In Re Application of Miya Water Projects Netherlands B.V.

Filing 20

OPINION AND ORDER granting 1 Ex Parte Application for an Order Under 28 U.S.C. § 1782 to Obtain Discovery from the Puerto Rico Aqueduct and Sewer Authority for Use in an International Proceeding ; 3 Memorandum of Law in Support o f Ex Parte Application for an Order Under 28 U.S.C. § 1782 to Obtain Discovery from the Puerto Rico Aqueduct and Sewer Authority for Use in an International Proceeding and 19 Motion for Resolution of Pending Ex Parte Application for an Order Under 28 U.S.C. § 1782. See attached. Signed by Judge Gina R. Mendez-Miro on 11/3/2023.(GMN)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

Misc. Action No. 23-00391
(GMM)

In re Application of
MIYA WATER PROJECTS NETHERLANDS
B.V.
Applicant,
To Obtain Discovery for Use in an
International Proceeding

OPINION AND ORDER
Before

the

Court

are

petitioner

Miya

Water

Projects

Netherlands B.V.’s (“Miya”) Ex Parte Application for an Order Under
28 U.S.C. § 1782 to Obtain Discovery from the Puerto Rico Aqueduct
and Sewer Authority for Use in an International Proceeding (Docket
No. 1), Memorandum of Law in Support of Ex Parte Application for
an Order Under 28 U.S.C. § 1782 to Obtain Discovery from the Puerto
Rico Aqueduct and Sewer Authority for Use in an International
Proceeding (Docket No. 3), and Motion for Resolution of Pending Ex
Parte Application for an Order Under 28 U.S.C. § 1782 (Docket No.
19) (jointly, “Miya’s Application”).
In sum, Miya requests that it be allowed to obtain discovery
from the Puerto Rico Aqueduct and Sewer Authority (“PRASA”), a
Puerto

Rican

public

corporation,

for

use

in

a

contemplated

Misc. No. 23-00391(GMM)
Page -2-

proceeding in a Dutch court. After considering the request and the
record, the Court GRANTS Miya’s Application.
I. BACKGROUND
A.

Miya
Miya is a “Bestolen Vennootschap” (similar to a limited

liability company) organized under the laws of Netherlands. (See
Docket No. 3-1 at 1 ¶ 2). Miya posits that is “a world-leading
efficiency-oriented water operator with vast experience and a
full-range offer for water utilities including water efficiency,
commercial management and water treatment.” (Docket Nos. 3 at 8;
3-1 at 1 ¶ 3). Because of its expertise, “Miya holds the largest
accumulated know-how in Non-Revenue Water (water that is ‘lost’
through

leakage,

theft,

metering

inaccuracies,

and

other

inefficiencies) projects globally.” (Docket Nos. 3 at 8; 3-1 at 2
¶ 4).
B.

Underlying Dispute
1.

Puerto Rico’s dire water infrastructure and financial
crisis.

According to Miya, Puerto Rico’s water infrastructure has
been plagued by a system of underinvestment, lack of maintenance,
and monitoring. (See Docket No. 3 at 8-9). Allegedly, Puerto Rico’s
dire financial situation only exacerbated these issues. (See id.
at 9). Indeed, Puerto Rico’s financial situation prompted Congress
to enact the Puerto Rico Oversight, Management, and Economic

Misc. No. 23-00391(GMM)
Page -3-

Stability Act (“PROMESA”), Pub. L. No. 114-187, 130 Stat. 549, 48
U.S.C.

§§

2101

established
Puerto

the

Rico

et

seq.

Financial

(“FOMB”)

“to

(see

id.).

Oversight
help

Relevant

and

Puerto

here,

Management
Rico

PROMESA

Board

‘achieve

for

fiscal

responsibility and access to the capital markets,’ including by
overseeing the development of and approving Puerto Rico’s fiscal
plan and budgets.” (Id.) (citing 48 U.S.C. §§ 2121(a), (b)(1),
2131, 2142).
Miya posits that, in 2017, Hurricanes Irma and Maria hit
Puerto

Rico,

further

devastating

its

water

infrastructure.

According to the Homeland Security Operational Analysis Center,
PRASA

faced

significant

challenges

to

the

provision

and

restoration of water and wastewater services. (See id.). For
example, PRASA clients lacked drinking water, and many of PRASA’s
water plants were damaged and out of service. (See id.). Billions
of gallons of untreated wastewater were discharged into the San
Juan metropolitan area after energy failures at PRASA. (See Docket
No. 3 at 9).
2.

Plans were developed
infrastructure.

to

fix

Puerto

Rico’s

water

Miya further asserts that PRASA, with the support of the FOMB,
began rebuilding Puerto Rico’s water infrastructure. (See id. at
5). Accordingly, they state PRASA in conjunction with Puerto Rico’s
Public-Private Partnership Authority (“P3 Authority”), announced

Misc. No. 23-00391(GMM)
Page -4-

a

public-private

partnership

to

upgrade

the

water

metering

infrastructure in Puerto Rico. (See id. at 10; Docket Nos. 3-1 at
2 ¶ 5; 3-2). According to Miya, the plan was to replace and update
PRASA’s water metering system so that it could accurately measure
water usage, water leaks, and provide critical analytics. (See
Docket Nos. 3 at 10; 3-1 at 2 ¶ 5). Purportedly, the updated water
metering system would enable reliable revenue collection since the
project would “integrate the new metering systems with billing,
collections, and customer relationship management infrastructure.”
(Docket No. 3-1 at 2 ¶ 5).
3.

PRASA and the P3 Authority issued a Request
Qualifications and a Request for Proposals.

for

To put PRASA’s plan into motion, PRASA and the P3 Authority
issued a Request for Qualifications (“RFQ”) for the project in
June 2018. (See Docket No. 3-3). PRASA and the P3 Authority sought
“more efficient metering systems, remote meter reading technology
and re-engineering of its customer services.” (Docket Nos. 3-3 at
7; 3 at 10). According to Miya, five bidders for the water metering
project responded to the RFQ. (Docket Nos. 3 at 11; 3-1 at 3 ¶ 7).
In September 2018, the P3 Authority notified IBT Group (“IBT”), a
partner of Miya, and three other bidder consortiums to proceed to
the Request for Proposals (“RFP”) stage. (Docket Nos. 3-1 at 3 ¶
7; 3-4). Among the other qualified bidder consortiums was BLU Water
Consortium

(“BLU

Water”),

which

included

member

Sensus,

a

Misc. No. 23-00391(GMM)
Page -5-

subsidiary of Xylem Inc. (“Xylem”) that produces smart meters.
(Docket Nos. 3 at 11; 3-1 at 3 ¶ 7).
On September 26, 2018, PRASA and the P3 Authority issued an
RFP.

(See Docket No. 3 at 11). Miya, as part of the IBT, submitted

its indicative response to the RFP in January 2019. (See id.;
Docket No. 3-1 at 3 ¶ 8). According to Miya, shortly thereafter,
on February 15, 2019, PRASA and the P3 Authority notified IBT that
it and BLU Water had been selected as the two final proponents for
the RFP. (See Docket No. 3 at 11; 3-1 at 3 ¶ 8).
4.

Miya and IBT are selected for the RFP.

It is averred that after IBT and BLU Water were given several
months to complete their final proposals, on July 17, 2019 Miya
and IBT submitted their final RFP response. (Docket Nos. 3 at 11;
3-1 at 3 ¶ 9). On August 12, 2019, the P3 Authority notified Miya,
through IBT, that it has been selected as the “Preferred Proponent”
for the water metering project. (See Docket Nos. 3 at 11; 3-1 at
3 ¶ 10; 3-5). Therefore, Miya allegedly commenced taking the
necessary steps and incurred significant resources to advance the
water metering project and secure a final contract with PRASA and
P3 Authority. (See Docket Nos. 3 at 11-12; 3-1 at 3-4 ¶¶ 11-12).
In all, Miya posits that it expended more than $2,000,000 because
of its efforts to negotiate a final contract with PRASA and P3
Authority. (See Docket No. 3-1 at 4 ¶ 12).

Misc. No. 23-00391(GMM)
Page -6-

5.

The RFP was cancelled before securing a final contract.

Miya claims that following its selection as the “Preferred
Proponent,” Moonshot Missions (“Moonshot”), its CEO George Hawkins
(“Hawkins”), and Xylem hatched a scheme to get the RFP cancelled
and reissued on terms more favorable to Sensus. (See Docket No. 3
at 12). To launch the supposed scheme, in May 2020, Hawkins, who
is a “Strategic Advisor to the Board of Directors of Xylem,” became
an independent advisor to the FOMB. (See id. at 12; 3-1 at 4 ¶ 14;
3-6). Hawkins took the position as the Founder and President of
Moonshot. (See Docket No. 3-1 at 4 ¶ 14; 3-6). Hawkins, through
Moonshot, was retained to “assist [the FOMB] in connection with
matters relating to implementation and monitoring for [PRASA’s]
current and future fiscal plans.” (Docket No. 3-6 at 10).
Moreover, it is affirmed that the FOMB, prior to retaining
Moonshot, required Hawkins to complete a “Conflict of Interest
Disclosure Certification” and “Contractor Certification.” (Id. at
17-21, 119-121). There, Hawkins certified that he had no conflicts
of interest and “no person” had influenced him in connection with
his contract in hopes of “securing any advantages, privileges or
favors for the benefit of such person,” such as “the written or
unwritten promise of a gift, favor, or other monetary or nonmonetary

benefit.”

(Id.

at

119).

According

to

Miya,

Hawkins

“intentionally and wrongfully failed to disclose to the FOMB that
he had direct financial ties to Xylem and, therefore, its affiliate

Misc. No. 23-00391(GMM)
Page -7-

Sensus, the losing bidder on the RFP, and that he was offering to
work for the FOMB without compensation in hopes of wrongfully
securing a lucrative opportunity for Xylem (i.e., the re-issued
RFP).” (Docket No. 3 at 8-9).
Thereafter, Miya sustains that Moonshot, Hawkins, Xylem, and
Sensus “engaged in a concerted and coordinated effort to abuse
Hawkins’ position of trust to prevent the conclusion of a final
agreement” between PRASA and Miya for the water metering project
and “to induce the cancellation of the RFP.” (Id. at 13). As part
of this effort Hawkins “worked to convince the FOMB to recommend
the cancellation of the RFP.” (Id.)
Miya

alleges

that

Mr.

Hawkins’

pressure

campaigned

was

fruitful. Indeed, in October 2021, the FOMB recommended to PRASA
and the P3 Authority that they cancel the RFP for the water
metering project. (Id.; Docket No. 3-7 at 12). This recommendation
was “[b]ased on advice from [the FOMB’s] advisors. . .” (Docket
No. 3-7 at 12). So, on December 2, 2021, the P3 Authority cancelled
the RFP for the water metering project. (Docket No. 3-8).
6.

PRASA issued a new RFP.

Shortly thereafter, PRASA issued a new RFP for a project to
replace Puerto Rico’s water metering system. (See Docket Nos. 3 at
13; 3-1 at 5 ¶ 16). According to Miya, the “new RFP retain[ed] the
core water metering requirements of the original RFP but omits

Misc. No. 23-00391(GMM)
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from the scope of work the water-metering-efficiency, advanced
analytics, and commercial process improvements for which Miya is
the world leader.” (Docket No. 3-1 at 5 ¶ 16). The new RFP
“omit[ted] the work of turning the data generated by PRASA’s newly
acquired smart meters into increased revenues.” (Docket No. 3 at
13).

Essentially,

the

new

RFP

“focused

on

the

purchase

and

installation of meters, such as those produced by Sensus. . .”
(Id. at 14; Docket No. 3-1 at 5 ¶ 16). Xylem, through Sensus is
one of the bidders of the new RFP. (See Docket No. 3 at 14).
In sum, Miya sustains that Hawkins, Xylem, and Moonshot worked
together to cancel the original RFP and obtain a new RFP which
would be more suitable for Xylem. This caused Miya to incur in
significant losses. (See Docket No. 3 at 7).
7.

Miya is contemplating proceedings in the Netherlands.

Based on the foregoing, Miya is “now contemplating bringing
claims in the Netherlands” against the above-mentioned alleged
conspirators for tort claims arising under Dutch law. (Id. at 7,
14; Docket No. 3-9). Given that PRASA was involved in the decision
to cancel the original RFP, “Miya believes that PRASA holds
information

directly

relevant

and

necessary

contemplated Dutch claims.” (Docket No. 3 at 14).

for

Miya’s

Misc. No. 23-00391(GMM)
Page -9-

II. LEGAL STANDARD
28 U.S.C. § 1782 (“Section 1782) provides, in relevant part:
The district court of the district in which a person
resides or is found may order him to give his testimony
or to produce a document or other thing for use in a
proceeding in a foreign or international tribunal,
including criminal investigations conducted before
formal accusation. The order may be made pursuant to a
letter rogatory issued, or request made, by a foreign or
international tribunal or upon the application of any
interested person. . .To the extent that the order does
not prescribe otherwise, the testimony or statement
shall be taken, and the document or other thing produced,
in accordance with the Federal Rules of Civil Procedure.
28

U.S.C.

§

1782(a)

(emphasis

supplied).

There

are

four

requirements that must be met before a district court can authorize
discovery under Section 1782:
(1)‘the person from whom discovery is sought resides or
is found in the district where the court sits’; (2) ‘the
request seeks evidence (the testimony or statement of a
person or the production of a document or other thing)
for use in a proceeding in a foreign or international
tribunal’; (3) ‘the request is made by a foreign or
international tribunal or by any interested person’, and
(4) ‘the material sought is not protected by any legally
applicable privilege.’
In re Tovmasyan, 557 F.Supp.3d 348, 354 (D.P.R. 2021) (quoting In
Re Schlich, 893 F.3d 40, 46 (1st Cir. 2018)). “If all of these
statutory requirements are met, the district court is authorized,
but not required, to provide judicial assistance by permitting
discovery.” In re Schlich, 893 F.3d at 46. Thus, the district
court’s discretion to allow discovery when all the requirements
are met “is not boundless.” See id. The district court’s discretion

Misc. No. 23-00391(GMM)
Page -10-

is guided by two primary aims: (1) “providing efficient assistance
to participants in international litigation” and (2) “encouraging
foreign countries by example to provide similar assistance to our
courts.” Id. at 46-47 (quoting Intel Corp. v. Advanced Micro
Devices, Inc., 542 U.S. 241, 252 (2004)).
In addition to the four statutory requirements, the Supreme
Court has identified four discretionary factors: (1) “whether the
person from whom discovery is sought is a participant in the
foreign proceeding”; (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.
federal-court judicial assistance”; (3) “whether the [Section
1782] request conceals an attempt to circumvent foreign proofgathering restrictions or other policies of a foreign country or
the United States”; and (4) whether the discovery request is
“unduly intrusive or burdensome. . .” Intel Corp., 542 U.S. at
264-65; see also In re Tovmasyan, 557 F.Supp.3d at 353. “These
discretionary factors do not ‘crea[te] a ‘burden’ for either party
to meet but rather [are] considerations to guide’ the court’s
decision.” In re Tovmasyan, 557 F.Supp.3d at 353 (quoting In re
Valitus, Ltd., Civil No. 20-mc-91133 (FDS), 2020 WL 6395591, at *5
(D. Mass. Nov. 2, 2020)).
Lastly, “[i]t is neither uncommon nor improper for district
courts to grant applications made pursuant to [Section 1782] ex

Misc. No. 23-00391(GMM)
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part.” In re Tovmasyan, 557 F.Supp.3d at 354 (quoting In re Fagan,
2019 WL 2267063, at *2 (D. Mass. 2019)); see also Gushlak v.
Gushlak, 486 F.App’x 215, 217 (2d Cir. 2012).
III. ANALYSIS
The

Court

first

determines

whether

Section

1782’s

four

requirements are met. If they are, the Court will then consider
the four discretionary factors set forth by the Supreme Court in
Intel Corp. See In re Schlich, 893 F.3d at 47.
A.

Miya’s
Application
Requirements.
1.

Meets

Section

1782’s

Statutory

PRASA is a “person” that “resides or is found” in the
District of Puerto Rico.

First, Miya argues that PRASA is a “person” within the meaning
of Section 1782. (See Docket No. 3 at 15). A “person” includes
“corporations,

companies,

associations,

firms,

partnerships,

societies, and joint stock companies, as well as individuals.” 1
U.S.C. § 1. PRASA is a “public corporation and an autonomous
government instrumentality of the Commonwealth of Puerto Rico. .
.” 22 L.P.R.A. § 142. Notably, PRASA is “as amenable to judicial
process

as

any

private

enterprise

would

be

under

like

circumstances. . .” Metcalf & Eddy, Inc. v. Puerto Rico Aqueduct
and Sewer Authority, 991 F.2d 935, 942 (1st Cir. 1993) (quoting
Arraiza

v.

Reyes,

70

P.R.R.

583,

587

(1949)).

PRASA

is

“unquestionably framed as a private enterprise or business and in
fact operates as such.” A.A.A. v. Union Empleados A.A.A., 105

Misc. No. 23-00391(GMM)
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D.P.R. 437, 457, 5 P.R. Offic. Trans. 602, 628 (1976). Therefore,
the Court finds that PRASA is a “person” for the purposes of
Section 1782.
Section 1782’s “‘resides or is found’ language extends ‘to
the limits of personal jurisdiction consistent with due process.’”
In re Tovmasyan, 557 F.Supp.3d at 354 (quoting In re Del Valle
Ruiz, 939 F.3d 520, 528 (2d Cir. 2019)). A corporation’s place of
incorporation or principal place of business are “paradig[m]. .
.bases for general jurisdiction.” Daimler AG v. Bauman, 571 U.S.
117, 137 (2014) (citation omitted). Since PRASA is a public
corporation and an autonomous government instrumentality of the
Commonwealth of Puerto Rico, the Court also finds that it plainly
“resides” in the District of Puerto Rico.
2.

Miya’s Application seeks evidence for use in a foreign
tribunal.

Miya’s Application seeks documentation that is in PRASA’s
possession for use in a contemplated legal proceeding in the
District Court of Amsterdam. (See Docket Nos. 3 at 16; 3-1 at 5 ¶
18; 3-9). While Miya has yet to initiate the proceeding in Dutch
courts, the Supreme Court has held that there is no requirement
under Section 1782 that the proceeding be initiated. See Intel
Corp., 542 U.S. at 259 (holding that the “proceeding” for which
discovery is sought under Section 1782 must be “within reasonable
contemplation, but need not be ‘pending’ or ‘imminent.’”). Here,

Misc. No. 23-00391(GMM)
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Miya’s Application accompanied the declaration of Miya’s retained
Dutch counsel, Davine C. Roessingh (“Counsel Roessingh”) of the
Dutch law firm De Brauw Blackstone Westbroek N.V. (See Docket No.
3-9 at 1). In

her declaration,

Counsel

Roessingh provided a

thorough statement describing the claims Miya anticipates pursuing
in the District Court of Amsterdam, along with the facts and
grounds upon which it may do so. Because Miya’s Applications stated
the theory of liability, along with the facts and grounds upon
which it relies, the Court finds that Miya properly pled that the
proceeding

before

a

foreign

tribunal

is

“within

reasonable

contemplation.”
3.

Miya is an “interested person” for the purposes of
Section 1782.

Miya’s Application plainly meets the “interested person”
requirement

since

Miya

is

the

expected

plaintiff

in

the

contemplated proceeding in the District Court of Amsterdam. See
Intel Corp., 542 U.S. at 256 (“No doubt litigants are included
among, and may be the most common example of, the ‘interested
person[s]’ who may invoke [Section 1782]. . .”).
4.

The documentation that Miya seeks is not protected by
“any legally applicable privilege.”

Miya’s Application asserts that the documentation it seeks is
not protected by any “legally applicable privilege.” (See Docket
No. 3 at 18). After reviewing the material Miya seeks from PRASA,

Misc. No. 23-00391(GMM)
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i.e. documents and communications concerning Miya, IBT, and the
decision to terminate the original RFP, the Court agrees with Miya.

B.

Miya’s Application Also Meets Intel Corp.’s Discretionary
Factors.
1.

PRASA is not
proceeding.

expected

to

be

a

party

in

the

Dutch

The Supreme Court in Intel Corp. found that Section 1782 is
particularly warranted where discovery is sought from parties that
are not participants in the foreign proceeding. See Intel Corp.,
542 U.S. at 264 (“[N]onparticipants in the foreign proceeding may
be outside the foreign tribunal’s jurisdictional reach; hence
their evidence, available in the United States, may be unobtainable
absent [Section 1782] aid.”). According to Miya’s Application and
Counsel Roessingh, PRASA is not an anticipated defendant in the
Dutch proceeding. (See id. at 19; Docket No. 3-9 at 2 ¶ 12) (“Miya
anticipates

commencing

a

tort

claim

against

Moonshot,

George

Hawkins, and/or Xylem. . .”). Further, Counsel Roessingh asserts
that “the type of discovery as envisaged by Miya through 1782
Proceedings cannot be obtained in Dutch courts. . .” (Docket No.
3-9 at 10 ¶ 44).
Thus, Intel Corp.’s first discretionary factor weighs in
favor of granting Miya’s Application.

Misc. No. 23-00391(GMM)
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2.

Dutch courts are receptive to Section 1782 discovery.

Counsel Roessingh expresses that “[t]here are no Dutch laws
prohibiting

the

use

of

evidence

collected

under

the

1782

Application. There are no Dutch rules of discovery, privilege, or
otherwise, that would prevent Miya from obtaining or relying on
the evidence sought in their application to the United States
courts.” (Id. at 7 ¶ 31). Other district courts have confirmed
Counsel

Roessingh’s

position.

See

In

re

Miya

Water

Projects

Netherlands, B.V., Case No. 23-mc-43 (RCR/GMH), 2023 WL 6294001
(D.D.C. Sept. 27, 2023); In re Hulley Enterprises, Ltd., 358
F.Supp.3d

331

(S.D.N.Y.

2019);

In

re

Application

of

000

Promneftstroy for an Ord. to Conduct Discovery for use in a Foreign
Proceeding, 134 F.Supp.3d 789 (S.D.N.Y. 2015). Considering the
above, the Court finds that Dutch courts are receptive to the
information that could be obtained through Miya’s Application.
Likewise, the Court finds that Intel Corp.’s second discretionary
factor weighs in favor of granting Miya’s Application.
3.

Miya’s Application does not seek to circumvent foreign
proof gathering restrictions.

According to Miya’s Application, “there do not appear to be
applicable discovery mechanisms available to Miya in the Dutch
proceeding.” (Docket No. 3 at 21). Under Dutch law, “there is no
general right of access to documents in the possession or control
of others, especially with regard to non-parties.” (Id. at 19). As

Misc. No. 23-00391(GMM)
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such, Intel Corp.’s third discretionary factor weighs in favor of
granting Miya’s Application.
4.

Miya’s discovery request is not “unduly intrusive or
burdensome.”

Without prejudice to any potential objection by PRASA, the
discovery being sought by Miya does not appear to be unduly
intrusive or burdensome. Miya argues, and the Court agrees, that
it seeks “only information that is directly relevant to its
contemplated

claims

in

the

Dutch

proceeding

concerning

the

cancelled RFP. The proposed document requests in the subpoena are
narrowly tailored to obtain information from PRASA that relates to
the concerted effort to cancel the RFP. . .” (Id. at 21; Docket
No. 3-11).
So, Intel Corp.’s fourth discretionary factor weighs in favor
of granting Miya’s Application.
IV. CONCLUSION
The

Court

GRANTS

Miya’s

Application.

Miya,

through

its

counsel, is granted leave to issue a subpoena to PRASA in the form
appended as Docket No. 3-11. Miya shall comply with Fed. R. Civ.
P. 45. See Bayer AG v. Betachem, Inc., 173 F.3d 188, 192 (3d Cir.
1999) (holding that the Federal Rules of Civil Procedure are
incorporated by reference into Section 1782).

Misc. No. 23-00391(GMM)
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IT IS SO ORDERED.
In San Juan, Puerto Rico, November 3, 2023.
s/Gina R. Méndez-Miró
GINA R. MÉNDEZ-MIRÓ
UNITED STATES DISTRICT JUDGE