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EXHIBIT A 

Proposed Order 

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UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF PUERTO RICO 

--------------------------------------------------------------x 

In re: 

THE FINANCIAL OVERSIGHT AND 

MANAGEMENT BOARD FOR PUERTO RICO, 

as representative of 

THE COMMONWEALTH OF PUERTO RICO, et al., 

Debtors.1

--------------------------------------------------------------x 

PROMESA 

Title III 

No. 17 BK 3283-LTS 

(Jointly Administered) 

ORDER APPROVING MOTION OF THE INDEPENDENT INVESTIGATOR 

FOR AN ORDER (I) ESTABLISHING PROCEDURES FOR RESOLVING 

ANY CONFIDENTIALITY DISPUTE IN CONNECTION WITH PUBLICATION 

OF THE INDEPENDENT INVESTIGATOR’S FINAL REPORT; (II) APPROVING 

THE DISPOSITION OF DOCUMENTS AND INFORMATION; (III) RELIEVING 

THE INDEPENDENT INVESTIGATOR FROM CERTAIN DISCOVERY 

OBLIGATIONS; (IV) EXCULPATING THE INDEPENDENT INVESTIGATOR IN 

CONNECTION WITH THE INVESTIGATION AND PUBLICATION 

OF THE FINAL REPORT; AND (V) GRANTING RELATED RELIEF 

Upon the Motion of the Independent Investigator for an Order: (I) Establishing 

Procedures for Resolving any Confidentiality Dispute in Connection with Publication of the 

Independent Investigator’s Final Report; (II) Approving the Disposition of Certain Documents 

and Information; (III) Relieving the Independent Investigator from Certain Discovery 

Obligations; (IV) Exculpating the Independent Investigator in Connection with the 

Investigation and Publication of the Final Report; and (V) Granting Related Relief (the 

 

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 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 (Bankruptcy Case No. 17-BK3283 (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) 

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 (iv) Puerto Rico Highways and 

Transportation Authority (“HTA”) (Bankruptcy Case No. 17-BK-3567 (LTS)) (Last Four Digits of Federal Tax 

ID: 3808); and (v) Puerto Rico Electric Power Authority (“PREPA”) (Bankruptcy Case No. 17-BK-4780 (LTS)) 

(Last Four Digits of Federal Tax ID: 3747) (collectively, the “Debtors”). 

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“Motion”)2; and the Court having found it has subject matter jurisdiction over this matter under 

sections 106(a) and 306(a)(2) of PROMESA; and it appearing that venue is proper under 

sections 104(k), 106(a), and 307(a) of PROMESA; and the Court having found that the relief 

requested in the Motion is in the best interests of all parties in interest; and the Court having 

found that the Independent Investigator provided adequate and appropriate notice of the Motion 

under the circumstances and that no other or further notice is required; and the Court having 

reviewed the Motion and considered the Motion at a hearing held before the Court (the 

“Hearing”); and the Court having determined that the legal and factual bases set forth in the 

Motion and at the Hearing establish just cause for the relief granted herein; and any objections 

to the relief requested herein having been withdrawn or are overruled on the merits; and after 

due deliberation and sufficient cause appearing therefor, it is HEREBY ORDERED THAT: 

1. The Motion is granted as set forth herein. 

A. Procedures for Resolution of Any Objection to the Disclosure of Confidential 

Information in the Final Report 

2. If any of the Non-Disclosure Agreements requires the Independent Investigator 

to provide advance notice of the publication of the Disclosing Party’s Confidential Information, 

the Independent Investigator shall follow the following procedures before the publication of 

the Disclosing Party’s Confidential Information in the Final Report: 

a. The Independent Investigator will provide a written notice, by email or overnight 

delivery, to each Disclosing Party identifying the Disclosing Party’s Confidential 

Information that the Independent Investigator may use in the Final Report at the latest 

five (5) business days before publication of the Final Report, unless the Non-Disclosure 

Agreement between the Independent Investigator and the Disclosing Party provides for 

a different period, in which case the Non-Disclosure Agreement’s different period will 

govern (the “Notice Period”). Any objection to the disclosure by the Independent 

Investigator of such Confidential Information must be transmitted by email or overnight 

mail to be received by the Independent Investigator within the Notice Period. 

b. During the Notice Period, the Disclosing Parties must: (i) hold the identity and content 

of any Confidential Information about which the Independent Investigator has given 

 

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 Capitalized terms used but not otherwise defined herein shall have the meaning ascribed to such terms in the 

Motion. 

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notice in strict confidence (including any statement, finding, or conclusion of the 

Independent Investigator, or any portion of the Final Report, that is shared with the 

Disclosing Party in connection with the Publication Procedures) and (ii) make no 

disclosure to any person, except its counsel, of the identity or content of the 

Confidential Information that the Independent Investigator may use in the Final Report. 

c. If no objection is made within the Notice Period, any Disclosing Party shall be deemed 

to have waived any claim that such Confidential Information is entitled to nondisclosure, and the Independent Investigator may promptly publish the Final Report 

and any related exhibits disclosing such Confidential Information. 

d. If a Disclosing Party makes an objection within the Notice Period, the Disclosing Party 

must confer in good faith directly with the Independent Investigator to attempt to 

resolve its challenge concerning any of the Confidential Information identified by the 

Independent Investigator for inclusion in the Final Report. In conferring, the Disclosing 

Party must: (i) explain the basis for its belief that the inclusion of the Confidential 

Information in the Final Report is not proper and (ii) give the Independent Investigator 

an opportunity to (a) review the objection and the designated Confidential Information, 

(b) reconsider the designation, and (c) if no change in the designation is offered, to 

explain the basis for the designation. The Independent Investigator may respond by 

email or overnight mail to the Disclosing Party concerning the challenge within five (5) 

business days (the “Meet and Confer Procedure”). 

e. If any of the Disclosing Parties makes an objection within the Notice Period and such 

objection is not resolved under the Meet and Confer Procedure, the Disclosing Party 

must file with this Court and serve a motion for a protective order, on an expedited 

basis scheduled in compliance with the Case Management Order3, seeking to prohibit 

the public disclosure of the Confidential Information proposed to be included in the 

Final Report within five (5) business days of the conclusion of the Meet and Confer 

Procedure if it wishes to adhere to its objection (the “Motion for Protective Order”). 

Each such Motion for Protective Order must be accompanied by a declaration that 

affirms that the Disclosing Party has complied with the Meet and Confer Procedure. 

The burden of persuasion in any such Motion for Protective Order shall rest with the 

Disclosing Party asserting confidentiality and seeking to seal, redact, or prevent 

disclosure of the Final Report. 

f. No Confidential Information may be filed by any party with the Court unless (i) upon 

advanced written consent; or (ii) filed under seal under Local Bankruptcy Rule 9018-1 

and the District Court’s Standing Order No. 9. 

g. The Independent Investigator shall maintain the confidentiality of such Confidential 

Information during the pendency of an objection and, if a Motion for Protective Order 

is filed, until the Court resolves the Motion for Protective Order. If the Independent 

Investigator publishes the Final Report during the pendency of an objection or Motion 

for Protective Order, the Independent Investigator must redact the applicable portions 

of the Final Report so as to preserve such Confidential Information. 

 

3 See Order Further Amending Case Management Procedures dated April 4, 2018 entered by Judge Swain in the 

Debtors’ Title III Cases (ECF No. 2839). 

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h. Nothing in the Publication Procedures shall limit the Independent Investigator’s ability 

to file or publish all, or any portion of, the Final Report under seal or with redactions 

during, or in advance of, the Notice Period. Nothing in the Publication Procedures shall 

limit the ability of the Committees to seek access to information filed under seal or to 

object to the fact that certain information is filed under seal. 

3. Nothing herein shall prevent or prejudice Disclosing Parties from seeking, 

pursuant to the procedures set forth herein, additional, lesser, or greater protections, with 

respect to the use or disclosure of their Confidential Information, than the protections set forth 

in their Non-Disclosure Agreements. 

B. Disposition of Documents and Information 

4. The Independent Investigator shall take necessary steps to facilitate the transfer 

of the Investigative Record and transition the custody of the Investigative Record to the Neutral 

Vendor, which shall be selected by the Special Investigation Committee. 

5. The Neutral Vendor shall take custody and maintenance of the Document 

Depository for such period as required by law or as otherwise ordered by the Court, but at a 

minimum, until the effective date of a plan of adjustment for each of the Debtors confirmed by 

the Court. 

6. Any transfer of the Investigative Record by the Independent Investigator to the 

Neutral Vendor is not, and shall not be deemed to be, a violation any obligation arising under 

a Non-Disclosure Agreement, or a waiver of any currently existing work-product, attorneyclient privilege, or other privilege. 

7. If there is any conflict or inconsistency between the terms of a Non-Disclosure 

Agreement and this Order, the terms of this Order shall control. 

8. The Independent Investigator shall return to AAFAF all documents identified 

as “Highly Confidential” (i.e., asserted to be privileged) by AAFAF or GDB, unless such 

documents are included as Final Report Documents with the consent of AAFAF or GDB. All 

parties’ rights to challenge or defend AAFAF’s “Highly Confidential” designation are 

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reserved. AAFAF shall continue to maintain the Relativity Database until the conclusion of 

all Title III proceedings concerning the Commonwealth of Puerto Rico or any of its 

instrumentalities, unless ordered otherwise by further order of the Court. All parties’ rights to 

seek access to or dispute access to the Relativity Database are reserved. 

9. The Independent Investigator is authorized, in its sole discretion, to discard or 

delete (in case of electronic materials) all documents and information that has not been 

transferred to the Document Depository, including without limitation, the Independent 

Investigator’s Privileged Materials. 

C. Treatment of Government Agency Productions 

10. Absent the SEC’s consent or lack of objection, no documents provided by the 

SEC to the Independent Investigator shall be transferred to the Document Depository.

11. Absent FINRA’s consent or lack of objection, no documents provided by 

FINRA to the Independent Investigator shall be transferred to the Document Depository.

12. Documents provided by OCIF to the Independent Investigator, including those 

provided by third parties to OCIF, shall be transferred to the Document Depository, except for 

one examination report that is confidential under Puerto Rico law.

D. Procedures to Access the Document Depository 

13. Parties in interest who are not stayed or otherwise prohibited from seeking 

discovery by order of the Court or any other court of competent jurisdiction or applicable law 

may request access to documents contained in the Central Document Depository as follows: 

a. In the case of a request by a person or entity that is not a party to a pending civil 

litigation in a court of competent jurisdiction, a document request (“Document 

Request”) must be served on the attorneys for the Oversight Board and forwarded to 

the Neutral Vendor. A Document Request shall not be filed with the Court. In the case 

of a request by a person or entity that is a party to a pending civil litigation, including 

the Oversight Board, a subpoena under Rule 45 of the Federal Rules of Civil Procedure 

or any other applicable rules (“Subpoena”) shall be served in compliance with all rules 

governing notice and discovery in that litigation and shall also be served on attorneys 

for the Oversight Board to the extent the Oversight Board is not a named party to the 

litigation, and forwarded to the Neutral Vendor. 

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b. Any Document Request or Subpoena must be accompanied by search terms and 

relevant time periods (the “Search Terms”), unless the Document Request or Subpoena 

seeks access to all documents contained in the Document Depository. Upon receipt of 

the Search Terms, the Neutral Vendor shall promptly apply them to the Document 

Depository to identify responsive documents and relevant producing parties (each, a 

“Producing Party”). 

c. After receipt of a Document Request or Subpoena and application of the Search Terms 

(as applicable), the Neutral Vendor shall promptly provide a notice to each Producing 

Party, setting out (i) the identity of the party making the request (the “Requesting 

Party”) and (ii) the Document Request or Subpoena, together with the Search Terms or 

a statement that all of the Producing Party’s documents have been requested by the 

Requesting Party (as applicable). The Neutral Vendor shall provide the Requesting 

Party and any other person or entity that has been served with notice of a Subpoena by 

the Requesting Party in accordance with paragraph 13(a) above, a copy of the Notice. 

d. The Oversight Board and the Producing Party (collectively, the “Interested Parties”) 

shall have ten (10) business days from the date of Notice to informally object to the 

Document Request and shall serve such objection on the Requesting Party and the other 

Interested Parties with a copy to the Neutral Vendor. An objection to a Document 

Request shall not be filed with the Court. If a timely objection to the Document Request 

is asserted, the objecting party or parties and the Requesting Party shall confer within 

ten (10) business days of the assertion of an objection in an effort to resolve the 

objection. If the objection cannot be resolved, the objecting party or parties may, within 

ten (10) additional business days, make a motion with the Court to be heard at the next 

omnibus hearing and in compliance with the Case Management Order4 governing the 

Debtors’ Title III Cases seeking an order restricting or prohibiting access to the 

requested documents, or for such other relief as may be appropriate. If such a motion 

is filed, the Neutral Vendor shall not comply with the Document Request pending the 

disposition of the motion. If no timely objection is asserted to a Document Request, or 

if no motion is filed within twenty (20) business days after assertion of an objection, 

the Neutral Vendor shall promptly make the requested documents available to the 

Requesting Party via a document production. Nothing herein shall confer standing on 

any party to object to a Document Request and all rights to contest, object to, or support 

standing of an objecting party are preserved. 

e. If any documents produced by the Neutral Vendor to the Requesting Party as set forth 

in paragraph 13(d) above have been previously marked as “Professional Eyes Only” or 

with similar designations, then absent a further court order, the Requesting Party shall 

abide by such designation. 

f. Objections to a Subpoena issued in a pending civil litigation shall be heard in that 

litigation and governed by the applicable rules of civil procedure and discovery in such 

litigation. Nothing herein shall confer standing on any party to object to a Subpoena 

and all rights to contest, object to, or support standing of an objecting party are 

preserved. Further, nothing herein shall provide a person or entity greater rights to 

 

4 See Order Further Amending Case Management Procedures dated April 4, 2018 entered by Judge Swain in the 

Debtors’ Title III Cases (ECF No. 2839). 

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obtain documents or information from the Neutral Vendor or the Document Depository 

than such person or entity has under applicable law. 

14. Nothing contained in this Order is intended to expand, contract, waive, or 

modify the rights of any party in interest or member of the public to seek access to one or more 

documents contained in the Document Depository. All rights possessed by the Oversight 

Board, the Debtors, the Disclosing Parties, or other parties in interest to object to or otherwise 

contest the propriety of any request for access to documents contained in the Document 

Depository are expressly reserved. 

E. Assistance from the Independent Investigator after Publication of the Final 

Report 

15. If, after publication of the Final Report, the Independent Investigator receives 

requests for cooperation and assistance from any party in interest, the Independent Investigator 

shall respond as follows: 

a. In response to requests from the Oversight Board, the Debtors, the Committees, Puerto 

Rico or federal agencies or regulators, or the United States Trustee, the Independent 

Investigator will meet and confer with such parties concerning their requests and 

provide cooperation and assistance until at least June 1, 2019, or confirmation of a plan 

of adjustment for the Title III Debtors, whichever is earlier, unless the engagement of 

the Independent Investigator by the Special Investigation Committee is terminated 

sooner. 

b. The Independent Investigator may provide such cooperation and assistance as the 

Special Investigation Committee deems appropriate in response to requests from other 

parties in interest; provided that, the requesting party shall provide notice of its request 

for cooperation and assistance to the Oversight Board, the Debtors, the Committees, 

and, in the event that the requesting party is a party to an existing civil litigation, the 

other parties to such litigation. Unless otherwise directed by the Oversight Board, 

acting by and through the Special Investigation Committee, the Independent 

Investigator will not respond to requests for cooperation or assistance from parties in 

interest other than those provided for in paragraph 15(a) above after June 1, 2019 unless 

the engagement of the Independent Investigator by the Special Investigation Committee 

is terminated sooner. 

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F. Relief from Discovery Obligations 

16. The Independent Investigator is relieved from any requests for production of 

documents, requests for admissions, requests for testimony or deposition, interrogatories, 

subpoenas for production of documents, subpoenas to give oral testimony, trial subpoenas, or 

any other discovery of any kind relating to the Investigation or Final Report and no party shall 

issue or serve any discovery request upon the Independent Investigator, except with respect to: 

(i) documents for which a requesting party has demonstrated to the Court that it has been unable 

to obtain from any other source, after providing an affirmation to that effect; (ii) an order of a 

federal district court presiding over a criminal proceeding in which a party in interest is a 

defendant finding that the Independent Investigator is obliged to produce documents or other 

materials to said defendant under the principles of Brady v. Maryland, 373 U.S. 83 (1963), as 

embodied in subsequent caselaw and the Federal Rules of Criminal Procedure; or 

(iii) productions required in response to any subpoena or formal request made by or on behalf 

of any state, federal or Puerto Rican governmental or regulatory agency acting under its police 

or regulatory powers. 

G. Exemption from Liability for Claims under 48 U.S.C. § 2125 

17. The immunity protections of 48 U.S.C. § 2125 shall apply to the Independent 

Investigator and its employees and agents with respect to any act, omission, statement, or 

representation arising out of, relating to, or involving in any way, the Investigation, the NonDisclosure Agreements, the Interim Reports, and the Final Report, the Motion, and any 

pleading or other writing filed by the Independent Investigator in connection with the 

Investigation. 

18. The Independent Investigator is authorized to take all actions, and to execute all 

documents, necessary or appropriate, to effectuate the relief granted in this order in accordance 

with the Motion. 

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19. In the event of a conflict between this Order and any provision of a plan of 

adjustment for any of the Debtors confirmed by the Court in the Title III Cases, this Order shall 

control as it pertains to the rights, obligations, duties, and responsibilities of the Independent 

Investigator and its employees and agents. 

20. This Order shall survive confirmation of any plan of adjustment for any of the 

Debtors and dismissal of the Debtors’ Title III Cases. 

21. This Court retains jurisdiction with respect to all matters arising from or related 

to the implementation, interpretation, and enforcement of this Order. 

Dated: July __, 2018 

San Juan, Puerto Rico 

________________________________ 

Honorable Laura Taylor Swain 

United States District Judge 

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