Petersen Energia Inversora, S.A.U. et al v. Argentine Republic et al

Filing 252

ORDER denying #241 Letter Motion for Local Rule 37.2 Conference. Accordingly, the Petersen Plaintiffs' oral request during the December 22 conference for reconsideration of the Court's November 23 order (Order, dated Nov. 23, 2020 [dkt. no. 219 in 15-cv2739; dkt. no. 158 in 16-cv-8569)]) is denied. SO ORDERED. (Signed by Judge Loretta A. Preska on 12/28/2020) (va)

Case 1:15-cv-02739-LAP Document 252 Filed 12/29/20 Page 1 of 5

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
PETERSEN ENERGÍA INVERSORA,
S.A.U. and PETERSEN ENERGÍA,
S.A.U.,
Plaintiffs,

15 Civ. 2739 (LAP)

-againstARGENTINE REPUBLIC and YPF
S.A.,
Defendants.
ETON PARK CAPITAL MANAGEMENT,
L.P. et al.,
Plaintiffs,

16 Civ. 8569 (LAP)

-against-

ORDER

ARGENTINE REPUBLIC and YPF
S.A.,
Defendants.
LORETTA A. PRESKA, Senior United States District Judge:
During the December 22, 2020 conference, Plaintiffs’
counsel asked the Court to reconsider the Court’s order, dated
November 23, 2020, in which it directed the Petersen Plaintiffs
to produce all documents responsive to Defendants’ document
requests, including any documents in the possession, custody, or
control of the Eskenazi family, and to make the Eskenazis
available for deposition (Order, dated Nov. 23, 2020 [dkt. no.
219 in 15-cv2739; dkt. no. 158 in 16-cv-8569)], at 2).

1

The

Case 1:15-cv-02739-LAP Document 252 Filed 12/29/20 Page 2 of 5

Court denies Plaintiffs’ counsel’s request for reconsideration
and writes to reiterate the basis for its November 23 ruling.
Federal Rule of Civil Procedure Rule 34(a) provides that a
party may serve a request for the production of documents that
are in the possession, custody, or control of the party upon
whom the request is served.

Fed. R. Civ. P. 34.

In determining

whether a party has “possession, custody, or control” for the
purposes of Rule 34(a), the Court may consider the “practical
ability to obtain the documents from a non-party to the action.”
Bank of New York v. Meridien BIAO Bank Tanzania Ltd., 171 F.R.D.
135, 149 (S.D.N.Y. 1997).

In making this determination, courts

may evaluate the degree of cooperation between the party and
non-party and whether the non-party has a financial interest in
the outcome of the litigation, which may further incentivize
cooperation.

Golden Trade, S.r.L. v. Lee Apparel Co., 143

F.R.D. 514, 525 (S.D.N.Y. 1992).

Non-parties should bear in

mind that a “potential beneficiary of any judgment for
plaintiffs . . . may fairly be expected to bear certain burdens
in carrying out discovery.”

Id. at 526 n.9.

As to depositions, an officer, director, or managing agent
of a corporate party may be required to give testimony under
Federal Rule of Civil Procedure Rule 30(b)(1). Fed. R. Civ. P.
30(b)(1).

“Although typically a corporation cannot be required

to produce a former officer or agent for deposition, this rule
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is not woodenly applied.

Rather, courts within and without this

district have adopted a ‘practical’ approach ‘that focuses not
only on the formal connection between the witness and the party
at the time of the deposition, but also on their functional
relationships.’”

Dubai Islamic Bank v. Citibank, N.A., No. 99

CIV. 1930, 2002 WL 1159699, at *3 (S.D.N.Y. May 31, 2002)
(citing, among other cases, United States v. Afram Lines (USA),
Ltd., 159 F.R.D. 408, 414 (S.D.N.Y. 1994) (Independent Prods.
Corp. v. Loew's, Inc., 24 F.R.D. 19, 26 (S.D.N.Y.1959)(upholding
deposition notices of former officers of plaintiffs who stood
“ready to serve plaintiffs” despite severance of formal ties)).
Here, Petersen’s witness testified that the Eskenzis
created the Eskenazi-owned Petersen entities, with no employees
or operations, for the specific purpose of acquiring shares of
YPF.

(See Ex. 1 to Defendants’ Letter, dated November 20, 2020

(“Betancor Tr.”), at 187:24-188:6.)

The Eskenazis have

consulted with Burford on the litigation strategy in this case
and met with Burford’s representatives on multiple occasions to
do so.

(See Ex. 3 to Defendants’ Letter, dated November 20,

2020 (“Bogart Tr.”) at 122:5-123:18.)

Importantly, although

Plaintiffs argue that there are creditors ahead of the Eskenazis
in line who will collect on any financial recovery first, they
do not dispute that the Eskenazis stand to benefit financially
from the recovery sought here.

Moreover, the undisputed facts-3

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including the Petersen bankruptcy receiver’s offer to make the
company’s former representatives available to potential buyers
of its claims in 2014 and, more recently,1 Plaintiffs’ counsel’s
representations about the Eskenazis’ counsel’s willingness to
provide voluntary discovery--further imply a practical ability
to produce the discovery.

Accordingly, the Court determined

that the Petersen Plaintiffs should produce the documents in the
possession of the Eskenazis that are responsive to Defendants’
discovery requests and to make the Eskenazis available for
deposition.
In asking that the Court reconsider its November 23, 2020
order, Plaintiffs’ counsel raises no new facts--only the selfserving ipse dixit that Plaintiffs are without power over the
Eskenazis--or law that the Court overlooked.2
In any event, Plaintiffs’ request for reconsideration is
both untimely and procedurally improper.

1

Plaintiffs had 14 days

The Court notes that it was only after its November 23 order directing
the Petersen Plaintiffs to produce all documents responsive to
Defendants’ requests, including those in the possession, custody, and
control of the Eskenazis, and to make the Eskenazis available for
depositions, the Eskenazis’ lawyer miraculously surfaced and offered
to negotiate to effect a voluntary production of documents. This
supports the Court’s earlier inference of practical cooperation
between the Eskenazis and the Petersen Plaintiffs.
2
Plaintiffs citation during the December 22 conference to Zenith
Elecs. LLC v. Vizio, Inc., No. M8-85, 2009 WL 3094889 (S.D.N.Y. Sept.
25, 2009), which decided a different issue of whether “a subpoenaed
domestic corporation can be compelled to produce documents held by a
foreign affiliate” and found that the party seeking discovery provided
no factual basis to demonstrate control, is of no moment.

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from November 23, 2020 to file a notice of motion for
reconsideration with a memorandum setting forth the issues that
counsel believes the Court overlooked.
6.3.

S.D.N.Y. Local Civ. R.

Plaintiffs did neither, instead asking the Court to

reconsider its ruling at a conference a month later and doing so
orally.

This provides an independent basis for the Court’s

denial of Plaintiffs’ request for reconsideration.
Accordingly, the Petersen Plaintiffs’ oral request during
the December 22 conference for reconsideration of the Court’s
November 23 order (Order, dated Nov. 23, 2020 [dkt. no. 219 in
15-cv2739; dkt. no. 158 in 16-cv-8569)]) is denied.
SO ORDERED.
Dated:

New York, New York
December 28, 2020
__________________________________
LORETTA A. PRESKA
Senior United States District Judge

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