Petersen Energia Inversora, S.A.U. v. Argentine Republic
- Loretta Preska
- 1:15-cv-02739
- U.S. District Court · Southern District of New York
- 5
In Petersen Energía Inversora v. Argentine Republic, Judge Preska denied reconsideration, requiring Petersen Plaintiffs to produce Eskenazi documents and make the Eskenazis available for depositions.
The Petersen Plaintiffs remain required to produce responsive documents in the Eskenazis’ possession, custody, or control and to make the Eskenazis available for depositions. The defendants’ discovery requests are directly affected.
What happened
In Petersen Energía Inversora, S.A.U. and Petersen Energía, S.A.U. v. Argentine Republic and YPF S.A., and Eton Park Capital Management, L.P. et al. v. Argentine Republic and YPF S.A., the court considered the Petersen Plaintiffs’ request to reconsider a discovery order.
The earlier order required the Petersen Plaintiffs to produce responsive documents held by the Eskenazi family and to make the Eskenazis available for depositions. The court said the Eskenazis had created the Petersen entities to acquire YPF shares, had discussed litigation strategy with Burford, could benefit financially from a recovery, and appeared practically able to provide discovery.
Judge Preska denied the request for reconsideration. She found that the plaintiffs identified no new facts or overlooked law, and that the request was also late and improperly made orally at a conference instead of through the required motion process.
The detailed version
- Petersen Energia Inversora, S.A.U. v. Argentine Republic · No. 1:15-cv-02739
- Loretta Preska
- Dec. 29, 2020
Background
During a December 22, 2020 conference, counsel for the Petersen Plaintiffs asked the court to reconsider its November 23, 2020 discovery order. That order directed the Petersen Plaintiffs to produce documents responsive to the defendants’ requests, including documents in the Eskenazis’ possession, custody, or control, and to make the Eskenazis available for depositions.
Court’s reasoning
Under Federal Rule of Civil Procedure 34(a), a party may be required to produce documents within its possession, custody, or control. The court explained that control may include a party’s practical ability to obtain documents from a nonparty. Courts may consider the relationship between the party and nonparty, the nonparty’s financial interest in the litigation, and other evidence of cooperation.
The court also explained that deposition rules can be applied practically when former officers or agents have a continuing functional relationship with a corporate party, rather than focusing only on whether a formal relationship still exists.
The court relied on testimony that the Eskenazis created the Petersen entities, which had no employees or operations, to acquire shares of YPF. The Eskenazis had consulted with Burford about litigation strategy and met with Burford’s representatives. Although the plaintiffs argued that other creditors would receive any recovery before the Eskenazis, they did not dispute that the Eskenazis could benefit financially from the recovery sought in the case. The court also cited facts suggesting that the Eskenazis had a practical ability to provide discovery, including a former receiver’s prior offer to make company representatives available and counsel’s statements about the Eskenazis’ counsel being willing to provide voluntary discovery.
Disposition
Judge Loretta A. Preska denied the Petersen Plaintiffs’ oral request for reconsideration. She concluded that counsel had offered no new facts or law that the court had overlooked. She also held that the request was untimely and procedurally improper under Local Civil Rule 6.3 because the plaintiffs did not file the required notice of motion and memorandum within 14 days of the November 23 order, instead raising the request orally about a month later.
Read the full 5-page opinion on CourtListener, the free public archive maintained by the Free Law Project.