IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

__________________________________________

In re: )

) PROMESA

THE FINANCIAL OVERSIGHT AND ) Title III

MANAGEMENT BOARD FOR PUERTO RICO, )

)

as representative of ) No. 17 BK 3283-LTS

)

THE COMMONWEALTH OF PUERTO RICO, )

)

Debtor. )

In re: )

) PROMESA

THE FINANCIAL OVERSIGHT AND ) Title III

MANAGEMENT BOARD FOR PUERTO RICO, )

)

as representative of ) No. 17 BK 3567-LTS

)

PUERTO RICO HIGHWAYS & )

TRANSPORTATION AUTHORITY, )

)

Debtor. )

PEAJE INVESTMENTS LLC, )

) Adv. Proc. No. 17-151-LTS

Plaintiff, ) in 17 BK 3567-LTS

)

-against- ) Adv. Proc. No. 17-152-LTS

) in 17 BK 3283-LTS

PUERTO RICO HIGHWAYS & )

TRANSPORTATION AUTHORITY, et al., )

)

Defendants. )

INFORMATIVE / URGENT MOTION OF PEAJE INVESTMENTS

LLC REGARDING SCHEDULING OF DISCOVERY AND

BRIEFING IN ADVANCE OF AUGUST 8, 2017 HEARING

Plaintiff Peaje Investments LLC (“Plaintiff”), by and through its undersigned attorneys,

respectfully submits this Informative / Urgent Motion concerning the Court’s bench ruling at the

hearing held on June 5, 2017 (the “June 5 Hearing”) in the above-captioned adversary

proceedings and the Court’s June 7, 2017 order implementing that ruling (see [Dkt. No. 47] in

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Adv. Proc. No. 17-151-LTS) (the “Order”). The Court’s Order set a hearing on Plaintiff’s

pending preliminary injunction and stay relief requests for August 8, 2017 at 9:30 a.m. (ET) in

San Juan, Puerto Rico (the “August 8 Hearing”). The Order also directed the parties to submit a

proposed discovery and briefing schedule “consistent with the principles discussed on the record

at the [June 5th] Hearing.” The parties have engaged in multiple rounds of discussions in an

attempt to arrive at a mutually agreeable schedule, but have been unable to come to a final

agreement. Both parties intend to submit their own proposed schedules to the Court.

Throughout their discussions, both sides have made clear that there was no agreement on any

particular deadline unless there was an agreement on an overall schedule. Nevertheless,

Plaintiff’s proposal below makes significant concessions beyond what it originally asked of

Defendants, in an attempt to arrive at a schedule that is fair to both sides, workable, and

consistent with the Court’s directions at the June 5 Hearing. Plaintiff respectfully proposes as

follows:

• Plaintiff shall serve any written discovery requests by June 12, 2017 and Defendants

shall serve any written discovery requests by June 16, 2017.

• The parties shall serve responses and objections to discovery requests by June 23,

2017.

• Plaintiff shall file any fact witness direct testimony affidavits in support of its case-inchief by June 23, 2017. Such affidavits shall be limited to factual averments already

made in the Verified Complaint.

• Defendants shall provide a list of their witnesses which identifies the subject area of

each witness’ testimony by June 30, 2017.

• The parties shall make document productions on a rolling basis. Fact discovery

productions shall be completed by July 7, 2017. Plaintiff shall produce any expertrelated documents by June 19, 2017 and Defendants shall produce such documents by

July 7, 2017.

• Defendants shall complete any depositions of Plaintiff’s witnesses during June 26-30,

2017 and/or July 5-7, 2017.

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• Defendants shall file their opposition brief and any fact and expert witness direct

testimony affidavits by July 7, 2017.

• Plaintiff shall complete any depositions of Defendants’ witnesses during July 14-26,

2017.

• Plaintiff shall file their reply brief and any rebuttal fact witness or

rebuttal/supplemental expert witness direct testimony affidavits by July 28, 2017.

• The parties shall exchange and submit to the Court exhibit lists and marked exhibits

by August 1, 2017. The parties shall deliver two hard copy sets of the exhibits to

Judge Swain’s chambers in San Juan and an additional two hard copy sets to Judge

Swain’s chambers in New York.

• Defendants shall complete any depositions of any new expert or rebuttal fact

witnesses during July 31, 2017 and August 4, 2017.

The biggest sticking point between the parties concerns the deadline for Defendants to

submit their opposition brief and supporting fact and expert witness affidavits. Plaintiff proposes

a deadline of July 7, 2017, which would give Defendants more than five weeks to respond to

Plaintiff’s papers. In contrast, Defendants have taken the position that they should get six weeks,

until July 14, 2017, to respond. Defendants’ position would leave Plaintiff with only two weeks

to try to cram in all of the work necessary to prepare a reply to Defendants’ factual and legal

arguments, including (1) analyzing Defendants’ fact and witness testimony; (2) preparing

rebuttal expert affidavits; (3) preparing rebuttal fact witness affidavits; (4) deposing all of

Defendants’ witnesses; and (5) writing a reply brief.

Defendants’ proposal is one-sided and unfair to Plaintiff. The Oversight Board and

AAFAF have been aware of Plaintiff’s factual allegations regarding its request for stay relief,

particularly Plaintiff’s arguments regarding its lack of adequate protection, for nearly a year

(since Plaintiff first sought relief from the interim PROMESA stay, giving rise to litigation in the

District Court and the First Circuit). In addition, Defendants have been aware of Plaintiff’s

factual allegations regarding its request for a preliminary injunction since at least early May of

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this year (when it first filed its request in the District Court). In contrast, Plaintiff has not yet

seen Defendant’s factual allegations or legal arguments with respect to defenses or objections

Defendants may raise, and Defendants have been steadfastly unwilling to disclose their

arguments to Plaintiff in advance of filing their response. Nor does Plaintiff have any idea how

many witnesses Defendants plan to call. Under the circumstances, Defendants’ attempt to give

themselves over three quarters of the available time before the hearing and leave Plaintiff with

only two weeks for rebuttal affidavits, discovery, and briefing is unfair.

Defendants have also taken the position that Plaintiff should be precluded from

presenting rebuttal affidavits from any fact witnesses. Given that the Court has directed the

parties should submit direct testimony in the form of affidavits, Defendants’ proposal is

unworkable. Under their proposal, Defendants would be free to raise affirmative defenses based

on factual matters falling outside of the Verified Complaint and Plaintiff would be powerless to

contest any of those facts because it could neither submit a rebuttal affidavit nor call a witness

live at the hearing. There is no justification for such an uneven playing field. Plaintiff should

have the right to admit rebuttal affidavits, subject to Defendants’ right to argue it is not proper

rebuttal.

In addition, Defendants have refused to agree to a streamlining proposal that Plaintiff has

made. Because Plaintiff’s Verified Complaint covers subject matter areas and claims for relief

beyond the more limited subject matter areas and claims for relief that are the focus of the

August 8 Hearing, Plaintiff has proposed to extract the relevant information from the Verified

Complaint in the form of a more succinct affidavit that does not alter the substance of the

allegations and will submit this affidavit by June 23, 2017. Because the Court has made clear its

preference that direct testimony proceed by written affidavit, Plaintiff believes that its proposal is

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warranted and will help streamline the hearing. Moreover, this procedure will address any

potential evidentiary objections that Defendants may try to raise to allegations in the Verified

Complaint. Defendants have offered no valid reason to contest this proposal.

In short, by waiting until the last minute to disclose the factual and legal basis for their

position, and then refusing to agree to a process whereby Plaintiff may fairly address relevant

factual contentions, Defendants are attempting to deny Plaintiff a fair opportunity to present its

case.

WHEREFORE, Plaintiff respectfully requests that the Court (x) enter an order,

substantially in the form annexed hereto as Exhibit A, implementing Plaintiff’s proposed

discovery and briefing schedule, and (y) grant such further relief to Plaintiff as the Court deems

just and proper.

[Remainder of page intentionally left blank.]

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RESPECTFULLY SUBMITTED, in San Juan, Puerto Rico, this 12th day of June,

2017.

MONSERRATE SIMONET &

GIERBOLINI, LLC

Dora L. Monserrate Peñagarícano

USDC-PR No. 212612

101 San Patricio Avenue

Maramar Plaza, Suite 1120

Guaynabo, Puerto Rico 00968

Phone: (787) 620-5300

Fax: (787) 620-5305

DECHERT LLP

_/s/ Allan S. Brilliant_____________

Allan S. Brilliant*

Robert J. Jossen*

Andrew C. Harmeyer*

1095 Avenue of the Americas

New York, New York 10036

-andG. Eric Brunstad, Jr.*

90 State House Square

Hartford, Connecticut 06103

-andStuart T. Steinberg*

Cira Centre

2929 Arch Street

Philadelphia, Pennsylvania 19104

Attorneys for Peaje Investments LLC

* Admitted pro hac vice in Nos. 17 BK 3283-LTS and 17 BK 3567-LTS.

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CERTIFICATION

The undersigned certifies that Plaintiff made a bona fide and good faith effort to resolve

the matter without a hearing. Nonetheless, the undersigned anticipates that Defendants will

oppose Plaintiff’s Informative / Urgent Motion.

_/s/ Allan S. Brilliant__________

By: Allan S. Brilliant

(admitted pro hac vice)

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EXHIBIT A

(Proposed Scheduling Order)

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

__________________________________________

In re: )

) PROMESA

THE FINANCIAL OVERSIGHT AND ) Title III

MANAGEMENT BOARD FOR PUERTO RICO, )

)

as representative of ) No. 17 BK 3283-LTS

)

THE COMMONWEALTH OF PUERTO RICO, )

)

Debtor. )

In re: )

) PROMESA

THE FINANCIAL OVERSIGHT AND ) Title III

MANAGEMENT BOARD FOR PUERTO RICO, )

)

as representative of ) No. 17 BK 3567-LTS

)

PUERTO RICO HIGHWAYS & )

TRANSPORTATION AUTHORITY, )

)

Debtor. )

PEAJE INVESTMENTS LLC, )

) Adv. Proc. No. 17-151-LTS

Plaintiff, ) in 17 BK 3567-LTS

)

-against- ) Adv. Proc. No. 17-152-LTS

) in 17 BK 3283-LTS

PUERTO RICO HIGHWAYS & )

TRANSPORTATION AUTHORITY, et al., )

)

Defendants. )

[PROPOSED] ORDER SCHEDULING BRIEFING AND DISCOVERY ON

PLAINTIFF’S PRELIMINARY INJUNCTION AND STAY RELIEF REQUESTS

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Upon consideration of Plaintiff Peaje Investments LLC’s (“Plaintiff”) Informative / Urgent

Motion (the “Motion”) to schedule briefing and discovery on Plaintiff’s pending preliminary

injunction and stay relief requests; and it appearing that the Court has jurisdiction over this matter

under 28 U.S.C. §§ 1331 and 1332, Article III, Section 2 of the U.S. Constitution, 48 U.S.C. §

2166, and 28 U.S.C. § 1367; and upon consideration of the record of the June 5, 2017 hearing

before the Court; and it appearing that notice of the Motion was adequate and proper under the

circumstances and that no further or other notice need be given; it is hereby ORDERED that

Motion is granted. It is further ORDERED that:

• Plaintiff shall serve any written discovery requests by June 12, 2017 and

Defendants shall serve any written discovery requests by June 16, 2017.

• The parties shall serve responses and objections to discovery requests by June 23,

2017.

• Plaintiff shall file any fact witness direct testimony affidavits in support of its

case-in-chief by June 23, 2017. Such affidavits shall be limited to factual

averments already made in the Verified Complaint.

• Defendants shall provide a list of their witnesses which identifies the subject area

of each witness’ testimony by June 30, 2017.

• The parties shall make document productions on a rolling basis. Fact discovery

productions shall be completed by July 7, 2017. Plaintiff shall produce any

expert-related documents by June 19, 2017 and Defendants shall produce such

documents by July 7, 2017.

• Defendants shall complete any depositions of Plaintiff’s witnesses during June

26-30, 2017 and/or July 5-7, 2017.

• Defendants shall file their opposition brief and any fact and expert witness direct

testimony affidavits by July 7, 2017.

• Plaintiff shall complete any depositions of Defendants’ witnesses during July 14-

26, 2017.

• Plaintiff shall file their reply brief and any rebuttal fact witness or

rebuttal/supplemental expert witness direct testimony affidavits by July 28, 2017.

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• The parties shall exchange and submit to the Court exhibit lists and marked

exhibits by August 1, 2017. The parties shall deliver two hard copy sets of the

exhibits to Judge Swain’s chambers in San Juan and an additional two hard copy

sets to Judge Swain’s chambers in New York.

• Defendants shall complete any depositions of any new expert or rebuttal fact

witnesses during July 31, 2017 and August 4, 2017.

Dated: ___________, 2017

SO ORDERED:

_______________________

The Honorable Laura Taylor Swain

United States District Judge

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