Relevant Document:Reply Memorandum in Support of Seadrill Motion to Quash
Seadrill Ltd. has filed a reply memorandum in support of its motion to quash a subpoena from Perforadora Oro Negro’s foreign representative, Alonso Del Val Echeverria, for a deposition related to discovery. The motion is part of the discovery dispute between Perforadora Oro Negro and Seadrill.
Perforadora Oro Negro alleges Seadrill is involved in the bondholders’ plans to take over the Mexican company’s jack-up rigs, with discovery a necessary tool to investigate potential claims.
Del Val Echeverria has
argued that Paul Leand, CEO of financial advisor AMA Capital should testify on Seadrill’s behalf. AMA has been acting as financial advisor to the ad hoc group of Oro Negro bondholders which comprises a number of hedge funds and GHL Investments and Ship Finance International which are both linked to Seadrill Ltd. and its controlling shareholder John Fredriksen.
In its reply memorandum, Seadrill argues that Perforadora Oro Negro’s foreign representative cannot show any precedent holding that the presence of a corporation's former director (or officer or employee) within 100 miles of the deposition site is a defense to a motion to quash a subpoena based on territorial limitations.
Arguing that Seadrill cannot “haul a former director in to testify on its behalf,” the reply stresses that the foreign representative does not even “begin to claim that Seadrill
could cause its former director to testify on its behalf.” Moreover, Seadrill asserts, the attempt to require Seadrill to force its former director to come into court to testify on its behalf is especially unjustified because the foreign representative served a separate subpoena on the entity currently employing that same director.
Courts do not impose an “extraordinary burden” of attempting to prepare unsuitable witnesses to testify just because those individuals are within the geographic limits, Seadrill argues, turning to the foreign representative’s assertion that the court should compel Seadrill to educate one or two individuals that are in New York.
The burdens that the foreign representative seeks to impose contradict the courts’ emphasis on minimizing the burden on entities that are the subject of section 1521(a)(4) discovery, Seadrill argues.
Argument
Seadrill argues Leand falls outside of the “corporate designation” in rule 30(b)(6) of the Federal Rules of Civil Procedure of "one or more officers directors, or managing agents, or ... other persons who consent to testify on [the corporation's] behalf."
“Mr. Leand is none of these: it is undisputed that he is a former Seadrill director, not a current one,” Seadrill argues.
The foreign representative does not cite any legal cases in support of the argument to compel Seadrill to produce a former director, Seadrill argues.
Separately, Seadrill argues that the foreign representative's attempt to force Seadrill to produce a former director to testify on its behalf “is particularly unjustified” given that the Foreign Representative has separately served a 30(b)(6) subpoena on the entity that currently employs Leand, who is CEO of AMA Capital.
Seadrill also argues that case law contradicts the foreign representative’s attempt to force Seadrill to “educate” individuals and the cases on which the foreign representative relies do not address Rule 45(c), which prohibits any party from forcing a non-party deponent to testify when the non-party deponent resides more than 100 miles from the deposition site.
To have to educate for testimony a person with no prior knowledge in the events in question “would unquestionably impose an undue burden on Seadrill and on the outside directors who have no knowledge of the underlying facts,” Seadrill stated.
Seadrill believes that the cases on which it relies in its argument are “squarely analogous” to the facts present in this case. “Like Seadrill, each case concerns a non-party that was served a 30(b)(6) subpoena ... And in each case, the court quashed the subpoena.”
The reply memorandum goes on to argue that the foreign representative's position also contradicts certain sections in the U.S. bankruptcy code, specifically with regard to Section 1521(a)(4) discovery in chapter 15.