Oasis Core Investments Fund Ltd.

Filing 32

OPINION AND ORDER re: 1 MISCELLANEOUS CASE INITIATING DOCUMENT - MOTION for Discovery APPLICATION FOR AN ORDER PURSUANT TO 28 U.S.C. § 1782 TO CONDUCT DISCOVERY FOR USE IN A FOREIGN PROCEEDING. (Filing Fee $ 49.00, Receipt Num ber ANYSDC-28482728) filed by Oasis Core Investments Fund Ltd..Because Oasis has satisfied both the statutory and discretionary Intel factors, theCourt grants Oasis's application for foreign discovery pursuant to 28 U.S.C. § 1782, withthe exception of documents previously provided by Triton to Brookfield. The Court directs the parties to enter a protective order before engaging in any discovery anddenies Brookfield's request for cost-sharing. SO ORDERED. (Signed by Judge Sidney H. Stein on 2/7/2024) (jca)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
In re Application of
Oasis Core Investments Fund Ltd.,

23-MC-402 (SHS)

Petitioner, For an Order Pursuant to 28 U.S.C. §
1782 to Conduct Discovery for Use in a Foreign
Proceeding.

Opinion & Order

SIDNEY H. STEIN, U.S. District Judge.
Petitioner Oasis Core Investments Fund Ltd. brings this application for discovery
in a foreign proceeding pursuant to 28 U.S.C. § 1782. The underlying foreign action is a
shareholder appraisal rights proceeding in the Supreme Court of Bermuda arising from
a transaction, completed on September 28, 2023, in which Triton International
Limited—a lessor of intermodal freight containers—was taken private through an
acquisition of shares by Brookfield Infrastructure Corporation (“BIPC”) and its
affiliated entities (together, “Brookfield”). 1 (ECF No. 2-15.) Goldman Sachs advised
Triton on the transaction. Oasis, the sole dissenting shareholder to the transaction, has
initiated an appraisal proceeding in the Supreme Court of Bermuda to determine the
fair value of its Triton shares.
Pursuant to Section 1782, Oasis initiated this application for foreign discovery
materials from BIPC—the buyer in the transaction—as well as the affiliated Brookfield
entities and Goldman Sachs. (ECF No. 1.) In particular, Oasis seeks discovery from
Brookfield about the fairness of the transaction price, the process by which the price
was determined, negotiations, financial analyses regarding the transaction, alternative
transactions considered, Triton’s independence from the buyer, and Triton’s valuation.
(ECF No. 4 at 7-8.) Oasis’s requests are limited to the approximately 17 months between
April 1, 2022—the month before Brookfield initiated discussions about the transaction—
and August 24, 2023. (ECF No. 2-1 at 5; ECF No. 2-6 at 55.)

The affiliated Brookfield entities are Brookfield Infrastructure Fund V-A, L.P., Brookfield
Infrastructure V-B, L.P., and Brookfield Infrastructure V-C, L.P.
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Brookfield requests that the Court deny Oasis’s application or, in the alternative,
narrow and stay the discovery pending the issuance of a protective order and a
“Directions Order”2 in the Bermuda proceeding. Brookfield also requests that the Court
allocate costs between itself and Oasis. Goldman Sachs has not opposed the application.
For the reasons set forth below, the Court grants Oasis’s application for foreign
discovery pursuant to 28 U.S.C. § 1782.
I.

Legal Standard

As set forth in Section 1782, “The district court of the district in which a person
resides or is found may order him to give his testimony or statement or to produce a
document or other thing for use in a proceeding in a foreign or international tribunal . . .
upon the application of any interested person.” 28 U.S.C. § 1782. Accordingly, the
Section 1782 application must satisfy three statutory requirements: (1) the discovery is
sought from someone who resides or is found within the district; (2) the discovery is for
use before a foreign tribunal; and (3) the applicant is an “interested person.” See Bouvier
v. Adelson (In re Accent Delight Int’l Ltd.), 869 F.3d 121, 128 (2d Cir. 2017).
If these statutory requirements are met, the court then considers the four
discretionary “Intel” factors set forth by the U.S. Supreme Court in Intel Corp. v.
Advanced Micro Devices, Inc., 542 U.S. 241 (2004) as follows: (1) whether the person from
whom discovery is sought is a “nonparticipant in the matter arising abroad”; (2) “the
nature of the foreign tribunal, the character of the proceedings underway abroad, and
the receptivity of the foreign government or the court or agency abroad to U.S. federalcourt judicial assistance”; (3) whether the request “conceals an attempt to circumvent
foreign proof-gathering restrictions or other policies of a foreign country or the United
States”; and (4) whether the request is “unduly intrusive or burdensome.” Id. at 264-65.
The U.S. Court of Appeals for the Second Circuit has instructed district courts to
exercise their discretion “in light of the twin aims of the statute: ‘providing efficient
means of assistance to participants in international litigation in our federal courts and
encouraging foreign countries by example to provide similar means of assistance to our
courts.’” In re Metallgesellschaft, 121 F.3d 77, 79 (2d Cir. 1997) (quoting In re Malev
Hungarian Airlines, 964 F.2d 97, 100 (2d Cir. 1992)).

When entered, the Directions Order will govern the scope of discovery in the Bermuda
proceeding.
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II.

Oasis Meets the Statutory Requirements

Brookfield does not dispute that all three statutory requirements are satisfied.
First, Brookfield is “found” in this District because each affiliated Brookfield entity has
its principal place of business in New York City. (ECF No. 2-14.) See In re del Valle Ruiz,
939 F.3d 520, 528 (2d Cir. 2019). Second, Oasis has the right to submit the requested
documents to the Bermuda tribunal, which satisfies the statute’s “for use” requirement.
(Declaration of Keith Robinson, ECF No. 3 ¶ 36; Declaration of John Wasty, ECF No. 26
¶ 41. 3) Third, Oasis is a party to the foreign proceeding and therefore an “interested
person” under the statute. Intel, 542 U.S. at 256.
III.

Oasis Satisfies the Intel Factors

Brookfield does not contest that the first and second Intel factors weigh in favor
of Oasis. On the first factor, the Brookfield entities are not parties to the Bermuda
appraisal proceedings; only Oasis and Triton are parties. (ECF No. 3-1.) On the second
factor, Robinson and Wasty both agree that Bermuda courts are receptive to evidence
obtained pursuant to Section 1782. (Robinson Decl. ¶ 44; Wasty Decl. ¶ 41.) Instead,
Brookfield urges that the third and fourth factors support denial of the application. The
Court disagrees.
A. The Third Intel Factor Supports Oasis
The third Intel factor is whether the Section 1782 request “conceals an attempt to
circumvent foreign proof-gathering restrictions or other policies of a foreign country or
the United States.” Intel, 542 U.S. at 265. The evidence sought need not be discoverable
in the foreign proceeding, id. at 261, and there is no requirement that Oasis attempt to
gather the information through the foreign proceeding first. See In re Top Matrix
Holdings, Ltd., No. 18-MC-465, 2020 WL 248716, at *6 (S.D.N.Y. Jan. 16, 2020). Rather,
“‘[p]roof-gathering restrictions’ are best understood as rules akin to privileges
that prohibit the acquisition or use of certain materials, rather than as rules that fail to
facilitate investigation of claims by empowering parties to require their adversarial and
non-party witnesses to provide information.” Mees v. Buiter, 793 F.3d 291, 303 n.20 (2d
Cir. 2015) (emphasis in original).

In determining foreign law, the Court “may consider any relevant material or source,” Fed. R.
Civ. P. 44.1, including the declarations of Robinson and Wasty, who are both partners in Bermuda law
firms. (ECF No. 3 ¶ 2; ECF No. 26 ¶ 2.)
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Brookfield first contends that the Bermuda court’s forthcoming Directions Order
will impose proof-gathering restrictions. However, Brookfield has “not provided any
showing that the policy or restrictions of any relevant foreign jurisdiction prohibit the
discovery sought by [Oasis],” Accent Delight Int'l v. Sotheby's, Inc. (In re Accent Delight
Int'l), 791 F. App'x 247, 251 (2d Cir. 2019), and points to no proof-gathering restriction
that is currently under consideration in Bermuda. More generally, even if the Directions
Order were to restrict discovery, such a restriction would apply to Triton and Oasis, the
parties in the Bermuda proceeding. There is no evidence in this record suggesting that
the Directions Order would govern or prohibit any potential discovery from non-party
Brookfield.
Brookfield also argues that Oasis’s broad discovery requests run afoul of
Bermuda’s requirement that the requests be specific and not “fishing expeditions.”
However, such a requirement does not amount to the sort of proof-gathering restriction
contemplated by the Second Circuit. See Mees, 793 F.3d at 303 n.20 (“That a country does
not enable broad discovery within a litigation does not mean that it has a policy that
restricts parties from obtaining evidence through other lawful means.”).
Brookfield also contends that Oasis is acting in bad faith by bringing this
application prior to a Directions Order being entered in Bermuda. This is not
persuasive. The only cases cited by Brookfield to substantiate its position involved a
failure to notify the judge of relevant adverse rulings in an ex parte application. See In re
Auto-Guadeloupe Investissement S.A., No. 12-MC-221, 2012 U.S. Dist. LEXIS 147379, at *23
(S.D.N.Y. Oct. 10, 2012); In re WinNet R CJSC, No. 16-MC-484, 2017 U.S. Dist. LEXIS
97164, at *2 (S.D.N.Y. June 23, 2017). Here, the Section 1782 application was filed
publicly, explicitly provided a period for Brookfield to oppose it, and Brookfield does
not contend that Oasis has failed to bring a prior adverse ruling to the Court’s attention.
Finally, Brookfield’s objection to discovery in the absence of a protective order is
easily remedied. The Court directs the parties to enter a protective order prior to
discovery materials being exchanged.
B. The Fourth Intel Factor Supports Oasis
The fourth Intel factor requires the Court to “assess whether the discovery sought
is overbroad or unduly burdensome by applying the familiar standards of Rule 26 of
the Federal Rules of Civil Procedure.” Mees, 793 F.3d at 302. Rule 26 permits relevant
and proportional discovery, considering the importance of the issues at stake in the
action, the amount in controversy, the parties’ relative access to relevant information,
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the parties’ resources, the importance of the discovery in resolving the issues, and
whether the burden or expense of the proposed discovery outweighs its likely benefit.
Fed. R. Civ. P. 26(b). “It is far preferable for a district court to reconcile whatever
misgivings it may have about the impact of its participation in the foreign litigation by
issuing a closely tailored discovery order rather than by simply denying relief
outright.” Mees, 793 F.3d at 302.
Oasis’s requests are limited to a 17-month period and cover topics consistent
with appraising the value of Oasis’s Triton shares, such as communications concerning
the negotiation, alternative transactions, outreach to alternative buyers, internal
approval, and valuation. (ECF No. 2-1.) The amount in controversy is also substantial:
the total value of Oasis’s shares at the merger price is $98.5 million and the total
enterprise value of Triton is approximately $13.3 billion. (ECF No. 31 ¶ 47.) Relatedly,
the parties’ resources are significant, as “Brookfield Infrastructure is the flagship listed
infrastructure company of Brookfield Corporation, a global alternative asset manager
with approximately $800 billion of assets under management.” (ECF No. 25-3.) These
factors support Oasis’s application.
Brookfield’s arguments that the requested discovery is overbroad and unduly
burdensome under Rule 26 are not persuasive. First, while Brookfield alleges that the
Bermuda court’s appraisal is limited to the “fair value” of the shares and excludes any
consideration of the process by which the value was determined, Oasis cites to Bermuda
law suggesting that “the measures taken in the sale process” are indeed relevant. (ECF
No. 3 ¶ 30.) Second, Brookfield’s objections to specific requests—with the one exception
noted below—are unavailing: Triton’s possible post-merger credit ratings are relevant
because the proxy statement identifies the company’s credit rating as a key
consideration affecting the merger decision; Brookfield’s document retention policies
are relevant to Brookfield’s compliance with the subpoenas; and the requests are
appropriately time limited to a month preceding the first contact between Brookfield
and Triton about the merger. Third, the document and testimony requests are not
unnecessarily duplicative of each other, as Brookfield urges, as it is routine for
depositions to cover the same topics as documentary evidence. Finally, Brookfield’s
concerns with confidentiality will be adequately addressed by the forthcoming consent
protective order.
However, the Court does agree with Brookfield that the following request by
Oasis is unnecessary: “All Documents and materials provided to [Brookfield] from
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[Triton], Including due diligence materials.” (ECF No. 2-1 at 7.) Oasis may pursue
Triton’s documents directly from Triton in the Bermuda proceeding.
Accordingly, the fourth Intel factor also weighs in favor of Oasis’s application.
IV.

The Parties Should Bear Their Own Costs

Brookfield additionally requests that Oasis should bear some or all of
Brookfield’s costs incurred in producing the required discovery. “A district court may
allocate the expenses associated with a non-party’s response to a subpoena served
pursuant to Section 1782.” In re Kingstown Partners Master Ltd., No. 21-MC-691, 2022 U.S.
Dist. LEXIS 65735, at *21 (S.D.N.Y. Apr. 8, 2022). “Determining each party’s share of the
cost of compliance in such circumstances turns on three factors: (1) whether the
nonparty has an interest in the outcome of the case; (2) whether the nonparty can more
readily bear the costs; and (3) whether the litigation is of public importance.” Id.
(internal quotation marks omitted). See also In re Carolina Andraus Lane, No. 22-MC-34,
2023 U.S. Dist. LEXIS 68833, at *2 (S.D.N.Y. Apr. 17, 2023).
Here, Brookfield—as a party to the transaction—has a strong interest in the
outcome of the appraisal proceeding, which weighs in favor of Brookfield bearing its
own costs. Id. at *2-3. Second, as a major financial institution, Brookfield is also readily
able to bear the costs of discovery. Though the litigation is not of significant public
importance—which ordinarily counsels in favor of cost-sharing—that factor is not
sufficient to outweigh Brookfield’s strong interest in the transaction and ability to bear
the costs. Each party shall bear its own costs.
V.

Conclusion

Because Oasis has satisfied both the statutory and discretionary Intel factors, the
Court grants Oasis’s application for foreign discovery pursuant to 28 U.S.C. § 1782, with
the exception of documents previously provided by Triton to Brookfield. The Court

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directs the parties to enter a protective order before engaging in any discovery and
denies Brookfield's request for cost-sharing.

Dated: New York, New York
February 7, 2024

SO ORDERED:

Sidney H. Stein, U.S.D.J.

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