Girard vs. Phillips Petroleum

Filing 24

OPINION AND ORDER re: 1 filed by Phillips Petroleum Company Venezuela Limited, Conoco Phillips Company. For the reasons indicated herein, the motion to quash is GRANTED. The Clerk of Court is respectfully directed to terminate motion at ECF No. 1. (Signed by Magistrate Judge Valerie Figueredo on 3/11/2025) (rro) Modified on 3/11/2025 (rro). (Main Document 24 replaced on 3/11/2025) (rro).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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PHILLIPS PETROLEUM COMPANY
VENEZUELA LIMITED, et al.,
Movants,

25-MC-24 (JHR) (VF)
OPINION AND ORDER

-againstGIRARD STREET INVESTMENT HOLDINGS
LLC,
Respondent.
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VALERIE FIGUEREDO, United States Magistrate Judge.

Before the Court is the motion of Movant Phillips Petroleum Company Venezuela
Limited and ConocoPhillips Company (collectively, the “ConocoPhillips Subpoena Recipients”)
to quash a subpoena issued to them by Respondent Girard Street Investment Holdings LLC
(“Girard Street”). See ECF No. 1. For the reasons discussed herein, the motion to quash is
GRANTED.
BACKGROUND
Girard Street issued two subpoenas duces tecum under Federal Rule of Civil Procedure
45 to the ConocoPhillips Subpoena Recipients in November 2024. See ECF Nos. 1-2, 1-3. Each
subpoena seeks documents related to a civil action commenced by Girard Street in this Court
against PDV Holding, Inc. See Girard St. Inv. Hldgs. LLC v. PDV Hldg., Inc., No. 24-CV-04448
(JSR) (S.D.N.Y.). In that action, which is pending before the Honorable Jed S. Rakoff, Girard
Street sued Petróleos de Venezuela, S.A. (“PDVSA”), PDVSA Petróleo S.A. (“Petróleo”), and
PDVH Holding, Inc. (“PDVH”), claiming that PDVSA and Petróleo defaulted on their
obligations under certain promissory notes and seeking turnover of PDVH’s assets in the United

States on the theory that PDVH is the alter ego of PDVSA. See ECF No. 116 at 2-3.1 The
ConocoPhillips Subpoena Recipients are not parties to that action. Rather, the ConocoPhillips
Subpoena Recipients are creditors of PDVSA and the Republic of Venezuela and have obtained
judgments against PDVSA and the Republic which are secured by writs of attachment on the
shares of PDVH, the parent of the CITGO refinery companies. See ECF No. 1-1 at 3-4.
Girard Street has apparently served at least 30 non-party subpoenas as of November 25,
2024. ECF No. 1-1 at 5. Amongst those who have been served with a subpoena are the following
PDVH subsidiaries: Citgo Holding, Inc., Citgo Petroleum Corp., PDV USA, Inc., and PDV
Chalmette, LLC. Id. Those four entities, who are also non-parties to the Girard Street action
pending before Judge Rakoff, moved to quash the subpoenas. See Girard St. Inv. Hldgs. LLC v.
Petróleos de Venezuela, S.A., No. 23-CV-10772 (JSR), No. 24-CV-04448 (JSR), 2024 WL
4837277, at *1 (S.D.N.Y. Nov. 20, 2024). Judge Rakoff granted the motion, concluding that the
subpoenas were overbroad and had “little apparent relevance to the case in front of this Court.”
Id.
The ConocoPhillips Subpoena Recipients likewise argue here that the two subpoenas
seek documents relating to Girard Street’s claim that PDVH and PDVSA are alter egos, and thus
seek information from non-parties that is more appropriately sought from the named parties in
the Girard Street action. ECF No. 1-1 at 7. Further, the ConocoPhillips Subpoena Recipients
argue that the subpoena requests are overbroad in time period and scope. Id. at 8. Lastly, Phillips
Petroleum Company Venezuela Limited argues that the subpoena should be quashed for

The page numbers referenced herein for citations to the electronic docket (“ECF”) at
ECF No. 116 and ECF No. 1-1 are to the original pagination in those documents. The page
numbers referenced herein for citations to ECF No. 1-2 and ECF No. 1-3 are to the ECFgenerated pagination.
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improper service, and ConocoPhillips Company contends that it is not a proper target of
discovery because it is the parent company of a creditor of PDVSA and the Republic and is not
itself a creditor of either of those entities. Id. at 9-10.
The ConocoPhillips Subpoena Recipients filed their motion to quash the Rule 45
subpoenas on December 2, 2024. ECF No. 1. The motion was referred to the undersigned on
January 15, 2025. ECF No. 22. On January 21, 2025, the undersigned issued an order setting
February 4, 2025, as the deadline by which Respondent Girard Street could oppose the motion to
quash. That date has passed, and Girard Street has not filed an opposition or otherwise sought an
extension of time to do so. The motion to quash is thus unopposed.
DISCUSSION
Federal Rule of Civil Procedure 45 permits a party to command a non-party to produce
documents and provide deposition testimony. See Fed. R. Civ. P. 45(a). The Rule requires that
the issuing party “take reasonable steps to avoid imposing undue burden or expense on a person
subject to the subpoena.” Fed. R. Civ. P. 45(d)(1). Thus, “[t]he party seeking discovery [from a
non-party under Rule 45] bears the initial burden of proving that the information and testimony
sought in the subpoena are relevant and proportional to the needs of the case[.]” Cohen v. Grp.
Health Inc., No. 22-MC-0200 (PAE) (KHP), 2022 WL 4534552, at *2 (S.D.N.Y. Sept. 28, 2022)
(alteration added). “Determining undue burden requires a court to balance relevance, a party’s
need for the documents, whether the documents are available from other sources, the
particularity with which the documents are described, and costs.” Weihai Lianqiao Int’l Coop
Grp. Co., Ltd. v. A Base IX Co. LLC, No. 21-CV-10753 (DEH), 2024 WL 3498850, at *1
(S.D.N.Y. July 22, 2024) (internal quotation marks omitted) (citing Sec. & Exch. Comm’n v.
Archer, No. 16-CV-3505 (WHP), 2018 WL 3424449, at *1 (S.D.N.Y. July 2, 2018)). Whether the

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requested information can be obtained from the parties themselves is another factor that courts
consider in determining undue burden. Id.; see also Athalonz, LLC v. Under Armour, Inc., No.
24-MC-0047 (DEH), 2024 WL 1555685, at *3 (S.D.N.Y. Apr. 10, 2024). “If documents are
available from a party, it has been thought preferable to have them obtained pursuant to Rule 34[,
which governs discovery between parties,] rather than subpoenaing them from a non-party
witness pursuant to Rule 45.” Athalonz, 2024 WL 1555685, at *2 (alteration in original and
internal quotation marks omitted) (quoting Fishon v. Peloton Interactive, Inc., 336 F.R.D. 67, 69
(S.D.N.Y. 2020)). Motions to quash a subpoena are “entrusted to the sound discretion of the
district court.” In re Fitch, Inc., 330 F.3d 104, 108 (2d Cir. 2003) (internal quotation marks and
citation omitted).
As an initial matter, the subpoena issued to Phillips Petroleum Company Venezuela
Limited does not appear to have been properly served on that entity. Under Rule 45, service of
the subpoena must be made by “delivering a copy to the named person.” Fed. R. Civ. P. 45(b)(1).
Where the subpoena is directed at a corporation, rather than a natural person, service “may be
made by using the analogous method for service of process on that entity under Rule 4.” GMA
Accessories, Inc. v. Eminent, Inc., No. 07-CV-3219 (LTS) (DF), 2007 WL 4456009, at *1
(S.D.N.Y. Dec. 11, 2007) (quoting 9 James Wm. Moore, Moore’s Federal Practice, § 45.21(1)
(3d ed. 2007)); see also In re Newbrook Shipping Corp., 31 F.4th 889, 896-97 (4th Cir. 2022)
(noting that “to satisfy Rule 45’s mandate of ‘delivering a copy to the named person’ when the
‘person’ is a corporation, there must be delivery to an appropriate agent, as identified by Rule
4(h)”). Under Federal Rule of Civil Procedure 4, a corporation may be served through “an
officer, a managing or general agent, or any other agent authorized by appointment or by law to
receive service of process.” Fed. R. Civ. P. 4(h)(1)(B).

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The notice of service filed on the docket indicates that the subpoena was served in
Delaware. See ECF No. 1-2 at 2. But Phillips Petroleum Company Venezuela Limited indicates
that it is a Bermuda company and does not have a registered agent for service of process in
Delaware. See ECF No. 1-1 at 9. Additionally, it appears from the notice of service that the
subpoena may have been served in Delaware on the registered agent for Phillips Petroleum
Company, which is not the same entity as Phillips Petroleum Company Venezuela Limited, to
whom the subpoena is directed. Id.
Regardless, even if the subpoenas were properly served on the ConocoPhillips Subpoena
Recipients, the recipients are correct that the subpoenas are unduly burdensome and overbroad.
First, the non-party status of the ConocoPhillips Subpoena Recipients is “significant in
determining whether compliance with a discovery demand would constitute an undue burden.”
Solarex Corp. v. Arco Solar, Inc., 121 F.R.D. 163, 179 (E.D.N.Y. 1988) (internal quotation marks
and citation omitted). Here, the non-part status of the ConocoPhillips Subpoena Recipients
weighs heavily in favor of finding that the broad document requests in the subpoenas are unduly
burdensome.
Moreover, Judge Rakoff already concluded that similar subpoenas served by Girard
Street on non-party subsidiaries of PDVH were overbroad and sought information with “little
apparent relevance to the case in front of th[e] Court.” Girard Str. Inv. Hldgs. LLC, 2024 WL
4837277, at *1. As Judge Rakoff explained, “[t]o the extent Girard Street seeks discovery
regarding the alleged alter ego relationship between PDVSA and PDVH, those documents should
be readily obtainable in discovery from PDVSA or PDVH.” Id. Here, too, the subpoenas served
on the ConocoPhillips Subpoena Recipients seek information to support an alleged alter ego
theory, which, as Judge Rakoff noted, should be obtained from PDVSA or PDVH. Compare ECF

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No. 1-2 at Requests Nos. 1, 2, 4-8, 12, 14 with ECF No. 63-1 in No. 24-CV-04448 at Requests
Nos. 29-31, 35, 38-45, 47-48. And, the fact that the documents Girard Street seeks from the
ConocoPhillips Subpoena Recipients “are likely available from other sources”—namely, PDVSA
or PDVH—further weighs in favor of the request to quash the subpoenas. Athalonz, 2024 WL
1555685, at *3 (internal quotation marks and citation omitted).
Additionally, the subpoenas served on the ConocoPhillips Subpoena Recipients are
overbroad in scope and time period. Many requests seek “all documents and communications”
without a time limitation (see, e.g., ECF No. 1-1 at Requests Nos. 1-2, 6-7, 9, 14-22), and even
for the requests where a time limit is provided, the time period spans decades (id. at Requests
Nos. 4-5, 8, 10-13 (seeking “all documents and communications” since “2000”)). Courts have
quashed document requests as overbroad where the requests have no limitation as to the relevant
time period. See Hofmann v. Schiavone Contracting Co. LLC, No. 11-CV-2346 (CBA), 2012
WL 12925828, at *2 (E.D.N.Y. Nov. 8, 2012) (concluding that document requests in Rule 45
subpoena were “overly broad on their face” where they were “not limited in time”); Athalonz,
2024 WL 1555685, at *3 (noting that requests that were not limited by time were
“indiscriminately broad”).
Lastly, Girard Street issued a subpoena to ConocoPhillips Company. See ECF No. 1-3.
ConocoPhillips Company, however, is not a creditor of PDVSA or the Republic of Venezuela; it
is the parent company of four subsidiaries that are creditors of PDVSA and/or the Republic of
Venezuela. See ECF No. 1-1 at 10. Given that the documents sought by the subpoena are likely
to be in the possession, custody, and control of the subsidiaries of ConocoPhillips Company (as
creditors of PDVSA and/or the Republic of Venezuela), it is Girard Street’s burden to
demonstrate that ConocoPhillips Company “has the practical ability to obtain the documents in

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issue.” In re Vivendi Universal, S.A. Sec. Litig., No. 02-CV-5571 (RJH) (HBP), 2009 WL
8588405, at *3 (S.D.N.Y. July 10, 2009) (explaining that “[w]here the corporations in issue have
a parent-subsidiary relationship, access and ability to obtain documents have been found where
documents ordinarily flow freely between parent and subsidiary”) (internal quotation marks and
citations omitted) (cleaned up). There is no factual basis upon which to determine whether
ConocoPhillips Company, as a parent of the subsidiaries, has the practical ability to obtain the
requested documents, given that Girard Street did not respond to the motion to quash. In any
case, the Court need not reach this issue because, as already explained, the subpoenas are unduly
burdensome and overbroad.

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CONCLUSION
For the reasons indicated herein, the motion to quash is GRANTED. The Clerk of Court
is respectfully directed to terminate motion at ECF No. 1.
DATED:

New York, New York
March 11, 2025
______________________________
VALERIE FIGUEREDO
United States Magistrate Judge

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