Energy Transportation Group, Inc. v. Borealis Maritime Limited

Background

The case involves, among other things, an alleged breach of an August 1, 2012 revenue-sharing agreement between Energy Transportation Group, Inc. (ETG) and Borealis Maritime Limited. In an earlier order, the court denied ETG’s motion to compel discovery about all financing transactions between Kohlberg Kravis & Roberts and Borealis, including the Stanley Maritime I and II funds. The court found that the requested information was only minimally relevant to arguments about the agreement’s scope and was more relevant to damages. It granted Borealis a temporary protective order providing that information about later funds would be discoverable only after a dispositive ruling concerning whether the agreement’s scope could cover those funds.

Motion to Reconsider and Request for Conference

ETG asked the court to reconsider the earlier discovery order. ETG argued that it could not obtain the required dispositive ruling if discovery about the Stanley Maritime funds was withheld and that the court had not evaluated the burden of production separately for each category of documents. Borealis argued that ETG was repeating arguments already rejected or raising arguments that should have been made earlier.

The court denied reconsideration. It clarified that the earlier order meant discovery about later funds would become available after a dispositive ruling that the agreement’s scope could cover those funds—not necessarily a ruling establishing that it did cover them. The court explained that summary judgment could resolve the contract-scope issue and that, if ETG obtained a favorable summary-judgment ruling, discovery about the later funds would be allowed before the fact-finding stage. The court also stated that contractual ambiguity can sometimes be resolved on summary judgment when no reasonable factfinder could reach the opposing interpretation or when the outside evidence is one-sided.

The court found no changed law, new evidence, or clear error requiring reconsideration. It again concluded that the requested information was at most marginally relevant to the agreement’s scope and that the burden of producing it was disproportionate at that stage. The court specifically found that ETG had not shown how organizational documents or quarterly performance reports for the Stanley Maritime funds would be relevant to interpreting the agreement. The request for a conference was also denied.

Motion to Compel Deposition

ETG separately moved to compel Christoph Toepfer, Borealis’s chief executive officer, to appear for a deposition scheduled for March 27, 2024. ETG said the deposition had been scheduled for months and that formal notice had been sent on January 17, 2024. Borealis argued that ETG was seeking an improper advantage by potentially deposing Toepfer twice—once as an individual witness and once as a corporate witness—and that document discovery was incomplete.

The court granted the motion to compel. It was not persuaded by Borealis’s objections because Borealis knew about the relevant circumstances when the deposition was scheduled. The court called Borealis’s additional arguments speculative, expected the deposition to proceed as scheduled, and noted that the parties could later ask about another deposition or additional time based on later document production. The court also stated that sanctions could be imposed under Federal Rule of Civil Procedure 37 if the deposition did not occur as ordered.

Disposition

The motion for reconsideration was DENIED, the motion for conference was DENIED, and the motion to compel the deposition was GRANTED. The Clerk was requested to close those motions. The order addressed discovery and related requests; it did not resolve the underlying alleged breach of the revenue-sharing agreement.