Tagged Opinion

UNITED STATES BANKRUPTCY COURT

SOUTHERN DISTRICT OF FLORIDA

Miami Division

In re:

VIRGINIA IGLESIAS,

 Debtor.

_____________________________________/

Case No. 21-17607-BKC-LMI

Chapter 11

ORDER DENYING WITHOUT PREJUDICE MOTION OF SUTTONGATE 

HOLDINGS LIMITED FOR THE PRODUCTION OF DOCUMENTS 

REFERENCED IN THE EXAMINER’S REPORTS

THIS CAUSE came before the Court for hearing on August 5, 2022 (the 

“Hearing”) upon the Motion of Suttongate Holdings Limited for the Production of 

Documents Referenced in the Examiner’s Reports (ECF #227) (the “Motion”) filed 

by Suttongate Holdings Limited (“Suttongate”) and Debtor’s Response in 

Opposition to Suttongate Holdings Limited’s Motion for the Production of 

Documents in the Examiner’s Report (ECF #235) (the “Response”) filed by the 

Laurel M. Isicoff

Chief United States Bankruptcy Judge

___________________________________________________________________________

ORDERED in the Southern District of Florida on September 29, 2022.

Case 21-17607-LMI Doc 253 Filed 09/30/22 Page 1 of 5
2

Debtor. The Court has reviewed the supplemental briefing1 and cases cited by 

the parties in support their respective positions. For the reasons set forth below, 

the Motion is DENIED without prejudice.

The Motion seeks an order authorizing Maria M. Yip (the “Examiner”), the 

Court appointed Examiner in this case, to make available all documents provided 

to her by the Debtor or others, in the preparation of the Examiner’s reports2.

Suttongate specifically requests the production of documents (the “PR Iglesias 

Documents”) related to the Debtor’s brother, Pedro Rene Iglesias (“PR Iglesias”), 

and his businesses. 

The PR Iglesias Documents were provided to the Examiner through the 

Debtor after the Court entered its March 23, 2022 Order Granting Debtor’s Motion 

to (I) Enlarge Time to Complete Examiner’s Investigation; (II) Extend Stay on 

Suttongate Discovery; and (III) Deem Documents Produced to Examiner 

Confidential (ECF #176) (the “Order”) which stated: 

All materials provided to the Examiner by or on behalf of Pedro Rene 

Iglesias, individually, and/or related to his business interests, 

including but not limited to Olzina N.V. (collectively, the “Third 

Parties”), shall be deemed CONFIDENTIAL and protected from 

discovery in any such requests made to the Examiner, without 

prejudice to the Court later addressing the discoverability of such 

materials.

FN 1: No review of whether the confidential materials are 

discoverable shall take place until after the Examiner has filed her 

amended or supplemental report. 

1 Supplemental Brief in Support of Suttongate Holdings Limited’s Motion for the Production of 

Documents Referenced in the Examiner’s Reports (ECF #240) (“Suttongate’s Brief”); Debtor’s 

Supplemental Brief in Opposition to Suttongate Holdings Limited’s Motion for the Production of 

Documents in the Examiner’s Report (ECF #241) (“Debtor’s Brief”).

2 Examiner’s Report (ECF #121) and Supplemental Examiner’s Report (ECF #195) (collectively, the 

“Examiner’s Reports”). 

Case 21-17607-LMI Doc 253 Filed 09/30/22 Page 2 of 5
3

The Debtor argues that the PR Iglesias Documents were deemed 

confidential by the Order and therefore are not subject to production under any 

circumstance. However, the Order limited the confidentiality to requests made 

to the Examiner and specifically provides that the ruling was “without prejudice 

to the Court later addressing the discoverability of such materials.”

To determine whether the relief that is requested in the Motion should be 

granted, this Court must now determine whether these materials are 

discoverable. Suttongate argues that 11 U.S.C. §107(a)3 applies to the 

Examiner’s Reports and the documents relied upon in the Examiner’s Reports 

and therefore that the public must be granted access to such documents. 

However, section 107 does not apply to the underlying documents relied upon in 

the Examiner’s Reports when those documents are not filed with the Court. See 

In re Ionosphere Clubs, Inc., 156 B.R. 414, 433 (S.D.N.Y. 1993), aff'd, 17 F.3d 

600 (2d Cir. 1994) (quoting In re Apex Oil Co., 101 B.R. 92 (E.D. Mo. 1989))

(“[U]ntil the documents [the Examiner] compiles are filed with the court or 

become judicial documents in some other way, no right of public access attaches 

to them under Section 107(a). . . . [T]he Underlying Documents are not subject 

to § 107(a) because they have not been, and will not be, filed. The plain language 

of § 107 establishes standards only for those documents which are filed with the 

court. To the extent the Underlying Documents are not filed, they are not subject 

to the § 107(a) requirements.”) (internal quotations omitted). Because the PR 

3 11 U.S.C. §107(a) provides: “Except as provided in subsections (b) and (c) and subject to section 

112, a paper filed in a case under this title and the dockets of a bankruptcy court are public 

records and open to examination by an entity at reasonable times without charge.”

Case 21-17607-LMI Doc 253 Filed 09/30/22 Page 3 of 5
4

Iglesias Documents were not filed with the Court the documents are not subject 

to section 107. 

The Court agrees with the Debtor that an examiner is not subject to 

discovery. As articulated in Matter of Baldwin United Corp., 46 B.R. 314, 316 

(Bankr. S.D. Ohio 1985):

Certainly the Examiner's file drawers offer a most enticing 

alternative to the long and bloody battles which plaintiffs' counsel 

often face in the discovery phase of securities litigation. However, 

while we have always hoped that the Examiner's report and 

chronology would provide a useful tool for all parties in the many 

proceedings pending against the Debtors, we never contemplated, 

nor in our opinion does the Bankruptcy Code contemplate, that the 

Examiner act as a conduit of information to fuel the litigation fires 

of third-party litigants. The prospect of an Examiner being required 

to indiscriminately produce investigative materials obtained through 

promises of confidentiality and reliance upon this Court's orders 

raises grave concerns touching both the integrity of the Bankruptcy 

Court's processes, as well as the integrity of the statutory position 

of the Examiner.

However, if a third party demonstrates that it cannot obtain the documents from 

any other source and the documents are not otherwise privileged, an examiner 

may be subject to such discovery requests. See In re New Century TRS Holdings, 

Inc., 407 B.R. 558 (Bankr. D.Del. 2009).

Suttongate has not demonstrated that it is unable to obtain the documents 

from any other source4, whether that source is the Debtor5, PR Iglesias, or any 

other source other than the Examiner. Once Suttongate requests the documents

from the Debtor, PR Iglesias, or some other third party, the burden will be on the 

Debtor or PR Iglesias to assert any grounds under Fed. R. Bankr. P. 7026 to 

4 Suttongate argued at several hearings that it cannot get documents from St. Maarten, but 

Suttongate did not cite to law or other support for that assertion.

5 Counsel for the Debtor admitted at the Hearing that the PR Iglesias Documents were in her law 

firm’s possession, as they were provided to the Debtor by PR Iglesias. 

Case 21-17607-LMI Doc 253 Filed 09/30/22 Page 4 of 5
5

resist production of the documents. But, absent such a showing by Suttongate,

a request for discovery from the Examiner is not appropriate, and at this time is 

premature.

6

At the Hearing, the Court stated that the Debtor may not rely on any 

documents at either the motion to appoint trustee trial or confirmation hearing 

that are not produced to Suttongate, if such documents are requested. See Fed. 

R. Bankr. P. 7037(c). Whether and to what extent any party may rely on the 

Examiner’s Reports in support of their respective positions is dictated by the 

Federal Rules of Evidence.

Accordingly, for the reasons stated, it is ORDERED as follows: 

1. The Motion is DENIED WITHOUT PREJUDICE.

###

Copies furnished to:

All counsel of record.

Attorney Feldman is directed to serve a copy of this Order on interested 

parties who do not receive service by CM/ECF, and file a proof of such service 

within two (2) business days from entry of the Order.

6 The Court will revisit the issue of whether the Examiner should be directed to produce the PR 

Iglesias Documents, at such time as any that Suttongate demonstrates it cannot obtain the 

documents from any source other than the Examiner.

Case 21-17607-LMI Doc 253 Filed 09/30/22 Page 5 of 5