Eton Park Capital Management L.P. v. Argentine Republic
- Loretta Preska
- 1:16-cv-08569
- U.S. District Court · Southern District of New York
- 5
In Eton Park Capital Management v. Argentine Republic, Judge Preska denied reconsideration of a discovery order requiring Petersen plaintiffs to produce Eskenazi documents and witnesses.
The Petersen plaintiffs were required to seek and produce responsive documents held by the Eskenazi family and make the Eskenazis available for depositions; the request to avoid those requirements was denied.
What happened
In Eton Park Capital Management L.P. v. Argentine Republic, the Petersen plaintiffs asked the court to reconsider an earlier order requiring them to produce documents held by the Eskenazi family and make family members available for depositions.
The court said the plaintiffs had a practical ability to obtain the documents because the Eskenazis created the Petersen entities, stood to benefit financially from the lawsuit, and had consulted with litigation funder Burford about the case. The court also found that the plaintiffs had not shown new facts or law supporting reconsideration.
Judge Loretta A. Preska denied the request. She also found it untimely and procedurally improper because the plaintiffs did not file the required motion and memorandum within 14 days, instead raising the issue orally at a conference.
The detailed version
- Eton Park Capital Management L.P. v. Argentine Republic · No. 1:16-cv-08569
- Loretta Preska
- Dec. 29, 2020
Background
The order addresses two related actions identified in the caption: one brought by Petersen Energía Inversora, S.A.U. and Petersen Energía, S.A.U., and another brought by Eton Park Capital Management, L.P. and others. During a December 22, 2020 conference, counsel for the Petersen plaintiffs asked Judge Preska to reconsider the court’s November 23, 2020 order.
The earlier order required the Petersen plaintiffs to produce documents responsive to the defendants’ requests, including documents in the possession, custody, or control of the Eskenazi family. It also required the plaintiffs to make the Eskenazis available for depositions.
Discovery-control analysis
Federal Rule of Civil Procedure 34 allows discovery of documents in a party’s possession, custody, or control. The court explained that control can include a party’s practical ability to obtain documents from a nonparty. Relevant considerations include the degree of cooperation between the party and nonparty and whether the nonparty has a financial interest in the litigation.
The court relied on testimony that the Eskenazis created the Petersen-owned entities, which had no employees or operations, for the purpose of acquiring YPF shares. The Eskenazis had also consulted with Burford about litigation strategy and met with its representatives. Although the plaintiffs argued that other creditors would be paid before the Eskenazis from any recovery, they did not dispute that the Eskenazis stood to benefit financially.
The court also cited facts suggesting practical cooperation, including a bankruptcy receiver’s earlier offer to make former company representatives available to potential buyers of the claims and counsel’s representations that the Eskenazis’ lawyer was willing to provide voluntary discovery. Based on these circumstances, the court concluded that the Petersen plaintiffs should produce responsive documents held by the Eskenazis and make the Eskenazis available for depositions.
Reconsideration request
The court found that counsel offered no new facts and identified no overlooked law. It characterized the assertion that the plaintiffs lacked power over the Eskenazis as unsupported by the record. The court separately concluded that the request was untimely and procedurally improper under Southern District of New York Local Civil Rule 6.3 because the plaintiffs did not file a notice of motion and supporting memorandum within 14 days of the November 23 order. Instead, they asked orally for reconsideration at a conference about a month later.
Disposition
Judge Loretta A. Preska denied the Petersen plaintiffs’ oral request for reconsideration of the November 23, 2020 discovery order. The opinion does not alter the earlier discovery requirements.
Read the full 5-page opinion on CourtListener, the free public archive maintained by the Free Law Project.