Gilmur R. Murray, Esq. (#111856)
Derek G. Howard, Esq. (#118082)
Alex J. Luchenitser, Esq. (#177367)
THE MILLS LAW FIRM
300 Drake's Landing, Suite 155
Greenbrae, California 94904
Telephone: (415) 464-4770

Attorneys for Plaintiff Dwight E. Wininger
On Behalf of Himself and All Others Similarly Situated

The Proposed Pro-Plan Intervenors ignore that the Court denied their motion to intervene (except that the Court allowed the Proposed Pro-Plan Intervenors to intervene for the limited purpose of expressing their views with respect to class certification). Near the end of the February 6, 1998 hearing, attorney Bode asked the Court, "do the pro-plan plaintiffs, are they allowed intervention?" The Court replied, "Well, I'll allow intervention to the limited extent that I will hear from you on your views on class certification." Hearing transcript at 60. See also hearing transcript at 57 (plaintiff's counsel not required to show Proposed Pro-Plan Intervenors copy of proposed letter to limited partners).

Since the Proposed Pro-Plan Intervenors' motion to intervene was denied, it is not appropriate to place them on the service list. In addition, Civil L.R. 23-3, with which plaintiff (but not defendants) has been complying, requires most papers filed in this action to be promptly posted on a designated internet site. The Proposed Pro-Plan Intervenors are aware of this internet site -- they filed as an exhibit to one of their papers a copy of a brief which indicates that the copy was obtained from the internet site. See Declaration of William H. Bode in Support of Motion of Pro-Plan Intervenors to Intervene, dated December 22, 1997, Ex. D. Moreover, as a courtesy, plaintiff has been sending the Proposed Pro-Plan Intervenors copies of filings and letters which plaintiff believed would be of interest to them. Thus, the Proposed Pro-Plan Intervenors can stay informed about this action without the parties or the Court having to bear the burden of placing two additional law firms on the service list. Plaintiff will, of course, formally serve the Proposed Pro-Plan Intervenors with any filings that are part of class certification proceedings.

Plaintiff is concerned, however, that the Proposed Pro-Plan Intervenors have been repeatedly violating the Court's ruling on their intervention motion by filing papers that do not relate to class certification. Accordingly, plaintiff suggests that the Court issue an order prohibiting the Proposed Pro-Plan Intervenors from filing any additional papers (with the exception of the previously authorized brief responding to plaintiff's class certification motion) unless authorized by order of the Court.

In the event the Court does choose to add the Proposed Pro-Plan Intervenors to the service list, plaintiff requests that the Court not enter the proposed order submitted by the Proposed Pro-Plan Intervenors. This proposed order would require "all parties to serve" the Proposed Pro-Plan Intervenors with "the entire record herein." The record in this case is quite voluminous. And most of the papers plaintiff has filed are available through the internet. Therefore, requiring plaintiff to serve the Proposed Pro-Plan Intervenors with the entire record would impose an unfair burden upon plaintiff.

For the foregoing reasons, plaintiff respectfully requests that the Proposed Pro-Plan Intervenors' motion to be added to the service list be denied.

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