Plaintiffs served a subpoena on Cleary, which sought documents and testimony relating to any plans, whether or not consummated, to effectuate this intention. // NML u.a. wollen Dokumente erhalten über Schritte der Argys ein "Argy-Clearing" aufzusetzen...

PRELIMINARY STATEMENT
Through this motion, Plaintiffs seek to compel the disclosure of documents, and the
designation of a witness for a Rule 30(b)(6) deposition, relating to the professed intention of
defendant the Republic of Argentina (“Argentina”) to violate the lawful orders of this Court that
require Argentina to make ratable payments to Plaintiffs when it pays the holders of its
performing bonds. Plaintiffs served a subpoena on Cleary, which sought documents and
testimony relating to any plans, whether or not consummated, to effectuate this intention.
During the meet and confer, Cleary represented that it did not have responsive documents or
information. Cleary subsequently declined to confirm those representations and has refused to
produce a single document or designate a witness (though the record now suggests that Cleary is
in fact in possession of responsive documents and information), asserting that the discovery is
irrelevant and protected by the deliberative process privilege. Neither contention has merit.


First, any plans that Argentina has developed or is developing to violate this Court’s
orders are directly relevant to this action. Argentina has been enjoined from developing any such
plans, and the Court has retained jurisdiction to monitor Argentina’s compliance with this
obligation.

Second, the deliberative process privilege has been waived and is inapplicable. There are
well-developed procedural requirements for asserting the deliberative process privilege, and
Cleary’s broad assertion of the privilege fails every one of these requirements. In addition, the
deliberative process privilege is irrelevant because the documents and testimony sought by
Plaintiffs are not protected by the privilege. Moreover, the deliberative process privilege is a
qualified privilege, and can be overcome upon a showing of need. That showing is easily met
here because discovery of the documents and communications sought by Plaintiffs is vital to
preventing Argentina from attempting to evade this Court’s orders. Finally, no privilege
(including the attorney-client privilege) applies to the documents sought by Plaintiff because any
such documents (if they exist) are in furtherance of a crime or fraud, and thus would not be
entitled to the benefit of a privilege.

aus:

Case 1:08-cv-06978-TPG Document 437 Filed 12/19/12 Page 5-6 of 19