Case No. 01-16034 (AJG), Jointly AdministeredUnited States Bankruptcy Court, S.D. New York.
March 25, 2003
Jeffrey S. Sabin, David M. Hillman, Schulte Roth Zabel LLP, New York, New York, for Rabobank.
Dennis J. Connolly, Alston Bird LLP, Atlanta, Georgia, for Neal Batson, the Enron Corp. Examiner.
Stephen D. Lerner, Mark J. Ruehlmannm, Squire, Sanders Dempsey LLP, Cincinnati, Ohio, for Official Committee of Unsecured Creditors.
STIPULATION AND ORDER AMONG THE EXAMINER, THE OFFICIAL COMMITTEE OF UNSECURED CREDITORS AND RABOBANK RESOLVING THE JOINT MOTION TO COMPEL PRODUCTION OF DOCUMENTS
ARTHUR J. GONZALEZ, United States Bankruptcy Judge
WHEREAS,
A. On September 12, 2002, Neal Batson, as court-appointed examiner (the “Examiner”) and the Official Committee of Unsecured Creditors (the “Committee”) issued subpoenas in connection with their Rule 2004 examination (the “Rule 2004 Examination”) to Rabobank Nederland, Rabobank International, and Rabo Merchant Bank, N.V. (collectively, with Rabobank Ireland plc, “Rabobank”). The subpoenas requested documents from Rabobank, including but not limited to documents relating to Enron Corp., Enron-related entities, Enron-related individuals (collectively “Enron”), Special Purpose Vehicles and Special Purpose Entities relevant to Enron, and 138 enumerated projects, transactions or series of transactions, (including three transactions commonly referred to as “Cerberus,” “Bammel” and “Choctaw”) all as defined in the subpoenas (the “SPE Transactions”).
B. On September 30, 2002, Rabobank served its “Responses and Objections to the First Set of Requests by Committee of Unsecured Creditors of Enron Corp et al. for Production of Documents,” which was amended on November 14, 2002.
C. On October 25, 2002, Rabobank served its “First Set of Interrogatories to the Committee,” which required an answer to be served by November 25, 2002 (the “Interrogatory”).
D. Between October 2002 and February 2003, counsel for Rabobank and the Committee exchanged numerous letters setting forth their respective positions and objections to the subpoena and the Interrogatory.
E. On December 6, 2002 and January 27, 2003, Rabobank produced to the Committee and the Examiner responsive, non-privileged, pre-petition documents related to Bammel and Choctaw transactions in its possession and control in the offices of Rabobank International.
F. Rabobank hereby represents and warrants that the documents produced on December 6, 2002 and January 27, 2003 are a complete production of all of the responsive, non-privileged, pre-petition documents related to Bammel and Choctaw transactions in the possession and control of Rabobank International, and that no documents have been withheld on the basis of the Amended General Objections numbered 4, 5, 6 [sic., pertaining to trade secrets, competitively sensitive information, and confidential and/or proprietary information], 8, 9, 10, 11, 12, and 13.
G. To the best of Rabobank’s undersigned counsel’s knowledge (other than those documents already produced or those documents that shall be produced pursuant to this Stipulation and Order, which constitute Rabobank’s documents related to Cerberus, Bammel and Choctaw), Rabobank has no documents related to the other SPE Transactions. Rabobank does, however, have documents related to certain project finance transactions in which an Enron entity may currently hold or previously held an equity stake or was the constructor for the project (the “Project Finance Transactions”). To the best of Rabobank’s undersigned counsel’s knowledge, the Project Finance Transactions do not involve: (i) special purpose vehicles or entitles created or structured by the Debtors or at the behest of the Debtors; (ii) transactions that are not reflected on the Debtors’ balance sheets, or that (iii) transactions that involve hedging using Enron Corp. stock. The Committee and Examiner reserve their right to seek discovery related to the Project Finance Transactions.
H. On February 24, 2003, the Examiner and the Committee jointly moved to compel production of documents by Rabobank.
I. Subject to the Court’s approval, Rabobank, the Examiner and the Committee (collectively, the “Parties”) have agreed to resolve their discovery dispute in accordance with the terms and conditions set forth below.
NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by and among the Parties’ undersigned counsel that:
1. With respect to the Cerberus transaction, Rabobank shall produce responsive, non-privileged documents without withholding any documents on the basis of Amended General Objections 4, 5, 6, [sic., pertaining to trade secrets, competitively sensitive information, and confidential and/or proprietary information], 7, 8, 9, 10, 11, 12, and 13, provided however that this Stipulation and Rabobank’s production of the Cerberus documents shall be without prejudice to any rights of Rabobank, the Committee, the Examiner and their respective counsel, with regard to any potential or alleged conflict of interest.
2. With respect to the Bammel and Choctaw transactions, Rabobank shall produce all responsive, non-privileged documents from all relevant Rabobank entities without withholding any documents on the basis of Amended General Objections numbered 4, 5, 6 [sic., pertaining to trade secrets, competitively sensitive information, and confidential and/or proprietary information], 7, 8, 9, 10, 11, 12, and 13, provided however such production shall not be, or be deemed to be, directly or indirectly, a waiver of any right or objection Rabobank (or any Rabobank entity) may have or will have with respect to sufficiency of service or personal jurisdiction in connection the Rule 2004 Examination or any other legal process, action, contested matter, adversary proceeding in or related to the above-captioned bankruptcy cases or for any other purpose.
3. Rabobank shall use its reasonable best efforts to comply with paragraphs 1 and 2 above as expeditiously as possible and to commence rolling production by no later than March 31, 2003.
4. Rabobank hereby waives its objection (General Objection No. 5) regarding production of documents created after December 2, 2001 — the petition date for the above-captioned bankruptcy cases (the “Petition Date”). To the extent that such documents exist, Rabobank shall produce responsive and non-privileged documents created after the Petition Date through and until March 1, 2003.
5. Rabobank hereby waives its objection (General Objection No. 16) regarding a duty to supplement its production, and agrees to comply with all relevant Federal Rules of Civil Procedure and Bankruptcy Rules regarding the supplementation of its discovery responses.
6. This Stipulation may be executed in any number of counterparts, all of which when taken together shall constitute one and the same Stipulation.
SO ORDERED.