Energy Transportation Group, Inc. v. Borealis Maritime Limited

Background

The court addressed a series of motions and letter requests filed between April 17 and May 20, 2024. The opinion states that multiple motions to seal would be addressed later. The court separately granted ETG’s request to file a declaration supporting its motion to reconsider and directed counsel to file that declaration by June 18, 2024.

Borealis’s Motion for a Protective Order

Borealis sought a protective order to prevent Energy Transportation Group, Inc. (ETG) from obtaining discovery concerning a revenue-sharing agreement between Christoph Toepfer and Kon-Tiki Maritime Limited. ETG argued that Toepfer should not have received certain payments and that those payments should be included in calculating the carried interest ETG claimed it was owed. ETG sought bank statements, deposit receipts, and communications from Toepfer’s personal devices.

The court applied the discovery rule requiring information to be relevant, nonprivileged, and proportional to the needs of the case. It found ETG’s justification speculative and described the requested discovery as an impermissible fishing expedition. The court also found that the potential additional damages were substantially smaller than the estimated cost and delay of the discovery. It therefore granted Borealis’s motion for a protective order.

ETG’s April 17 Letter Request

ETG’s letter raised three issues: additional discovery concerning the revenue-sharing agreement, an amendment to the confidentiality agreement, and Borealis’s alleged refusal to answer damages interrogatories.

Because the court had granted Borealis’s protective-order motion, it denied as moot ETG’s request for a conference about the additional discovery. The parties were directed to meet and confer about amending the confidentiality agreement and to submit a joint status update by June 28, 2024. They were also ordered to meet and confer about the damages interrogatories and submit a joint status update on whether that issue had been resolved by the same date.

Borealis’s Motion to Compel the Fuchs Communications

Borealis sought documents involving Frithjof Fuchs. Borealis argued that attorney-client privilege did not apply because Fuchs was not an ETG employee and that ETG had waived any privilege by producing emails between Fuchs and ETG’s counsel. ETG argued that the communications were privileged because Fuchs was a business partner, but did not address waiver.

The court ruled that ETG’s intentional production of communications it claimed were privileged waived the privilege for the remaining documents concerning the same subject. The court therefore granted Borealis’s motion to compel and ordered ETG to produce the requested documents by June 21, 2024.

KKR’s Motion to Quash the Subpoena

Nonparty Kohlberg Kravis Roberts & Co. (KKR) sought to quash ETG’s deposition subpoena, which initially covered 17 topics. KKR argued that preparing a witness on events from a decade earlier would be burdensome and that the subpoena was issued shortly before the fact-discovery deadline. ETG later narrowed the proposed deposition to issues concerning the authenticity or admissibility of KKR documents. KKR offered a business-record certification instead of a deposition, but ETG declined.

The court found that the relevance of the underlying documents was separate from the relevance of deposition testimony about those documents. It further concluded that, even assuming the testimony was relevant, requiring a nonparty to produce a witness solely to authenticate documents raised proportionality concerns. The court stated that certification was a less burdensome way to address admissibility and directed the parties to meet and confer about possible certification and submit a joint status letter by June 28, 2024. The opinion does not expressly state that KKR’s motion to quash was granted or denied.

ETG’s Request for International Judicial Assistance

Borealis sought testimony from Fuchs under 28 U.S.C. § 1781(b) and the Hague Convention as an alternative to obtaining the Fuchs communications. Because the court had granted the motion to compel those communications, it denied as moot Borealis’s request for Fuchs’s testimony. The court added that it would not have been inclined to grant the request because Borealis had not first sought a voluntary deposition.

ETG’s Motion to Compel Regarding the 30(b)(6) Deposition

ETG asked the court to compel KKR to produce emails responsive to a subpoena and to comply with the deposition. The court denied as moot the request to compel KKR’s compliance with the deposition because of its ruling concerning the deposition request. The court also denied ETG’s request for additional emails because ETG had expanded the document request at 5:11 p.m. on the day before discovery was scheduled to close.

Disposition

The court directed the Clerk of Court to close Docket Nos. 166, 181, 187, and 189. The order is a discovery and case-management ruling; it does not decide the underlying merits of ETG’s claims.