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There is some dispute about the timing of a related
development. Petitioner’s attorney N. Jerold Cohen called
respondent’s counsel on behalf of petitioner. Petitioner
contends that the telephone conversation left Mr. Cohen with the
impression that the parties would continue with informal
discovery. Mr. Cohen’s subsequent correspondence indicates that
he placed the call on June 11, 2002, the day before the response
to the Branerton letter was due. Respondent maintains that the
telephone conversation took place "a day or two" after June 14,
2002, the day respondent sent the formal discovery.
On June 17, 2002, Mr. Cohen wrote to respondent’s counsel.
Mr. Cohen questioned the scope of the requests made in the
Branerton letter and suggested that the case proceed to
respondent’s Appeals Office. Because other parties had engaged
in similar transactions, Mr. Cohen suggested exploring a "global"
settlement, and he proposed an informal conference during August
2002 between the parties’ representatives. Mr. Cohen did not
indicate in the June 17, 2002, letter whether he was then aware
of respondent’s formal discovery requests.
On June 19, 2002, respondent’s counsel replied, stating
that, although a conference is not a necessary predicate to
informal discovery, counsel nevertheless would "welcome a
telephonic conference any time you and Mr. Miller are available."
The June 19, 2002, letter further stated, however: "We do expect
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