IN THE UNITED STATES BANKRUPTCY COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

RICHMOND DIVISION

VCLF’S MOTION TO COMPEL DEPOSITIONS

Virginia Conservation Legacy Fund, Inc. and ERP Compliant Fuels, LLC (collectively, 

“VCLF”), through undersigned counsel, respectfully submits this Motion to Compel Depositions

(the “Motion”).

In re:

PATRIOT COAL CORPORATION, et al.,

Debtors.

Chapter 11

Case No. 15-32450 (KLP)

Jointly Administered

BLACK DIAMOND COMMERCIAL FINANCE, LLC,

Plaintiff,

v.

VIRGINIA CONSERVATION LEGACY FUND, INC. and 

ERP COMPLIANT FUELS, LLC,

Defendants.

Adv. Proc. No. 16-03105 (KLP)

VIRGINIA CONSERVATION LEGACY FUND, INC. and 

ERP COMPLIANT FUELS, LLC,

Counterclaim-Plaintiffs,

v.

BLACK DIAMOND COMMERCIAL FINANCE, LLC,

Counterclaim-Defendant.

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Statement of Position

As the Court knows, the dispute between VCLF and Black Diamond Commercial 

Finance, LLC (“Black Diamond”) boils down to whether (a) there is any merit to Black 

Diamond’s factual contention that, prior to October 23, 2015, VCLF solicited financing to close 

on its purchase commitment with the Debtor Patriot Coal Corporation, as an alternative to the 

September 21, 2015 Commitment Letter entered into by the parties, and (b) Black Diamond’s 

acts and omissions, culminating with its October 23, 2015 unilateral changes to (and repudiation 

of) the Commitment Letter, constitute a breach of the Commitment Letter. After nearly two 

years of litigation, and no evidence to support the positions it takes, Black Diamond continues its 

blatant and brazen strategy of (a) avoiding any meaningful discussion with the Court (or VCLF)

on the merits of its claims that VCLF breached the Commitment Letter during the 35-day 

relationship between the parties by soliciting alternative closing financing prior to October 23, 

2015, and (b) engaging in vexatious litigation aimed at delay, including collateral litigation over 

alleged document discovery disputes (which is resulting in increased legal fees beyond reason).

Now, Black Diamond seeks to avoid VCLF taking fact depositions of the individuals who 

presumably have knowledge of the facts underlying Black Diamond’s Complaint and related 

allegations. No legally cognizable basis exists for allowing Black Diamond to avoid being 

deposed. Consequently, the Court must order Black Diamond and affiliated witnesses to appear 

in accordance with VCLF’s duly-issued deposition notices and, where required, subpoena.

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Factual Background

1. On or about September 7, 2017, VCLF issued and served deposition notices (and,

where appropriate, a subpoena) to depose the following Black Diamond representatives on the 

corresponding dates:1

Hugo Gravenhorst September 19, 2017

Steven Deckoff October 2, 2017

Adam Harris October 10, 2017

Richard Ehrlich October 17, 2017

Rashid Lattouf October 24, 2017

2. During the week of September 11, 2017, VCLF and Black Diamond participated 

in a number of meet-and-confers in connection with VCLF’s deposition notices, and exchanged a 

number of emails on the topic of scheduling depositions. Indeed, based on the strength of 

statements from Black Diamond’s counsel made on September 14, 2017, that (1) the deposition 

of Mr. Gravenhorst would occur without incident on October 10, 2017, in New York City;

(2) Messrs. Ehrlich and Lattouf would be produced for depositions on or near October 17 and 24, 

2017, respectively; (3) Mr. Harris—a partner at Schulte Roth & Zabel, LLP, Black Diamond’s 

bankruptcy counsel in connection with the above-captioned chapter 11 case—would be produced 

for deposition during the last three weeks of October 2017; and, (4) subject to a further call with 

Mr. Deckoff, he too would be produced for deposition during October 2017 (or maybe the first 

week in November 2017), VCLF agreed to adjourn Mr. Gravenhorst’s deposition, originally 

scheduled for today, to October 10, 2017, to maintain the deposition dates of Messrs. Ehrlich and 

Lattouf on their duly-noticed dates of October 17 and 24, respectively, and to adjourn the 

depositions of Messrs. Harris and Deckoff within the scheduling constraints set forth above (viz., 

 1 With the exception of Mr. Harris, each of these witnesses is an officer, director, or managing agent for Black 

Diamond.

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some point within the last three weeks of October for Mr. Harris, and some point within the last 

three weeks of October or the first week of November for Mr. Deckoff) once specific dates were 

set. Black Diamond’s counsel also confirmed that, with the exception of Mr. Harris, Messrs. 

Deckoff, Ehrlich, Lattouf, and Gravenhorst would be produced on the strength of the notices to 

Black Diamond alone, without the necessity of having subpoenas issued and served.

3. Other than finalizing a date for Mr. Deckoff, therefore, it is fair to say that, prior 

to last Friday evening, September 15, 2017, VCLF believed that all other deposition dates had 

been agreed to by Black Diamond.

4. Apparently having a change of heart (or perhaps a client that disagrees with its 

legal counsel), last Friday evening, the undersigned received an email from Black Diamond’s 

counsel making clear that no Black Diamond witnesses will appear for depositions absent order 

of the Court.

Argument

5. VCLF is entitled to move expeditiously to depose Black Diamond’s fact 

witnesses.

6. The fact that VCLF has moved for partial summary judgment (ECF Doc. No. 

132) is of no legal relevance, notwithstanding statements by Black Diamond’s counsel to the 

contrary. Nothing in the Federal Rules prevents a party from taking depositions simultaneously 

with moving for partial summary judgment.

7. Black Diamond also has suggested to VCLF that its fact witnesses cannot be 

deposed absent the receipt of all documents that Black Diamond contends it is entitled to receive

from VCLF and its financial advisor (Teneo) and affiliate (Iron Management). In other words, 

Black Diamond is seeking to delay the progress of this litigation until after its recently filed 

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(meritless) motion for sanctions relating to documents withheld or redacted by VCLF as 

privileged is resolved. This argument is specious. The purpose of deposing Black Diamond’s 

witnesses is to learn their understanding of the facts that form the basis of the entirety of Black 

Diamond’s claims. Black Diamond’s witnesses either know the facts that they will be asked 

during the course of a deposition, or they do not. Documents that they have never seen and 

otherwise do not possess cannot be even a remotely necessary predicate to them testifying about 

their personal factual understandings about what happened during a 35-day period in 2015.

8. Furthermore, VCLF’s plan is not to examine any Black Diamond witness more 

than once. If there is some risk associated with document production versus the timing of VCLF 

taking these depositions, that risk falls on VCLF. Absent foul play by Black Diamond, VCLF 

will not get a second bite at the apple to depose these witnesses. Thus, any allegation by Black 

Diamond that the depositions should be postponed to avoid “duplication,” must be scrutinized

and rejected by the Court.

9. These and other arguments made by Black Diamond to put off fact depositions of 

their witnesses must be viewed for what they are—meritless efforts to stall and delay these 

proceedings.

Certification

10. Pursuant to Rule 37 of the Federal Rules of Civil Procedure (as made applicable 

herein by Rule 7037 of the Federal Rules of Bankruptcy Procedure) and Local Bankruptcy Rule 

7026-1(H), the undersigned certifies that it has in good faith conferred with Black Diamond’s

counsel in an effort to resolve this matter without Court action. On September 14, 2017, VCLF 

asked Black Diamond to confirm the deposition schedule set forth above, but Black Diamond 

failed to do so, despite its prior representations. On September 15, 2017, Black Diamond’s 

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counsel affirmatively refused to proceed with the depositions unless directed to do so by the 

Court, as set forth above.

Memorandum Requirement

11. Local Bankruptcy Rule 9013-1(G) requires a memorandum with every motion 

except those listed in subparagraph (2). The memorandum may be combined with the motion 

pursuant to subparagraph (1). VCLF exercises its right to combine the memorandum with this 

Motion.

Conclusion

WHEREFORE, for the foregoing reasons, for the reasons that will be articulated at any 

hearing on this matter, and for such reasons as the Court deems appropriate, VCLF requests that 

the Court enter an order compelling Black Diamond witnesses to appear at the duly-noticed (and 

otherwise subpoenaed) depositions in this case.

Dated: September 19, 2017 /s/ Patrick J. Potter

McLean, Virginia Patrick J. Potter (VSB No. 39766)

PILLSBURY WINTHROP SHAW PITTMAN LLP

1650 Tysons Boulevard, Suite 1400

McLean, Virginia 22102-4856

Telephone: (703) 770-7900

Facsimile: (703) 770-7901

E-mail: patrick.potter@pillsburylaw.com

William M. Sullivan, Jr. (admitted pro hac vice)

PILLSBURY WINTHROP SHAW PITTMAN LLP

1200 Seventeenth Street, NW

Washington, DC 20036-3006

Telephone: (202) 663-8027

Facsimile: (202) 663-8007

E-mail: wsullivan@pillsburylaw.com

Andrew M. Troop (admitted pro hac vice)

Samuel S. Cavior (admitted pro hac vice)

Joshua I. Schlenger (admitted pro hac vice)

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PILLSBURY WINTHROP SHAW PITTMAN LLP

1540 Broadway

New York, New York 10036-4039

Telephone: (212) 858-1000

Facsimile: (212) 858-1500

E-mail: andrew.troop@pillsburylaw.com

Counsel to Virginia Conservation Legacy Fund, 

Inc. and ERP Compliant Fuels, LLC

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CERTIFICATE OF SERVICE

I hereby certify that, on September 19, 2017, I filed the foregoing Motion to Compel 

Depositions by uploading it to this Court’s CM/ECF system, which will send notification of such 

filing to all CM/ECF participants, and that I served a copy on opposing counsel of record in this 

adversary proceeding by e-mail and Federal Express overnight.

 /s/ Patrick J. Potter

 Patrick J. Potter

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