In re Sunedison, Inc.
MEMORANDUM DECISION AND ORDER REGARDING APPLICATION FOR A RULE 2004 EXAMINATION
Applicants CSI Leasing, Inc. (“CSILI”) and CSI Leasing Malaysia Sdn. Bhd. (“CSIM” and, together with CSILI, “CSI”) seek authorization to examine the Debtors pursuant to
BACKGROUND
On June 7, 2011, SunEdison Kuching Sdn. Bhd. (“SEK”)—a non-Debtor wholly-owned subsidiary of the Debtor SunEdison Products Singapore Pte. Ltd. (“SEPS”) 0Schedule A/B at 23 of 31 (ECF/SEPS Doc. # 5)—entered into an equipment lease with CSIM, which incorporated an equipment schedule dated July 1,2011 (the “Equipment Lease”). (Application on Presentment of Creditor CSI Leasing, Inc. for Entry of an Order Pursuant to
In March 2016, SEK entered into an asset purchase agreement (the “APA”) to sell substantially all of its assets to XiAn
Most of the Debtors, including SEPS and SUNE, commenced chapter 11 cases on April 21, 2016. In September 2016, CSI filed Proof of Claim No. 2879 against SEPS in the amount of $2,496,611.09, and Proof of Claim No. 2234 against SUNE in the amount of $51,144.47. The Debtors have reviewed the claims and determined that they should be allowed. (Debtors’ Objection to the Application of CSI Leasing, Inc. for Entry of an Order Pursuant to
The actual value of CSI’s claims is, however, uncertain. During earlier proceedings in connection with the Court’s motion relating to the appointment of an official equity committee, the Court found that the Debtors owed $4.2 billion in prepetition secured and unsecured debt, and its contingent debt could exceed an additional $1.2 billion. In re SunEdison, Inc.,
One other point is the status of SEK. The Debtors have informed the Court that SEK is currently the subject of a Malaysian insolvency proceeding, and a liquidator was appointed on October 4, 2016. (Debtors’ Objection at 4.) According to CSI, it may be the largest creditor in that proceeding. (See Memorandum of Law in Further Support of the Application [Docket Document No. 1048] of Creditor CSI Leasing, Inc. for Entry of an Order Pursuant to
A. CSI’s
After most of the Debtors, including SEPS and SUNE, had commenced chapter 11 cases, CSI filed the Application seeking
i.Documents and Communications relating to the Upstream and Future Upstreams
1. All documents “that relate to the Upstream.”
2. All documents “that relate to the Future Upstream.”
3. “All documents and communications related to the Debtor’s anticipated receipt of the Future Upstream.”
4. “All documents and communications related to the Debtor’s intended uses of the Upstreamed Funds as part of the Debtor’s plan of reorganization.”
5. “All documents and communications related to the Debtor’s intended uses of the Future Upstreams as part of the Debtor’s plan of reorganization.”
6. “All documents and communications reflecting any opinion or analysis that the Upstream or Future Upstreams did aid or will aid the Debtors’ ability to reorganize.”
ii. Documents and Communications relating generally to the Debtors’ Chapter 11 Cases
7. “All documents and communications related to the sources of funds which the Debtor may use to fund the Debtor’s plan of reorganization.”
8. “All documents and communications related to the projected income and expenses of the Debtors during this bankruptcy proceeding.”
9. “All documents and communications upon which the Debtors may rely to argue that the interests of CSI are adequately protected.”
iii. Documents and Communications relating to SEK, the Malaysian proceeding and CSI’s recovery in that proceeding
10. Documents “that relate to the APA.”
11. “All documents related to why SEK did not seek bankruptcy protection via the SunEdison Bankruptcy.”
12. “All documents related to SEK directors, officers, or employees who wentto work for (or consult for) LONGi after (or around the time that) the APA was entered into.”
13. “All documents and communications reflecting any lawsuits, proceedings, me-diations, or actions that [the Debtors] are aware of relating to SEK’s debts to creditors in Malaysia or elsewhere.”
14. “All documents and communications relating to any direction or consultation the Debtors gave to SEK for the time period of the one-year period prior to the APA up to the present.”
15. “All documents and communications reflecting any claims, demand letters, lawsuits, proceedings, mediations, or actions that [the Debtors] are aware of where it is asserted or referenced that the Upstream or Future Upstreams damaged or will damage a creditor’s ability to recovery from SEK or SEPS or any of the Debtors.”
16. “All documents and communications reflecting any lawsuits, proceedings, me-diations, or actions that [the Debtors] are aware of relating to SEPS’s debts to creditors in Malaysia or elsewhere.”
(Requests, Ex. A, Documents Requested.)
B. The Informal Discovery
After CSI filed the Application, the Debtors began providing responsive information on a rolling basis and the parties agreed to adjourn the hearing on the Application to a later date. (Debtors’ Objection at 3.) On September 29, 2016, the Court entered an order further authorizing and directing the Debtors to produce to CSI “the APA and certain related supply agreements, and the closing binder for the same.” (Order Authorizing and Directing the Initial Production of Documents of the Debtors, dated Sep. 29, 2016 (the “Initial Order”); Ex. A, at 5 (ECF Doc. # 1284).) The Initial Order was entered without prejudice to CSI’s rights to seek additional relief demanded in the Application, (Initial Order at 2), and the Application was subsequently set for hearing on November 17, 2016. (Notice of Rescheduling of Application on Presentment of Creditor CSI Leasing, Inc. for Entry of an Order Pursuant to
C. Subsequent Proceedings Relating to CSI’s 2004 Application
The informal discovery efforts did not satisfy CSI. Consequently, the Debtors filed a formal objection to the Application, characterizing it as premature, overly broad, speculative and unduly burdensome. (Debtors’ Objection at 2, ¶¶ 8-9.) The Debtors argue that they have agreed to allow CSI’s claims, and CSI does not need the information to frame its claims. (Id. at ¶ 13.) In addition, authorizing discovery at this point in these chapter 11 cases might set an unwieldy precedent and open the floodgates for similar requests by other claimants. (Debtors’ Objection at ¶ 8.) Furthermore, CSI’s requests exceeded the scope of
CSI responded largely reiterating its arguments made in the Application. In contrast to the Debtors’ characterization that the Request was overly broad and speculative, CSI submitted that they were “nar
DISCUSSION
A party seeking to conduct a
In the past, courts have referred to the expansive reading of
The proliferation of information and the costs associated with retrieving, reviewing and producing discovery in civil litigation have led to the 2015 amendments to the Federal Rules of Civil Procedure which emphasize the concept of proportionality. Under Rule 26, the scope of discovery extends to any matter relevant to a party’s claim or defense and “proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.”
Turning to the Requests, CSI has not established cause for most of the information it seeks. The cause it is required to demonstrate must relate to these cases. Although many of the requests are ostensibly relevant to the subject matter of the Debtors’ cases, the primary focus of the Application is the need for information to use in the Malaysian insolvency proceeding.
CSI makes no secret of this purpose. CSI has implied that the Upstream was a fraudulent transfer by SEK. The Application argued that the Upstream left “little to no assets and little to no money to pay the just claims of SEK’s creditors,” (Application at ¶ 6), and the Debtors have information and knowledge regarding the Upstream, the $18 Million Holdback, and “other potential future expectant interests from SEK and/or LONGi.” {Id. at ¶7.) Most telling, CSI argued that it needed the
It also appears the Debtors are pursuing certain courses that are calculated, at least in part, to circumvent existing obligations and defeat Malaysian creditors (including but not limited to CSI) that may have rights to proceeds under the APA or otherwise. With possible legal actions that CSI could take in Malaysia (including, but not limited to, injunc-tive relief), and with three months having transpired since CSI’s Application was filed with this Court, it is imperative that CSI immediately obtain the information it has requested in the Application and without further delay so that it may effectively enforce its rights here and in Malaysia.
{Supplemental Memorandum at ¶ 12 (emphasis added).)
CSI confirmed the reason why it needed the information at oral argument. In response to the Court’s question, on that point, CSI’s counsel stated “[w]e need discover because of the related claims that exist in this case related to our Malaysian enterprise.” (Tr. at 49:1-3.) He also stated that the Upstream “directly affects our claims and rights in Malaysia,” (Tr. at 49:24-50:1), and “a debtor was used as a conduit to commit the overall transaction, which denied all the Malaysian creditors any recovery from SEK nondebtor and SPS debtor.” (Tr. at 53:13-16.) I do not mean to minimize the possible grievance of or the potential remedies available to SEK’s creditors and/or the Malaysian liquidator as a result of the Upstream, although I draw no conclusions. Nevertheless, the party seeking
While the Upstream may be germane to these cases because it arguably stripped SEPS of assets to pay CSI’s claim in that case,
CSI has not articulated a rationale for compelling the production of all documents and communications relating to the Upstream. The Debtors have not disputed the Upstream, and it should be sufficient for CSI if the Debtors produce information showing how the money moved from SEK to SEPS and beyond. The Debtors should not be required to search every document, email and byte of data located on the servers and computers of its far-flung affiliates.
Second, other requests are premature, unnecessary or overly broad. For example, CSI has acknowledged that Future Up-streams are unlikely. Nevertheless, it insists on compliance with three separate requests devoted entirely to Future Up-streams and a fourth request that includes both Upstreams and Future Upstreams. CSI also seeks discovery of all “documents and communications” related to (1) the possible sources of plan funding, (2) the Debtors’ projected income and expenses and (3) documents and communications the Debtors “may” use “to argue that the interests of CSI are adequately protected.” Given the broad duty to produce documents and communications “relating to” possible sources of plan funding and the Debtors’ projected income and expenses, these two requests could conceivably cover every document and communication that exists. Moreover, the request for plan funding documents is premature; there is no plan and, as far as I can tell, no funding. In any event, this is the type of information that would be disclosed in a disclosure statement.
The request relating to the adequate protection of CSI’s interests is the most perplexing. To begin with, CSI has not requested adequate protection. More importantly, it is not entitled to adequate protection. Adequate protection must be provided to protect against the decline in value to a non-debtor’s interest in property of the estate resulting from the imposition of the automatic stay,
Accordingly, the Application is denied except to the extent that the Debtors are directed to provide sufficient information
So ordered.
Notes
. The following conventions are used in citing to the record. "ECF Doc. #—” refers to documents filed on the docket of the main chapter 11 case, In re SunEdison, Inc., et al., case no. 16-10992. "ECF/SEPS Doc. #—■” refers to documents filed in the chapter 11 case, In re SunEdison Products Singapore PTE Ltd., case no. 16-11014. "# of #” refers to the page number and total number of pages placed by the CM/ECF filing system at the top of every page of a filed document. "Tr.” refers to the transcript of the hearing held in the main chapter 11 case on November 17, 2016 (ECF Doc. # 1646).
. The Requests include broad definitions of "documents and "communications.” " ‘Document’ or ‘documents' means any writing or record of any type or description, including but not limited to the original, any nonidentical copy or any draft, regardless of or
The Requests also impose certain onerous obligations with respect to the production of documents. For example, the “Debtors have a duty to search for responsive documents and things in all media and sources in their possession, custody or control where paper or electronic files are kept or stored, including floppy disks, hard drives on or for personal computers, computer servers, mainframe storage tapes or disks, archive facilities and backup facilities,” (id. at ¶ 7), they are deemed “to be in control of a document if you have the right to secure the document or a copy thereof from another person having actual possession thereof,” and "shall identify and provide the location of all responsive documents of which you are aware but which are not in your custody, possession or control.” (Id. at ¶ 6.)
. "The term ‘relating to' (including any variant thereof), includes referring to, alluding to, responding to, pertaining to, concerning, connected with, commenting on or in respect of, analyzing, touching upon, constituting and being, and is not limited to contemporaneous events, actions, communications or documents. (Requests, Ex. A, Definitions and Instructions at ¶ 15.)
. On the other hand, CSI implies that the sale proceeds were fraudulently transferred and should be recovered for the benefit of SEK's creditors. This is inconsistent with the argument that the proceeds could or should be used to satisfy CSI’s claims in these cases.
. Nothing herein relieves the Debtors of tire duty to produce the APA-related documents that were the subject of the earlier order described above.