Case 1:10-cv-00621-EJL -REB Document 74-1

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RICHARD H. GREENER, ISB # 1191 MONICA R. MORRISON, ISB #7346 GREENER BURKE SHOEMAKER P.A. Counselors and Attorneys at Law 950 West Bannock Street, Suite 900 Boise, ID 83702 Telephone (208) 319-2600 Facsimile (208) 319-2601 Email: rgreener@greenerlaw.com mmorrison@greenerlaw.com RICHARD A. ROTH, NYSB #1961036 (Admitted Pro Hac Vice) THE ROTH LAW FIRM, P.L.L.C. 295 Madison Avenue, 22nd Floor New York, NY 10017 Telephone (212) 542-8882 Facsimile (212) 542-8883 Email: rich@rrothlaw.com Attorneys for Defendants Alternate Energy Holdings, Inc., Donald L. Gillispie, Jennifer Ransom, and Relief Defendants Bosco Financial, LLC, and Energy Executive Consulting, LLC UNITED STATES DISTRICT COURT DISTRICT OF IDAHO SOUTHERN DIVISION SECURITIES AND EXCHANGE COMMISSION, Plaintiff, v. ALTERNATE ENERGY HOLDINGS, INC., DONALD L. GILLISPIE, and JENNIFER RANSOM, Defendants, BOSCO FINANCIAL, LLC, and ENERGY EXECUTIVE CONSULTING, LLC, Relief Defendants.

Case No. 1:10-cv-00621-EJL MEMORANDUM IN SUPPORT OF DEFENDANTS MOTION TO VACATE AND RESCHEDULE HEARING

MEMORANDUM IN SUPPORT OF DEFENDANTS MOTION TO VACATE AND RESCHEDULE HEARING - P.1 19211-001 (388208.doc)

Case 1:10-cv-00621-EJL -REB Document 74-1

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Defendants Alternate Energy Holdings, Inc. (AEHI), Donald L. Gillispie (Gillispie), and Jennifer Ransom (Ransom) and Relief Defendants Bosco Financial, LLC (Bosco) and Energy Executive Consulting, LLC (Energy Executive) (collectively Defendants), by and through their attorneys, The Roth Law Firm, PLLC and Greener Burke Shoemaker P.A., hereby submit this Memorandum in Support of Defendants Motion to Vacate and Reschedule the Hearing currently scheduled for July 18, 2011 for the pending Motion for Partial Summary Judgment. I. INTRODUCTION Pursuant to Local Rule 6.1(a), Defendants respectfully request that the pending motion for partial summary judgment, scheduled for July 18, 2011, be vacated due to continuing discovery disputes between the parties. Defendants and Plaintiff have conferred extensively by telephone, mail and email in good faith to resolve these disagreements, to no avail. II. FACTS By way of brief background, Defendants filed a motion for partial summary judgment on April 8, 2011 (the Motion). Thereafter, Plaintiff Securities and Exchange Commission (Plaintiff or the SEC) served a subpoena for the production of documents on Pillsbury Winthrop Shaw Pittman, LLP (Pillsbury), and noticed the deposition of a Pillsbury lawyer. In order to, among other things, give Defendants sufficient time to review such documents for privileged communications and create a privilege log (which is one hundred and sixty-three pages long), the parties stipulated, on or about April 26, 2011, to adjourn the return date to July

MEMORANDUM IN SUPPORT OF DEFENDANTS MOTION TO VACATE AND RESCHEDULE HEARING - P.2 19211-001 (388208.doc)

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18, 2011. In connection therewith, the Parties entered into a Stipulation and Order (the Stipulation) that adjourned the original return date to allow the SEC sufficient time in which to conduct discovery. Importantly, Plaintiff inserted a whereas clause in the Stipulation stating, WHEREAS the Commission wishes to avoid prejudice from lack of critical discovery in preparing its Responses to Defendants and Relief Defendants Motion for Summary Judgment. Subsequent to the Courts so-ordering of the Stipulation, Plaintiff served two additional subpoenas for the production of documents, one on Defendant AEHIs prior corporate counsel and the second on AEHIs present corporate counsel. As a result, on May 11, 2011, Defendants received over five thousand (5,000) additional pages of documents, which now must be reviewed for privileged information and to create privilege logs. The SEC has indicated to Defendants that it is in need of that information to oppose the Motion and to conduct discovery in connection with the Motion (See, Exhibit A). Disputes also continue between the parties regarding straightforward claims of attorney-client privilege. In addition, the SEC has requested from Pillsbury the metadata underlying its production and has made baseless claims of metadata destruction. Plaintiff seeks that information in advance of the deposition of the Pillsbury attorney who handled the matter. That deposition is scheduled for Thursday, May 19, 2011. Pillsbury is endeavoring to obtain that information but has still not produced it to us. Finally, this past Friday, May 13, 2011, the SEC stated in a letter that it does not believe all Pillsbury documents were produced to which it believes it is entitled. The SEC went on to explain that it is suffering prejudice as a result of not timely and fully having received all requested discovery prior to the Pillsbury deposition noticed for this Thursday, May 19, 2011.

MEMORANDUM IN SUPPORT OF DEFENDANTS MOTION TO VACATE AND RESCHEDULE HEARING - P.3 19211-001 (388208.doc)

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Yesterday (the very next business day after receiving the SECs May 13th letter), Defendants responded thereto stating that it was not our intention to cause any prejudice to the SEC, and in light of the still outstanding discovery, we wished to adjourn the current hearing date on the motion to allow the SEC additional time to conduct discovery (See, Exhibit B). Incredibly, the SEC rejected our proposal and stated that it wished to move forward with discovery in accordance with the prior stipulated dates notwithstanding its claim of prejudice (See, Exhibit C). In other words, despite Plaintiffs claims of prejudice, Plaintiff now refuses to mitigate any such alleged prejudice despite its opportunity to do so through simply agreeing to allow more time in which to conduct discovery. Respectfully, Plaintiff should not be permitted to refuse to mitigate any alleged prejudice and then argue in opposition to the motion that it has not had ample opportunity to conduct discovery. III. CONCLUSION In light of the still outstanding discovery, Defendants respectfully request that the July 18, 2011 hearing date be vacated and rescheduled thirty (30) days past the current hearing date or as soon thereafter as the Court is available so as to permit Plaintiff additional time to conduct discovery. Defendants also respectfully suggest that a conference call among the parties and the Court might expedite a resolution to this impasse. DATED this 17TH day of May, 2011. GREENER BURKE SHOEMAKER P.A.

/s/ Richard H. Greener RICHARD H. GREENER Attorneys for Defendants and Relief Defendants
MEMORANDUM IN SUPPORT OF DEFENDANTS MOTION TO VACATE AND RESCHEDULE HEARING - P.4 19211-001 (388208.doc)

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that on the 17TH day of May, 2011, a true and correct copy of the within and foregoing instrument was served upon: Securities and Exchange Commission Mark P. Fickes K.C. Allan Waldron David A. Berman Susan L. Lamarca Marc J. Fagel 4 Montgomery Street, 26th Floor San Francisco, CA 94104 Attorneys for Plaintiff Richard Roth The Roth Law Firm 295 Madison Avenue, Floor 22 New York, NY 10017 Attorney for Defendants and Relief Defendants U.S. Mail Facsimile: 1 (212) 542-8883 Hand Delivery Overnight Delivery Email: rich@rrothlaw.com; U.S. Mail Facsimile: 1 (415) 705-2501 Hand Delivery Overnight Delivery Email: fickesm@sec.gov; bermand@sec.gov; waldronk@sec.gov; lamarcas@sec.gov;

/s/ Richard H. Greener Richard H. Greener Monica R. Morrison

MEMORANDUM IN SUPPORT OF DEFENDANTS MOTION TO VACATE AND RESCHEDULE HEARING - P.5 19211-001 (388208.doc)