UNITED STATES DISTRICT COURT

DISTRICT OF PUERTO RICO

---------------------------------------------------------------x

In re:

THE FINANCIAL OVERSIGHT AND 

MANAGEMENT BOARD FOR PUERTO RICO,

as representative of 

THE COMMONWEALTH OF PUERTO RICO, et al.,

Debtors.1

---------------------------------------------------------------x

PROMESA

Title III

No. 17 BK 3283-LTS

(Jointly Administered)

Re: ECF No. 2223

 

1 The Debtors in these Title III Cases, along with each Debtor’s respective Title III case number and the last 

four (4) digits of each Debtor’s federal tax identification number, as applicable, are the (i) Commonwealth of Puerto 

Rico (Bankruptcy Case No. 17 BK 3283- LTS) (Last Four Digits of Federal Tax ID: 3481); (ii) Puerto Rico Sales Tax 

Financing Corporation (“COFINA”) (Bankruptcy Case No. 17 BK 3284-LTS) (Last Four Digits of Federal Tax ID: 

8474); (iii) Puerto Rico Highways and Transportation Authority (“HTA”) (Bankruptcy Case No. 17 BK 3567-LTS) 

(Last Four Digits of Federal Tax ID: 3808); (iv) Employees Retirement System of the Government of the 

Commonwealth of Puerto Rico (“ERS”) (Bankruptcy Case No. 17 BK 3566-LTS) (Last Four Digits of Federal Tax 

ID: 9686); and (v) Puerto Rico Electric Power Authority (“PREPA”) (Bankruptcy Case No. 17 BK 4780-LTS) (Last 

Four Digits of Federal Tax ID: 3747). (Title III case numbers are listed as Bankruptcy Case numbers due to software 

limitations).

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AD HOC GROUP OF GENERAL OBLIGATION

BONDHOLDERS, AMBAC ASSURANCE 

CORPORATION, ASSURED GUARANTY CORP.,

ASSURED GUARANTY MUNICIPAL CORP.,

THE MUTUAL FUND GROUP, AND NATIONAL

PUBLIC FINANCE GUARANTEE CORPORATION,

Movants, 

v.

THE FINANCIAL OVERSIGHT AND 

MANAGEMENT BOARD FOR PUERTO RICO,

as representative of THE COMMONWEALTH OF

PUERTO RICO, THE COMMONWEALTH OF 

PUERTO RICO, AND THE PUERTO RICO FISCAL

AGENCY AND FINANCIALADVISORY AUTHORITY,

Respondents. 

-------------------------------------------------------------------X

BRIEF OF THE OVERSIGHT BOARD, THE 

COMMONWEALTH AND AAFAF IN OPPOSITION TO MOVANTS’ DEMAND FOR 

PRODUCTION AND USE OF FISCAL PLAN DEVELOPMENT MATERIALS

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TABLE OF CONTENTS

INTRODUCTION...........................................................................................................................1

PROCEDURAL BACKGROUND .................................................................................................2

ARGUMENT ..................................................................................................................................3

I. MOVANTS’ ARGUMENTS REGARDING RESTRICTIONS ON USE 

OF INFORMATION IN THE DATA ROOM ARE PREMATURE..................................3

II. MOVANTS HAVE BROADENED THEIR REQUESTS...................................................4

III. MOVANTS’ DEMAND FOR PRODUCTION OF EVERY 

DOCUMENT CONCERNING THE FISCAL PLANS IS LEGALLY 

BASELESS AND CHILLS GOVERNMENTAL DELIBERATIONS ..............................5

IV. COMMUNICATIONS BETWEEN THE COMMONWEALTH AND 

OVERSIGHT BOARD IN DEVELOPING THE FISCAL PLANS ARE 

PROTECTED BY THE DELIBERATIVE PROCESS PRIVILEGE .................................7

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TABLE OF AUTHORITIES

Page(s)

CASES

Dep’t of Interior v. Klamath Water Users Protective Ass’n,

532 U.S. 1 (2001) ..........................................................................................................8

In re ACandS, Inc.,

Case No. 02-12687 (RJN) (Bankr. D. Del.) ..................................................................9

In re Combustion Engineering,

Case No. 03-10495 (JKF) (Bankr. D. Del.) (May 2 Tr. )..............................................9

In re Eagle-Picher Indus.,

169 B.R. 130 (Bankr. S.D. Ohio 1994) .........................................................................9

In re Pittsburgh Corning Corp.,

Case No. 00-22876 (JKF) (Bankr. W.D. Pa.) (Feb. 19 Tr. ) .........................................9

Judicial Watch, Inc. v. U.S. Dep’t of the Treasury,

796 F. Supp. 2d 13 (D.D.C. 2011).................................................................................8

Providence Journal Co. v. U.S. Dep’t of Army,

981 F.2d 552 (1st Cir. 1992)..........................................................................................7

Texaco P.R., Inc. v. Dep’t of Consumer Affairs,

60 F.3d 867 (1st Cir. 1995)............................................................................................8

W Holding Co. v. Chartis Ins. Co. of P.R.,

42 F. Supp. 3d 319, 324 (D.P.R. 2014) .........................................................................8

STATUTES

11 U.S.C. § 1123(a)(3) ........................................................................................................6

11 U.S.C. § 1128 .................................................................................................................6

48 U.S.C. §§ 2101–2241 .....................................................................................................1

Bankruptcy Code section 1123(a)(3)...................................................................................5

PROMESA § 201(c)............................................................................................................7

PROMESA § 201(d)............................................................................................................7

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PROMESA § 201(e)............................................................................................................7

PROMESA § 314(b)(6).......................................................................................................6

OTHER AUTHORITIES

F.R.C.P. 26(b)(1)...............................................................................................................10

F.R.C.P. 26(b)(2)(C)(iii)....................................................................................................10

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The Financial Oversight and Management Board for Puerto Rico (the “Oversight 

Board”), and the Commonwealth of Puerto Rico (the “Commonwealth”), by and through 

the Oversight Board as the Commonwealth’s representative pursuant to section 315(b) of 

the Puerto Rico Oversight, Management, and Economic Stability Act (“PROMESA”),2and 

the Puerto Rico Fiscal Agency and Financial Advisory Authority (“AAFAF,” together 

with the Oversight Board and the Commonwealth, the “Respondents”), hereby submit this 

brief in response to the “Brief of Ad Hoc Group of General Obligation Bondholders, [et al]. 

in Support of Production and Use of Fiscal Plan Development Materials” [ECF No. 2223] 

(“Mov. Br.”).

3

INTRODUCTION

All of Movants’ discovery requests have been resolved except for three. As for 

those three, despite the plethora of information already provided, Movants continue to 

demand production of every conceivable document, including drafts, relating to the soon to 

be superseded Fiscal Plans and the new Fiscal Plans under development, as well as 

communications among officials of AAFAF, the Commonwealth and the Oversight Board. 

Putting aside that the voluminous documents Movants now seek (including a privilege log) 

were not even included in their Renewed Joint Motion, such documents are not properly 

the subject of Rule 2004 discovery. Not only is this discovery unnecessary to enable the 

Movants to understand the Commonwealth’s financial condition in light of myriad other 

 

2

PROMESA has been codified in 48 U.S.C. §§ 2101–2241.

3 Capitalized terms not defined herein shall have the meaning given to them in the Joint Report of 

Movants and Respondents With Respect to Order Authorizing Rule 2004 Examination [ECF No. 2154] (the 

“Joint Report”).

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disclosures, the requested documents – including real time communications regarding 

development of the new Fiscal Plans – are protected by the deliberative process privilege.

Notably, the documents called for under PROMESA section 201(c), (d), and (e) 

have all been furnished. These include the Oversight Board’s notifications of violations 

and suggested revisions to the Governor’s proposed fiscal plans. Movants, however, are 

asking for all other writings leading up to the Oversight Board’s conclusions. Compelling 

discovery of the efforts of AAFAF, the Commonwealth, and the Oversight Board on Fiscal 

Plans would chill their collaboration to the detriment of this critical process. Not only is 

there no good cause to permit such discovery pursuant to Bankruptcy Rule 7026(c)(1), 

there is affirmatively good cause to prevent it from occurring. The requests, if permitted, 

would cast a pall over the ongoing process of finalizing the new Fiscal Plans and divert 

Respondents from that primary task.

PROCEDURAL BACKGROUND

On November 28, 2017, Movants filed an Urgent Renewed Joint Motion for Order 

Authorizing Rule 2004 Examination [ECF No. 1870] (“Renewed Joint Motion”), seeking

17 categories of documents (“Renewed Joint Requests”). Respondents served their 

objection on December 6, 2017 [ECF No. 1928] (“Respondents’ Objection”). The Court 

issued an order on December 15, 2017, allowing a Rule 2004 examination as to the 

Renewed Joint Requests, subject to limitations on use of certain documents and also 

subject to Respondents’ specific objections to the individual requests [ECF No. 2033] (the 

“December 15 Order”). On December 22, 2017, the Parties submitted a Joint Report 

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informing the Court that they reached agreement regarding Requests 1-7, 9-11, and 13-15,4

(see Joint Report at 1-2), but not as to Requests 8, 16, and 17 (id. at 3). Movants filed their 

brief on January 5, 2018. 

In the wake of the hurricanes and the Fiscal Plans requiring revisions, Movants’ 

insistence upon obtaining virtually limitless discovery to understand “how Respondents 

calculate the figures presented in the Fiscal Plan” (Mov. Br. at 2 (emphasis in original)), is 

not authorized by Rule 2004, will not achieve Movants’ stated goals and cannot be 

justified. Significantly, Movants are demanding this discovery in the face of PROMESA 

section 106(e) that deprives all district courts of power to preside over challenges to the 

Oversight Board’s certifications of fiscal plans. 

ARGUMENT

I. MOVANTS’ ARGUMENTS REGARDING RESTRICTIONS ON USE OF 

INFORMATION IN THE DATA ROOM ARE PREMATURE

Movants seek production of “‘Fiscal Plan Development Materials’ compris[ing] 

everything in between the raw data and the certified Fiscal Plan, including models, 

assumptions, formulas and inputs.” Mov. Br. at 1. Movants, however, acknowledge that 

some “of these Fiscal Plan Development Materials—such as the live model that underlies 

the Commonwealth Fiscal Plan, certified in March 2017—were provided to Movants in the 

‘data room,’” but are “subject to the strict constraints of an NDA (or in some cases, the 

mediation agreement, which prohibits their use in any way in the litigation.)” Mov. Br. at 

 

4 Movants previously informed the Court that they were no longer pursuing Request 12. See 

Movants’ reply brief in support of Renewed Joint Motion [ECF No. 1973] at 8.

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2. 5 Given the bar of PROMESA section 106(e) against district courts reviewing fiscal plan 

certifications, Movants’ demands are particularly unwarranted. In any event, the parties 

are in discussions regarding the application of the NDAs to certain documents.

II. MOVANTS HAVE BROADENED THEIR REQUESTS.

Despite Movants’ arguments to the contrary, Respondents have already provided 

the materials “in between the raw data and the Fiscal Plan” in the form of models, 

underlying data and assumptions, formulas, inputs and narrative responses to Movants’ 

questions related to Requests 8, 16 and 17. These extensive disclosures have enabled 

Movants to understand the “liabilities and financial condition of the debtor.” See 

Respondents’ Objections at 22-23 (addressing Request 8); 28-31 (addressing Request 16) 

and 31-32 (addressing Request 17).6 

Movants not only ignore this presentation, but instead have broadened their 

demands in response to it. Although Requests 8, 16, and 17 do not purport to seek 

communications of any kind, Movants now demand all communications and documents 

exchanged between and among AAFAF, the Commonwealth and the Oversight Board 

related to the development of the existing Fiscal Plans and the development of the 

upcoming Fiscal Plans. See Mov. Br. at 4-5. Thus, while Respondents have continued to 

make further disclosures and concessions, Movants have not compromised on the 

remaining requests – but have gone in the other direction. This is unacceptable. Movants 

 

5 Although the materials prepared and presented for the mediation remain strictly confidential for 

settlement purposes only, the overwhelming majority of data and source material that underlie the mediation 

presentations regarding the development of the Fiscal Plans are available to creditors in the data room.

6

For the Court’s convenience, copies of these particular responses are annexed to the memorandum 

as Appendix A.

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should not be allowed to pile on new demands every time Respondents demonstrate that 

Movants have already received the documents concerning the Debtors’ financial condition 

and the development of the Fiscal Plans.

III. MOVANTS’ DEMAND FOR PRODUCTION OF EVERY DOCUMENT 

CONCERNING THE FISCAL PLANS IS LEGALLY BASELESS AND 

CHILLS GOVERNMENTAL DELIBERATIONS 

Movants’ demand for all communications and documents between and among 

AAFAF, the Commonwealth and the Oversight Board relating to the existing and 

forthcoming Fiscal Plans oppresses the process, is unduly burdensome, and is based on a 

series of incorrect premises. Mov. Br. at 2-3. 

First, Movants misconstrue the nature and purpose of the Fiscal Plans and 

intentionally conflate and confuse the relationship between a certified Fiscal Plan and a 

plan of adjustment. Even if permitted, their effort to deconstruct the Fiscal Plans would not 

give them the insight into the Commonwealth’s financial condition they purport to seek. A

Fiscal Plan is a framework for the future showing categories of future expenses and 

revenues. It includes a debt sustainability analysis showing projected monies available for 

debt service. It is not self-operative. Rather, it is a blueprint for further fiscal and 

economic action by the Commonwealth. It is not a plan of adjustment designed to identify 

the treatment of each class of claims. See Bankruptcy Code section 1123(a)(3). A Fiscal 

Plan also does not determine the mechanisms by which projected cash flows available for 

debt service should be allocated to different debt instruments. Turning it inside out for 

litigation purposes, as Movants seek to do, would not advance any legitimate goal, and 

would impose an unjustified burden on Respondents’ limited resources.

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Second, Movants not only erroneously seek to apply the law regarding confirming 

a plan of adjustment to Fiscal Plans, they misstate that law. Movants erroneously assert 

that the “plan must provide creditors with the maximum that the [debtor] could reasonably 

pay under the circumstances.” Mov. Br. at 3. While, as a practical matter, the Oversight 

Board and Commonwealth want to repay as much debt as is consistent with carrying out 

PROMESA’s directive to create fiscal responsibility and access to the capital markets, 

PROMESA § 314(b)(6) does not require the debtor to pay prepetition claimholders as 

much as it can. Rather, it provides the Court should “consider” what creditors could 

recover under applicable non-bankruptcy law, i.e., what a race to the courthouse would 

produce for “the creditors” under non-bankruptcy law. PROMESA § 314(b)(6) states:

the plan [must be] feasible and in the best interests of 

creditors, which shall require the court to consider whether 

available remedies under the non-bankruptcy laws and 

constitution of the territory would result in a greater 

recovery for the creditors than is provided by such plan.

Finally, a Fiscal Plan does not address treatment of prepetition claims because 

Congress reserved that issue for the plan of adjustment. Thus, the treatment of prepetition 

claims and indeed the future plan of adjustment will be the subject of a confirmation 

hearing and focused discovery.

7

 Movants’ stated reasons for seeking burdensome, 

unbridled disclosure into the Fiscal Plan Development Materials, much of which will likely 

be completely irrelevant to the eventual plan of adjustment, is baseless. 

 

7

See 11 U.S.C. §§ 1123(a)(3), 1128 (made applicable by PROMESA § 301(a)).

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IV. COMMUNICATIONS BETWEEN THE COMMONWEALTH AND 

OVERSIGHT BOARD IN DEVELOPING THE FISCAL PLANS ARE 

PROTECTED BY THE DELIBERATIVE PROCESS PRIVILEGE

PROMESA §§ 201(c), (d), and (e) provide for the Governor to propose fiscal plans 

and the Oversight Board to certify them or to identify violations and suggest revisions. The 

Oversight Board has disclosed its notices of violation and suggested revisions to Movants 

and the public. Movants, however, demand unbridled production of internal 

communications and documents exchanged between and among the Commonwealth, 

AAFAF and the Oversight Board regarding both the March 2017 Commonwealth Fiscal 

Plan, the April 2017 PREPA Fiscal Plan, and the ongoing development of the new Fiscal 

Plans (currently due to be certified by February 23, 2018). This includes “versions of the 

Fiscal Plan submitted to the Oversight Board that the Board does not certify [and] drafts of 

the Fiscal Plan.” Mov. Br. at 5 (emphasis in original). Not only do the communications 

and draft materials Movants now seek go to the very heart of the deliberative process 

privilege, their production would chill collaboration and communications between the 

Commonwealth, AAFAF and the Oversight Board. Additionally, the enormous burden of 

producing – or even logging – these materials would undermine the process of developing 

the 2018 Fiscal Plans with no concomitant benefit. 

The deliberative process privilege “is designed to safeguard and promote agency

decision making” by assuring, among other things, “‘that subordinates within an agency 

will feel free to provide the decision maker with their uninhibited opinions and 

recommendations.’” Providence Journal Co. v. U.S. Dep’t of Army, 981 F.2d 552, 557 (1st 

Cir. 1992) (quoting Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C. 

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Cir. 1980)). The privilege applies to communications that are “(1) predecisional, that is, 

‘antecedent to the adoption of agency policy,’ and (2) deliberative, that is, actually ‘related 

to the process by which policies are formulated.’” Texaco P.R., Inc. v. Dep’t of Consumer 

Affairs, 60 F.3d 867, 884 (1st Cir. 1995) (quoting Nat’l Wildlife Fed’n v. U.S. Forest Serv., 

861 F.2d 1114, 1117 (9th Cir. 1988)); see also Dep’t of Interior v. Klamath Water Users 

Protective Ass’n, 532 U.S. 1, 8 (2001). The deliberative process privilege is the federal 

counterpart of Puerto Rico’s official information privilege. See W Holding Co. v. Chartis 

Ins. Co. of P.R., 42 F. Supp. 3d 319, 324 (D.P.R. 2014).

While the Fiscal Plans, raw data, models, underlying data and assumptions, 

formulas, and inputs (all of which have been made available to Movants) are not 

themselves subject to the privilege, the communications between and among the 

Commonwealth, AAFAF and the Oversight Board, as well as the deliberative materials 

utilized to create the final work product, are textbook examples of the materials covered by

the privilege and immune from disclosure. See Dep’t of Interior, 532 U.S. at 8 

(deliberative process covers “deliberations comprising part of a process by which 

governmental decisions and policies are formulated”); Judicial Watch, Inc. v. U.S. Dep’t of 

the Treasury, 796 F. Supp. 2d 13, 31 (D.D.C. 2011) (post-decisional “documents properly 

fall under the deliberative process privilege when they recount or reflect pre-decisional 

deliberations”). Permitting discovery of all drafts, internal memoranda, and 

communications between and among the Commonwealth, AAFAF, and the Oversight 

Board leading up to the submission, review and certification of the 2017 Fiscal Plans and 

the new Fiscal Plans still under development would undermine the essential interests that 

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the privilege is intended to protect. The requested discovery would cast a pall over the 

process of developing the new Fiscal Plans as officials recognize that their candid 

inquiries, ideas and proposals will be subject to public scrutiny and second-guessing –

precisely what the deliberative process privilege is designed to prevent.

Citing no authority for their unprecedented demands, Movants make the 

conclusory assertions that knowledge of “the alternatives that were presented but 

rejected—and critically, the reasons for the rejection—is necessary to know whether the 

Fiscal Plan that is ultimately certified does, in fact, provide creditors with the maximum 

that the Debtors could reasonably pay.” Mov. Br. at 5-6. First, Movants ignore that they

have been provided the Oversight Board’s notices of violations concerning items that were 

rejected. Movants seek discovery of the Debtors’ draft work product to propound an 

asserted confirmation standard that, as demonstrated above (at 5-6) is nowhere to be found 

in the statute. In any event, case law is clear that even draft bankruptcy plans are not 

relevant to confirmation standards and thus not discoverable. See In re Eagle-Picher 

Indus., 169 B.R. 130, 134 (Bankr. S.D. Ohio 1994) (denying Rule 2004 motion: “A 

creditor has no right to see the draft of a plan before its completion...”); In re Pittsburgh 

Corning Corp., Case No. 00-22876 (JKF) (Bankr. W.D. Pa.) (Feb. 19, 2004 Tr. at 64) 

(“Prior drafts of the plan are not discoverable, they’re not admissible, they’re wholly

irrelevant....”); In re Combustion Engineering, Case No. 03-10495 (JKF) (Bankr. D. Del.) 

(May 2, 2003 Tr. at 301) (same)); In re ACandS, Inc., Case No. 02-12687 (RJN) (Bankr. D. 

Del.) (Sept. 30, 2003 Tr. at 42-45 (denying discovery into plan negotiations because such 

information is irrelevant to the issue of good faith in proposing the plan). By analogy, and 

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even though Fiscal Plans are not plans of reorganization, these rulings apply with equal 

force to the draft Fiscal Plans. The Debtors’ draft determinations have no bearing on 

PROMESA’s confirmation requirements for the future plan of adjustment. The Fiscal 

Plans themselves are not subject to challenge at all. Movants thus have no right under Rule 

2004 to obtain discovery of drafts or uncertified versions of Fiscal Plans and are not 

entitled to disclosure of communications and documents related to ongoing development 

of the new Fiscal Plans.

Finally, Respondents should not be compelled to conduct extensive privilege 

reviews and prepare vast privilege logs, including daily updates, on the development of the 

new Fiscal Plans. Movants do not cite a single case to support their demand for logging of 

the immaterial and privileged documents they seek, no less continuous logging of ongoing 

communications, and research has not disclosed any case in the federal courts requiring 

continuous contemporaneous logging. Creating logs would itself have a chilling effect on 

the deliberative process and constitute an unnecessary burden and diversion from the 

essential task of developing the new Fiscal Plans. The Court should deny Movants’ request 

for all communications related to development of the Fiscal Plans, and deny Respondents’ 

request for a log of those communications. See F.R.C.P. 26(b)(1) and 26(b)(2)(C)(iii) 

(permitting the Court to limit the extent of discovery if “considering the importance of the 

issues at stake in the action, the amount in controversy, the parties’ relative access to 

relevant information, the parties’ resources, [and] the importance of the discovery in 

resolving the issues . . . the burden or expense of the proposed discovery outweighs its 

likely benefit”).

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WHEREFORE Respondents respectfully request the Court to deny Movants’ 

request for production and use of Fiscal Plan Development Materials and grant 

Respondents such other relief as is just and proper.

Dated: January 22, 2018

San Juan, Puerto Rico

Respectfully submitted,

/s/Martin J. Bienenstock

Martin J. Bienenstock 

Stephen L. Ratner

Timothy W. Mungovan

Paul V. Possinger 

(Admitted Pro Hac Vice)

PROSKAUER ROSE LLP

Eleven Times Square

New York, NY 10036

Tel: (212) 969-3000

Fax: (212) 969-2900

Attorneys for the Financial Oversight and 

Management Board and as representative 

of the Commonwealth

/s/ Hermann D. Bauer

Hermann D. Bauer (USDC No. 215205)

O’NEILL & BORGES LLC

250 Muñoz Rivera Ave., Suite 800

San Juan, PR 00918-1813

Tel: (787) 764-8181

Fax: (787) 753-8944

Co-Attorneys for the Financial Oversight 

and Management Board and as 

representative of the Commonwealth

/s/ John J. Rapisardi

John J. Rapisardi 

Suzzanne Uhland 

(Admitted Pro Hac Vice) 

O’MELVENY & MYERS LLP 

7 Times Square 

New York, NY 10036 

Tel: (212) 326-2000 

Fax: (212) 326-2061 

Peter Friedman 

(Admitted Pro Hac Vice) 

1625 Eye Street, NW 

Washington, DC 20006 

Tel: (202) 383-5300 

Fax: (202) 383-5414 

Elizabeth L. McKeen 

(Admitted Pro Hac Vice) 

610 Newport Center Drive 

17th Floor 

Newport Beach, California 92660 

Tel: (949) 823-6900 

Fax: (949) 823-6994 

Attorneys for the Puerto Rico Fiscal 

Agency and Financial Advisory Authority

/s/ Andrés W. López

Andrés W. López (USDC No. 215311)

THE LAW OFFICES OF ANDRÉS W. 

LÓPEZ, P.S.C. 

902 Fernández Juncos Ave. 

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San Juan, PR 00907 

Tel: (787) 294-9508 

Fax: (787) 294-9519

Co-Attorney for the Puerto Rico Fiscal 

Agency and Financial Advisory Authority

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