Hearing Date: May 21, 2018 at 1:30 p.m. (A.S.T./E.D.T.) 

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IN THE 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) 

JOINT REPORT OF (I) ASSURED GUARANTY CORP., 

ASSURED GUARANTY MUNICIPAL CORP., NATIONAL 

PUBLIC FINANCE GUARANTEE CORPORATION AND THE 

AD HOC GROUP OF GENERAL OBLIGATION BONDHOLDERS 

AND (II) THE FEDERAL OVERSIGHT AND MANAGEMENT 

BOARD FOR PUERTO RICO AND THE PUERTO RICO FISCAL 

AGENCY AND FINANCIAL ADVISORY AUTHORITY IN RESPONSE 

TO THE COURTS’ ORDER ENTERED ON APRIL 27, 2018 (ECF NO. 2969) 

 

1

 The Debtors in these Title III cases, along with each Debtor’s respective Title III case 

number listed as a bankruptcy case number due to software limitations and the last four (4) digits 

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

Puerto Rico (“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); and (v) Puerto Rico Electric Power 

Authority (“PREPA”) (Bankruptcy Case No. 17 BK 4780-LTS) (Last Four Digits of Federal Tax 

ID: 3747). 

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To the Honorable United States Magistrate Judge Judith Gail Dein:

Pursuant to the Order of the Honorable United States Magistrate Judge Judith Gail Dein 

entered on April 27, 2018 (ECF No. 2969)2

 (the “April 27th Order”), (i) Assured Guaranty 

Corp., Assured Guaranty Municipal Corp., National Public Finance Guarantee Corporation, and 

the Ad Hoc Group of General Obligation Bondholders (collectively, the “Movants”) and (ii) the 

Financial Oversight and Management Board for Puerto Rico (“FOMB”), 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”),3 the Puerto Rico Fiscal Agency and 

Financial Advisory Authority (“AAFAF” and together with the Oversight Board and the 

Commonwealth, the “Respondents”, and together with the Movants, the “Parties”) respectfully 

submit the following joint report: 

I. Areas of Agreement 

Submission of Prior Briefing: The Parties agree that the issues remanded to this Court 

in the Memorandum Order Remanding Certain Aspects of Magistrate Judge’s February 26, 

2018 Order for Further Proceedings (ECF No. 2952) by the Honorable United States District 

Judge Laura Taylor Swain, were addressed in briefs previously submitted to the District Court in 

support of and opposition to the Objections of Assured Guaranty Corp., Assured Guaranty 

Municipal Corp. and National Public Finance Guarantee Corporation to the Magistrate Judge’s 

February 26, 2018 Order (ECF No. 2707). Specifically, such briefs were filed as ECF Nos. 

2707, 2708, 2798, 2815, 2835, 2837, 2843, 2863, 2878, 2906. The Parties propose submitting 

those briefs and accompanying exhibits to this Court in lieu of an additional round of briefing on 

the issues listed below. 

Issues to be Decided: The Parties have identified the following threshold legal issues that 

 

2

 “ECF No.” refers to docket entries in Case No. 17 BK 3283-LTS, unless otherwise noted. 

3

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

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may pertain to the Court’s resolution of the deliberative process issues as directed by Judge 

Swain: 

1. Whether requiring Respondents to identify and produce factual information from the 

Pre-Decisional Fiscal Plan Documents4

 would, under the circumstances (i) reveal protected 

deliberations; and (ii) be overly burdensome. 

2. Whether Respondents have shown that Pre-Decisional Fiscal Plan Documents 

communicated by and between (i) the Commonwealth and its professionals, (ii) AAFAF and 

its professionals, or (iii) the Oversight Board and its professionals are protected by the 

deliberative process privilege (including communications that involve numerous third party 

advisors). 

3. Whether Pre-Decisional Fiscal Plan Documents communicated between (i) the 

Commonwealth, AAFAF and/or their respective professionals, on one side, and (ii) the 

Oversight Board and/or its professionals, on the other side, are protected by the deliberative 

process privilege. 

4. Whether the interests of the Movants, other creditors and the public in obtaining the 

Pre-Decisional Fiscal Plan Documents outweighs the interests of the Commonwealth, 

AAFAF, and the Oversight Board from shielding their disclosure. 

The Parties’ respective positions on these issues are set forth in the briefs identified above. 

Submission of Additional Briefing (if requested): To the extent that the Court determines 

that additional briefing is necessary to determine the issues remanded to this Court, the Parties 

propose that the Court enter the following schedule: (i) Movants file a brief (“Opening Brief”) 

addressing such issues seven (7) days after entry of an order by the Court, (ii) Respondents file a 

brief in support of their position (“Response Brief”) seven (7) days after the filing of the Opening 

Brief, and (iii) Movants file a reply brief four (4) days after the filing of the Response Brief, with 

the Court holding a hearing, if necessary, as soon thereafter as practicable. 

II. Areas of Disagreement 

A. Movants’ Position: Movants submit that the Court can and should rule on the four 

issues identified above as a matter of law. After ruling on the four threshold issues, to the extent 

the Court finds that any documents may be subject to the deliberative process privilege in order 

to address any remaining claims of deliberative process privilege, the Court will need to resolve 

 

4

 “Pre-Decisional Fiscal Plan Documents” refers to documents and communications that 

Respondents are withholding from production on the basis of the deliberative process privilege. 

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other issues on which the Parties do not agree. 

Privilege Logs: On April 6, 2018, AAFAF and FOMB produced what purported to be 

categorical privilege logs identifying categories of otherwise responsive documents that were 

withheld from production on the basis of privilege (together, the “Privilege Logs”). During a 

meet and confer on May 10, 2018, counsel for AAFAF and FOMB explained that in preparing 

their respective Privilege Logs, they actually did not collect and/or conduct a review of the 

documents being withheld. In other words, AAFAF and FOMB simply created a list of 146 

theoretical categories of privileged documents and then unilaterally decided that all documents 

from numerous custodians were presumptively (and necessarily) privileged because those 

custodians’ documents might fall within one or more of those manufactured categories. For that 

reason, they advised that there were certain categories of documents listed on the Privilege Logs 

for which there may be no actual documents. 

Although the Court’s Order, dated February 26, 2018 (ECF No. 2590) (“February 26th 

Order”) did not require AAFAF and FOMB “to identify in their log the number of documents 

being withheld in each category” (id. at 5 n.6), it certainly did not countenance a process 

whereby AAFAF and FOMB would not even review any potentially responsive documents 

before determining that they should be withheld as privileged, which is plainly inconsistent with 

their most basic discovery obligations under applicable rules and law. 

Because the Privilege Logs are not based on the review of documents withheld, they 

really are not privilege logs at all. Accordingly, at the May 21st hearing, the Court should 

address a process whereby, after it rules on the threshold issues, AAFAF and FOMB prepare and 

produce privilege logs that permit a meaningful evaluation of the nature and breadth of the 

responsive documents actually being withheld based on an asserted privilege. 

Movants also submit that they have the right to object to the so-called Privilege Logs 

because (1) Movants expressly reserved their rights to object to the logs when appealing to the 

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District Court this Court’s rulings on the four threshold issues identified above regarding the 

deliberative process privilege (see ECF Nos. 2707 at 9 n.8, 2906 at 3 n.5); (2) the Court has not 

yet ruled on these four threshold issues; (3) Movants learned only on May 10, 2018 that 

Respondents did not actually collect and/or conduct a review of the documents being withheld on 

the basis of privilege; and (4) Respondents are not prejudiced by Movants objecting to the logs at 

this time. 

Reservation of Rights: For the avoidance of doubt, Movants object to Respondents’ 

claims of deliberative process privilege as currently set forth on the Privilege Logs, Respondents’ 

assertions of other privileges listed on the Privilege Logs, the deficient information provided in 

the Privilege Logs, and Respondents’ numerous disclaimers regarding the Privilege Logs. 

Movants reserve all rights with regard to these objections. 

B. Respondents’ Position: Movants do not, and cannot, dispute that AAFAF and the 

Board’s privilege logs include all of the information required under this Court’s order, nor do 

they even attempt to claim that they lack information sufficient to allow them to evaluate 

Respondents’ privilege claims. Cf. ECF No. 2590 at 5-6 & n.6 (citing Fed. R. Civ. P. 

26(b)(5)(A)). Respondents’ sole objection to the logs is the surprising and counterintuitive 

argument that Respondents did not undertake the incredibly costly document-by-document 

review that this Court already held would be unreasonably burdensome. Respondents explained 

in their April 6, 2018 transmittal letters that they had “not endeavored to collect and review 

every document generated over the course of developing the Commonwealth Fiscal Plans” nor 

had they “undertaken a document-by-document review, which Judge Dein agreed would be 

unduly burdensome.” (AAFAF log, McKeen Letter at 2; Dale Letter at 2.) Under the February 

26 Order, Movants had seven days to raise objections to Respondents’ privilege logs. ECF No. 

2590 at 6 (adopting timeline from Joint Report at ECF No. 2154 at II). Movants waited over a 

month to raise any objection to Respondents’ approach to creating the logs, and have yet to raise 

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a single objection to any of the categories served on April 6, or the descriptions of those 

categories. Movants have waived these untimely objections. 

Moreover, Movants’ claim that Respondents’ “manufactured” the categories and then 

“unilaterally” declared everything within them privileged is a gross mischaracterization. 

Counsel for AAFAF and for FOMB worked closely with representatives of their respective 

clients and their clients’ financial advisors to identify meaningful subcategories of the 

deliberative communications and interim drafts leading up to the Commonwealth Fiscal Plans 

over which Respondents have always asserted privilege. This categorical approach is what this 

Court ordered and entirely consistent with the Federal Rules, which approve of categorical 

logging and do not prescribe any particular methodology for doing so. See Fed. R. Civ. P. 

26(b)(5)(A) (party withholding documents must “describe the nature of the documents, 

communications or tangible things not produced or disclosed--and do so in a manner that, 

without revealing information itself privileged or protected, will enable other parties to assess the 

claim.”); id. advisory committee’s note (noting rule does not attempt to define for each case what 

details must be provided, and that providing document-by-document details “may be unduly 

burdensome when voluminous documents are claimed to be privileged or protected, particularly 

if the items can be described by categories”). 

Regardless of how the Court rules on the threshold legal disputes discussed above, there 

is no good cause essentially to vacate, in part, the February 26 order and require Respondents to 

engage in precisely the same incredibly costly undertaking of identifying, retrieving and 

reviewing voluminous documents in order to create the same categorical privilege log that 

already exists. 

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Dated: New York, New York 

 May 14, 2018 

CASELLAS ALCOVER & BURGOS P.S.C. 

By: /s/ Heriberto Burgos Pérez 

Heriberto Burgos Pérez 

USDC-PR 204809 

Ricardo F. Casellas-Sánchez 

USDC-PR 203114 

Diana Pérez-Seda 

USDC-PR 232014 

P.O. Box 364924 

San Juan, PR 00936-4924 

Telephone: (787) 756-1400 

Facsimile: (787) 756-1401 

Email: hburgos@cabprlaw.com 

 rcasellas@cabprlaw.com 

 dperez@cabprlaw.com 

Attorneys for Assured Guaranty Corp. and 

Assured Guaranty Municipal Corp. 

CADWALADER, WICKERSHAM & TAFT 

LLP 

By: /s/ Howard R. Hawkins, Jr. 

Howard R. Hawkins, Jr.* 

Mark C. Ellenberg* 

Ellen V. Holloman* 

Ellen M. Halstead* 

Gillian Groarke Burns* 

Thomas J. Curtin* 

Casey J. Servais* 

200 Liberty Street 

New York, NY 10281 

Telephone: (212) 504-6000 

Facsimile: (212) 406-6666 

Email: howard.hawkins@cwt.com 

 mark.ellenberg@cwt.com 

 ellen.holloman@cwt.com 

 ellen.halstead@cwt.com 

 gillian.burns@cwt.com 

 thomas.curtin@cwt.com 

 casey.servais@cwt.com 

* Admitted pro hac vice

Attorneys for Assured Guaranty Corp. and 

Assured Guaranty Municipal Corp. 

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ADSUDAR MUÑOZ GOYCO SEDA & 

PÉREZ-OCHOA, PSC, P.S.C. 

By: /s/ Eric Pérez-Ochoa 

Eric Pérez-Ochoa 

USDC-PR No. 206,314 

Luis A. Oliver-Fraticelli 

USDC-PR NO. 209,204 

208 Ponce de Leon Ave., Suite 1600 

San Juan, PR 00936 

Telephone: (787) 756-9000 

Facsimile: (787) 756-9010 

Email: epo@amgprlaw.com 

 loliver@amgprlaw.com 

Attorneys for National Public Finance 

Guarantee Corporation

WEIL, GOTSHAL & MANGES LLP 

By: /s/ Jared R. Friedmann 

Marcia Goldstein* 

Jonathan Polkes* 

Gregory Silbert* 

Jared R. Friedmann* 

Adam J. Bookman* 

767 Fifth Avenue 

New York, New York 10153 

Telephone: (212) 310-8000 

Facsimile: (212) 310-8007 

Email: marcia.goldstein@weil.com 

 jonathan.polkes@weil.com 

 gregory.silbert@weil.com 

 jared.friedmann@weil.com 

 adam.bookman@weil.com 

* Admitted pro hac vice

Attorneys for National Public Finance 

Guarantee Corporation

 

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JIMÉNEZ, GRAFFAM & LAUSELL

By: /s/ J. Ramón Rivera Morales 

J. Ramón Rivera Morales 

USDC-PR No. 200701 

Andrés F. Picó Ramírez 

USDC-PR No. 302114 

PO Box 366104 

San Juan, PR 00936-6104 

Telephone: (787) 767-1030 

Facsimile: (787) 751-4068 

Email: rrivera@jgl.com 

 apico@jgl.com 

PAUL, WEISS, RIFKIND, WHARTON & 

GARRISON, LLP

Andrew N. Rosenberg* 

Kyle J. Kimpler* 

Karen R. Zeituni* 

1285 Avenue of the Americas 

New York, NY 10019 

Telephone: (212) 373-3000 

Facsimile: (212) 757-3990 

Email: arosenberg@paulweiss.com 

 kkimpler@paulweiss.com 

 kzeituni@paulweiss.com 

* Admitted pro hac vice 

Attorneys to the Ad Hoc Group of General 

Obligation Bondholders

ROBBINS, RUSSELL, ENGLERT, 

ORSECK, UNTEREINER & SAUBER LLP

By:/s/ Kathryn S. Zecca 

Lawrence S. Robbins* 

Mark T. Stancil* 

Gary A. Orseck* 

Kathryn S. Zecca* 

Ariel N. Lavinbuk* 

Donald Burke* 

1801 K Street, NW 

Washington, D.C. 20006 

Telephone: (202) 775-4500 

Facsimile: (202) 775-4510 

Email: lrobbins@robbinsrussell.com 

 mstancil@robbinsrussell.com 

 gorseck@robbinsrussell.com 

 kzecca@robbinsrussell.com 

 alavinbuk@robbinsrussell.com 

 dburke@robbinsrussell.com 

* Admitted pro hac vice

Attorneys to the Ad Hoc Group of General 

Obligation Bondholders 

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O’NEILL & BORGES LLC 

By: /s/ Hermann D. Bauer 

Hermann D. Bauer 

USDC No. 215205 

250 Muñoz Rivera Ave., Suite 800 

San Juan, PR 00918-1813 

Telephone: (787) 764-8181 

Facsimile: (787) 753-8944 

Email: hermann.bauer@oneillborges.com 

PROSKAUER ROSE LLP 

By: /s/ Gregg M. Mashberg 

Martin J. Bienenstock* 

Stephen L. Ratner* 

Timothy W. Mungovan* 

Paul V. Possinger* 

Gregg M. Mashberg* 

Eleven Times Square 

New York, NY 10036 

Telephone: (212) 969-3000 

Facsimile: (212) 969-2900

Email: mbienenstock@proskauer.com 

 sratner@proskauer.com 

 tmungovan@proskauer.com 

 ppossinger@proskauer.com 

* Admitted pro hac vice 

Attorneys for the Financial Oversight and 

Management Board and as representative of 

the Commonwealth

MARINI PIETRANTONI MUNIZ, LLC 

By: /s/ Luis C. Marini-Biaggi 

Luis C. Marini-Biaggi 

USDC No. 222301 

MCS Plaza, Suite 500 

255 Ponce de León Ave. 

San Juan, PR 00917 

Telephone: (787) 705-2171 

Facsimile: (787) 936-7494 

Email: lmarini@mpmlawpr.com 

O’MELVENY & MYERS LLP 

By: /s/ Elizabeth L. McKeen 

John J. Rapisardi* 

Suzzanne Uhland* 

7 Times Square 

New York, NY 10036 

Telephone: (212) 326-2000 

Facsimile: (212) 326-2061 

Email: jrapisardi@omm.com 

 suhland@omm.com 

Peter Friedman* 

1625 Eye Street, NW 

Washington, DC 20006 

Telephone: (202) 383-5300 

Facsimile: (202) 383-5414 

Email: pfriedman@omm.com 

Elizabeth L. McKeen* 

610 Newport Center Drive, 17th Floor 

Newport Beach, CA 92660 

Telephone: (949) 823-6900 

Facsimile: (949) 823-6994 

Email: emckeen@omm.com 

* Admitted pro hac vice 

Attorneys for the Puerto Rico Fiscal 

Agency and Financial Advisory Authority

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CERTIFICATE OF SERVICE 

I hereby certify that I filed this document electronically with the Clerk of the Court using 

the CM/ECF System, which will send notification of such filing to all parties of record in the 

captioned case. Further, I directed that the following counsel of record be served by U.S. Mail: 

Office of the United States Trustee for Region 21

Edificio Ochoa 

500 Tanca Street, Suite 301 

San Juan, PR 00901-1922 

Gerardo J. Portela Franco 

Puerto Rico Fiscal Agency and Financial 

Advisory Authority (AAFAF) 

De Diego Ave. Stop 22 

San Juan, Puerto Rico 00907 

John J. Rapisardi, Esq. 

O’Melveny & Myers LLP 

7 Times Square 

New York, New York 10036 

Luis C. Marini-Biaggi, Esq. 

Marini Pietrantoni Muniz, LLC 

MCS Plaza, Suite 500 

255 Ponce de León Ave. 

San Juan, PR 00917 

Martin J. Bienenstock, Esq. 

Proskauer Rose LLP 

Eleven Times Square 

New York, New York 10036-8299 

Hermann D. Bauer, Esq. 

O’Neill & Borges LLC 

250 Muñoz Rivera Ave., Suite 800 

San Juan, PR 00918-1813 

Nancy A. Mitchell, Esq. 

Greenberg Traurig LLP 

200 Park Avenue 

New York, New York 10166 

Arturo Diaz-Angueira, Esq. 

Cancio, Nadal, Rivera & Diaz, P.S.C. 

403 Muñoz Rivera Ave. 

San Juan (Hato Rey), PR 00918-3345 

Luc A. Despins, Esq. 

Paul Hastings LLP 

200 Park Avenue 

New York, New York 10166 

Juan. J. Casillas Ayala 

Casillas, Santiago & Torres LLC 

El Caribe Office Building 

53 Palmeras Street, Suite 1601 

San Juan, PR 00901-2419 

Robert Gordon, Esq. 

Jenner & Block LLP 

919 Third Avenue 

New York, New York 10022 

A.J. Bennazar-Zequeira 

Bennazar, Garcia & Milian, C.S.P. 

Edificio Union Plaza PH-A piso 18 Avenida 

Ponce de Leon #416 

Hato Rey, PR 00918 

At New York, New York, 14th day of May, 2018. 

By: /s/ Howard R. Hawkins, Jr.

 Howard R. Hawkins, Jr. 

 * Admitted pro hac vice 

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