Filing # 157650143 E-Filed 09/19/2022 10:24:54 AM
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`IN THE CIRCUIT COURT
`OF THE 11TH JUDICIAL CIRCUIT
`IN AND FOR MIAMI-DADE COUNTY, FLORIDA
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`Complex Business Litigation Division
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`
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`COÖPERATIEVE RABOBANK U.A.,
`NEW YORK BRANCH, et al.,
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`CASE NO: 2020-007685-CA-01
`SECTION: CA44
`JUDGE: Alan Fine
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`Plaintiffs,
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`v.
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`EISNERAMPER LLP,
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`Defendant.
`___________________________________/
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`DEFENDANT’S MOTION TO COMPEL
`AND INCORPORATED MEMORANDUM OF LAW
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`Pursuant to Fla. R. Civ. P. 1.380(a), Defendant EisnerAmper LLP respectfully moves the
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`Court to compel Plaintiffs to search for and produce documents responsive to EisnerAmper’s
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`First and Second Requests for the Production of Documents, even if those documents were
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`created after November 2, 2018.
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`INTRODUCTION
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`The parties are at an impasse about documents dated after November 2, 2018, the date
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`when Republic Metals declared bankruptcy. Plaintiffs have refused to search for responsive
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`documents after that date, asserting that they believe such documents are not likely to be relevant
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`and would largely be privileged. This is improper and requires this Court’s intervention.
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`First, there is no reason to assume that documents created during Republic’s bankruptcy
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`would necessarily be irrelevant. Far from it. Plaintiffs loaned money to Republic, which
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`defaulted on its obligations and ended up in bankruptcy. They are now suing EisnerAmper—
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`which served as Republic’s auditor for a short period of time—because (allegedly) the value of
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`Republic’s inventory was not what Republic had represented it to be. The true value of the
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`inventory is thus essential to the claims of injury in this case, and documents relating to that topic
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`are undeniably relevant. So are documents that relate to the Lenders’ understanding of the
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`inventory and how they approached that topic before and after they made their loans. A review
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`of depositions in this case and in the bankruptcy proves the existence of such documents—
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`including communications relating to a report issued in January 2019 about the very inventory
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`issues that underlie Plaintiffs’ allegations in case. Plaintiffs must be compelled to search for and
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`produce such documents, no matter when they were created.
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`Nor can Plaintiffs refuse to conduct a search on the ground that it might yield privileged
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`documents. Plaintiffs must first perform the search and then assess whether any documents are
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`privileged. Without a proper log, Plaintiffs cannot expect EisnerAmper to be able to assess any
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`challenges to the claims of privilege.
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`This Court should enter an order compelling Plaintiffs to conduct a proper search for
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`documents responsive to EisnerAmper’s requests regardless of the time frame, prepare a log of
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`any documents that are privileged, and promptly produce the rest.
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`RELEVANT FACTUAL BACKGROUND
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`The Loans to Republic. Plaintiffs or their predecessors in interest (“Lenders”) extended
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`credit to Republic Metals Corporation, a now-bankrupt precious metals refiner. Plaintiffs say
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`they were owed over $177 million when Republic declared bankruptcy in November 2018
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`(Compl. ¶ 4), of which they estimate that about $55 million remains unpaid. In addition to
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`pursuing their claims in the bankruptcy case, Plaintiffs sued Republic’s former auditors. Crowe
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`LLP audited Republic’s year-end financial statements for 2014 and 2015, while EisnerAmper
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`audited its financial statements for a single year—2016.
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`Plaintiffs allege that the loans used Republic’s inventory as collateral. To assess the value
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`of their collateral, the Lenders insisted on and received weekly “borrowing base” certificates
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`from Republic, which EisnerAmper neither possessed nor audited. Notably, those borrowing
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`base certificates reported vastly different figures for Republic’s inventory than what Republic
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`showed on its year-end audited financial statements. Plaintiffs also had regular inspection rights
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`for the inventory and hired a third-party collateral field examiner (not EisnerAmper) to review
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`Republic’s representations about its borrowing base.
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`In June 2018, Republic told the Lenders that there was an issue with how it had been
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`estimating the value of its inventory and hired Paladin Management to handle the matter. But
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`although the Lenders issued notices of default on July 10, 2018, they did not seek to foreclose on
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`their collateral at that time. Instead, they entered into a forbearance agreement and attempted to
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`find a buyer for Republic. The Lenders also demanded explanations from Republic about how
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`the inventory misstatement occurred.
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`Republic’s Bankruptcy. Republic declared bankruptcy on November 2, 2018. Even after
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`that date, however, the company (through Paladin Management) continued to send Lenders
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`updates about the inventory and its investigation into the inventory issue. For example, Paladin
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`Management sent an inventory report dated January 21, 2019, the overview of which stated that
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`“[t]he purpose of this report is to answer many of the questions surrounding the inventory issues
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`at Republic Corporation” and that it “focuses on what appears to be fundamental conceptual
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`errors and process gaps” in Republic’s reporting with respect to its inventory. Exhibit 1.
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`The bankruptcy court approved a plan of liquidation for Republic on December 23, 2019.
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`That plan structured claims against auditors so that Plaintiffs would bring those claims in their
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`own names (not through Republic itself, which would be subject to additional defenses), but
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`Republic’s bankruptcy estate would obtain a substantial share of any recovery.
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`Plaintiffs’ Claims. Plaintiffs did not file suit against EisnerAmper until April 3, 2020,
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`after the liquidation plan’s injunction and claims bar went into effect. EisnerAmper moved to
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`dismiss, and its motion was granted in part and denied in part. The Court held that New York law
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`applies to this case and precludes Plaintiffs’ claims for negligence, given that Plaintiffs had never
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`hired EisnerAmper and could not establish that they had any contractual privity or near-privity
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`relationship. See Order on EisnerAmper LLP’s Motion to Dismiss, Dkt. No. 51 (Nov. 24, 2021).
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`But despite the lack of any allegations of scienter, the Court allowed Plaintiffs to proceed on a
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`claim that EisnerAmper committed common-law fraud when it issued an unqualified opinion on
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`Republic’s 2016 financial statements. See id. In its answer to the complaint, EisnerAmper has
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`raised numerous defenses, including defenses that relate to when the Lenders learned of the
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`alleged errors with Republic’s inventory valuation (Aff. Defs. ¶¶ 4(d)–(e), 12), their failure to
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`mitigate their damages (Aff. Defs. ¶¶ 10, 17), the true cause of Plaintiffs’ losses (Aff. Defs. ¶¶ 6,
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`17), and their settlements with others who were vastly more responsible than EisnerAmper for
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`Plaintiffs’ alleged losses (Aff. Defs. ¶¶ 13–16).
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`Discovery Requests. On November 29, 2021, EisnerAmper served its First Requests for
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`the Production of Documents, attached as Exhibit 2. EisnerAmper served its Second Requests for
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`the Production of Documents on February 10, 2022, attached as Exhibit 3.1
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`With some exceptions, EisnerAmper’s requests asked for documents from January 1,
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`2014 through April 24, 2020 (when EisnerAmper was served in this action). That time frame
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`1 EisnerAmper’s second set of requests continued the numbering from the first, and so
`both are cited as RFP No. --.
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`applies to the requests for documents that Plaintiffs received from Republic concerning its
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`inventory (RFP No. 11); Plaintiffs’ valuation of Republic’s inventory (RFP No. 12); documents
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`related to that inventory (RFP Nos. 30–32); documents related to Plaintiffs’ inspections of that
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`inventory (RFP No. 33); a meeting among Republic’s lenders immediately after they learned of
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`problems in June 2018 (RFP No. 68); and Plaintiff ICBCS’s October 2018 decision to suspend
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`Republic’s trading account (which drove it into bankruptcy) (RFP No. 71).
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`Some of EisnerAmper’s other document requests asked for documents from January 1,
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`2014 through the present. This broader time frame applies to the requests for Plaintiffs’
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`communications with Republic, Republic’s Litigation Trustee, Crowe, EisnerAmper, or
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`government agencies related to Republic or its inventory. (RFP Nos. 1–6, 46, 48–54.) This date
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`range also applies to the requests for third-party valuations of Republic’s inventory (RFP No.
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`13), agreements referred to in the Complaint (RFP No. 14), and loan documents and statements
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`of account (RFP Nos. 15–16). Plaintiffs tried (unsuccessfully) to prop Republic up for some
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`months before it declared bankruptcy, so EisnerAmper also requested documents related to those
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`attempts from May 1, 2018 to present. (RFP Nos. 66–67.)
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`Plaintiffs responded to both sets of requests with a general objection to the time period
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`and referred back to that objection in responding to the particular requests. See Exhibits 4 and 5.
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`That general objection stated that the time period was “overbroad and unduly burdensome
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`because it calls for the production of irrelevant documents from both before and after the time
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`period that comprises the subject matter of the action and because most of the documents dated
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`after the commencement of the Republic bankruptcy are likely to be privileged
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`communications.” Id. Plaintiffs did not quantify the supposed burdens of searching for
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`responsive documents. Plaintiffs also did not explain how communications with third parties or
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`business discussions would be privileged.
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`Conferral. EisnerAmper sent Plaintiffs a letter objecting to their flat refusal even to
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`search for responsive documents, urging Plaintiffs to log any privilege materials but produce
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`non-privileged materials. See Exhibit 6. The parties met by videoconference on March 4, 2022
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`and again on May 20, 2022, but were not able to come to an agreement.
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`Review of the depositions in this case and the bankruptcy matter plainly shows the
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`existence of relevant documents dated after Republic’s bankruptcy. For example, these
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`depositions establish the existence of the January 21, 2019 Paladin Management report, which,
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`again, purports to “answer[] many of the questions surrounding the inventory issues at Republic
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`Corporation” and “focuses on what appears to be fundamental conceptual errors and process
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`gaps” in Republic’s reporting with respect to its inventory. Exhibit 1. EisnerAmper does not have
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`this document from any of the individual Plaintiffs in their custodial files, and large portions of
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`the versions EisnerAmper has are illegible. Plaintiffs also did not turn over any internal
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`communications about this report, or indeed any emails dated between January 1, 2019 and
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`March 31, 2019 on any topic. On June 30, 2022, EisnerAmper’s counsel contacted Plaintiffs’
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`counsel and asked “for legible copies of this document and . . . everything related to Paladin’s
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`work and reports concerning inventory, plus emails discussing the same.” Exhibit 7. In response,
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`Plaintiffs’ counsel sent the native version of the file (which shows that Plaintiffs have it) but
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`declined to send anything related to Paladin’s work or emails discussing the same, based on their
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`assertion that “those documents fall after the November 2, 2018 cut-off date for document
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`searches and production and are otherwise irrelevant.” Exhibit 8.
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`Similarly, the August 11, 2022 deposition of Rabobank’s Sal Esposito established that
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`Rabobank prepared a “lessons learned” document following Republic’s default. Exhibit 9 at
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`35:24–38:3. No such document has ever been produced, nor has it (or communications
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`referencing it) been listed on a privilege log so that EisnerAmper can assess any claim of
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`privilege. Only after the deposition—when counsel specifically demanded the document—did
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`Plaintiffs say in general terms that it was privileged, albeit without disclosing who created it,
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`who received it, or other information necessary to assessing the claim of privilege. See Exhibit
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`10. Other, similar documents certainly exist for which no claim of privilege has even been
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`articulated.
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`ARGUMENT
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`Plaintiffs cannot be allowed to use their unilateral November 2018 date cut-off to bar
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`EisnerAmper from accessing relevant documents. Florida law provides that “[p]arties may obtain
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`discovery regarding any matter, not privileged, that is relevant to the subject matter of the
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`pending action, whether it relates to the claim or defense of the party seeking discovery or the
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`claim or defense of any other party.” Fla. R. Civ P. 1.280(b)(1). “The concept of relevancy is
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`broader in the discovery context than in the trial context.” Amente v. Newman, 653 So. 2d 1030,
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`1032 (Fla. 1995). Thus, an argument about a document’s relevance at trial is no reason to shield
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`it from discovery.
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`Further, when a party wishes to assert privilege, it must “describe the nature of the
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`documents, communications, or things not produced or disclosed in a manner that, without
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`revealing information itself privileged or protected, will enable other parties to assess the
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`applicability of the privilege or protection.” Fla. R. Civ. P. 1.280(b)(6). “Inconvenience alone
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`does not constitute good cause” for resisting discovery. Cavey v. Wells, 313 So. 3d 188, 195 (Fla.
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`2d DCA 2021). The information EisnerAmper seeks is undoubtedly relevant, and Plaintiffs
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`cannot refuse to search this information on the ground that it would be inconvenient or
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`burdensome to review the documents for privilege and create the privilege log required by Fla.
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`R. Civ. P. 1.280(b)(6).
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`I.
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`The requested documents are relevant.
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`The categories of documents sought by EisnerAmper’s requests are plainly relevant, as
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`Plaintiffs acknowledged in agreeing to search for documents that fall into the requested
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`categories (albeit within their preferred date range). There is no reason documents in those
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`admittedly relevant categories would cease to be relevant solely because they bear a date after
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`Republic’s bankruptcy petition. Indeed, it is likely that much of the relevant communications
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`about the facts relevant to this case—both with third parties, between the parties, and among
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`business personnel—will have occurred after Republic filed for bankruptcy.
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`The January 2019 Paladin Report proves the point. It is a third-party investigation into
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`what happened with respect to Republic’s inventory valuation. It goes to the heart of Plaintiffs’
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`theory and claimed losses in this case, which depend entirely on alleged defects with Republic’s
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`inventory valuation. And it relies on still other documents and witness reports. It was Plaintiffs—
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`not EisnerAmper—who had the opportunity to receive, analyze, and react to this report and
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`Republic’s own assessments and justifications for what happened with its inventory.
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`EisnerAmper is dependent on Plaintiffs to provide access to these materials, and Plaintiffs must
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`search for and produce them.
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`The events after Republic filed for bankruptcy are relevant not only to disproving the
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`elements of Plaintiffs’ claims but also to advancing EisnerAmper’s defenses. See Fla. R. Civ. P.
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`1.280(b)(1) (parties may obtain discovery concerning both claims and defenses). In particular,
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`post-November 2018 facts may be relevant to Plaintiffs’ failure to mitigate their damages,
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`waiver, intervening and superseding causes of their claimed losses, and payments or settlements
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`relating to their claimed losses. See Aff. Def. ¶¶ 10, 12, 15–17. And EisnerAmper’s defenses
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`based on Plaintiffs’ delay in bringing this suit and collusion with Republic rest entirely on events
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`after Republic’s bankruptcy. See Aff. Def. ¶ 14.
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`Plaintiffs have not offered any principled argument for cutting off discovery with
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`Republic’s bankruptcy filing. Nor is such an argument available. This Court should enter an
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`order requiring Plaintiffs to search for responsive documents after November 2, 2018.
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`II.
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`If any documents are privileged, Plaintiffs must list and describe them on a privilege
`log and produce the rest.
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`Nor may Plaintiffs use claims of “privilege” to justify not searching for any documents,
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`privileged or otherwise. On the contrary, in the face of a specific document request, a party must
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`either “(a) produce such specifically articulated documents, or (b) provide a privilege log with a
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`specifically articulated basis for protection from discovery.” Am. Integrity Ins. Co. of Fla. v.
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`Venable, 324 So. 3d 999, 1000–01 (Fla. 1st DCA 2021). Blanket assertions of work product or
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`attorney-client privilege are insufficient. Progressive Am. Ins. Co. v. Lanier, 800 So. 2d 689, 691
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`(Fla. Dist. Ct. App. 2001). It should go without saying that litigants cannot make categorical
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`assertions of privilege when not every document in the category is of necessity privileged. See,
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`e.g., Avatar Prop. & Cas. Ins. Co. v. Simmons, 298 So. 3d 1252, 1254–55 (Fla. 5th DCA 2020).
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`Plaintiffs’ bald assertion that “most” documents dated after Republic Metal’s bankruptcy
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`“are likely to be privileged” does not suffice. Plaintiffs must list each document, identify who
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`exactly sent and received it, and provide a “specifically articulated basis” for each assertion of
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`privilege. Am. Integrity Ins. Co. of Fla., 324 So. 3d at 1000–01. Here, Plaintiffs have asserted
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`privilege without ever conducting a privilege review, and they therefore cannot provide the
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`“specifically articulated basis” that Florida law demands. Id.
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`A privilege log is not a needless formality here, as most of the documents EisnerAmper
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`seeks have no plausible claim to privilege at all. Plaintiffs assert privilege over documents
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`received from Republic concerning its inventory (see RFP No. 11) as well as communications
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`with third parties (RFP Nos. 1–6, 46, 48–54). None of these documents could possibly be
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`privileged. Other requests concern business documents and negotiations, some of which may be
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`privileged, but certainly not all. (See RFP Nos. 13–16, 66–67.) And even a document that is truly
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`privileged may lose its protection depending on who else is included on the communication.
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`Nor can Plaintiffs use the burden of creating a privilege log as a basis for refusing to
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`search for relevant, non-privileged materials. Production of a privilege log is mandatory, and
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`failure to produce one results in waiver of the claimed privilege. Kaye Scholer LLP v. Zalis, 878
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`So. 2d 447, 449 (Fla. 3d DCA 2004). A party cannot oppose discovery with nothing more than
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`vague unsubstantiated objections about burden. Hepco Data, LLC v. Hepco Med., LLC, 301 So.
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`3d 406, 411 (Fla. 2d DCA 2020). Plaintiffs initiated this lawsuit and are seeking tens of millions
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`of dollars in damages. It is not unreasonable to expect them to engage in standard discovery.
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`CONCLUSION
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`Plaintiffs cannot refuse to produce relevant, non-privileged documents simply because
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`they do not want to go through the trouble of conducting a review and producing a privilege log.
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`They are asserting a claim of fraud against EisnerAmper and demanding tens of millions of
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`dollars in damages. The rules require them to search for responsive documents, conduct a
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`privilege review, assert privilege where appropriate, and produce the rest. This Court should
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`enter an order compelling them to do so. For the Court’s convenience, EisnerAmper hereby
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`attaches a proposed order as Exhibit 11.
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`Dated: September 19, 2022
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`By:
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`/s/ Deborah S. Corbishley
`Richard H. Critchlow (FL Bar 155227)
`Deborah S. Corbishley (FL Bar 588229)
`KENNY NACHWALTER, P.A.
`Four Seasons Tower - Suite 1100
`1441 Brickell Avenue
`Miami, FL 33131
`Telephone: (305) 373-1000
`Facsimile: (305) 372-1861
`rcritchlow@knpa.com
`dcorbishley@knpa.com
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`Gustavo J. Membiela
`Linda T. Coberly (admitted pro hac vice)
`Michael Swartz (admitted pro hac vice)
`Ross J. Corbett (admitted pro hac vice)
`WINSTON & STRAWN LLP
`35 West Wacker Drive
`Chicago, Illinois 60601
`Telephone: (312) 558-5600
`Facsimile: (312) 558-5700
`gmembiela@winston.com
`lcoberly@winston.com
`mswartz@winston.com
`rcorbett@winston.com
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`Attorneys for EisnerAmper LLP
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`NOTICE OF COMPLIANCE WITH MEET AND CONFER REQUIREMENT
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`I hereby certify that over a lengthy period—culminating on May 20, 2022—I conferred in
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`good faith with counsel for Plaintiffs, Andrew Solomon, Esq., concerning the discovery dispute
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`described in this motion. The parties were not able to reach an agreement on that dispute.
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`Dated: September 19, 2022
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`By:
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`/s/ Ross J. Corbett
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`CERTIFICATE OF SERVICE
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`I HEREBY CERTIFY that a true and correct copy of the foregoing has been filed and
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`served via electronic mail through the Florida Courts E-Filing Portal on September 19, 2022.
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`/s/ Deborah Corbishley
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`Exhibit 1
`Exhibit 1
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`CONFIDENTIAL
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`PL00000124
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`Overview
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`* The purposeof this report is to answer many of the questions surrounding the inventoryissues at
`Republic Metals Corporation (“RMC”). These questions include, but are not limited to:
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`Redacted for Confidentiality
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`* This report focuses on what appears to be fundamental conceptual errors and process gapsin the
`accounting of RMC’s inventory for the years 2013 through 2017. It is not an audit “per se”, but an
`operational assessment of contributing factors and conditions.
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`Redacted for Confidentiality
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`CONFIDENTIAL
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`PLO0000127
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`Exhibit 2
`Exhibit 2
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`IN THE CIRCUIT COURT
`OF THE 11TH JUDICIAL CIRCUIT
`IN AND FOR MIAMI-DADE COUNTY, FLORIDA
`
`Complex Business Litigation Division
`
`
`
`
`Case No. 2020-007685-CA-44
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`
`
`COÖPERATIEVE RABOBANK U.A., NEW
`YORK BRANCH, et al.,
`
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`
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`Plaintiffs,
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`v.
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`EISNERAMPER LLP,
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`Defendant.
`______________________________________/
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`DEFENDANT EISNERAMPER LLP’S
`FIRST REQUESTS FOR THE PRODUCTION OF DOCUMENTS
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`Pursuant to Fla. R. Civ. P. 1.350, Defendant EisnerAmper LLP, by and through its
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`undersigned counsel, requests that Plaintiffs produce the documents and things requested herein
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`at the offices of Winston & Strawn, 35 W. Wacker Drive, Chicago, IL 60601, or at an alternative
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`location upon which the parties mutually agree, within thirty (30) days of service of these requests.
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`DEFINITIONS
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`Capitalized terms in these requests have the meanings given below.
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`1.
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`“2018 Inventory Analysis” shall mean the draft letter from EisnerAmper to
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`Republic Metals dated June 21, 2018 and all drafts of the same.
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`2.
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`“Action” shall mean the above-captioned action titled Coöperatieve Rabobank
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`U.A., New York Branch, et al. v. EisnerAmper LLC, No. 2020-007685-CA-444 (Fla. Cir. Ct.),
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`including all proceedings on removal to federal court.
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`3.
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`“Bankruptcy Action” shall mean In re Miami Metals I, Inc., et al., No. 18-13359-
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`shl (Bankr. S.D.N.Y.).
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`4.
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`“Communicate” or “Communication(s)” shall refer
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`to all conversations,
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`correspondence, or contacts of any kind, whether in person, in writing, by telephone, by electronic
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`mail, by digital or analog voice message, or by any other means whatsoever, including, but not
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`limited to, any statements, inquiries, discussions, conversations, dialogues, correspondence,
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`consultations, negotiations, agreements, understandings, meetings, letters, emails, faxes, notations,
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`telegrams, advertisements, interviews and all other Documents as herein defined. The phrase
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`“communication between” is defined to include instances where one party addresses the other
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`party but the other party does not necessarily respond. “Communication(s)” refers both to
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`Documents constituting a Communication and to Documents that summarize or memorialize a
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`Communication.
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`5.
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`“Crowe” shall mean Crowe LLP, Crowe Horwath LLP, any successor or
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`predecessor of the same, and all persons or entities acting or purporting to act on its behalf, or who
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`are or were subject to its direction and control, including but not limited to agents, representatives,
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`and attorneys.
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`6.
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`“Document” and “Documents” are defined to be synonymous in meaning and equal
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`in scope to the usage in Fla. R. Civ. P. 1.350(a) and shall include, without limitation, originals, file
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`copies, and other copies, no matter how or by whom prepared, and all drafts prepared in connection
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`with any such writings, whether used or not, regardless of whether the Document still exists, and
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`regardless of who has maintained custody of such Documents. For avoidance of doubt,
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`“Documents” includes Communications.
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`2
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`7.
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`“EisnerAmper” shall mean EisnerAmper LLP and all persons or entities acting or
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`purporting to act on its behalf, or who are or were subject to its direction and control, including
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`but not limited to agents, representatives, and attorneys.
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`8.
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`“Credit Documents” shall mean Documents that form a part of Republic Metals’
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`funding of its working capital needs and resulting obligations to Plaintiffs, including without
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`limitation all master loan agreements, lines of credit, disbursements, notes, security agreements,
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`pledge agreements, guarantees, lease agreements, confirmations of credit terms and amounts,
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`credit facilities, advances, letters of credit, accommodations, and Credit Documents as that term is
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`used in the February 16, 2016 Intercreditor Agreement among Plaintiffs with respect to Republic
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`Metals. For avoidance of doubt, “Credit Documents” includes both master credit agreements and
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`individual loans or leases, whether or not made under a master credit agreement.
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`9.
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`“Obligation(s)” shall mean any indebtedness, liabilities, or obligations, including
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`without limitation Obligations as that term is used in the February 16, 2016 Intercreditor
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`Agreement among Plaintiffs with respect to Republic Metals.
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`10.
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`“Plaintiffs” shall mean both Plaintiffs in this Action and, to the extent such exist,
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`their predecessors in interest with respect to the claims in this Action. Where a Request refers to
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`“Plaintiffs,” it should be read both in a collective sense and in an individual sense, relating to any
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`Plaintiff individually. These Requests use the short names adopted in the Complaint to refer to
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`Plaintiffs in this Action and their predecessors in interest.
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`11.
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`“Relating to,” “referring to,” “regarding,” “concerning” or any derivative thereof,
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`in addition to their customary and usual meanings, shall mean analyzing, comprising, concerning,
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`constituting, containing, criticizing, describing, discussing, embodying, estimating, evaluating,
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`evidencing, identifying, illustrating, incorporating, monitoring, bearing upon, reflecting,
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`3
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`mentioning, showing, studying, surveying, representing, pertaining to, projecting, assessing,
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`recording, stating, supporting, negating, refuting, undermining, touching upon, dealing with,
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`commenting on, summarizing, or otherwise involving, in whole or in part.
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`12.
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`“Republic Metals” shall mean Miami Metals II, Inc., formerly known as Republic
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`Metals Corporation. Where inclusion would result in more Documents being responsive to a
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`Request, “Republic Metals” shall also include, without limitation, any entity (including
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`predecessors and successors) listed as a debtor or debtor in possession in Findings of Fact,
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`Conclusions of Law, and Order Pursuant to Sections 1129(A) And (B) of the Bankruptcy Code
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`and Rule 3020 of the Federal Rules Of Bankruptcy Procedure Confirming Debtors’ Second
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`Amended Joint Chapter 11 Plan of Liquidation, In re Miami Metals I, Inc., et al., No. 18-13359-
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`shl (Bankr. S.D.N.Y. Dec. 23, 2019), ECF 1668 at 1 n.1, and any entity (including predecessors
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`and successors) listed as a subsidiary or affiliate in Republic Metals Corporation and Subsidiaries
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`and Affiliates Combined Financial Statements, December 31, 2016, Note A[2]. “Republic Metals”
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`shall also include, without limitation, all persons or entities acting or purporting to act on its behalf,
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`or who are or were subject to its direction and control, including but not limited to agents,
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`representatives, and attorneys.
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`13.
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`“You” or “Your” shall mean Plaintiffs and all persons or entities acting or
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`purporting to act on behalf of, or who are or were subject to the direction or control of Plaintiffs,
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`including but not limited to agents, representatives, and attorneys.
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`INSTRUCTIONS
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`1.
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`Except where otherwise noted, the time period covered by these Requests is January
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`1, 2014 through April 24, 2020.
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`2.
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`The singular includes the plural and vice versa. The past tense of a verb includes
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`the present tense and vice versa.
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`4
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`REQUESTS FOR PRODUCTION
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`REQUEST NO. 1: All Communications from January 1, 2014 through present between
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`Plaintiffs and Republic Metals related to EisnerAmper.
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`REQUEST NO. 2: All Communications from January 1, 2014 through present between
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`Plaintiffs and Republic Metals related to Crowe’s audit procedures on Republic Metals’ inventory
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`balances, including the valuation of Republic Metals’ inventory or any component of that
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`inventory.
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`REQUEST NO. 3: All Communications from January 1, 2014 through present between
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`Plaintiffs and Republic Metals related to Republic Metals’ financial statements, including any
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`preliminary or interim updates of the information on those financial statements.
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`REQUEST NO. 4: All Communications from January 1, 2014 through present between
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`Plaintiffs and EisnerAmper related to Republic Metals.
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`REQUEST NO. 5: All Communications from January 1, 2014 through present between
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`Plaintiffs and Crowe related to Republic Metals’ inventory, including the valuation of Republic
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`Metals’ inventory or any component of that inventory.
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`REQUEST NO. 6: All Communications from January 1, 2014 through present between
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`Plaintiffs and any federal, state, or local government agency related to Republic Metals.
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`REQUEST NO. 7: All contracts, including any associated side agreements, regardless
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`of date, by which “Plaintiffs Merced and Athilon purchased Woodforest’s rights, claims and
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`privileges associated with Republic’s obligations to Woodforest,” as the quoted phrase is used in
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`Complaint ¶ 13.
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`REQUEST NO. 8: All Documents, regardless of date, concerning any agreement or
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`obligation by Woodforest to cooperate in any litigation related to or any attempt to enforce
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`5
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`“Woodforest’s rights, claims and privileges associated with Republic’s obligations to
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`Woodforest,” as the quoted phrase is used in Complaint ¶ 13, including but not limited to any
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`obligation to provide Documents, information, or testimony.
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`REQUEST NO. 9: All contracts, including any associated side agreements, regardless
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`of date, by which “Plaintiff Hain Capital purchased Leumi’s rights, claims, and privileges arising
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`in connection with Republic’s obligations to Leumi,” as the quoted phrase is used in Complaint ¶
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`14.
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`REQUEST NO. 10: All Documents, regardless of date, concerning any agreement or
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`obligation by Woodforest to cooperate in any litigation related to or any attempt to enforce
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`“Leumi’s rights, claims, and privileges arising in connection with Republic’s obligations to
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`Leumi,” as the quoted phrase is used in Complaint ¶ 14, including but not limited to any obligation
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`to provide Documents, information, or testimony.
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`REQUEST NO. 11: All Documents that Republic Metals provided to Plaintiffs related
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`to the value of Republic Metals’ inventory or any component of that inventory, including but not
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`limited to borrowing base reports, interim updates, and any other narratives or summaries Republic
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`Metals provided.
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`REQUEST NO. 12: All Documents related to the Plaintiffs’ valuation of Republic
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`Metals’ inventory or any component of that inventory.
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`REQUEST NO. 13: All Documents from January 1, 2014 through present related to any
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`third-party valuation of Republic Metals’ inventory or any component of that inventory.
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`REQUEST NO. 14: All agreements referred to in the Complaint and all amendments to
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`those agreements from January 1, 2014 to present, including without limitation the Intercreditor
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`Agreement and Plaintiffs’ credit facilities.
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`6
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`REQUEST NO. 15: All Credit Documents from January 1, 2014 through present related
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`to any Obligations of Republic Metals to Plaintiffs, regardl