EXHIBIT S

Case: 19-30088 Doc# 2460-20 Filed: 06/07/19 Entered: 06/07/19 20:02:19 Page 1

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Minga, Jay

From: Fuller, Lars H. <lfuller@bakerlaw.com>

Sent: Tuesday, June 4, 2019 8:41 PM

To: Minga, Jay

Cc: Karotkin, Stephen; Slack, Richard; Tran, An; Liou, Jessica; tkeller@kellerbenvenutti.com; 

Julian, Robert; Dumas, Cecily; Morris, Kimberly S.; Kristiansen, Eric; Green, Elizabeth A.; 

Goodman, Eric R.

Subject: RE: PG&E - Motion for Protective Order - Meet and Confer

Jay, 

Thank you for your response.  We are still in disagreement about the appropriate judicial intervention procedure.  I can 

discuss further tomorrow morning at 10 am PT if you think the Debtors will agree to the process the TCC has proposed, 

which follows the model protective order (i.e., the Designating Party will bear the burden of seeking judicial intervention 

and the burden of persuasion to maintain disputed confidential protection for designated materials).  If not, the TCC is 

unpersuaded that the alternate procedure is appropriate or makes sense.  The TCC is advised that the Debtors have 

sought confidential restrictions extensively on produced materials in other matters.  Given the volume of materials and 

the burden of confidential restrictions, the TCC is unwilling to agree to the Debtors’ proposed procedure.  Particularly 

given that the designation of confidentiality requires an evidentiary foundation, it makes the most sense that the 

Designating Party bear the burden of demonstrating that it has exercised its good faith designation appropriately, and is 

not merely imposing an undue burden upon the Receiving Party.  If the Debtors are unwilling to agree to the process 

proposed by the TCC that mirrors the model protective order, the TCC will file the motion with the Court tomorrow 

afternoon, and note that the Debtors remain opposed to the identified language.  Thank you, 

Lars   

Lars Fuller 

Counsel 

 

1801 California Street | Suite 4400 

Denver, CO 80202-2662 

T +1.303.764.4114 

lfuller@bakerlaw.com 

bakerlaw.com 

From: Minga, Jay <Jay.Minga@weil.com>  

Sent: Tuesday, June 4, 2019 5:04 PM 

To: Fuller, Lars H. <lfuller@bakerlaw.com> 

Cc: Karotkin, Stephen <stephen.karotkin@weil.com>; Slack, Richard <richard.slack@weil.com>; Tran, An 

<An.Tran@weil.com>; Liou, Jessica <jessica.liou@weil.com>; tkeller@kellerbenvenutti.com; Julian, Robert 

<rjulian@bakerlaw.com>; Dumas, Cecily <cdumas@bakerlaw.com>; Morris, Kimberly S. <kmorris@bakerlaw.com>; 

Kristiansen, Eric <EKristiansen@bakerlaw.com>; Green, Elizabeth A. <egreen@bakerlaw.com>; Goodman, Eric R. 

<egoodman@bakerlaw.com> 

Subject: RE: PG&E ‐ Motion for Protective Order ‐ Meet and Confer 

Lars, 

  

Case: 19-30088 Doc# 2460-20 Filed: 06/07/19 Entered: 06/07/19 20:02:19 Page 2

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The UCC and the Debtors are both on board with the attached draft of the protective order.  This draft largely accepted 

your previously proposed language, except in the limited areas set forth below. 

  

First, since we and the TCC disagree on language with respect to the burden of proof on motions to challenge 

designations, we have agreed to remove the sentence entirely that assigns the burden on a motion concerning 

designation on the Challenging Party. We have instead left this issue to existing law.  

  

Second, we have largely left in your new paragraph relating to non‐waiver of the right to challenge a designation. 

  

Third, consistent with Judge Montali’s past protective orders including the following examples, we have provided that 

the party challenging a designation is responsible for seeking a ruling before the Bankruptcy Court.  See, e.g., Stipulation 

for Protective Order; Order Thereon, In re RDIO, Inc., Case No. 15‐31430 (Jan. 15, 2016), ECF No. 165 ¶ 16 (“at the end of 

[the period in which the Parties shall attempt to resolve an objection] the Objecting Party may seek a ruling from the 

Bankruptcy Court on an expedited basis that such information should not be treated as Confidential Information or 

Advisors’ Eyes Only Information”) (emphasis added); Stipulated Protective Order, In re PG&E, Case No. 01‐30923 (May 

11, 2001), ECF No. 503 ¶ 10 (“If the challenge cannot be resolved, the party challenging the designation may request 

appropriate relief from the Court.”) (emphasis added); Stipulated Protective Order, In re PG&E, Case No. 01‐30923 (May 

24, 2001), ECF No. 691 ¶ 10 (same); Stipulated Protective Order Regarding Confidential Information, In re PG&E, Case 

No. 01‐30923 (May 22, 2001), ECF No. 619 ¶ 17 (“If agreement cannot be reached, the party seeking a change in the 

status of a document may apply promptly to the Court for appropriate relief.”) (emphasis added); Order Directing 

Production of Documents to ISO/PX Market Participants Pursuant to Federal Bankruptcy Rule 2004 and Protective Order 

Respecting Confidentiality of Documents, In re PG&E, Case No. 01‐30923 (July 11, 2001), ECF No. 1448 ¶ 5.I. (“[If] the 

party seeking disclosure and the Affected Market Participant(s) are unable to agree upon a procedure that would permit 

the disclosure of the Responsive Information, then the Responsive Information shall not be disclosed; except, the party 

seeking disclosure may then request a ruling from the United States Bankruptcy Court . . . .”) (emphasis added); Agreed 

Protective Order, In re Brobeck, Phleger & Harrison, Case No. 03‐32715‐DM7 (Nov. 8, 2004), ECF No. 666 ¶ 10 (“If the 

Parties are not able to resolve their disagreement(s), the objecting Party may move for an order from the Court 

challenging the designation, and such a motion may be brought on an expedited basis with at least two business days’ 

advance notice to the Parties.”) (emphasis added).   

  

While we recognize that the model protective order applicable to all cases has different language, given that this is a 

bankruptcy case, and the sheer numerosity of counterparties to whose challenges Debtors may need to respond at any 

time, it is not surprising that Judge Montali has entered orders in bankruptcy cases putting the onus on the challenging 

parties to bring the challenging parties’ disputes before the court.   

  

Fourth, since we and the TCC also disagree with the sentences that attempt to create a risk of sanctions for designating 

and challenging parties, we have deleted that sentence as well. Obviously, any designating or challenging party remains 

free to make a motion to the Court if the other party is acting other than in good faith. 

  

Let’s have a call tomorrow or Thursday to meet and confer if you still have any issues.

  

Best,                                                         

Jay 

Jay Minga 

Weil, Gotshal & Manges LLP 

767 Fifth Avenue 

New York, NY 10153 

Jay.Minga@weil.com

Case: 19-30088 Doc# 2460-20 Filed: 06/07/19 Entered: 06/07/19 20:02:19 Page 3

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+1 212 310 8378 Direct 

+1 646 467 2079 Mobile 

+1 212 310 8007 Fax 

From: Fuller, Lars H. <lfuller@bakerlaw.com>  

Sent: Tuesday, June 4, 2019 5:40 PM 

To: Slack, Richard <richard.slack@weil.com>; Liou, Jessica <jessica.liou@weil.com>; Tran, An <An.Tran@weil.com>; 

tkeller@kellerbenvenutti.com

Cc: Julian, Robert <rjulian@bakerlaw.com>; Dumas, Cecily <cdumas@bakerlaw.com>; Morris, Kimberly S. 

<kmorris@bakerlaw.com>; Kristiansen, Eric <EKristiansen@bakerlaw.com>; Green, Elizabeth A. 

<egreen@bakerlaw.com>; Goodman, Eric R. <egoodman@bakerlaw.com> 

Subject: PG&E ‐ Motion for Protective Order ‐ Meet and Confer 

Richard and Jessica, 

We had been communicating with Hannah Jones about the protective order, but it appears Hannah has left Weil 

Gotshal.  Please review the attached, and hopefully we can agree on the language (which mirrors the standard language 

in the ND of California and for Judge Montali) regarding “judicial intervention.”  Because this seems to be holding up all 

discovery production, we’d like to file it with the court tomorrow, either as stipulated or contested.  Please confirm by 

noon PT tomorrow (June 5, 2019) if the Debtors oppose entry of the proposed protected order (attached as Ex. A), or if 

we can file it with the court as a stipulated, agreed order.   

Glad to discuss.  Thank you, 

Lars 

Lars Fuller 

Counsel 

 

1801 California Street | Suite 4400 

Denver, CO 80202-2662 

T +1.303.764.4114 

lfuller@bakerlaw.com 

bakerlaw.com 

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Case: 19-30088 Doc# 2460-20 Filed: 06/07/19 Entered: 06/07/19 20:02:19 Page 4

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Case: 19-30088 Doc# 2460-20 Filed: 06/07/19 Entered: 06/07/19 20:02:19 Page 5

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