Retained Annuity Trust

CERTIFICATE OF COMPLIANCE WITH S.D. FLA. L.R. 7.1(a)(3) Counsel for Plaintiffs conferred with counsel for Defendant before filing this motion in a good faith effort to resolve the issues raised therein. Counsel for Defendant have stated that they are assessing whether they will consent to or oppose the relief requested. s/ Brian J. Stack Brian J. Stack

CERTIFICATE OF SERVICE I hereby certify that on June 27, 2012, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this day on all counsel of record or pro se parties identified on the attached Service List in the manner specified, either via transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized manner for those counsel or parties who are not authorized to receive electronically Notices of Electronic Filing. s/ Brian J. Stack Brian J. Stack

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SERVICE LIST Leor Exploration & Production LLC, et al. v. Aguiar, Case No. 09-60136-CIV-SEITZ/SIMONTON United States District Court, Southern District of Florida Alan M. Dershowitz, Esq. 26 Reservoir Street Cambridge, Massachusetts 02138 Email: dersh@law.harvard.edu (via CM/ECF) Kendall Coffey, Esq. Email: kcoffey@coffeyburlington.com Coffey Burlington 2699 South Bayshore Drive Miami, Florida 33133 Tel: 305-858-2900 Fax: 305-858-5261 (via CM/ECF)