EXHIBIT E 

Case:17-03283-LTS Doc#:2865-5 Filed:04/09/18 Entered:04/09/18 18:10:40 Desc:

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March 1, 2018 

By E-Mail 

Gary A. Orseck, Esq. 

Robbins, Russell, Englert, 

Orseck, Utereiner & Sauber LLP 

1801 K Street N.W., Suite 411L 

Washington, D.C. 20006 

Re: In re Commonwealth of Puerto Rico, No. 17-03283-LTS 

Dear Mr. Orseck: 

 We write in response to your letters dated February 21, 2018 and February 27, 2018. 

Confidentiality Designations 

Your February 27, 2018 letter mischaracterizes Judge Dein’s February 26, 2018 order 

with respect to confidentiality restrictions. Judge Dein did not order all of the data room 

documents to be “deemed produced” pursuant to Rule 2004 such that confidentiality restrictions 

must be immediately lifted as your letter suggests. 

 The language you selectively quoted out of context from Judge Dein’s order reads in full: 

“The question that remains to be answered is whether that material should be deemed produced 

pursuant to Rule 2004 and, therefore, freely used without restriction in this litigation or 

otherwise.” Op. at 7. Judge Dein answered her own question in the very next paragraph as 

follows: “[T]his Court concludes that the Fiscal Plan Development Materials are discoverable 

under Rule 2004. However, Movants have not shown good cause for their immediate use in 

these proceedings.” Op. at 7 (emphasis added); see also Op. at 11 (“Movants have not shown 

good cause for the immediate use of information, which would require the disclosure of many 

documents currently shared amongst the parties pursuant to protective orders and/or nondisclosure agreements.”). Your February 27 letter makes no attempt whatsoever to articulate the 

good cause for immediate use that Judge Dein just held was lacking. 

 Moreover, the demand in your February 27 letter that Respondents review all responsive 

materials in the data room and make confidentiality designations is flatly inconsistent with the 

Court’s order. See Op. at 11 (“This Court does recognize, however, that deciding what material 

in the data room should be released from their confidentiality restrictions may involve a lot of 

unnecessary work since the Movants may not be seeking to use much of the material. This 

Court’s ruling infra regarding when documents can be used alleviates that harm.”) (emphasis 

added). As the Court’s order made clear, Respondents are not required to expend scarce 

resources making confidentiality designations in the abstract—those determinations are to be tied 

to a particular use: 

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The Movants have only asserted that they may need to use the 

materials in connection with the cross-examination of experts or 

other challenges to an eventual plan of adjustment. No timetable for 

such potential use has been provided. As a result, this Court orders 

that while Movants may attempt to use the Fiscal Plan Development 

Materials in the Title III or adversary proceedings, Respondents are 

not prejudiced from objecting to that use on a document by 

document basis. Such objections may include the necessity of 

keeping a particular protective order in place. This procedure

mirrors that identified by the parties in Section I(a) of the Joint 

Report for the use of documents responsive to other requests in the 

Renewed Motion. 

Op. at 11-12. 

 The Procedure in Section I(a) of the Joint Report set forth the following: (1) Respondents 

will designate “factual materials” that may be used subject to a protective order; (2) documents 

produced in adversary proceedings may be used in litigation, subject to a protective order; and 

(3) all mediation materials will remain subject to the Mediation agreements, but Movants may 

identify factual information they contend should be made available and meet and confer with 

Respondents to determine a format for production. 

 Consistent with that procedure, Respondents designate as follows: 

Category 1- Factual Materials (Subject to Protective Order): 

• Folder 1.2.2.1- Previously Unpublished TSA Reports 

• Folder 1.2.2.2- Monthly FOMB Reporting Packages 

• Folder 1.2.2.3- ASES Actuarial Memoranda 

• Folder 1.2.2.4- Platino Actuarial Documentation 

• Documents 1.2.4, 1.2.5, 1.2.6, and 1.2.7- Wolfe Backup Materials 

• Document 1.2.8- CRIM Special Property Tax Collections 

• Document 1.2.9- Hacienda FY13 to FY18 YTD Historical Cash Flows

• Document 1.2.1 - DRAFT- Bank Account Balances for Puerto Rico Government 

Instrumentalities 

Category 2 - Documents Produced in Adversary Proceedings (Subject to Protective Order): 

• Folder 1.2.1- Prior Productions 

Category 3 - Mediation Documents (Subject to Mediation Restrictions): 

• Folder 2.0 and its subfolders 

 

 Consistent with Judge Dein’s order, Respondents are willing to meet and confer 

regarding lifting the NDA and/or mediation restrictions on other documents,1

 to the extent that 

Movants can show a current need for those restrictions to be lifted. Absent such a need, 

however, Respondents will not expend scarce resources on the “unnecessary work” of 

 

1 Respondents do not assert confidentiality protections over materials in the data room that are 

publicly available (e.g., the EY Bridge Report). 

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classifying the documents in the data room divorced from an actual contemplated use. See Op. at 

11. 

February 21, 2018 Requests 

The requests in your February 21, 2018 letter are essentially a subset of the over 250 

creditor diligence questions to which the Commonwealth’s financial advisors are currently in the 

process of responding. Indeed, these requests are largely duplicative of, and in many cases 

repeat verbatim or nearly verbatim, questions Goldin Associates submitted on behalf of the GO 

Group. 

 As to the substance of your requests, Respondents are committed to making available 

reasonably needed information to allow creditors to understand the 2018 Fiscal Plan. Consistent 

with this commitment, AAFAF has made the January 24 and February 12 drafts it submitted to 

the Oversight Board available to creditors, along with supporting models. 

 But the GO Group’s requests go far beyond merely understanding the Fiscal Plan—they 

appear designed to facilitate mounting a judicial attack on virtually every aspect of the plan. 

Judge Swain has made abundantly clear that the court will not hear such a challenge. See Ambac 

v. Commonwealth of Puerto Rico, et al., No 17-00159-LTS, Dkt. No. 156 at 21 (D.P.R. Feb. 27, 

2018) (“To the extent these claims rest on contentions that the Fiscal Plan violates Section 

201(b) specifications, such as the requirement that a fiscal plan respect lawful priorities or lawful 

liens under territorial law, this requested relief necessarily implicates review of the Fiscal Plan’s 

certification and therefore the Court lacks subject matter jurisdiction to consider the merits of the 

claims.”). In light of Judge Swain’s ruling, continuing demands for every scrap of paper or data 

involved in creating the Fiscal Plans are unjustified. In addition, Respondents will not indulge 

requests to seek discovery into their ongoing deliberations regarding the Fiscal Plan, as several 

requests do on their face. See Request Nos. 12-16, 19 (seeking materials created or considered

by the Commonwealth in response to the Oversight Board’s February 5 letter). 

 To the extent the requests in your February 21, 2018 letter seek materials supporting 

aspects of the Fiscal Plan drafts that have been finalized, AAFAF will work with its financial 

advisors to make supporting materials sufficient to allow creditors to understand the plan 

available. To the extent your requests seek documents supporting aspects of the Fiscal Plan 

drafts that are subject to ongoing internal deliberations and deliberations between AAFAF and 

the Oversight Board, those materials are pre-decisional and reflect ongoing policy deliberations. 

AAFAF will produce appropriate materials to allow creditors to understand the final decisions on 

these matters after those decisions are made. AAFAF and its financial advisors are working to 

identify which of the materials sought in your requests can be produced in the near term, and 

which can be produced following finalization of deliberations with the Oversight Board in the 

coming weeks. 

In sum, and consistent with Judge Dein’s order that Movants have not shown good cause 

for immediate release of Fiscal Plan Development Materials from the data room confidentiality 

restrictions, Respondents decline to produce the materials you requested in your February 21 

letter outside the data room and the confidentiality restrictions that apply to it. We will, of 

course, engage in a meet and confer process to discuss any specific documents that you believe 

should be exempt from the restrictions, as contemplated by Judge Dein’s order. 

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Privilege Log

 Consistent with Judge Dein’s order, Respondents propose the following schedule: 

Initial Privilege Log Due: March 31, 2018 

First Update: 30 days after the date that the Oversight Board certifies the 2018 

Commonwealth Fiscal Plan. 

Subsequent Updates: 14 days following the production of additional materials, if 

any, in response to the Joint Rule 2004 requests dated November 28, 2017. 

Provided, however, that neither AAFAF’s publication of financial information on 

its website (e.g., weekly TSA reports, monthly cash account balance updates), nor 

uploading monthly FOMB reporting packages to the data room will trigger a 

requirement to update the privilege log. 

Sincerely, 

/s/ Margaret A. Dale /s/ John J. Rapisardi 

Margaret A. Dale John J. Rapisardi 

Case:17-03283-LTS Doc#:2865-5 Filed:04/09/18 Entered:04/09/18 18:10:40 Desc:

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