UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF PUERTO RICO

In re:

THE FINANCIAL OVERSIGHT AND 

MANAGEMENT BOARD FOR PUERTO RICO,

as representative of

THE COMMONWEALTH OF PUERTO RICO, et al.,

Debtors.1

PROMESA

Title III

No. 17-BK-3283-LTS

(Jointly Administered)

In re:

THE FINANCIAL OVERSIGHT AND 

MANAGEMENT BOARD FOR PUERTO RICO,

as representative of

PUERTO RICO ELECTRIC POWER AUTHORITY,

Debtor.

PROMESA

Title III

No. 17-BK-4780-LTS

(Jointly Administered)

Re: ECF No. 3580

OFFICIAL COMMITTEE OF UNSECURED 

CREDITORS,

Movant,

 v.

PUERTO RICO ELECTRIC POWER AUTHORITY,

Respondent.

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); (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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DEBTOR’S OPPOSITION TO OFFICIAL COMMITTEE OF UNSECURED CREDITORS’ 

MOTION IN LIMINE TO PRECLUDE TESTIMONY FROM DAVID BROWNSTEIN AND 

DAVID SKEEL AT THE CONFIRMATION HEARINGS AS TO MATTERS OVER WHICH 

THE OVERSIGHT BOARD ASSERTED PRIVILEGE DURING THEIR DEPOSITIONS

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TABLE OF CONTENTS

Page

PRELIMINARY STATEMENT .................................................................................................... 1

BACKGROUND ............................................................................................................................ 2

A. PREPA’s Confidential Mediation........................................................................... 2

B. PREPA’s Plan and the Court’s Confirmation Procedures Order............................ 3

C. PREPA’s Disclosures Pursuant to the Confirmation Procedures Order................. 3

D. Messrs. Skeel and Brownstein’s Depositions and the Motion................................ 7

ARGUMENT.................................................................................................................................. 8

I. At Deposition, Counsel for the Debtor Instructed Messrs. Skeel and Browtnsein Not to 

Answer Questions that Invaded Clearly Applicable Privileges.......................................... 8

II. The Motion is Premature .................................................................................................. 10

III. The UCC’s Motion Unfarily and Misleadingly Presents the Deposition Testimony 

of Mr. Brownstein and Mr. Skeel ..................................................................................... 12

A. David Skeel Testimony.......................................................................................... 13

B. David Brownstein Testimony ................................................................................ 15

CONCLUSION............................................................................................................................. 17

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TABLE OF AUTHORITIES

Page(s)

CASES

ACQIS, LLC v. EMC Corp.,

No. 14-CV-13560, 2017 WL 2818984 (D. Mass. June 29, 2017).............................................9

Bulow v. Bulow (In re von Bulow),

828 F.2d 94 (2d Cir. 1987).........................................................................................................9

Est. of Leavitt Rey v. Marrero Gonzalez,

No. 16-2769, 2020 WL 4464467 (D.P.R. Aug. 4, 2020)...........................................................4

Ford as Next Friend of Doe v. NCL Bahamas Ltd.,

No. 17-CV-24404, 2019 WL 3937127 (S.D. Fla. June 4, 2019)...............................................4

Luxottica Grp. S.p.A. v. Liquidity Servs., Inc.,

No. CV 18-7821, 2019 WL 2620727 (C.D. Cal. May 24, 2019) ..............................................9

Manske v. UPS Cartage Servs., Inc.,

No. 2:10-cv-00320-JAW, 2012 WL 13211725 (D. Me. May 9, 2012)...................................12

Stewart Title Guar. Co. v. Owlett & Lewis, P.C.,

297 F.R.D. 232 (M.D. Pa. 2013)..............................................................................................10

Swidler & Berlin v. United States,

524 U.S. 399 (1998)...................................................................................................................8

United States Fish & Wildlife Serv. v. Sierra Club, Inc.,

141 S. Ct. 777 (2021).................................................................................................................8

United States v. Razo, 

No. 1:11–cr–00184–JAW, 2012 WL 6569334 (D. Me. Dec. 17, 2012)............................11, 12

Wiand v. Fam. Tree Est. Plan., LLC,

No. 21-cv-361, 2022 WL 17572769 (M.D. Fla. Nov. 7, 2022).................................................9

XYZ Corp. v. United States (In re Keeper of Recs. (Grand Jury Subpoena 

Addressed to XYZ Corp.)),

348 F.3d 16 (1st Cir. 2003)................................................................................................11, 12

STATUTES & RULES

11 U.S.C. § 1129(b)(1) ........................................................................................................8, 14, 15

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

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Fed. R. Civ. P. 26(a)(2)(C) ..........................................................................................................4, 5

Fed. R. Civ. P. 30(b)(6)....................................................................................................................7

Fed. R. Civ. P. 30(c)(2)..............................................................................................................9, 10

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To the Honorable United States District Court Judge Laura Taylor Swain:

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

as the sole Title III representative of the Puerto Rico Electric Power Authority (“PREPA,” or the 

“Debtor”), pursuant to section 315(b) of the Puerto Rico Oversight, Management, and Economic 

Stability Act (“PROMESA”),

2 respectfully submits this opposition (the “Opposition”) to the 

Official Committee of Unsecured Creditors’ (the “UCC”) Motion in Limine to Preclude Testimony 

from David Brownstein and David Skeel at the Confirmation Hearings as to Matters Over Which 

the Oversight Board Asserted Privilege During their Depositions [ECF No. 3580]3 (the “Motion”), 

and respectfully states as follows:

PRELIMINARY STATEMENT

1. The Motion, while styled as a motion in limine, is merely a complaint Messrs. 

Brownstein and Skeel were instructed not to answer questions during deposition that invaded the 

attorney-client and mediation privileges and mediation confidentiality. But, the instructions were

entirely proper. The instructions were directly in response to a host of improper questions and 

consistent with the Court’s clear direction that any communications concerning mediation remain 

absolutely confidential.

2. More fundamentally, however, and notwithstanding the propriety of the 

instructions at issue, the specific relief the UCC seeks is premature. Although the UCC asks the 

Court to preclude Messrs. Skeel and Brownstein from proffering testimony concerning the same 

topics over which the attorney-client and mediation privileges and mediation confidentiality were 

invoked during deposition, Messrs. Skeel and Brownstein have not yet proffered their witness 

2 PROMESA is codified at 48 U.S.C. §§ 2101–2241.

3 Docket references contained herein refer to the docket for Case No. 17-4780 unless 

otherwise specified.

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declarations (i.e., their actual testimony). Those are not due until June 26, 2023. Unlike a “sword 

and shield” situation, the UCC cannot point to any actual testimony the Debtor has affirmatively 

put at issue for its benefit and over which it simultaneously claims privilege. Thus, any ruling 

from the Court would not address a live controversy. If a true controversy ever arises on this issue, 

the Court can address it at the appropriate time. Moreover, the UCC cites no authority for the 

proposition that the holder of a valid privilege cannot waive it at trial if it did not waive it during 

discovery.

3. Finally, the Motion fails to present the totality of circumstances and unfairly 

presents the depositions of Messrs. Skeel and Brownstein as somehow preventing examination 

into certain subjects. As described below, and as is clear throughout the deposition transcripts

made available to the Court, Messrs. Skeel and Brownstein testified exhaustively to the facts and 

bases for their positions.

4. For the foregoing reasons, the Motion should be denied.

BACKGROUND

A. PREPA’s Confidential Mediation.

5. On April 8, 2022, this Court entered the Order Establishing the Terms and 

Conditions of Mediation [ECF No. 2773] (the “Mediation Order”), establishing terms and 

conditions to facilitate confidential mediation in connection with PREPA’s Title III case. 

6. Therein, the Court was explicit that mediation in connection with PREPA’s Title 

III case “shall be kept confidential.” Mediation Order ¶ 8 (“All communications made by and all 

submissions prepared by a Mediation Party in connection with the Mediation . . . shall remain

confidential . . . .”) (emphasis added); id. ¶ 9 (“The Mediation Parties and their counsel and 

advisors shall not in any way disclose to any non-party or to any court, including, without 

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limitation, in any pleading or other submission to any court, any such discussion, mediation 

statement, other document or information, correspondence, resolution, or Settlement Proposal . . . 

that may be made or provided in connection with the Mediation . . . .”) (emphasis added).

7. To that end, this Court has repeatedly instructed counsel for parties in interest at 

various hearings explicitly not to divulge discussions and communications regarding PREPA’s 

mediation. See May 8, 2023 Hearing on the Status of Mediation Tr. 8:18-22 (describing the courtordered mediation as a context in which the parties can approach each other “frankly and 

confidentially”); 9:9-11 (THE COURT: “I will not be asking any party or the mediators to reveal 

the particulars of any negotiation positions or confidential information exchanged in mediation.”); 

December 14, 2022 Omnibus Hearing Tr. 10:7-17 ( “MR. BIENENSTOCK: Okay, your Honor. 

As the Court understands, the mediation confidentiality severely constrains what I think any of us 

can and should be saying . . . . THE COURT: I do want you to be careful not to breach mediation 

confidentiality, so I appreciate your attention to that.”).

B. PREPA’s Plan and the Court’s Confirmation Procedures Order.

8. On March 1, 2023, the Oversight Board filed the Modified Second Amended 

Title III Joint Plan of Adjustment of the Puerto Rico Electric Power Authority [ECF No. 3296] (as 

it may be amended, modified, or supplemented, the “Plan”). 

9. Following submission of the Plan, the Court established a schedule and procedures 

relating to confirmation of the Plan, including a timeline for parties to file preliminary witness 

lists. See Third Amended and Restated Order Establishing, Among Other Things, Procedures and 

Deadlines Concerning Objections to Confirmation and Discovery in Connection Therewith [ECF 

No. 3565] (the “Confirmation Procedures Order”). 

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C. PREPA’s Disclosures Pursuant to the Confirmation Procedures Order.

10. Pursuant to the Confirmation Procedures Order, parties in interest seeking to proffer 

fact testimony at the confirmation hearing on the Plan were required to file “preliminary fact 

witness list[s] and topics about which each witness will testify.” Confirmation Procedures Order

¶ 3.

11. In accordance with the Confirmation Procedures Order, on March 11, 2023, the 

Debtor filed its Preliminary List of Witnesses to Be Offered in Support of Confirmation of Plan of 

Adjustment [ECF No. 3329] (“Preliminary Fact Witness List”), which identified (1) Mr. David 

Skeel, Chairperson of the Oversight Board, as a fact witness, and (2) Mr. David Brownstein, 

Managing Director, Citigroup Global Markets Inc., as both a fact witness and a witness who may

offer opinion testimony pursuant to Fed. R. Civ. P. 26(a)(2)(C).

4

 Preliminary Fact Witness List at 

3-4. 

12. Specifically, the Debtor disclosed that Mr. Skeel:

May provide fact testimony showing the Plan complies with the 

provisions of PROMESA section 314(b)(1), including, without 

limitation, that it complies with the provisions of Bankruptcy Code 

sections 1122(a), 1122(b), 1123(a)(1), 1123(a)(2), 1123(a)(3), 

1123(a)(4), 1123(a)(5), 1123(b)(1), 1123(b)(2), 1123(b)(3), 

1123(b)(5), 1123(b)(6), 1123(d), 1129(a)(2), 1129(a)(3), 

1129(a)(6), 1129(a)(8) (if applicable), 1129(a)(10), 1129(b)(1), and 

1129(b)(2), PROMESA section 314(b)(2), 314(b)(3), 314(b)(4), 

314(b)(5), 314(b)(6), and 314(b)(7). Mr. Skeel may also provide 

testimony about facts showing (i) the Fuel Line Lender PSA, the 

National PSA, the Vitol Settlement Agreement, and Uninsured 

Bondholder Settlement Agreement (collectively, the “Plan 

Settlements”) are reasonable, (ii) the releases, injunctions, and 

4 Fed. R. Civ. P. 26(a)(2)(C) governs the disclosure standards for “hybrid” witnesses, or 

witnesses who “provide both fact and opinion testimony based on their scientific, technical, or 

other specialized knowledge.” Ford as Next Friend of Doe v. NCL Bahamas Ltd., No. 17-CV24404, 2019 WL 3937127, at *2 (S.D. Fla. June 4, 2019). Such witnesses are not required to 

submit expert reports. Est. of Leavitt Rey v. Marrero Gonzalez, No. 16-2769, 2020 WL 4464467, 

at * 1 (D.P.R. Aug. 4, 2020).

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exculpation provisions provided in the Plan are reasonable and 

appropriate, integral to the Plan, and constitute an essential 

component of the compromises identified above and in the Plan, and 

(iii) certain of the Commonwealth statutes the Oversight Board 

contends are preempted, or portions thereof, are inconsistent with 

PROMESA.

Id. at 2-3 (emphasis added).

13. In addition, the Debtor disclosed that Mr. Brownstein:

May provide testimony showing the Plan complies with the 

provisions of PROMESA sections 314(b)(6) and 314(b)(7) and 

Bankruptcy Code section 1122(a). Mr. Brownstein may also provide 

testimony about facts showing (i) some or all of the Plan Settlements 

are reasonable, (ii) the releases provided in the Plan are reasonable 

and appropriate, integral to the Plan, and constitute an essential 

component of the compromises identified above and in the Plan, (iii) 

the Plan’s structuring and consummation fees and professional 

reimbursement fees are fair and reasonable, (iv) the terms and 

structure of the New Bonds and CVI, and (v) the calculation of 

creditor recoveries.

Id. at 3 (emphasis added).

14. Pursuant to the Confirmation Procedures Order, parties in interest seeking to proffer 

expert testimony at the confirmation hearing on the Plan were required to file (1) opening expert 

disclosures by April 14, 2023, and (2) opening expert reports on or before April 28, 2023. 

Confirmation Procedures Order ¶¶ 24-25.

15. In accordance with the Confirmation Procedures Order, on April 14, 2023, the 

Debtor filed the Debtor’s Identification of Expert Witnesses [ECF No. 3394] (the “Identification 

of Experts”). Therein, again, the Debtor expressly identified that Mr. Brownstein may provide 

opinion testimony pursuant to Fed. R. Civ. P. 26(a)(2)(C). Identification of Experts ¶ 2(a). And

on April 28, 2023, the Debtor filed the Debtor’s Opening Expert Reports and Disclosures [ECF 

No. 3418] (the “Opening Expert Disclosures”) in which Debtor provided the requisite disclosure 

for the witnesses it identified as Fed. R. Civ. P. 26(a)(2)(C) witnesses, including Mr. Brownstein. 

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Specifically, the Debtor explained:

The subject matters on which Mr. Brownstein may testify include: 

(i) a description of the structure and terms of the New Bonds and 

CVI to be issued pursuant to the Plan; (ii) the impact of the New 

Bonds’ terms on the Plan’s feasibility under PROMESA 

§ 314(b)(6); (iii) the consistency of the New Bonds and CVI to be 

issued pursuant to the Plan with PREPA’s fiscal plan under 

PROMESA § 314(b)(7); (iv) the negotiation of the National PSA 

and the Fuel Line Lender PSA, including the benefits of those 

settlements; and (v) the basis for the releases and professional fees 

provided in connection with those settlements in the Plan. 

Opening Expert Disclosures ¶ 2(a) (emphasis added).

16. With respect to topics (iv) and (v)—the National PSA and the Fuel Line Lenders 

PSA—the Debtor disclosed that:

Mr. Brownstein is expected to testify concerning the National PSA 

and the Fuel Line Lenders PSA. Mr. Brownstein is expected to 

testify, to the extent consistent with mediation privilege, as to the 

nature of the negotiations that took place between the parties leading 

to those settlements, as well as the terms of the settlements, the 

benefits that they provide to PREPA, and the risks to PREPA were 

it to lose any of the disputes that are resolved through these 

settlements. Mr. Brownstein will also testify concerning the fees and 

other amounts proposed to be reimbursed or paid to National and the 

Fuel Line Lenders, as well as the releases provided for by the 

settlements and proposed to be effectuated by the Plan. Mr. 

Brownstein is also expected to testify the fees and other amounts 

proposed to be paid pursuant to these settlements are fair and 

reasonable in light of the obligations, responsibilities, and efforts 

undertaken by the proposed fee recipients, the relative magnitude of 

the fee payments compared to PREPA’s overall debt, and the use 

and magnitude of such fees in comparable cases. Mr. Brownstein 

will base this testimony on his personal participation in the 

negotiation of the National PSA and the Fuel Line Lender PSA, his 

personal participation in, or supervision of, communications 

between and among advisors to the Oversight Board, and his 

significant expertise and experience in the municipal bond market 

and with Title III restructurings. 

More specifically, with respect to the Fuel Line Lenders PSA, Mr. 

Brownstein is expected to testify regarding the key benefits the 

Oversight Board took into account in approving the settlement, 

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including, among other things, its resolution of the litigation filed by 

the Fuel Line Lenders regarding the asserted priority of the Fuel 

Line Lenders’ claims. Regarding the release called for by the 

settlement, Mr. Brownstein may testify as to how such release’s 

proposed terms provide flexibility for the Oversight Board to enter 

into subsequent settlements with other parties. 

As to the National Settlement, Mr. Brownstein is expected to testify 

that its structure, including its use of a trust commutation, is 

consistent with other settlements approved by this Court in other 

Title III plan confirmations, as well as prior municipal bond 

structures in which Mr. Brownstein has been involved. Mr. 

Brownstein is also expected to testify about the key benefits the 

Oversight Board took into account in approving the National 

Settlement. Mr. Brownstein may also address the National 

Reimbursement Claim, including its particular features. Further, Mr. 

Brownstein may also testify about the work done by National’s 

professional advisors relating to the structure of the Series B Bonds, 

and how such efforts provide a benefit to creditors who may enter 

into future settlements.

Id. at 4-5 (emphasis added).

17. Pursuant to the Confirmation Procedures Order, the Debtor will file the witness 

declarations of Messrs. Skeel and Brownstein on June 26, 2023. Confirmation Procedures Order 

at 6. No direct testimony of either witness has been filed as of this date.

D. Messrs. Skeel and Brownstein’s Depositions and the Motion.

18. Mr. Skeel was deposed on May 3, 2023 (Ex. 1, “Skeel Dep. Tr.”) and Mr. 

Brownstein was deposed on May 16, 2023 (Ex. 2, “Brownstein Dep. Tr.”).

5

 Among other things, 

Messrs. Skeel and Brownstein testified in accordance with the Debtor’s prior disclosures. 

Although counsel for the Oversight Board instructed Messrs. Skeel and Brownstein not to answer 

5 On April 28, 2023, the UCC noticed the depositions of Messrs. Skeel and Brownstein, as 

well as the deposition of PREPA representatives pursuant to Fed. R. Civ. P. 30(b)(6). [ECF No. 

3419.] On May 9, 2023, PREPA served its responses and objections to the 30(b)(6) notices, 

designating David Brownstein as PREPA’s witness as to several topics, including the National 

PSA and the Fuel Line Lender PSA. See Ex. 3 at 9-12.

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questions that invaded either the attorney client privilege or mediation privilege, counsel for the 

UCC had a full opportunity to examine Messrs. Skeel and Brownstein on their designated topics, 

and indeed, they did provide extensive testimony on those matters.

6

19. On June 2, 2023, the UCC filed the Motion seeking to preclude Messrs. Skeel and 

Brownstein “from testifying at the upcoming July 2023 confirmation hearing [] as to matters on 

which they refused to answer questions in their depositions based on a ‘mediation privilege’ or 

attorney-client privilege . . . .”7 Motion at 1. In particular, the UCC referenced instructions 

provided to Messrs. Skeel and Brownstein regarding the disclosure of information relating to the 

Fuel Line Lenders and National settlements. See, e.g., id. ¶ 7 (Brownstein), ¶ 14 (Skeel). No 

motion to compel was ever filed on any of the instructions at issue here. 

ARGUMENT

I. At Deposition, Counsel for the Debtor Instructed Messrs. Skeel and Brownstein Not 

to Answer Questions that Invaded Clearly Applicable Privileges

20. Privileges must be preserved absent waiver. The attorney-client privilege is 

“intended to encourage ‘full and frank communication between attorneys and their clients and 

thereby promote broader public interests in the observance of law and the administration of 

6 See, e.g., Brownstein Dep. Tr. 96:23-97:25 (the benefits of the settlements with National 

and the Fuel Line Lenders); id. 94:18-95:3 (the effect the Fuel Line Lenders settlement had on 

PREPA’s ability to make an offer to bondholders); id. 99:16-22 (same); id. 142:3-150:10 (the 

National settlement was reasonable); 125:25-128:12 (the consummation and professional 

reimbursement fees); Skeel Dep. Tr. 170:22-171:6 (the Fuel Line Lenders settlement was 

reasonable), 286:6-12 (same); 340:23-341:14 (the National settlement was reasonable); 334:24-

335:7 (the Plan’s compliance with Section 1129(b)(1) of the Bankruptcy Code); 159:14-25 (the 

consummation and professional reimbursement fees); 345:8-348:2 (same).

7 Counsel for the Oversight Board also instructed Messrs. Brownstein and Skeel not to 

answer questions to the extent they treaded on the deliberative process privilege, which protects 

the deliberative “process by which governmental decisions and policies are formulated.” United 

States Fish & Wildlife Serv. v. Sierra Club, Inc., 141 S. Ct. 777, 786 (2021) (citation omitted). 

The Motion does not challenge the invocation of this privilege.

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justice.’” Swidler & Berlin v. United States, 524 U.S. 399, 403, (1998) (quoting Upjohn Co. v. 

United States, 449 U.S. 383, 389 (1981)). The mediation privilege protects “communications to 

which a mediator was personally privy, communications that were directly made at a mediator's 

explicit behest, or communications undertaken with the specific intent to present them to a 

mediator for purposes of mediation., ACQIS, LLC v. EMC Corp., No. 14-CV-13560, 2017 WL 

2818984, at *2 (D. Mass. June 29, 2017), and, pursuant to the Mediation Order, the Court here 

mandated that all negotiations and settlements related to the mediation be kept confidential. 

Mediation Order ¶¶ 8-9. To preserve a privilege or to otherwise enforce a limitation ordered by a 

court, the Federal Rules authorize counsel to instruct deponents not to answer. See Fed. R. Civ. P. 

30(c)(2). Significantly, while the Oversight Board owns its attorney-client privilege, it does not 

own or control the mediation privilege.

21. During the depositions of Messrs. Skeel and Brownstein, the examiners repeatedly 

asked questions that invaded the attorney-client privilege. See e.g., Skeel Dep. Tr. 161:9-14, 

258:23-259:11, 331:8-15. Counsel for the Oversight Board was warranted in instructing the 

witnesses not to divulge information covered by the privilege. Luxottica Grp. S.p.A. v. Liquidity 

Servs., Inc., No. CV 18-7821, 2019 WL 2620727, at *2 (C.D. Cal. May 24, 2019) (“To the extent 

that any deposition questioning may call for the disclosure of [attorney-client] privileged 

communications, the deponents may be instructed not to answer to preserve the privilege.”). This 

is because, absent waiver, the examiners have no legal right to any such information. See Bulow 

v. Bulow (In re von Bulow), 828 F.2d 94, 100 (2d Cir. 1987) (“[T]he [attorney-client] privilege 

belongs solely to the client and may only be waived by him.”).

22. Likewise, counsel’s instructions to Messrs. Skeel and Brownstein not to answer 

questions implicating the mediation privilege or requiring the witnesses to divulge information in 

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contravention of the Court’s Mediation Order, see Skeel Dep. Tr. 250:16-20, 252:8-9, 296:8-15; 

Brownstein Dep. Tr. 89:21-24; 91:17-94:9; 145:22-146:5, were required. Wiand v. Fam. Tree Est.

Plan., LLC, No. 21-cv-361, 2022 WL 17572769, at *1-2 (M.D. Fla. Nov. 7, 2022) (denying motion 

to compel response to deposition question about tentative settlement agreement as agreement was 

subject to mediation privilege and instructions to witness not to answer were proper); see Stewart 

Title Guar. Co. v. Owlett & Lewis, P.C., 297 F.R.D. 232, 241 (M.D. Pa. 2013) (noting counsel 

could have instructed witness not to answer questions regarding mediation memo at deposition 

pursuant to Rule 30(c)(2)). Indeed, this Court has been explicit that mediation in connection with 

PREPA’s Title III case “shall remain confidential,” Mediation Order ¶ 8, and “[t]he Mediation 

Parties and their counsel and advisors shall not in any way disclose to any non-party or to any 

court . . . any such discussion, mediation statement, other document or information, 

correspondence, resolution, or Settlement Proposal . . . that may be made or provided in connection 

with the Mediation . . . .”, id. ¶ 9 (emphasis added). As such, the fact that Messrs. Skeel and 

Brownstein were instructed not to disclose discussions concerning settlements that occurred during 

or in connection with the mediation is unremarkable, unsurprising, and consistent with the Court’s 

explicit direction.

II. The Motion is Premature

23. Putting aside the fact that it was entirely appropriate to instruct Messrs. Skeel and 

Brownstein not to answer questions invading clearly applicable privileges or requiring them to 

disclose information in violation of a court order, to the extent the UCC is concerned about 

testimony Mr. Skeel or Mr. Brownstein might offer in their direct testimony, the Motion is

premature and should be denied. 

24. Contrary to the UCC’s Motion, topics and issues were not secreted. See Motion at 

14. The UCC procured responses on all topics and issues, but without privileged communications. 

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The UCC’s requested relief addresses a purely speculative scenario, but a scenario that is entirely 

legal, namely a scenario in which the attorney-client privilege is waived. The Oversight Board 

has not determined to waive its privilege at trial, but there is no law or rule prohibiting it from 

doing so. Moreover, Messrs. Skeel and Brownstein have not proffered their witness declarations 

yet; that is not required until June 26, 2023. See Confirmation Procedures Order at 6. With respect 

to the mediation privilege, the UCC conveniently ignores the Debtor explicitly indicated Mr. 

Brownstein will only testify regarding negotiations that led to settlements with the Fuel Line 

Lenders and National “to the extent consistent with mediation privilege.” Opening Expert 

Disclosures at 4 (emphasis added). And to avoid any waiver, Mr. Skeel will testify in the same 

fashion. The Oversight Board lacks the power to waive the mediation privilege as long as the 

Court maintains its order.

25. Thus, because the UCC does not seek to exclude any actual testimony that Mr. 

Brownstein or Mr. Skeel have affirmatively placed at issue in this litigation, the UCC’s invocation 

of the “sword and shield” doctrine (Motion at 13-15) is without merit. That concept only applies 

where “the party asserting the privilege place[s] protected information in issue for personal benefit 

through some affirmative act,” and fairness dictates that the party disclose the protected 

information. XYZ Corp. v. United States (In re Keeper of Recs. (Grand Jury Subpoena Addressed 

to XYZ Corp.)), 348 F.3d 16, 24 (1st Cir. 2003) (quoting Jack B. Weinstein & Margaret A. Berger, 

Weinstein’s Federal Evidence § 503.41 (Joseph M. McLaughlin ed.1997)). Rather, the Motion 

only complains that the witnesses were instructed not to answer certain questions at deposition—

the answers to which would have intruded the attorney-client or mediation privilege or otherwise 

violated mediation confidentiality—and requests relief concerning a situation it only speculates 

will occur.

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26. Courts are well within their discretion to deny motions in limine requesting

resolution of speculative events, such as the situation here. For example, in United States v. Razo, 

the court denied a motion in limine without prejudice based on “the Government's representation 

that it d[id] not intend to present the contested evidence at trial.” No. 1:11–cr–00184–JAW, 2012 

WL 6569334, at *4 (D. Me. Dec. 17, 2012). The court held that “[i]n light of the Government's 

representation . . . a ruling on the merits would constitute an advisory opinion.” Id.; see also 

Manske v. UPS Cartage Servs., Inc., No. 2:10-cv-00320-JAW, 2012 WL 13211725, at *1 (D. Me. 

May 9, 2012) (denying motion in limine without prejudice where the parties did not “present [the 

court] with a concrete case or controversy.”). Here, the Motion presents the same scenario, as it 

seeks to limit the Oversight Board from proffering testimony it has not yet and likely will never 

put forth. Put differently, if Messrs. Brownstein and Skeel do not offer testimony that divulges 

confidential mediation settlement discussions or implicates the mediation privilege or attorneyclient privilege, then any ruling on this Motion limiting the Debtor from presenting such 

nonexistent testimony will necessarily be advisory. If the Oversight Board actually were to place 

information that is either privileged or otherwise subject to mediation confidentiality at issue by 

including it in Messrs. Brownstein and Skeel’s forthcoming declarations, the UCC is free to crossexamine the witnesses at that time. For that reason, the UCC would not suffer any prejudice should 

the Motion properly be denied. 

III. The UCC’s Motion Unfairly and Misleadingly Presents the Deposition Testimony of 

Mr. Brownstein and Mr. Skeel

27. Beyond the substantive defects described above, the Motion misleads the Court by 

suggesting Mr. Brownstein and Mr. Skeel were entirely silenced on various topics at their 

depositions, including the topics the Debtor identified in its witness disclosures as ones where each 

witness “may” testify. That is not the case. The fact that Debtor’s counsel instructed the witnesses

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not to answer questions that called for privileged or mediation confidential information does not 

make their extensive testimony concerning facts on the same subjects disappear. Nor does it render 

their hearing testimony on those same topics inadmissible or inappropriate. 

28. Both witnesses testified as to facts they knew of and the related thought processes 

that led each (and the Oversight Board) to pursue certain actions with respect to the settlement 

agreements. And counsel for the Oversight Board was quite clear that counsel for the UCC (and 

all other parties) could pose such questions to Messrs. Brownstein and Skeel to the extent they did 

not invade the relevant privileges. 

A. David Skeel Testimony

29. For example, the UCC’s contention that, “the Oversight Board and Mr. Skeel 

frustrated the Committee’s ability to fully explore the topics on which Mr. Skeel has said he intends 

to testify,” (Motion ¶ 15) wholly ignores Mr. Skeel’s extensive deposition testimony outlining the

facts and the bases in support of those same topics.

30. The UCC complains of the lack of testimony from Mr. Skeel with respect to the 

reasonableness of the plan settlements. Id. ¶ 15. But with respect to the Fuel Line Lenders 

settlement, Mr. Skeel testified point-blank that, in his understanding, the settlement was 

reasonable. E.g., Skeel Dep. Tr. 170:22-171:6, 286:6-12, 306:22-23. He substantiated his basis 

for this view several times. For example:

In my view, the terms of the settlement are reasonable because the 

fuel line lenders had plausible claims that they were entitled to 

current expense treatment and entitled to payment in full. And by 

settling it, we were able to resolve those claims at a lower level than 

if they had successfully litigated those claims. And we also got the 

benefit of substantial creditor supporting the plan of adjustment

Id. 304:18-305:4.8

8 See also id. 170:22-171:6; 314:12-22.

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31. Mr. Skeel similarly testified that he believed the National settlement was reasonable 

and provided his basis for that understanding. For instance:

I believe it’s reasonable because when we entered the settlement, 

National had an argument that they were completely secured. And 

they were entitled to 100 cents on the dollar, plus post-petition 

interest for the duration of the case. And in return for the settlement, 

they compromised that argument and agreed to take the 71.65 

percent. And the other components of the deal, they agreed to 

support the plan to vote in favor of the plan. And by reaching the 

deal with them, we took roughly a billion dollars off the table.

Id. 340:23-341:14.9

32. Finally, the UCC complains of Mr. Skeel’s lack of testimony with respect to the 

Plan’s compliance with Section 1129(b)(1) of the Bankruptcy Code, and specifically whether the 

Plan discriminates unfairly within the meaning of that section. Motion ¶ 12. But the UCC 

overlooks the fact that Mr. Skeel offered testimony on this topic to the extent the questioning did 

not seek to elicit the substance of his conversations with counsel. First, Mr. Skeel explained his 

general understanding of the Section 1129(b)(1)’s meaning. Skeel Dep. Tr. 284:21-285:19. And, 

second, Mr. Skeel testified as to his understanding of the underlying facts for why the Fuel Line 

Lenders are entitled to be treated differently under the Plan than general unsecured creditors. Id.

334:24-335:7 (“Facts that I'm aware of are that the fuel line lenders had a particularly strong claim 

to current expense treatment because they're named in the -- explicitly in the trust agreements.

And they have contracts with PREPA that describe them as entitled to current expense 

treatment.”). And, if Mr. Skeel ever actually offers testimony at confirmation on that aspect of 

Section 1129(b)(1) that was the subject of an instruction at his deposition, the parties can cross9 See also id. 286:13-16; 342:4-14; 344:5-23.

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examine at the appropriate time.10

B. David Brownstein Testimony

33. Likewise, while the UCC complains it was prevented from discovering information 

pertaining to the National and Fuel Line Lenders settlements and the reasonableness of such 

agreements, Motion ¶ 10, Mr. Brownstein provided substantial testimony about his personal 

understanding of these topics. Indeed, as the UCC notes in its Motion (¶ 6), counsel for the 

Oversight Board drew a “bright line” and instructed Mr. Brownstein not to answer anything “in 

terms of what went back and forth” in settlement talks leading to the Fuel Line Lenders PSA.11 

Brownstein Dep. Tr. 93:3-94:9; see also id. 93:5-8 (“And you asked the question about how many 

proposals went back and forth. And I think that that process is – that process does get into 

mediation privilege.”). However, the Oversight Board’s counsel allowed Mr. Brownstein to

answer questions that probed his personal understanding of the settlement agreements as long as 

he steered clear of the specific “back and forth.” 

34. For instance, and merely by way of illustration, Mr. Brownstein testified about what 

he perceives as the benefits of the settlements as they relate to the Debtor’s ultimate goal of 

10 Additionally, counsel for the Oversight Board instructed Mr. Skeel he should answer any 

and all questions he has a factual understanding of and only refrain from discussing the deliberative 

process of the Oversight Board with respect to the negotiations of the settlement agreements. Id.

238:9-14 (“Without getting into how the deliberations take place, you can answer his question by 

reference to your general practice and how you went about it.”). The Oversight Board’s counsel 

objected to certain questions only to the extent they went towards the progress, discussions, or 

efforts towards settlement because those discussions are “not admissible or appropriate, whether 

in the mediation context or otherwise under Rule 408.” Id. 296:8-15.

11 It is confounding that the UCC takes issue with this instruction. The Debtor’s Opening 

Expert Disclosures specified that Mr. Brownstein was expected to testify regarding the National 

PSA and the Fuel Line Lenders PSA only “to the extent consistent with the mediation privilege.” 

Opening Expert Disclosures at 4-5. Additionally, Mr. Brownstein was identified as the 30(b)(6) 

witness for the Debtor concerning the settlements with National and the Fuel Line Lenders, subject 

to the attorney-client and mediation privileges. See Ex. 3 at 9-12.

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confirming the Plan: 

The benefit I would suggest to you of each settlement that we have 

is, A, they stopped our litigation with fighting each of them. But the 

other benefit is it proves out from my perspective that because we 

have them, that’s not why we did them, but that what we are 

offering, we have sophisticated institutional investors who have 

agreed to a structure that we believe provides the value that it 

provides, meaning we’re giving you a bond that at 6% is worth par; 

right? And National concurs with that, otherwise they would have 

not accepted it in its form. So everybody cares about the same things 

from COFINA to Commonwealth. We care about those same things 

at the board, making sure we’re trying to create the most valuable 

instrument for bondholders. And I believe that the markets have 

borne out that we did what we said we would do in creating a strong 

marketable instrument that provides the value we said it provided at 

Citi on behalf of the board.” 

Brownstein Dep. Tr. 96:23-97:25.

35. He similarly testified about several aspects of the Fuel Line Lenders settlement, for 

example, that it made it possible for the Oversight Board to make an offer to the bondholders. Id.

94:18-95:3 (testifying that without the Fuel Line Lenders settlement, “we wouldn’t have been able 

to make an offer to the bondholders that took the wallet we have available and put it on the table 

which is what our goal was.”); id. 99:16-22 (“[A]s I've said, if we didn't have a settlement with 

them [the Fuel Line Lenders], we couldn't settle with the bondholders because we didn't know how 

much we had available to pay the bondholders”). Counsel for the Oversight Board properly 

allowed questions relating to this topic. See, e.g., id. 95:4-16 (allowing the question, “Any other

benefits to PREPA from the fuel line lenders’ PSA?”).12

36. Mr. Brownstein further testified—without breaching the mediation privilege or 

12 See also id. at 365:13-366:2 (testifying that the settlement ensured that the bonds being 

issued could be sold in the market at a proper value); 370:10-23 (further testifying to the benefits

of the settlement); 371:14-373:12 (detailing the effect of the bonds issued pursuant to the 

settlement on accrued interest); 376:6-11 (testifying as to the difference in treatment between the 

Fuel Line Lenders and general unsecured creditors).

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mediation confidentiality—as to a number of details relating to the National PSA. For example, 

he provided his understanding of why the National PSA was reasonable and confirmed the 

exchange ratios that were offered to bondholders and to National. See, e.g., id. at 140:6-21, 142:3-

150:10.13 That he was instructed not to provide specifics regarding why the Oversight Board 

decided to make certain proposals was in line with the aforementioned basis on which the 

Oversight Board’s counsel instructed him not to answer. Indeed, the Oversight Board’s counsel

went to so far as to encourage questioning counsel to ask Mr. Brownstein about the reasonableness 

of the settlements to the extent it did not probe the Oversight Board’s deliberative strategy. See

id. 143:13-17 (“MR. MERVIS: I think asking him why he thinks the settlement's fair and 

reasonable, that's a perfectly fair and appropriate question.”).

CONCLUSION

37. Simply put, the UCC is complaining about being properly precluded from inquiring 

into matters protected from disclosure by various applicable privileges, including but not limited 

to mediation and attorney-client. As the Oversight Board’s counsel made plain in Mr. Skeel’s 

deposition, the witnesses “can offer facts. And lawyers are empowered to use those facts and 

apply the law to them. And that's what lawyers do. And that's what you'll hear at confirmation.

A witness is not obligated to give you facts and his legal opinion on things.” Skeel Dep. Tr. 

334:11-18. Debtor’s counsel appropriately instructed Messrs. Brownstein and Skeel not to answer 

questions that treaded on the attorney-client and mediation privileges or mediation confidentiality, 

and do not intend to introduce such testimony through the witnesses’ forthcoming direct testimony 

13 See also id. at 133:23-136:23 (testifying to the general timeline of the settlement 

negotiations and his involvement); 152:25-153:8 (the effects of National’s recovery had it not 

entered into settlement); 153:12-154:15 (the nature of National’s settled reimbursement claim);

387:17-388:15 (testifying as to whether the National PSA has a fiduciary out); 372:16-373:19 

(detailing the effect of the bonds issued pursuant to the settlement on accrued interest).

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declarations.

38. For at least the foregoing reasons, the Court should deny the Motion.

Dated: June 13, 2023

New York, New York

Respectfully submitted,

/s/ Margaret A. Dale

Martin J. Bienenstock

Paul V. Possinger

Ehud Barak

Margaret A. Dale

Michael T. Mervis

Julia D. Alonzo

Laura Stafford

(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

San Juan, PR 00918-1813

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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CERTIFICATE OF SERVICE

I hereby certify that, on this same date, I electronically filed the foregoing with the Clerk 

of the Court using the CM/ECF system, which will send notifications of such filing to all 

CM/ECF participants in this case. 

/s/ Hermann D. Bauer 

Hermann D. Bauer

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