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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

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:

In re: :

:

THE FINANCIAL OVERSIGHT AND : PROMESA

MANAGEMENT BOARD FOR PUERTO RICO, : Title III

:

as representative of : Case No. 17-BK-3283 (LTS)

:

THE COMMONWEALTH OF PUERTO RICO et al., : (Jointly Administered)

:

Debtors.1 :

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:

In re: :

:

THE FINANCIAL OVERSIGHT AND : PROMESA

MANAGEMENT BOARD FOR PUERTO RICO, : Title III

:

as representative of : Case No. 17-BK-4780 (LTS)

:

PUERTO RICO ELECTRIC POWER AUTHORITY, : (Jointly Administered)

:

Debtor. :

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JOINT INFORMATIVE MOTION OF DISCOVERY DISPUTE BETWEEN THE 

FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, THE 

PUERTO RICO ELECTRIC POWER AUTHORITY, AND THE OFFICIAL 

COMMITTEE OF UNSECURED CREDITORS

 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 

(the “Commonwealth”) (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); (v) Puerto Rico Electric Power Authority (“PREPA”) (Bankruptcy Case No. 17-

BK-4780-LTS) (Last Four Digits of Federal Tax ID: 3747); and (vi) Puerto Rico Public Buildings Authority 

(“PBA”) (Bankruptcy Case No. 19-BK-5523-LTS) (Last Four Digits of Federal Tax ID: 3801) (Title III case 

numbers are listed as Bankruptcy Case numbers due to software limitations).

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To the Honorable United States Magistrate Judge Judith Gail Dein:

Pursuant to paragraph 22 of the Court’s Order Establishing, Among Other Things, 

Procedures and Deadlines Concerning Objections to Confirmation and Discovery in Connection 

Therewith, Dkt. 3294 (the “Discovery Order”), this Court is hereby informed of a Discovery 

Dispute (as that term is defined in the Discovery Order) between the Official Committee of 

Unsecured Creditors (the “Committee”), the Financial Oversight and Management Board for 

Puerto Rico (the “Oversight Board”), as Title III representative of the Puerto Rico Electric Power 

Authority (“PREPA”), and PREPA regarding the Committee’s First Set of Document Requests 

(the “Requests,” and each individual request therein a “Request”).

BACKGROUND

1. On March 24, 2023, the Committee served the Requests on the Oversight Board, 

PREPA, and the Puerto Rico Fiscal Agency and Financial Advisory Authority (“AAFAF”).

2. On April 7, 2023, the Oversight Board served its Responses and Objections to the 

Requests (Ex. 1, the “Responses and Objections”) on behalf of itself and PREPA. 

3. On April 19, 2023, counsel for the Committee and the Oversight Board 

participated in a telephonic meet and confer to discuss the Responses and Objections (the “Meet 

and Confer”).

4. Since the Meet and Confer, counsel for the Committee and the Oversight Board 

(together, the “Parties”) have continued to discuss the Responses and Objections, including 

through written correspondence on April 21, April 24, April 25, April 26, April 27, May 1, May 

2, May 5, and May 7. 

5. The Parties submit this joint informative motion pursuant to paragraph 22 of the 

Discovery Order. The Parties’ respective positions are set out below. 

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PARTIES’ POSITIONS ON EXISTENCE OF DISCOVERY DISPUTES

6. Because the Parties have divergent positions on the existence and nature of their 

discovery disputes, the Parties set forth their respective positions below.

Production of Communications. 

7. Committee’s Position. During the parties’ meet and confer session, the Oversight 

Board took the position that the production of communications, including emails and text 

messages, is “not proportional” to the needs of this litigation, and, therefore, the Oversight Board 

is unwilling to search for such communications. Specifically, the Oversight Board said it is not 

willing to search for or produce the communications called for by the following Requests: 2, 3, 

5, 6, 7, 8, 9, 11, 15, 16, 17, 18, 19, 21, 24, 25, 27, 28, 49, 50, and 51. These requests seek, 

among other things, communications of the members of the Oversight Board relating to the 

reasonableness of the disparate treatment that the plan of adjustment provides to general 

unsecured creditors, among other issues. 

8. In correspondence since the parties’ meet and confer, the Oversight Board has 

sought to blame the Committee for refusing to “narrow” its requests or “propose search terms.” 

The Committee views this as a transparent delay tactic given the Oversight Board’s initial 

staunch refusal, for weeks, to conduct any search for communications in response to the requests. 

The Committee has no reason to believe the Oversight Board will in fact conduct reasonable 

searches for requests without Court intervention. 

9. The Oversight Board has also said it will provide the Committee with general 

access to certain communications it has produced or will produce to other requestors in response 

to their requests for communications, some of which may, coincidentally, overlap with Requests 

by the Committee. This response is facially inadequate to comply with the Committee’s 

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Requests. Moreover, the Oversight Board is also not being transparent with respect to its efforts 

to produce these communications for others (but not the Committee), in that the Oversight Board 

has ignored the Committee’s request for (1) the custodians from whom it has or will be 

collecting responsive documents, and (2) the date ranges for such custodial collections.

10. For these reasons, the Committee believes Court intervention is required on the 

issue of the Oversight Board’s refusal to produce communications to the Committee.

11. Oversight Board’s Position. The Oversight Board’s position regarding 

communications is the same as it was entering the April 5 discovery hearing regarding its 

disputes (the “Discovery Hearing”) with the Ad Hoc Group of PREPA Bondholders (the “Ad 

Hoc Group”): searches to find “all communications” on nearly two dozen document requests 

covering numerous subject matters and implicating numerous privileges are not proportional to 

the needs of the case and are therefore unduly burdensome. Prior to the Discovery Hearing, the 

Oversight Board and the Ad Hoc Group were already negotiating narrowly tailored search 

parameters with respect to two specific document requests in an effort to determine whether the 

parties could agree on a sufficiently narrow search for responsive communications. But the Ad 

Hoc Group, like the Committee here, initially sought an order requiring the Oversight Board to 

search for “all communications” for multiple additional requests. 

12. The Court rejected the Ad Hoc Group’s request, noting that it was “not convinced 

that a broad search of communications is proportional to the needs of this case, it has to be pretty 

targeted” and noting the parties should “continu[e] the conversation” to come up with reasonable

search parameters for the two requests that the parties were already negotiating. Hr’g Tr. 37:6-

20 (Apr. 5, 2023). 

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13. The Committee has not made even the modest efforts made by the Ad Hoc Group 

to narrow its communications-related requests. Accordingly, during the Meet-and-Confer on 

April 19, the Oversight Board’s position was that it would not be undertaking searches of “all 

communications” for nearly two dozen requests because the Committee had made no effort to 

narrow its requests or come up with reasonable search parameters.

14. In the nearly three weeks since the meet-and-confer, the Committee has yet to 

identify requests for which it would propose narrow and reasonable search parameters, despite 

counsel for the Oversight Board stating it would consider those proposals in emails on April 27 

and May 2. (See Ex. 2 at 4-6, Emails between counsel for the Oversight Board and the 

Committee.) As its position above makes clear, the Committee is still seeking to impose upon 

the Oversight Board a disproportional and burdensome review of “all communications” for 

dozens of requests and topics, which is not proportional or appropriate in this case. Moreover, 

despite its protestations in this motion about the Oversight Board’s “delay tactics” and how much 

time remains until the close of fact discovery, the Committee has taken multiple days to respond 

to the Parties’ most recent correspondence. Given the Committee’s failure to engage in 

negotiations on these issues, along with the impending close of discovery on May 26, the 

Oversight Board does not believe it should be required to undertake a review of email 

communications.

Improper Privilege Claim over Unreviewed Documents and Privilege(s) Asserted. 

15. Committee’s Position. The Oversight Board told the Committee that, in addition 

to the “proportionality” argument described above, the Oversight Board is “declin[ing] to search 

for documents” because it anticipates potentially responsive documents to be “overwhelmingly 

privileged.” The Committee, in turn, informed the Oversight Board that it is not proper to assert 

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privilege over documents it has not reviewed, which would be inconsistent with the Court’s 

discovery order during the Rule 9019 litigation. See Dkt. 1556, at ¶ 9 (“[I]t is not appropriate to 

make assumptions of privilege for groups of unreviewed documents.”). This dispute includes 

documents responsive to Requests 2, 3, 5, 6, 7, 15, 16, 17, 18, 19, 27, 28, and 51.

The Oversight Board has referred the Committee to the privilege log it produced on April 

28, 2023 and has referenced another log purportedly forthcoming on May 12, 2023. These 

privilege logs, however, do nothing to cure the deficiency in the Oversight Board’s privilege 

claims because the logs are categorical and do not indicate that that the Oversight Board has 

conducted a document-by-document review before asserting its privilege claims. Even if it is 

permissible for the Oversight Board to log documents categorically, it still must review each 

individual document before placing such document in a privilege category on the log. For 

example, the Committee does not understand how the Oversight Board could have properly 

asserted mediation privilege over documents it has not reviewed because it has “declined to 

search,” yet completed a privilege log describing these documents within a category including, 

inter alia, “any analysis of National’s claims” and “the impact of the settlement on the Plan and 

other creditors.” (See Ex. 2 at 2, Emails between counsel for the Oversight Board and the 

Committee; Ex. 3 at 10-11, FOMB’s Initial Categorical Privilege Log (April 28, 2023)).

16. Oversight Board’s Position. In response to requests received from a half dozen 

creditor groups, the Oversight Board served a categorical privilege log on April 28 which 

included specific references to requests covered by each category. The privilege log was 

prepared in accordance with the Court’s guidance at the Discovery Hearing that “if there are 

categories of documents that you’re not producing that are communications on a privileged basis, 

you ought to put that on your log” and that, where a request seeks privileged documents or 

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communications, the Oversight Board should “put it on a log as a category and not as an 

individual document by document disclosure.” Hr’g Tr. 29:12-15; 37:17-20 (Apr. 5, 2023).

17. As the privilege log makes clear, a number of the Committee’s requests fall 

within the privilege categories logged by the Oversight Board. This includes, for example, the 

Committee’s Request No. 2, which seeks all communications “concerning the Fuel Line Lender 

Settlement or the Fuel Line Lender PSA” between and among a variety of parties, including the 

Oversight Board, PREPA, and the Oversight Board’s advisors. This request plainly seeks 

privileged documents and communications, as the entirety of the negotiation of the Fuel Line 

Lender PSA occurred in the context of the Court-ordered mediation between the Oversight 

Board and certain creditors. The Oversight Board is not required to undertake the burden and 

expense of collecting and reviewing these documents solely to prepare a privilege log. 

18. The Oversight Board has not simply “assumed” a subset of documents is 

privileged; rather, it has determined that, based on the nature of the Committee’s particular 

requests, it is likely that the vast majority of responsive documents are privileged. Accordingly, 

in its Responses and Objections, at the Meet-and-Confer, and in its subsequent correspondence, 

the Oversight Board has been clear that it is objecting fully to certain requests, including Request 

No. 2, because they seek documents that are overwhelmingly privileged, and the burden of 

reviewing such overwhelmingly privileged communications is disproportionate to the needs of 

the case. 

19. For these reasons, the Court’s intervention is required to clarify that the Oversight 

Board is not required to effectively comply with all of the Committee’s requests by collecting 

and reviewing all responsive documents and communications before it can include a privilege 

category on its privilege log. 

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Timing of Remaining Productions. 

20. Committee’s Position. Numerous depositions are ongoing, and the close of fact 

discovery is just three weeks away. Notwithstanding the fact that the Requests were served more 

than five weeks ago, and notwithstanding the extensive telephonic and written discussion that 

have occurred over the last two weeks, the Committee still has no firm understanding of what 

documents the Oversight Board is going to produce, or when. In addition to the issues identified 

above, the Oversight Board has refused to confirm that it will produce documents responsive to 

Requests 9, 10, 23-26, 34, 35, 40, 42, 43, 44, 45, 46, 47, 48, 53, 56, and 57, claiming that it is 

“investigating” such Requests, without any indication of when such investigations will be 

complete, or any indication of the likely outcome of such investigations (i.e., what categories of 

documents will be produced). These requests seek, among other things, documents about the 

following topics: (i) payments of Current Expenses; (ii) valuation of components within the 

National Settlement, including the alleged National Reimbursement Claim and Interim Charge; 

(iii) PREPA’s assets; (iv) the Avoidance Actions Trust; and (v) PREPA’s payment of prepetition 

unsecured claims. (See Ex. 1, FOMB/PREPA’s Responses and Objections to Requests).

21. The Committee needs these documents to prepare for the remaining fact and 

expert depositions and to otherwise prepare for the confirmation hearing. The Court’s 

intervention is required to ensure that the Oversight Board fully complies with these requests and 

does so in a timely manner to ensure the Committee’s rights are not prejudiced.

22. Oversight Board’s Position. The Committee handwaves the Oversight Board’s 

investigations as somehow not being consistent with the Oversight Board’s discovery obligations 

and accuses it of undertaking “endless and open-ended ongoing investigation[s].” Ex. 2 at 3-4 

(May 1 email between counsel for Oversight Board and the Committee). As it has done with 

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requests from every other creditor group, the Oversight Board must investigate document 

requests to determine whether responsive documents exist and, if so, whether they can be 

produced or should be withheld. As the Oversight Board works through its advisors and other 

parties, this necessarily requires specific discussions regarding the requests with these parties, 

who then must gather documents for the Oversight Board’s review. All of this goes into the 

Oversight Board’s “investigations.”

23. The Oversight Board has provided the Committee with periodic updates on when 

it was uploading documents responsive to specific requests. See Exs. 4, 5, 6 (Apr. 24, Apr. 26, 

and May 7 letters). Nevertheless, several of the Oversight Board’s investigations remain 

ongoing, if for no other reason than that the Oversight Board must rely on third parties, such as 

LUMA, to complete the investigations. The Committee chose not to subpoena LUMA but 

instead to issue its requests to the Oversight Board and, even though the Oversight Board 

objected to the extent they sought documents not within its possession, custody, or control, the 

Committee now resorts to accusations of bad faith when the Oversight Board takes time to fully 

investigate those requests.

24. For these reasons, the Oversight Board does not believe there is a ripe discovery 

dispute regarding the Oversight Board’s investigations, because they are being in conducted in 

good faith and remain ongoing.

CONCLUSION

WHEREFORE the Committee respectfully requests the Court schedule a conference as 

soon as feasible to resolve the Discovery Dispute, and grant the Committee such other relief as is 

just and proper.

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Dated: May 8, 2023 

/s/ Luc A. Despins

PAUL HASTINGS LLP

Nicholas A. Bassett, Esq. (Pro Hac Vice) 

875 15th Street, N.W. 

Washington, D.C. 20005 

Tel: (202) 551-1700 

nicholasbassett@paulhastings.com 

Luc A. Despins, Esq. (Pro Hac Vice)

G. Alexander Bongartz, Esq. (Pro Hac Vice)

200 Park Avenue

New York, New York 10166

Tel: (212) 318-6000

lucdespins@paulhastings.com

alexbongartz@paulhastings.com

Counsel to the Official Committee of Unsecured Creditors

- and -

/s/ Juan J. Casillas Ayala 

CASILLAS, SANTIAGO & TORRES LLC

Juan J. Casillas Ayala, Esq. (USDC - PR 218312) 

Israel Fernández Rodríguez, Esq. (USDC – PR 225004) 

Juan C. Nieves González, Esq. (USDC - PR 231707) 

Cristina B. Fernández Niggemann, Esq. (USDC – PR 

306008) 

PO Box 195075 

San Juan, Puerto Rico 00919-5075 

Telephone: (787) 523-3434 Fax: (787) 523-3433 

jcasillas@cstlawpr.com

ifernandez@cstlawpr.com

jnieves@cstlawpr.com

crernandez@cstlawpr.com

Local Counsel to the Official Committee of Unsecured 

Creditors

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/s/ Margaret Dale

Martin J. Bienenstock 

Margaret Dale

Paul V. Possinger

Ehud Barak

Michael T. Mervis

Daniel S. Desatnik

Elliot R. Stevens

(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 

as representative for PREPA

/s/ Hermann D. Bauer

Hermann D. Bauer 

USDC No. 215205 

O’NEILL & BORGES LLC

250 Muñoz Rivera Ave., Suite 800

Tel: (787) 764-8181

Fax: (787) 753-8944

Co-Attorneys for the Financial 

Oversight and Management Board 

as Representative for PREPA

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