Case Doc 437 Filed 02/17/15 Entered 02/17/15 09:22:08 Desc Main Document Page 1 of 20

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1 Case Doc 437 Filed 02/17/15 Entered 02/17/15 09:22:08 Desc Main Document Page 1 of 20 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF CONNECTICUT BRIDGEPORT DIVISION In re O.W. BUNKER HOLDING NORTH AMERICA, INC., et al., 1 Debtors. : : : : : : Chapter 11 Case No (AHWS) Jointly Administered NUSTAR S EMERGENCY MOTION TO STRIKE CERTAIN OF DEBTORS WITNESSES AND EXPERT REPORTS IN CONNECTION WITH HEARING ON: JOINT MOTION OF THE DEBTORS AND THE OFFICIAL COMMITTEE OF UNSECURED CREDITORS FOR TRANSFER OF VENUE OF CASES TO UNITED STATES BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF NEW YORK PURSUANT TO 28 U.S.C AND RULE 1014(A)(1) OF THE FEDERAL RULES OF BANKRUPTCY PROCEDURE Now comes NUSTAR ENERGY SERVICES, INC. AND NUSTAR SUPPLY & TRADING LLC (hereinafter, NuStar ) and states: I. EMERGENCY RELIEF REQUESTED This Motion was necessitated by the actions of the Debtors on Friday, February 13, 2015, in connection with a hearing scheduled for Wednesday, February 18, 2015 at 10:00 a.m. on a motion to transfer venue. Accordingly, emergency consideration of this relief is requested on or before the February 18, 2015 hearing. II. INTRODUCTION The Pretrial Order in connection with this hearing states: Each party shall utilize the discovery obtained under this pretrial order to anticipate all witnesses who may be called and exhibits that may be offered 1 The last four digits of the Debtors taxpayer identification numbers follow in parentheses: O.W. Bunker Holding North America Inc. (7474); O.W. Bunker North America Inc. (7158); O.W. Bunker USA Inc. (3556). The Debtors address is 281 Tresser Blvd., 2 Stamford Plaza, 15 th Floor, Stamford, CT

2 Case Doc 437 Filed 02/17/15 Entered 02/17/15 09:22:08 Desc Main Document Page 2 of 20 during the trial, including those that might be offered for rebuttal or impeachment purposes. The expert report and expert testimony of Mr. Ray Dombrowski should be excluded. The Debtors refused to allow NuStar to depose Mr. Dombrowski about whether he was an expert and whether he had any expert opinions. NuStar also seeks to exclude the expert report and expert testimony of Mr. Francis Conrad, 2 whose identity was not disclosed at all in response to a proper discovery request. NuStar seeks to exclude the testimony of Mr. Wayne Weitz, whose identity also was not disclosed at all in response to a proper discovery request. The Debtors are in flagrant violation of the Pretrial Order. In compliance with this Court s order to anticipate all witnesses, NuStar requested identification of Debtors witnesses in an interrogatory. Debtors identified two witnesses with the Debtors financial advisor, Alvarez & Marsal: Mr. Scott Anchin and Mr. Ray Dombrowski. 3 NuStar took the depositions of Mr. Anchin and Mr. Dombrowski. At those depositions, Debtors counsel repeatedly objected to any questioning about whether these witnesses were experts and about any expert opinions, instructing the witnesses not to answer. Now, after the discovery deadline, the Debtors have designated Mr. Dombrowski as an expert and have submitted an expert report from Mr. Dombrowski, with no opportunity for NuStar to depose Mr. Dombrowski as an expert. In addition, after the discovery deadline, on February 13, 2015, the Debtors designated Mr. Francis Conrad (an attorney) as an expert and submitted an expert report by Mr. Conrad. Mr. Conrad was not disclosed at all in response to the interrogatory seeking the names of witnesses, so there was no opportunity to depose Mr. Conrad. 2 In fact, the Debtors just filed a motion to employ Mr. Conrad on February 13, 2015, a week after the discovery deadline Dkt Debtors also identified Adrian Tolson (former general manager of the Debtors) and Hans Staal Jonassen (current general manager of the Debtors)

3 Case Doc 437 Filed 02/17/15 Entered 02/17/15 09:22:08 Desc Main Document Page 3 of 20 In addition, the Debtors Exhibit and Witness List filed with the Court on February 13, 2015 listed Mr. Wayne Weitz of Gavin/Solonese as a witness. Mr. Weitz was also not disclosed at all in in response to the interrogatory seeking the names of witnesses, so there was no opportunity to depose Mr. Weitz. This behavior is part of a pattern of discovery abuses by the Debtors. Furthermore, the expert reports of Mr. Domnrowski and Mr. Conrad are merely summaries of evidence and arguments of legal standards, so they should be excluded in any event. Accordingly, NuStar moves to exclude the expert testimony and expert reports of Mr. Dombrowski and Mr. Conrad, and the testimony of Mr. Weitz. III. EXHIBITS TO THIS MOTION Ex Description Date 1 Pretrial Order 1/14/ Interrogatory 2 excerpt from: 1/23/2015 Debtors Responses And Objections NuStar Energy Services, Inc. s And NuStar Supply & Trading LLC s First Set Of Discovery Requests For Production And Requests For Admission 3 Key excerpts from deposition of Scott Anchin of Alvarez & Marsal 2/5/ Key excerpts from deposition of Ray Dombrowski of Alvarez & Marsal 2/5/ Debtors Witness and Exhibit List 2/13/ Dombrowski Report 2/13/ Conrad Report 2/13/ Baki v. B. F. Diamond Constr. Co., 71 F.R.D. 179 (D. Md. 1976) 9 Arco Pipeline Co. v. S/S Trade Star, 81 F.R.D. 416 (E.D. Pa. 1978) - 3 -

4 Case Doc 437 Filed 02/17/15 Entered 02/17/15 09:22:08 Desc Main Document Page 4 of Manzo v. Black & Decker, 2015 WL (E.D.N.Y. 2015) 11 Key excerpts from deposition of Mr. Hans Jonassen, General manager of Debtors 2/4/ Key excerpts from Venue Transfer Motion 13 Request For Production No. 3 excerpt from: Debtors Responses And Objections To NuStar Energy Services, Inc. s And NuStar Supply & Trading LLC s Second Set Of Interrogatories, Requests For Production And Requests For Admissions A. The Debtors Business IV. BACKGROUND 1. The Debtors are three entities. O.W. Bunker Holding North America, Inc. ( Holding) is merely a holding company for the other two formerly operating Debtor entities. O.W. Bunker North America, Inc. ( North America ) is a Connecticut corporation with its principal place of business in Stamford, Connecticut. O.W. Bunker USA, Inc. ( USA ) is a Texas corporation with its principal place of business in Houston, Texas. 2. Prior to the Petition Date, the Debtors purchased marine fuel, oil and related goods from suppliers (collectively the Suppliers ) on behalf of third party vessel owners and operators (collectively the Vessel Owners ). B. NuStar 3. The two NuStar entities involved in this case operate as Suppliers: NuStar Supply & Trading LLC ( NuStar Supply ) and NuStar Energy Services, Inc. ( NuStar Services )

5 Case Doc 437 Filed 02/17/15 Entered 02/17/15 09:22:08 Desc Main Document Page 5 of 20 NuStar Supply is owed at least $6.7 million by North America. NuStar Services is owed at least $18.3 million by USA. C. The Bankruptcy Cases 4. On November 13, 2014, ( Petition Date ), the Debtors filed the above-captioned voluntary chapter 11 cases Dkt. 1. D. Alvarez & Marsal 5. The consulting firm of Alvarez & Marsal serves as financial advisors to the Debtors DKt Scott Anchin and Ray Dombrowski of Alvarez & Marsal are providing services to the Debtors in this case. E. The Venue Transfer Motion and NuStar Objection 6. On December 24, 2014, the Joint Motion of the Debtors and the Official Committee of Unsecured Creditors for Transfer of Venue of Cases to United States Bankruptcy Court for the Southern District of New York Pursuant to 28 U.S.C and Rule 1014(a)(1) of the Federal Rules of Bankruptcy Procedure (the Venue Transfer Motion ), was filed by O.W. Bunker Holding North America Inc., O.W. Bunker North America Inc., and O.W. Bunker USA Inc., debtors and debtors-in-possession (collectively, the Debtors ) jointly with the Official Committee of Unsecured Creditors (the Committee ), (collectively, the Movants ) Dkt On January 2, 2015, NuStar filed its Objection to Joint Motion of the Debtors and the Official Committee of Unsecured Creditors for Transfer of Venue of Cases to United States Bankruptcy Court for the Southern District of New York Pursuant to 28 U.S.C and Rule 1014(a)(1) of the Federal Rules of Bankruptcy Procedure ( NuStar Objection ) Dkt

6 Case Doc 437 Filed 02/17/15 Entered 02/17/15 09:22:08 Desc Main Document Page 6 of 20 a.m. 8. A hearing has been set on the Venue Transfer Motion for February 18, 2015 at 10:00 F. Pretrial Order 9. On January 14, 2015, this Court entered a Pretrial Order in connection with the Venue Transfer Motion Dkt Ex. 1. That Pretrial Order provides, among other things: All discovery shall be completed and closed no later than February 6, 2015 ( Discovery Bar Date ). [ 1] Each party shall utilize the discovery obtained under this pretrial order to anticipate all witnesses who may be called and exhibits that may be offered during the trial, including those that might be offered for rebuttal or impeachment purposes. [ 2(c)] A list of witnesses with a short statement of the testimony of each and a list of exhibits shall be exchanged and filed, with two copies delivered to chambers no later than February 13, [ 2(a)] No expert witness may testify unless a detailed and signed report of that expert s opinion has been exchanged, filed and two copies delivered to chambers no later than February 13, [ 2(b)] Ex G. Debtors Interrogatory Responses 10. On January 23, 2015, the Debtors provided Debtors Responses And Objections NuStar Energy Services, Inc. s And NuStar Supply & Trading LLC s First Set Of Discovery Requests For Production And Requests For Admission ( First Discovery Reponses ). Ex. 2. In the First Discovery Responses, Debtors answered Interrogatory No. 2 as follows: INTERROGATORY NO. 2: Please identify every person who may testify at any hearing on the Motion to Transfer Venue, and when before January 21, 2015 each such person is available to provide deposition testimony. RESPONSE: Subject to all of the above, the Debtors state that they reserve the right to call any witness at the hearing, including but not limited to witnesses from NuStar and ING and have not made any final determination of who they will call. Based on the information currently available, it appears that Ray Dombrowski or Scott Anchin of Alvarez & Marsal or Hans Staal, General Manager of the Debtors or Adrian Tolson, former General Manager of the Debtors, are potentially - 6 -

7 Case Doc 437 Filed 02/17/15 Entered 02/17/15 09:22:08 Desc Main Document Page 7 of 20 likely witnesses. Further subject to these objections and the General Objections, the Debtors reserve the right to supplement this response and identify any witnesses, on a reciprocal basis, pursuant to the terms of the Pretrial Order entered on January 14, These individuals will be made available prior to the close of discovery on February 6, (emphasis added). Ex While Mr. Dombrowski was disclosed as a witness, Mr. Conrad and Mr. Weitz were not disclosed at all in response to this interrogatory. H. Depositions of Alvarez & Marsal Personnel: Refusal to Identify as Experts 12. Interrogatory No. 2 was not limited to fact witnesses; it was broad enough to cover expert witnesses. Ex The Debtors response stated that Alvarez & Marsal personnel Scott Anchin and Ray Dombrowski might testify, but it did not state whether they would testify as experts. Ex Based on the Debtors responses to Interrogatory No. 2, NuStar took the depositions of Mr. Anchin and Mr. Dombrowski on February 5, Exs. 3 and During both depositions of Mr. Anchin and Mr. Dombrowski, as detailed below, counsel for the Debtors repeatedly objected to any inquiry as to whether either or both of these two witnesses were serving as experts and instructed the witnesses not to answer. See Exs. 3 and 4. I. Key Excerpts From Mr. Anchin s Deposition (Ex. 3) 14. Below are key excerpts from Mr. Anchin s deposition: Anchin page 46 [EX ] Q. Have you been asked to serve as an expert witness in this case, Mr. Anchin? A. No, to date, I have not been asked to serve as an expert witness. Anchin page 47 [Ex ] Q. To your knowledge, has anyone with Alvarez & Marsal been asked to give an expert opinion in connection with the motion to transfer venue? - 7 -

8 Case Doc 437 Filed 02/17/15 Entered 02/17/15 09:22:08 Desc Main Document Page 8 of 20 MR. PLACEY: Object to the form. Don't answer that. There is only one person or group of lawyers who could have asked that question, and that's not something that, that -- you should not be invading work product that way. Q. Is anyone with Alvarez & Marsal currently serving as an expert in connection with the motion to transfer venue? MR. PLACEY: Objection. Don't answer. Anchin page 48 [Ex ] Q. Are you refusing to answer the question of whether Alvarez & Marsal is serving as an expert in connection with the motion to transfer venue? MR. PLACEY: You can answer the question whether you will comply with my instruction not to answer. A. I will comply with debtors' counsel's instruction not to answer that question. Anchin pages [Ex ] Q. Let me make sure that I get this correct: Alvarez & Marsal is not currently serving as an expert with respect to the venue issue? MR. PLACEY: Object to the form. Q. Is that true? MR. PLACEY: Object to the form. Don't answer that. MR. PEIRCE: You're instructing him not to answer whether they're serving as an expert? MR. PLACEY: The rules govern what expert discovery you are entitled to have, and that is not within the rules. That is work product. If there is a report, you have the right to get whatever report there is. That is what the rule says. Anchin page 86 [Ex ] Q. Is Alvarez & Marsal serving as an expert? MR. PLACEY: And I'm instructing the witness not to answer that question as it relates to the debtors. J. Key Excerpts From Mr. Dombrowski s Deposition (Ex. 4) 15. Below are key excerpts from Mr. Dombrowski s deposition: Dombrowski page 8 [Ex ] - 8 -

9 Case Doc 437 Filed 02/17/15 Entered 02/17/15 09:22:08 Desc Main Document Page 9 of 20 Q. Has Alvarez & Marsal served as an expert to the debtors since the petition was filed? A. Not that I'm aware. Dombrowski page 27 [Ex ] Q. Have you been asked to provide any kind of expert opinion in connection with this case? MR. PLACEY: Objection. Don't answer that. Don't answer that as to any requests made to you by debtors, counsel, or my firm or the Connecticut firm. BY MR. PEIRCE: Q. Are you or anyone with your firm preparing any kind of expert report in connection with this case? MR. PLACEY: Same instruction. Dombrowski page 28 [Ex ] Q. Are you in the process of preparing any kind of expert report in connection with this bankruptcy case? MR. PLACEY: Objection, and do not answer as to any work you're doing for the debtors or debtors' counsel. Dombrowski page 31 [Ex ] Q. You're offering an opinion, an expert opinion on that point? MR. PLACEY: Object to the form. And I'm not letting him answer as to expert opinions. He's not here as an expert. He's not here to talk about expert work. He gave you a view based on an opinion expressed in an argument made that you read. I let him answer. That is not -- he's not here as an expert. Dombrowski page 39 [Ex ] Q. Do you have any opinion about it being more costly to other parties in interest in this case to handle the case in Connecticut versus New York? MR. PLACEY: Objection. I'm not going to have him giving expert opinions. He can give you facts that he knows about that topic. If you ask it as a fact question, you can get whatever factual answer there is. You're not entitled to opinion questions

10 Case Doc 437 Filed 02/17/15 Entered 02/17/15 09:22:08 Desc Main Document Page 10 of 20 K. Discovery Deadline Passes 16. The Discovery deadline with respect to the venue Transfer Motion was February 6, Ex. 1. Although the Debtors reserve the right to supplement this response in response to the interrogatory requesting the identity of witnesses, the Debtors revealed no additional witnesses by the discovery deadline, and none would be revealed until a week after the discovery deadline. Moreover, the Debtors had a duty to supplement their interrogatory responses. Fed. R. Civ. P. 26(e). L. Debtor Identifies Witnesses 17. On February 13, 2015, the Debtors identified in their Exhibit and Witness List the following witnesses (among others) for the Venue Transfer Hearing: Ex 5. Mr. Dombrowski; Mr. Conrad; and Mr. Weitz. M. Expert Report Provided on February 13, On February 13, 2015, the Debtor filed two expert reports: Expert Report of Mr. Dombrowski (Ex. 6)( Dombrowski Report ); and Expert Report of Mr. Conrad (Ex 7)( Conrad Report ). Exs. 6 and As stated above, just a week prior, NuStar asked in depositions if Mr. Dombrowski or anyone with his firm were even serving as experts. Those inquiries were met with instructions not to answer. Now, eight days after the instructions not to answer as to his expert status, Mr. Dombrowski submits an expert report. Ex. 6. Conrad and Weitz were complete surprises, never having been previously disclosed

11 Case Doc 437 Filed 02/17/15 Entered 02/17/15 09:22:08 Desc Main Document Page 11 of 20 A. Testifying Experts V. ARGUMENT AND AUTHORITIES 20. Since Dombrowski and Conrad have been designated as expert witnesses for the Venue Transfer Hearing, we are concerned only with the rules that apply to testifying experts 4 as opposed to non-testifying, or consulting, experts. 5 B. Contested Matter 21. The Venue Transfer Motion is a contested matter. Fed. R. Bankr. P. 9014(c) applies certain discovery rules to contested matters. It states in pertinent part: (c) Application of Part VII Rules. Except as otherwise provided in this rule, and unless the court directs otherwise, the following rules shall apply: , ,.... Fed. R. Bankr. P (emphasis added). 22. Accordingly, with some exceptions, Fed. R. Bankr. P (which incorporates Fed. R. Civ. P. 26) applies, 6 unless the court orders otherwise. C. Rule 26(b)(1) Allows Discovery of the Identity of Experts 23. Rule 26(b) apples in contested matters. Fed. R. Bankr. P Rule 26(b)(1) concerns the scope of discovery. Rule 26(b)(1) provides in pertinent part: (b) Discovery Scope and Limits. (1) Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense including... the identity and location of persons who know of any discoverable matter. Fed. R. Civ. P. 26(b)(1)(emphasis added). 4 An expert whose opinions may be presented at trial. See Fed. R. Civ. P. 26(b)(4)(A). 5 An expert who has been retained or specially employed by another party in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness at trial. See Fed. R. Civ. P. 26(b)(4)(D). 6 As discussed below, Fed. R. Civ. P. 26(a)(2) (concerning the mandatory disclosure of the identity of testifying experts and the required contents of any expert reports) does not apply in contested matters. Fed. R. Bankr. P

12 Case Doc 437 Filed 02/17/15 Entered 02/17/15 09:22:08 Desc Main Document Page 12 of Courts have interpreted Rule 26(b)(1) to allow the discovery of the identity of experts. Baki v. B. F. Diamond Constr. Co., 71 F.R.D. 179, (D. Md. 1976) 7 (Rule 26(b)(1) allows discovery of the identity and location of persons having knowledge of any discoverable matter, including experts); Arco Pipeline Co. v. S/S Trade Star, 81 F.R.D. 416, 417 (E.D. Pa. 1978) 8 (Rule 26(b)(1) permits a party to discover the identity and location of persons having knowledge of any discoverable matter, and experts, whether or not they will be called to testify at trial, are not exempted from that subdivision); see also Manzo v. Black & Decker, 2015 WL (E.D.N.Y. 2015) 9 (same). 25. Accordingly, whether or not these witnesses are serving as experts, especially testifying experts, is not a privileged matter, and the objections and instructions not to answer were improper at the Dombrowski and Anchin depositions. Of course, there was not even an opportunity to ask Mr. Conrad if he was an expert, because his identity as a witness was not even disclosed. Under Rule 26(b)(1), a discovery request as to whether someone is serving as an expert should have been answered. D. Rule 26(b)(4)(A) Allows the Deposition of Experts 26. Rule 26(b)(4)(A) also applies in contested matters. Fed. R. Bankr. P That rule states in part: Deposition of an Expert Who May Testify. A party may depose any person who has been identified as an expert whose opinions may be presented at trial. Fed. R. Civ. P. 26(b)(4)(A). 7 Copy attached as Ex Copy attached as Ex Copy attached as Ex

13 Case Doc 437 Filed 02/17/15 Entered 02/17/15 09:22:08 Desc Main Document Page 13 of The Debtors experts were not identified as expert[s] whose opinions may be presented at trial. That information was withheld, denying NuStar the opportunity to depose these witnesses as experts, which was NuStar s right under Rule 26(b)(4)(A). E. Parts of Rule 26 Do Not Apply part: 28. Bankruptcy Rule 9014 states that some parts of Rule 26 do not apply. It provides in The following subdivisions of Fed. R. Civ. P. 26, as incorporated by Rule 7026, shall not apply in a contested matter unless the court directs otherwise: 26(a)(1) (mandatory disclosure), 26(a)(2) (disclosures regarding expert testimony) and 26(a)(3) (additional pre-trial disclosure), and 26(f) (mandatory meeting before scheduling conference/discovery plan).... The court may at any stage in a particular matter direct that one or more of the other rules in Part VII shall apply. The court shall give the parties notice of any order issued under this paragraph to afford them a reasonable opportunity to comply with the procedures prescribed by the order (emphasis added). Fed. R. Bankr. P Rule 26(b)(4)(A) also states: If Rule 26(a)(2)(B) requires a report from the expert, the deposition may be conducted only after the report is provided. 30. However, as shown above, Rule 26(a)(2)(B), requiring certain mandatory disclosures, does not apply in contested matters. Fed. R. Bankr. P ( The following subdivisions of Fed. R. Civ. P. 26, as incorporated by Rule 7026, shall not apply in a contested matter unless the court directs otherwise:... 26(a)(2) (disclosures regarding expert testimony) ). In other words, the rule that says that one cannot depose an expert until after the mandatory expert report is made does not apply because there are no mandatory expert reports in a contested matter. The Court did not order otherwise. Under the Pretrial Order, the discovery deadline was February 6, 2015, while the deadline to serve expert reports was a week later, on February 13,

14 Case Doc 437 Filed 02/17/15 Entered 02/17/15 09:22:08 Desc Main Document Page 14 of Ex. 1. Certainly, the Court did not order that one cannot take the deposition of an expert until after the discovery deadline has passed. F. Request to Exclude Expert Testimony and Expert Reports 31. Under Rule 37, a party seeking discovery may move for an order compelling an answer 10 to discovery. Fed. R. Civ. P. 37(a)(3)(B). When taking an oral deposition, the party asking a question may complete or adjourn the examination before moving for an order. Fed. R. Civ. P. 37(a)(3)(C). The improper objections and instructions not to answer were made on the eve of the discovery deadline, with no feasible opportunity to compel the answers prior to the discovery deadline. 32. The Pretrial Order states: Each party shall utilize the discovery obtained under this pretrial order to anticipate all witnesses who may be called. Ex. 1. Mr. Dombrowski was designated as a witness without limitation as to whether he was a fact witness or expert. Ex. 2. Mr. Dombrowski was not deposed as an expert due to Debtors counsel s improper objections and instructions not to answer. Ex. 4. Now Mr. Dombrowski has been designated as an expert with no opportunity to depose him on his expert opinions. Ex. 6. The improper objections and instructions not to answer have prevented NuStar from obtaining discovery as to all witnesses who may be called, to NuStar s prejudice, and in violation of the Pretrial Order that all witnesses be anticipated. Likewise, Mr. Conrad (the other expert) and Mr. Weitz (a fact witness), were not disclosed at all in response to an interrogatory seeking their identity. The Pretrial Order to anticipate all witnesses was also violated by the Debtors with respect to these totally undisclosed witnesses. 10 An evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond. Fed. R. Civ. P. 37(a)(4)

15 Case Doc 437 Filed 02/17/15 Entered 02/17/15 09:22:08 Desc Main Document Page 15 of If a party fails to obey an order to provide or permit discovery, the court where the action is pending may issue further just orders. Fed. R. Civ. P. 37(b)(2)(A). They may include the following:.. (ii) prohibiting the disobedient party from... introducing designated matters in evidence. Fed. R. Civ. P. 37(b)(2)(A)(iii) Because NuStar was prejudiced by the refusal to provide critical discovery, NuStar seeks an order prohibiting the Movants use of (a) any expert report or expert testimony of Mr. Dombrowski, (b) any expert report or any testimony whatsoever of Mr. Conrad, and (c) or any testimony whatsoever of Mr. Weitz at the Venue Transfer Hearing. G. Expert Provisions in the Pretrial Order 35. The Pretrial Order provides: No expert witness may testify unless a detailed and signed report of that expert s opinion has been exchanged, filed and two copies delivered to chambers no later than February 13, [ 2(b)] Ex Paragraph 2(b) of the Pretrial Order does not allow Debtors to withhold discovery about their experts until a week after the February 6, 2015 discovery deadline. Paragraph 2(b) merely provides a deadline to file an expert report, if an expert is going to testify. Once again, the Court did not order the absurd result of not allowing expert depositions until after the discovery deadline passed, which would in effect mean that no expert depositions could be taken. H. Scope of Expert Discovery 37. The Debtors might argue that the rules prohibit discovery of draft reports or disclosures. Fed. R. Civ. P. 26(b)(4)(B). While NuStar did ask if the Alvarez & Marsal 11 To the extent the Court ordered (under Fed. R. Bankr. P. 9014) that Fed. R. Bankr. P. 7016/Fed. R. Civ. P. 16 applied when it issued the Pretrial Order, Fed. R. Civ. P. 16(f) specifically allows the use of Fed. R. Civ. P. 37(b)(2)(A)(iii) to exclude evidence when a pretrial order is violated

16 Case Doc 437 Filed 02/17/15 Entered 02/17/15 09:22:08 Desc Main Document Page 16 of 20 personnel were working on any analyses with respect to the venue issue, 12 NuStar did not ask for the content of any draft reports or disclosures or seek production of them (and does not ask for any draft reports now). NuStar was never able to get past the initial issue of whether Mr. Dombrowski was even an expert, and Mr. Conrad s role as a witness (expert or not) was completely undisclosed. Exs. 2, 3, and The Debtors might also argue that the rules prohibit discovery of communications between a party s attorney and the expert witness. Fed. R. Civ. P. 26(b)(4)(C). NuStar did not ask for these communications. As stated above, whether or not the witness is an expert is not a privileged matter. Exs. 8, 9, and 10. Furthermore, there are exceptions to this rule, namely: to the extent that the expert-attorney communications (i) relate to compensation for the expert s study or testimony; (ii) identify facts or data that the party s attorney provided and that the expert considered in forming the opinions to be expressed; or (iii) identify assumptions that the party's attorney provided and that the expert relied on in forming the opinions to be expressed. Fed. R. Civ. P. 26(b)(4)(C). NuStar never got to inquire into these areas of facts or data or assumptions because of the refusal to even identify the witnesses as experts. Furthermore, because NuStar could not even get past the first step of whether the Debtor had any experts, NuStar has been prejudiced with respect to developing any Daubert challenge to these experts. 13 I. A Pattern of Discovery Abuse 39. This is the latest instance in a pattern of discovery abuse by the Debtors. See Order Granting NuStar s Motion To Quash Deposition Notice Of Brad Barron And Motion For 12 This inquiry was met with an instruction not to answer. 13 The Supreme Court s decision in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 589 (1993), mandates that federal trial courts act as gatekeepers for all expert testimony. Consistent with their gatekeeping function, federal courts are charged with evaluating whether the testimony at issue is both reliable and relevant. Kumho Tire Co. v. Carmichael, 526 U.S.137, 141 (1998)(Daubert assign[s] to the trial judge the task of ensuring that an expert s testimony has a reliable foundation and is relevant to the task at hand ). NuStar reserves the right to make any Daubert challenge or any other challenge to the qualifications or opinions of any experts

17 Case Doc 437 Filed 02/17/15 Entered 02/17/15 09:22:08 Desc Main Document Page 17 of 20 Protective Order at Dkt. 424 (granting NuStar s motion to quash improper apex deposition of NuStar s CEO and granting a protective order as to document requests to NuStar); Order Granting Motion To Compel Debtors And The Committee s Respective Discovery Responses at Dkt. 425 (granting NuStar s motion to compel document production that on or before February 10, 2015 (the Production Date ), Debtors shall produce all non-privileged documents in the Debtors possession, custody, or control requested by NuStar in its First and Second Set of Discovery Requests for Production). 40. The Debtors have not made sufficient efforts to comply with discovery requests. The Debtors General Manager, Mr. Hans Jonassen, testified at his February 4, 2015 deposition at page 19: Q. Okay. What efforts did you make to find documents responsive to the discovery requests in NS-21? A. None. Ex In addition, Mr. Dombrowski testified at his February 5, 2015 deposition, page 36: Q. Have you provided documents to the debtor so that the debtor can comply with the document production request? A. I personally have not. Q. Has anyone with Alvarez & Marsal done so, to your knowledge? A. I assume that that is correct, but I don't know firsthand. Ex The Debtors have refused to produce documents on grounds of relevancy after they had previously argued in their Venue Transfer Motion that the documents were relevant. The Debtors stated in their Venue Transfer Motion at footnote 4 that the contracts with forum selection clauses are relevant:

18 Case Doc 437 Filed 02/17/15 Entered 02/17/15 09:22:08 Desc Main Document Page 18 of 20 The Movants do not concede that these forum selection clauses govern any substantive disputes arising under or relating to these Chapter 11 Cases. The Movants believe, however, that the forum selection clauses, even if not binding, are relevant to any potential transfer of the Chapter 11 Cases, as they evidence that the Debtors and the Customers agreed their disputes must be litigated in the New York District Court. See excerpts from Venue Transfer Motion at Ex , footnote However, when it came time to produce those contracts with forum selection clauses, the Debtors stated that such were irrelevant and refused to produce them: DEBTORS RESPONSES AND OBJECTIONS TO NUSTAR ENERGY SERVICES, INC. S AND NUSTAR SUPPLY & TRADING LLC S SECOND SET OF INTERROGATORIES, REQUESTS FOR PRODUCTION AND REQUESTS FOR ADMISSIONS: REQUEST FOR PRODUCTION NO. 3: Please provide all documents and communications concerning forum selection clauses in any agreements between the Debtors and NuStar, or between NuStar and any of the Debtors affiliates, brokers, customers, vendors or other supprises [sic]. RESPONSE: The Debtors object to Request for Production No. 3 on the grounds that (i) it expressly seeks communications that are not in the possession, custody or control of the Debtors (ii) it is overly broad in that it seeks "all" communications regardless of custodian or time-frame; (iii) it seeks communications protected by the attorney-client privilege, work product doctrine, common interest privilege and/or other privileges; (iv) it seeks to impose requirements on the Debtors that are beyond the scope of the Federal Rules of Civil Procedure; or (v) it seeks communications that are neither relevant to the issues raised in this action nor reasonably calculated to lead to the discovery of admissible evidence. The Debtors further object to this Request for Production on the additional ground that the information sought is irrelevant for determining whether the statutory venue transfer standard of interest of justice and the convenience of the parties, as set forth in 28 U.S.C and Rule 1014(a) of the Federal Rules of Bankruptcy Procedure, is satisfied. Subject to all of the above objections, the Debtors reserve the right to supplement this response and to produce any additional non-privileged communications responsive to this request, if any, located after a reasonably diligent search (emphasis added). Ex

19 Case Doc 437 Filed 02/17/15 Entered 02/17/15 09:22:08 Desc Main Document Page 19 of 20 J. The Dombrowski Report is Not a True Expert Report, Just Argument 44. The Dombrowski Report is not even an expert report. It is merely a summary of evidence and an argument of legal standards. LaSalle Bank National Association v. CIBC Inc., 2012 WL (S.D.N.Y. 2012)( At least in the absence of a showing that a document is peculiarly difficult to understand, merely reciting what is or is not in a document is not an appropriate subject of expert testimony. The balance of the testimony summarized above merely repeats facts without any expert analysis or other information that can fairly be characterized as the product of Mr. Cohen s special training and experience. ). Accordingly, and aside from the relief under Rule 37, the Dombrowski Report should be stricken. K. The Conrad Report is Also Not a True Expert Report, Just Argument from a Lawyer 45. The Conrad Report is merely the argument of a lawyer, not an expert report.. LaSalle Bank National Association v. CIBC Inc., 2012 WL (S.D.N.Y. 2012). Moreover, Mr. Conrad was not even disclosed as witness in response to a proper discovery request. VI. PRAYER WHEREFORE, NuStar hereby respectfully requests that this Court prohibit Movants use at any hearing on the Venue Transfer Motion of (a) any expert report or expert testimony of Mr. Dombrowski, (b) any expert report or any testimony (fact or expert) of Mr. Conrad, and (c) or any testimony whatsoever of Mr. Weitz, and grant such other and further relief to which NuStar is entitled, either at law or in equity. DATED: February 17, By_ /s/ Eric Henzy Connecticut State Bar No REID AND RIEGE, PC

20 Case Doc 437 Filed 02/17/15 Entered 02/17/15 09:22:08 Desc Main Document Page 20 of 20 1 Financial Plaza, 21 st Floor Hartford, CT Telephone: (860) Telecopier: (860) ehenzy@rrlawpc.com OF COUNSEL: Michael M. Parker Texas State Bar (admitted pro hac vice) Steve A. Peirce Texas State Bar (admitted pro hac vice) NORTON ROSE FULBRIGHT US LLP 300 Convent Street, Suite 2200 San Antonio, Texas Telephone: (210) Facsimile: (210) michael.parker@nortonrosefulbright.com steve.peirce@nortonrosefulbright.com Attorneys for NuStar Energy Services, Inc. and NuStar Supply & Trading LLC Attorneys for NuStar Energy Services, Inc. and NuStar Supply & Trading LLC CERTIFICATE OF CONFERENCE The undersigned certifies that the parties conferred in a good-faith attempt to resolve the matter by agreement, but no agreement could be made for the following specific reasons: I sent an to Debtors counsel and Committee counsel on February 16 stating the intentions of this motion and attempting to confer. Debtors counsel responded by that he could not agree to the relief. /s/ Michael M. Parker

21 Case Doc Filed Filed 01/14/15 02/17/15 Entered Entered 01/15/15 02/17/15 11:50:20 09:22:08 Desc Desc Main Exhibits Document 1-13 Page 1 of 382 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF CONNECTICUT BRIDGEPORT DIVISION In re O.W. BUNKER HOLDING NORTH AMERICA, INC., et al., 1 Debtors. O.W. BUNKER HOLDING NORTH AMERICA, INC., O.W. BUNKER NORTH AMERICA, INC., O.W. BUNKER USA, INC., AND THE OFFICIAL COMMITTEE OF UNSECURED CREDITORS, Movants v. NUSTAR ENERGY SERVICES, INC. AND NUSTAR SUPPLY & TRADING LLC, Respondents : : : : : : Chapter 11 Case No (AHWS) Jointly Administered Re: Doc. Id. No. 229 and 255 : : : :TRIAL DATE: WEDNESDAY, FEBRUARY 18, 2015 at 10:00 a.m. : : : : : : : : : : PRETRIAL ORDER ON: JOINT MOTION OF THE DEBTORS AND THE OFFICIAL COMMITTEE OF UNSECURED CREDITORS FOR TRANSFER OF VENUE OF CASES TO UNITED STATES BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF NEW YORK PURSUANT TO 28 U.S.C AND RULE 1014(A)(1) OF THE FEDERAL RULES OF BANKRUPTCY PROCEDURE [DKT. 229] APPEARANCES: Movants: Patrick M. Birney Robinson & Cole LLP Proposed Counsel for Debtors Richard Placey Montgomery McCracken Walker & Rhoads LLP 1 The last four digits of the Debtors taxpayer identification numbers follow in parentheses: O.W. Bunker Holding North America Inc. (7474); O.W. Bunker North America Inc. (7158); O.W. Bunker USA Inc. (3556). The Debtors address is 281 Tresser Blvd., 2 Stamford Plaza, 15 th Floor, Stamford, CT Error! Unknown document property name Ex

22 Case Doc Filed Filed 01/14/15 02/17/15 Entered Entered 01/15/15 02/17/15 11:50:20 09:22:08 Desc Desc Main Exhibits Document 1-13 Page 2 of 382 Peter Partee Michael Richman Hunton & Williams LLP Respondents: Michael M. Parker Steve A. Peirce Fulbright & Jaworski LLP Proposed counsel for The Official Committee of Unsecured Creditors Attorneys for NuStar Energy Services, Inc., NuStar Supply & Trading LLC Eric Henzy Reid and Riege, PC Party in Interest: Dan Guyder Allen & Overy LLP Attorneys for ING Bank N.V. Craig Lifland Halloran & Sage LLP 1. DISCOVERY The scope of discovery is limited to the issue of the Movants Joint Motion (ECF No. 229). All requests for discovery pursuant to Federal Rules of Bankruptcy Procedure 7033 and 7034 will be served no later than January 16, 2015; corresponding responses will be served no later than January 23, All discovery shall be completed and closed no later than February 6, 2015 ( Discovery Bar Date ). 2. WITNESSES AND EXHIBITS (a) A list of witnesses with a short statement of the testimony of each and a list of exhibits shall be exchanged and filed, with two copies delivered to chambers no later than February 13, A copy of each exhibit, corresponding to the appropriate exhibit list, shall be exchanged but not filed or delivered to chambers. In complying with this paragraph, the plaintiff/movant s exhibits shall be marked alphabetically, and the defendant/respondent s exhibits shall be marked numerically. (b) No expert witness may testify unless a detailed and signed report of that expert s opinion has been exchanged, filed and two copies delivered to chambers no later than February 13, (c) Each party shall utilize the discovery obtained under this pretrial order to anticipate all witnesses who may be called and exhibits that may be offered during the trial, including those that might be offered for rebuttal or impeachment purposes. Error! Unknown document property name Ex

23 Case Doc Filed Filed 01/14/15 02/17/15 Entered Entered 01/15/15 02/17/15 11:50:20 09:22:08 Desc Desc Main Exhibits Document 1-13 Page 3 of 382 (d) A party may not call a witness or offer an exhibit that is not on that party s lists of witnesses and exhibits. (e) All witness and exhibit lists filed in compliance with any prior pretrial orders in this proceeding are superseded by this pretrial order. (f) Witnesses and exhibits lists, and expert reports shall be accompanied by a certification of service. (g) evidence. Three copies of each exhibit shall be delivered to the bench as it is admitted into 3. TRIAL MEMORANDA: NOT APPLICABLE. 4. TRIAL CONFIRMATION: NOT APPLICABLE. 5. CONTINUANCE: NOT APPLICABLE. 6. SETTLEMENT CONFERENCE If appropriate, the court will conduct a pretrial conference at which an attempt will be made to settle the controversy or narrow the issues. Counsel for the parties shall attend any such conference fully authorized to make a final demand or offer and shall either be accompanied by the person or persons authorized and competent to accept or reject a settlement proposal or such persons shall be available by telephone. Dated this 14 th day of January 2015 at Bridgeport, Connecticut. By the court Error! Unknown document property name Ex

24 Case Doc Filed 02/17/15 Entered 02/17/15 09:22:08 Desc Exhibits 1-13 Page 4 of 82 Ex

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30 1 2 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF CONNECTICUT 3 BRIDGEPORT DIVISION X In re 5 O.W. BUNKER HOLDING NORTH 6 AMERICA, INC., et al., Chapter 11 7 Case No Debtors. (AHWS) X DEPOSITION OF SCOTT ANCHIN 12 New York, New York 13 Thursday, February 5, :06 a.m Reported by: 20 Jennifer Ocampo-Guzman, CRR, CLR JOB NO Case Doc Filed 02/17/15 Entered 02/17/15 09:22:08 Desc Exhibits 1-13 Page 10 of 82 Page 1 TSG Reporting - Worldwide Ex

31 Case Doc Filed 02/17/15 Entered 02/17/15 09:22:08 Desc Exhibits 1-13 Page 11 of 82 Page February 5, :06 a.m Deposition of SCOTT ANCHIN, held 12 at the offices of Norton Rose 13 Fulbright, 666 Fifth Avenue, New York, 14 New York, pursuant to notice, before 15 Jennifer Ocampo-Guzman, a Certified 16 Real-Time Shorthand Reporter and Notary 17 Public of the State of New York TSG Reporting - Worldwide Ex

32 Case Doc Filed 02/17/15 Entered 02/17/15 09:22:08 Desc Exhibits 1-13 Page 12 of 82 Page A P P E A R A N C E S: 3 MONTGOMERY MCCRACKEN WALKER & RHOADS 4 Attorneys for the Debtors South Broad Street 6 Avenue of the Arts 7 Philadelphia, Pennsylvania BY: Richard Placey FULBRIGHT & Jaworski 13 Attorneys for NuStar Supply & Trading 14 and NuStar Energy Services, Inc Convent Street 16 San Antonio, Texas BY: Steve Peirce 18 (Via videoconference) 19 BY: Courtney Slatten Katzenstein TSG Reporting - Worldwide Ex

33 Case Doc Filed 02/17/15 Entered 02/17/15 09:22:08 Desc Exhibits 1-13 Page 13 of 82 Page APPEARANCES (Continued): 3 4 HUNTON & WILLIAMS 5 Attorneys for the Committee of 6 Unsecured Creditors Park Avenue 8 New York, New York BY: Robert Rich TSG Reporting - Worldwide Ex

34 Case Doc Filed 02/17/15 Entered 02/17/15 09:22:08 Desc Exhibits 1-13 Page 14 of 82 Page S C O T T A N C H I N, called as a 3 witness, having been duly sworn, was examined 4 and testified as follows: 5 EXAMINATION BY 6 MR. PEIRCE: 7 Q. Very good. 8 Would you state your name and spell 9 it for the record, please. 10 A. Scott Anchin, S-C-O-T-T, 11 A-N-C-H-I-N. 12 Q. Mr. Anchin, have you ever been 13 deposed before? 14 A. No, I have not. 15 Q. Okay. We will go over a few rules. 16 You understand you are under oath, 17 correct? 18 A. Correct. 19 Q. And any reason why you can't 20 testify accurately today? 21 A. No. 22 Q. You're not having any illness or 23 under any medications or anything like that 24 that would prevent from you testifying 25 accurately? TSG Reporting - Worldwide Ex

35 Case Doc Filed 02/17/15 Entered 02/17/15 09:22:08 Desc Exhibits 1-13 Page 15 of 82 1 Anchin Page 46 2 that you expect to testify about at the venue 3 hearing? 4 MR. PLACEY: Objection. 5 Don't answer that. That's work 6 product. 7 You can ask him any facts, but you 8 can't ask him to give you a preview of 9 what testimony I may choose do elicit. 10 Q. You're refusing to answer the 11 question, sir? 12 MR. PLACEY: I'm instructing him 13 not to answer. I assume he will comply 14 with the instruction. 15 Q. Have you been asked to serve as an 16 expert witness in this case, Mr. Anchin? 17 A. No, to date, I have not been asked 18 to serve as an expert witness. 19 Q. You understand what an expert is in 20 litigation? 21 A. I'm not a lawyer. If you would 22 like to clarify, please go ahead. 23 Q. Have you ever testified as an 24 expert witness before? 25 A. I have not testified as an expert TSG Reporting - Worldwide Ex

36 Case Doc Filed 02/17/15 Entered 02/17/15 09:22:08 Desc Exhibits 1-13 Page 16 of 82 1 Anchin Page 47 2 witness before. 3 Q. What about Mr. Dombrowski, has he 4 testified as an expert before? 5 MR. PLACEY: Object to the form. 6 A. I would not know. You would have 7 to ask Mr. Dombrowski. 8 Q. To your knowledge, has anyone with 9 Alvarez & Marsal been asked to give an expert 10 opinion in connection with the motion to 11 transfer venue? 12 MR. PLACEY: Object to the form. 13 Don't answer that. 14 There is only one person or group 15 of lawyers who could have asked that 16 question, and that's not something that, 17 that -- you should not be invading work 18 product that way. 19 Q. Is anyone with Alvarez & Marsal 20 currently serving as an expert in connection 21 with the motion to transfer venue? 22 MR. PLACEY: Objection. Don't 23 answer. 24 MR. PEIRCE: You're refusing to 25 answer that question, sir? TSG Reporting - Worldwide Ex

37 Case Doc Filed 02/17/15 Entered 02/17/15 09:22:08 Desc Exhibits 1-13 Page 17 of 82 1 Anchin Page 48 2 MR. PLACEY: I have given him an 3 instruction. I assume he will comply 4 with the instruction. 5 MR. PEIRCE: Okay. I want an 6 answer to the question from the witness. 7 Q. Are you refusing to answer the 8 question of whether Alvarez & Marsal is 9 serving as an expert in connection with the 10 motion to transfer venue? 11 MR. PLACEY: You can answer the 12 question whether you will comply with my 13 instruction not to answer. 14 A. I will comply with debtors' 15 counsel's instruction not to answer that 16 question. 17 Q. Have Alvarez & Marsal provided any 18 type of expert report in connection with the 19 motion to transfer venue? 20 MR. PLACEY: That you can answer. 21 A. To the best of my knowledge, 22 Alvarez & Marsal has not provided any expert 23 reports related to the motion to transfer 24 venue. 25 Q. Does Alvarez & Marsal offer any TSG Reporting - Worldwide Ex

38 Case Doc Filed 02/17/15 Entered 02/17/15 09:22:08 Desc Exhibits 1-13 Page 18 of 82 1 Anchin Page 84 2 transfer should not prejudice any party? 3 MR. PLACEY: Object to the form. 4 A. Again, this is a legal issue, and 5 as the financial advisor I would defer to the 6 advice of counsel. 7 Q. You don't have anything to say 8 about that, then; is that correct? 9 MR. PLACEY: Object to the form. 10 Q. You may answer the question, sir. 11 A. Can you repeat the question? 12 Q. You don't have anything to say 13 about the statement, "The transfer should not 14 prejudice any party"? 15 A. I would repeat or reiterate the 16 answer I gave before, that this is a legal 17 issue, and I'll defer to the advice of the 18 debtors' counsel. 19 Q. Let me make sure that I get this 20 correct: Alvarez & Marsal is not currently 21 serving as an expert with respect to the 22 venue issue? 23 MR. PLACEY: Object to the form. 24 Q. Is that true? 25 MR. PLACEY: Object to the form. TSG Reporting - Worldwide Ex

39 Case Doc Filed 02/17/15 Entered 02/17/15 09:22:08 Desc Exhibits 1-13 Page 19 of 82 1 Anchin Page 85 2 Don't answer that. 3 MR. PEIRCE: You're instructing him 4 not to answer whether they're serving as 5 an expert? 6 MR. PLACEY: The rules govern what 7 expert discovery you are entitled to 8 have, and that is not within the rules. 9 That is work product. If there is a 10 report, you have the right to get 11 whatever report there is. That is what 12 the rule says. 13 Q. You're refusing to even disclose 14 any experts in this case? The identity of 15 experts you're refusing to disclose? 16 MR. PLACEY: Is that directed to me 17 or to the witness? 18 MR. PEIRCE: It's directed to you, 19 Mr. Placey. Are you refusing to 20 disclose experts in this case? 21 MR. PLACEY: No. 22 No, I am not refusing to disclose, 23 in case my answer was unclear. 24 MR. PEIRCE: The identity of 25 experts. So I'm asking a question of TSG Reporting - Worldwide Ex

40 Case Doc Filed 02/17/15 Entered 02/17/15 09:22:08 Desc Exhibits 1-13 Page 20 of 82 1 Anchin Page 86 2 this witness concerning the identity of 3 experts. 4 Q. Is Alvarez & Marsal serving as an 5 expert? 6 MR. PLACEY: And I'm instructing 7 the witness not to answer that question 8 as it relates to the debtors. 9 Q. Is Alvarez & Marsal serving as an 10 expert with respect to the committee? 11 MR. PLACEY: Well, without waiver, 12 I think I can let him answer that. 13 A. At the current time, no, we are not 14 serving as an expert to the committee. 15 MR. PEIRCE: I pass the witness. 16 THE WITNESS: Sorry? 17 MR. PLACEY: He's just saying 18 anybody else have questions. 19 I don't have any questions, but I 20 guess it's really up to you. 21 MR. RICH: I don't have any 22 questions. 23 I think we should put, I don't 24 think we put the stipulations on the 25 record. I think we should do so now. TSG Reporting - Worldwide Ex

41 Case Doc Filed 02/17/15 Entered 02/17/15 09:22:08 Desc Exhibits 1-13 Page 21 of 82 Page 1 UNITED STATES BANKRUPTCY COURT DISTRICT OF CONNECTICUT BRIDGEPORT DIVISION In re: : Chapter 11 : O.W. BUNKER HOLDING : Case No (AHWS) NORTH AMERICA, INC., : et al., : : Debtors. : Thursday, February 5, Oral deposition of RAY DOMBROWSKI, taken pursuant to notice, was held at the Law Offices of Blank Rome LLP, One Logan Square, 130 North 18th Street, Philadelphia, Pennsylvania 19103, commencing at 4:08 p.m., on the above date, before Rhonda Watson, Professional Court Reporter and Notary Public in and for the Commonwealth of Pennsylvania MAGNA LEGAL SERVICES (866) Ex

42 Case Doc Filed 02/17/15 Entered 02/17/15 09:22:08 Desc Exhibits 1-13 Page 22 of 82 Page 2 1 APPEARANCES: 2 NORTON ROSE FULBRIGHT US LLP BY: STEVE A. PEIRCE, ESQUIRE Convent Street Suite San Antonio, Texas (210) Representing NuStar Energy Services, Inc. and NuStar Supply & Trading LLC 6 (Appearing via videoconference) MONTGOMERY McCRACKEN WALKER & RHOADS LLP BY: RICHARD G. PLACEY, ESQUIRE 10 BY: NATALIE D. RAMSEY, ESQUIRE 123 South Broad Street 11 Avenue of the Arts Philadelphia, Pennsylvania (215) Representing Debtors, O.W. Bunker Holding North America, 13 Inc., et al HUNTON & WILLIAMS LLP BY: ROBERT A. RICH, ESQUIRE Park Avenue New York, New York (212) Representing The Committee ALSO PRESENT: 22 Naomi Zwillenberg, Esquire, Blank Rome LLP Ex

43 Case Doc Filed 02/17/15 Entered 02/17/15 09:22:08 Desc Exhibits 1-13 Page 23 of I N D E X Page TESTIMONY OF RAY DOMBROWSKI PAGE 4 By Mr. Peirce E X H I B I T S NO. DESCRIPTION PAGE 11 NS-17 Joint Motion for Transfer of Venue 5 12 NS-21 Debtors' Responses and Objections to 5 First Set of Discovery Requests for 13 Production and Requests for Admissions 14 NS-22 Debtors' Responses and Objections to 5 Second Set of Interrogatories, Requests 15 Requests for Production and Requests for Admissions 16 NS-25 Objections and Answers of the Official 5 17 Committee to First Set of Interrogatories, Requests for 18 Production and Requests for Admissions 19 NS-26 Objections and Answers of the Official 5 Committee to Second Set of 20 Interrogatories, Requests for Production and Requests for Admissions Ex

44 Case Doc Filed 02/17/15 Entered 02/17/15 09:22:08 Desc Exhibits 1-13 Page 24 of Page 4 2 DEPOSITION SUPPORT INDEX Direction to Witness Not to Answer 6 Page Line Page Line Page Line Request for Production of Documents 10 Page Line Page Line Page Line 11 None Stipulations 14 Page Line Page Line Page Line Question Marked 18 Page Line Page Line Page Line 19 None Ex

45 Case Doc Filed 02/17/15 Entered 02/17/15 09:22:08 Desc Exhibits 1-13 Page 25 of Page 5 2 (Whereupon Exhibits NS-17, NS-21, 3 NS-22, NS-25, and NS-26 were premarked for 4 identification.) RAY DOMBROWSKI, after having been 7 first duly sworn, was examined and 8 testified as follows: EXAMINATION BY MR. PEIRCE: 13 Q. Would you please state your name 14 and spell it for the record. 15 A. Ray Dombrowski, 16 D-O-M-B-R-O-W-S-K-I. 17 Q. Okay. Mr. Dombrowski, have you 18 ever testified before? 19 A. I have. 20 Q. In depositions? 21 A. Yes. 22 Q. And in trial also? 23 A. Yes. 24 Q. How many times have you been Ex

46 Case Doc Filed 02/17/15 Entered 02/17/15 09:22:08 Desc Exhibits 1-13 Page 26 of 82 1 question? Page 8 2 MR. PEIRCE: Yes. Let's get clear 3 on that. All objections are reserved 4 except objections to the form of the 5 question; is that correct? 6 MR. PLACEY: That's agreeable to 7 me. And this is being recorded by a court 8 reporter, but not by any other means; is 9 that right? 10 MR. PEIRCE: That's my 11 understanding, yes. 12 BY MR. PEIRCE: 13 Q. Okay. There was a question about 14 the services Alvarez & Marsal has provided to the 15 debtors since the petition was filed. 16 Can we finish that answer? 17 A. I think I've answered it already. 18 Q. Has Alvarez & Marsal served as an 19 expert to the debtors since the petition was 20 filed? 21 A. Not that I'm aware. 22 Q. Can you describe your duties in 23 this case as compared to Mr. Scott Anchin's? 24 A. Mr. Anchin reports to me. Ex

47 Case Doc Filed 02/17/15 Entered 02/17/15 09:22:08 Desc Exhibits 1-13 Page 27 of 82 1 creditors, I can't answer that question. Page 27 2 Q. Have you been asked to provide any 3 kind of expert opinion in connection with this 4 case? 5 MR. PLACEY: Objection. Don't 6 answer that. Don't answer that as to any 7 requests made to you by debtors, counsel, 8 or my firm or the Connecticut firm. 9 BY MR. PEIRCE: 10 Q. Are you or anyone with your firm 11 preparing any kind of expert report in connection 12 with this case? 13 MR. PLACEY: Same instruction. 14 MR. PEIRCE: I'm not asking him 15 what counsel asked him to do. I'm just 16 asking if he's preparing a report. That's 17 the question. 18 MR. PLACEY: I'm going to instruct 19 him not to answer as to any report or work 20 he's doing for debtors, counsels here or 21 in Connecticut. So if the question is, is 22 he preparing a report for someone else, I 23 guess that is not work product, so he can 24 answer that. Ex

48 Case Doc Filed 02/17/15 Entered 02/17/15 09:22:08 Desc Exhibits 1-13 Page 28 of 82 1 THE WITNESS: What's the question 2 that I'm being asked to answer, then, 3 because I'm confused? 4 BY MR. PEIRCE: 5 Q. Are you in the process of Page 28 6 preparing any kind of expert report in connection 7 with this bankruptcy case? 8 MR. PLACEY: Objection, and do not 9 answer as to any work you're doing for the 10 debtors or debtors' counsel. 11 BY MR. PEIRCE: 12 Q. So you're not going to answer the 13 question, sir? 14 MR. PLACEY: I believe and hope he 15 will comply with my instruction. 16 BY MR. PEIRCE: 17 Q. Do you contend that transfer of 18 the Chapter 11 cases to New York will be in the 19 interest of justice and best serve the 20 convenience of all the parties in the Chapter cases? 22 MR. PLACEY: Object to the form. 23 MR. RICH: Objection. 24 THE WITNESS: Sir, I believe that Ex

49 Case Doc Filed 02/17/15 Entered 02/17/15 09:22:08 Desc Exhibits 1-13 Page 29 of 82 1 BY MR. PEIRCE: Page 31 2 Q. That's your opinion? 3 A. Yes, sir. 4 Q. You're offering an opinion, an 5 expert opinion on that point? 6 MR. PLACEY: Object to the form. 7 And I'm not letting him answer as to 8 expert opinions. He's not here as an 9 expert. He's not here to talk about 10 expert work. He gave you a view based on 11 an opinion expressed in an argument made 12 that you read. I let him answer. That is 13 not -- he's not here as an expert. 14 BY MR. PEIRCE: 15 Q. You just gave an opinion, so can 16 you tell me what the basis for that opinion is, 17 sir? 18 A. My business experience. 19 Q. What are the facts that support 20 that opinion? 21 A. Thirty-plus years of being in 22 business. 23 Q. That goes to your qualifications. 24 What are the facts in this case that support your Ex

50 Case Doc Filed 02/17/15 Entered 02/17/15 09:22:08 Desc Exhibits 1-13 Page 30 of 82 1 & Marsal produced any documents in connection 2 with the document production request in this 3 case? 4 A. Again, sir, with all due respect, 5 you're asking me whether our firm has produced 6 something, and that -- if you are -- the literal 7 answer is, the debtor has produced documents. Page 36 8 Q. Have you provided documents to the 9 debtor so that the debtor can comply with the 10 document production request? 11 A. I personally have not. 12 Q. Has anyone with Alvarez & Marsal 13 done so, to your knowledge? 14 A. I assume that that is correct, but 15 I don't know firsthand. 16 Q. Do you contend that Connecticut is 17 an inconvenient bankruptcy forum for Alvarez & 18 Marsal? 19 MR. PLACEY: Object to the form. 20 THE WITNESS: I'm sorry, sir. Is 21 that -- I don't think that that's a fact 22 question. I don't know how to answer it. 23 BY MR. PEIRCE: 24 Q. Is it inconvenient for Alvarez & Ex

51 Case Doc Filed 02/17/15 Entered 02/17/15 09:22:08 Desc Exhibits 1-13 Page 31 of 82 1 New York? Page 39 2 A. I believe that it will be more 3 costly to the debtors' estate if that is the 4 case, yes. 5 Q. Do you have any opinion about it 6 being more costly to other parties in interest in 7 this case to handle the case in Connecticut 8 versus New York? 9 MR. PLACEY: Objection. I'm not 10 going to have him giving expert opinions. 11 He can give you facts that he knows about 12 that topic. If you ask it as a fact 13 question, you can get whatever factual 14 answer there is. You're not entitled to 15 opinion questions. 16 BY MR. PEIRCE: 17 Q. What facts, if any, do you have 18 that would indicate it's more costly for 19 creditors to have the case in Connecticut versus 20 New York? 21 A. Again, sir, I go back that there 22 are $25 million worth of interpleader actions out 23 of $40 million that have been filed so far that 24 are already in New York and that we have Ex

52 Case Doc Filed Filed 02/13/15 02/17/15 Entered Entered 02/13/15 02/17/15 16:23:11 09:22:08 Desc Desc Main Exhibits Document 1-13 Page 32 1 of of 682 UNITED STATES BANKRUPTCY COURT DISTRICT OF CONNECTICUT BRIDGEPORT DIVISION In re O.W. Bunker Holding North America Inc., et al., 1 Debtors. : : : : : : : Chapter 11 Case No (AHWS) Jointly Administered MOVANTS JOINT WITNESS LIST AND JOINT EXHIBIT LIST RE JOINT MOTION OF THE DEBTORS AND THE OFFICIAL COMMITTEE OF UNSECURED CREDITORS FOR TRANSFER OF VENUE OF CASES TO UNITED STATES BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF NEW YORK PURSUANT TO 28 U.S.C AND RULE 1014(A)(1) OF THE FEDERAL RULES OF BANKRUPTCY PROCEDURE In accordance with the Court s January 14, 2015 Pretrial Order on: Joint Motion of the Debtors and the Official Committee of Unsecured Creditors for Transfer of Venue of Cases to United States Bankruptcy Court for the Southern District of New York Pursuant to 28 U.S.C. and Rule 1014 (A)(1) of the Federal Rules of Bankruptcy Procedure [Dkt. 229] [Docket No. 311], the Debtors and the Creditors Committee respectfully submit their Joint Witness List and Exhibit List: 2 WITNESS LIST 1. Adrian Tolson. Short statement of testimony Background of the debtors; the debtors assets; asset recovery via liens, interpleaders, arrests and other recovery procedures; 1 The last four digits of the Debtors taxpayer identification numbers follow in parentheses: O.W. Bunker Holding North America Inc. (7474), O.W. Bunker North America Inc. (7158) and O.W. Bunker USA Inc. (3556). The Debtors address is 281 Tresser Blvd., 2 Stamford Plaza, 15th Floor, Stamford, CT As co-movants on the Transfer Motion, the Debtors and the Committee are providing this joint exhibit list and witness list for the Court s convenience. Ex

53 Case Doc Filed Filed 02/13/15 02/17/15 Entered Entered 02/13/15 02/17/15 16:23:11 09:22:08 Desc Desc Main Exhibits Document 1-13 Page 33 2 of of 682 locations of creditors, witnesses and others; matters covered in deposition; in addition to background information. 2. Hans Staal. Short statement of testimony Background of the debtors; the debtors assets; asset recovery via liens, interpleaders, arrests and other recovery procedures; locations of creditors, witnesses and others; matters covered in deposition; in addition to background information. 3. Raymond Dombrowski. Short statement of testimony The debtors assets; background to and significance of asset recovery via liens, interpleaders, arrests and other recovery procedures; significance of recoveries to be the cases; matters covered in deposition and/or report; in addition to background information. Mr. Dombrowski is affiliated is Alvarez & Marsal. 4. Scott Anchin. Short statement of testimony The debtors assets; background to and significance of asset recovery via liens, interpleaders, arrests and other recovery procedures; significance of recoveries to the cases; matters covered in deposition and/or report; in addition to background information. Mr. Anchin is affiliated is Alvarez & Marsal. 5. Frank Conrad. Short statement of testimony Matters covered in report, in addition to background information. 6. Wayne Weitz. Short statement of testimony The administrative solvency of the estates, as of the time of the hearing, based upon the estates cash on hand, ranges of known or prospective future recoveries and ranges of known or anticipated administrative expenses. Mr. Weitz is affiliated with Gavin/Solmonese. 7. Paul Davis. Short statement of testimony Testimony as designated in Exhibit B. -2- Ex

54 Case Doc Filed Filed 02/13/15 02/17/15 Entered Entered 02/13/15 02/17/15 16:23:11 09:22:08 Desc Desc Main Exhibits Document 1-13 Page 34 3 of of 682 Movants further reserve the right to call any witness listed or offered by any other party, to use other witnesses on rebuttal, and or to supplement this list. EXHIBIT LIST A. Transcript designation from the December 18, 2014 hearing in Clearlake Shipping PTE Ltd. v. O.W. Bunker (Switzerland) SA, et al., C.A. No (S.D.N.Y.) (complete transcript attached for convenience). B. Deposition designations of Paul Davis (February 6, 2015) (complete transcript attached for convenience) C. Amended Consolidated List of 21 Largest Creditors with Summary of Locations D. Summary Location of O.W. Bunker North America Inc. creditors, with Global Notes and Schedules of Assets and Liabilities attached E. Summary Location of O.W. Bunker USA Inc. creditors, Global Notes and Schedules of Assets and Liabilities attached F. O.W. Bunker Terms and Conditions G. Chart of Debtors future potential witnesses and locations H. Summary spreadsheet of O.W. Bunker NA assets showing amounts subject to interpleaders and arrests to date, with December Monthly Operating Report attached. I. Summary spreadsheet of O.W. Bunker USA assets showing amounts subject to interpleaders and arrests to date, with December Monthly Operating Report attached. J. Summary of NY Interpleaders, showing amounts, including docket summaries K. Summary of NuStar Actions, showing amounts, with NuStar Vessel Arrest List L. Summary of NuStar recoveries, showing amounts M. Summary of other Interpleaders and Arrests, including docket summaries N. Dombrowski Expert Report O. Conrad Expert Report P. Complaint filed in O.W. Bunker Holding North America Inc., et al. v. ING Bank, N.V., Adv. Proc. No (Bankr. D. Conn.) Q. Debtors Original Answer and Verified Claim filed in UPT Pool Ltd. v. Dynamic Oil Trading (Singapore) PTE Ltd., et al., C.A. No (S.D.N.Y.) -3- Ex

55 Case Doc Filed Filed 02/13/15 02/17/15 Entered Entered 02/13/15 02/17/15 16:23:11 09:22:08 Desc Desc Main Exhibits Document 1-13 Page 35 4 of of 682 R. Complaint filed in UPT Pool Ltd. v. Dynamic Oil Trading (Singapore) PTE Ltd., et al., C.A. No (S.D.N.Y.) S. Chart of Creditors Opposing and Consenting to Venue Transfer T. Letters in Support of Venue Transfer provided by New York Interpleader Plaintiffs U. Transcript of the November 19, 2014 hearing in In re O.W. Bunker Holding North America Inc., Case No (AHWS) (Jointly Administered) (Bankr. D. Conn.) V. Transcript of the January 7, 2015 hearing in In re O.W. Bunker Holding North America Inc., Case No (AHWS) (Jointly Administered) (Bankr. D. Conn.) Inc. W. Global Notes and Statements of Financial Affairs of O.W. Bunker North America X. Global Notes and Statements of Financial Affairs of O.W. Bunker USA Inc. Y. Global Notes and Statements of Financial Affairs of O.W. Bunker Holding North America Inc. Z. Committee s Analysis of Administrative Solvency AA. Vessel Interests Plaintiffs Joint Memorandum of Law Pursuant to Court s Order Dated December 19, 2014 Concerning this Court s Jurisdiction BB. Example Transaction Chart from New York Interpleaders CC. Complaint filed in SHV Gas Supply & Risk Management SAS, et al. v. O.W. Bunker USA Inc., et al., C.A. No (S.D.N.Y.) Movants further reserve the right to use any exhibit identified or offered by any other party, including those exhibits identified in NuStar Supply & Trading LLC and NuStar Energy Services, Inc. s Witness and Exhibit List for Hearings Set For February 18, 2015 at 10:00 A.M. [Docket No. 419] (incorporated by reference), and to use other exhibits on cross-examination, and/or to supplement this list as additional information is made available. -4- Ex

56 Case Doc Filed Filed 02/13/15 02/17/15 Entered Entered 02/13/15 02/17/15 16:23:11 09:22:08 Desc Desc Main Exhibits Document 1-13 Page 36 5 of of 682 Dated: Wilmington, Delaware February 13, 2015 ROBINSON & COLE LLP /s/michael R. Enright Michael R. Enright, Esq. (ct10286) Patrick M. Birney, Esq. (ct19875) 280 Trumbull Street Hartford, CT Telephone: (860) Facsimile: (860) menright@rc.com pbirney@rc.com - and - MONTGOMERY, McCRACKEN, WALKER & RHOADS, LLP Natalie D. Ramsey, Esq. (NY # ) (admitted pro hac vice) Davis Lee Wright, Esq. (NY # ) (admitted pro hac vice) 437 Madison Avenue, 29th Floor New York, NY Telephone: (212) Facsimile: (212) nramsey@mmwr.com dwright@mmwr.com Counsel for the Debtors and Debtors in Possession - and - HUNTON & WILLIAMS LLP /s/peter S. Partee Peter S. Partee, Sr. (ct29690) Michael P. Richman (admitted pro hac vice) Andrew Kamensky (ct29691) 200 Park Avenue New York, NY Telephone: (212) Facsimile: (212) ppartee@hunton.com mrichman@hunton.com akamensky@hunton.com Counsel for The Official Committee of Unsecured Creditors of O.W. Bunker Holding North America Inc., et al. -5- Ex

57 Case Doc Filed Filed 02/13/15 02/17/15 Entered Entered 02/13/15 02/17/15 16:23:11 09:22:08 Desc Desc Main Exhibits Document 1-13 Page 37 6 of of 682 CERTIFICATE OF SERVICE I, Michael R. Enright, hereby certify that on February 13, 2015, I caused the foregoing to be served on the following parties via and by Federal Express Saturday Delivery: Peter Partee, Sr. Michael Richman Hunton & Williams LLP 200 Park Avenue New York, New York Michael M. Parker Norton Rose Fulbright US LLP 300 Convent Street, Suite 2100 San Antonio, Texas Eric Henzy Reid and Riege, PC 1 Financial Plaza, 21 st Floor Hartford, Connecticut Dan Guyder Allen & Overy LLP 1221 Avenue of the Americas New York, New York Craig Lifland Halloran & Sage LLP 225 Asylum Street Hartford, Connecticut /s/michael R. Enright Michael R. Enright, Esq. (ct10286) v1 Ex

58 Case Doc Filed Filed 02/13/15 02/17/15 Entered Entered 02/13/15 02/17/15 16:27:20 09:22:08 Desc Desc Main Exhibits Document 1-13 Page 38 1 of of 882 February 13, 2015 Mr. Richard Placey Montgomery, McCracken, Walker & Rhoads LLP 1105 N. Market St., 15th Floor Wilmington, DE Dear Mr. Placey: At your request, I have considered the actions that may be required in order to maximize the recoveries of creditors in the jointly administered bankruptcy petition of O. W. Bunker Holding North America, Inc. et al, Case No (AHWS), filed in the United States Bankruptcy Court for the District of Connecticut. While some of this may have been addressed in my deposition given on February 5, 2015, I am submitting this report to the extent that a formal report is deemed necessary. For purposes of this letter, O.W. Bunker North America, Inc. ( North America ) and O.W. Bunker USA, Inc. ( USA ) are individually, each a Debtor and collectively, the Debtors. I. Summary of Opinions and Views (a) The Debtors Statements and Schedules of Financial Affairs filed with the Bankruptcy Court on December 19, 2014 and amended most recently on January 8, 2015 indicate that the assets of each Debtor consist primarily of scheduled receivables. A significant factor in determining the recovery for creditors will be the Debtors ability to collect these receivables, which may include the enforcement of Debtors rights with respect to such receivables. I have been advised by maritime counsel that the Debtors have certain maritime liens related to certain of the receivables, which include among other rights, the right to arrest certain vessels. In reviewing certain records of the Debtors with maritime counsel, it has been determined that 82% and 99%, respectively, of the assets of North America and USA benefit from such maritime liens. This is summarized in Exhibits 2 and 3 to this report. (b) To the extent that the Debtors can limit the number of jurisdictions where they are required to pursue their enforcement rights generally, and their maritime rights specifically, it should reduce the costs associated with such enforcement, thereby providing a higher net recovery to the Debtors creditors. To the extent that the Ex

59 Case Doc Filed Filed 02/13/15 02/17/15 Entered Entered 02/13/15 02/17/15 16:27:20 09:22:08 Desc Desc Main Exhibits Document 1-13 Page 39 2 of of 882 enforcement process could be concluded in a single jurisdiction, it should provide the most economical resolution. (c) Currently, the Debtors have been notified, that in order to avoid the arrest of their vessels, certain customers have filed actions (the Interpleader Actions ) and deposited amounts with certain courts indicating that they do not know if the money is owed to a third party supplier of the Debtors, or if it is owed directly to the Debtors. Regardless of the resolution of the Interpleader Actions, the Debtors receive a benefit. If the money is owed to the Debtors, such amounts increase the available cash for the Debtors to distribute to their creditors. To the extent the amounts are determined to be owed to the suppliers, such suppliers claims against the Debtors will be reduced by the amount of the payments, thereby increasing the percentage recoveries to the remaining creditors of the Debtors. (d) Based on the most recently filed Monthly Operating Report and information gathered from the accounting system maintained by the Debtors parent, O. W. Bunker A/S, a Danish company, there are approximately $56 million of receivables outstanding at North America. Based on information obtained through various court records, approximately $12 million has been deposited in the United States District Court for the Southern District of New York in Interpleader Actions. Separately, the Debtor s arrest actions have led to an additional $885,000 being deposited as security. Based on a review with maritime counsel, there are another $43 million of receivables for which maritime liens appear to remain available in favor of the Debtor. To enforce these liens in one place would allow for the most efficient cost of enforcement for the Debtors. This analysis is summarized in Exhibit 2. (e) Based on the most recently filed Monthly Operating Report and information gathered from the accounting system maintained by the Debtors parent, O. W. Bunker A/S, a Danish company, there are approximately $96 million of receivables outstanding at USA. Based on information obtained through various court records, approximately $25 million has been deposited in the United States District Court for the Southern District of New York in Interpleader Actions. (In some cases, North America and USA were involved in the same transaction, so certain Interpleader Actions involve both Debtors). Separately, approximately $16 million in arrest actions, Interpleader Actions and other enforcement actions have been commenced in jurisdictions other than the United States District Court for the Southern District of New York. Based on a review with maritime counsel, there are another $55 million of receivables for which maritime liens appear to remain available in favor of the Debtor. To enforce these liens in one place would allow for the most efficient cost of enforcement for the Debtors. This analysis is summarized in Exhibit 3. Ex

60 Case Doc Filed Filed 02/13/15 02/17/15 Entered Entered 02/13/15 02/17/15 16:27:20 09:22:08 Desc Desc Main Exhibits Document 1-13 Page 40 3 of of 882 II. Facts and Data Considered (a) Bankruptcy Schedules and Statements of Financial Affairs (b) Monthly Operating Reports (c) Information obtained from the court system as summarized in the Debtors exhibits (d) NuStar Vessel Arrest Report (NS_ to NS_000035), provided by NuStar s counsel on January 23, 2015 (e) Alvarez & Marsal s review of the Debtors records which are accessed through the financial systems maintained by the Parent. (f) Discussions with maritime counsel regarding maritime liens and enforcement rights III. Other Information A copy of my Alvarez & Marsal biography is attached. I have not testified as an expert by trial or deposition in the last four (4) years. The compensation to be paid is as set forth in the retention application filed with the court in this case. IV. Exhibits 1. Ray Dombrowski s Qualifications 2. O.W. Bunker North America, Inc. Summary of Assets 3. O.W. Bunker USA, Inc. Summary of Assets Ex

61 Case Doc Filed Filed 02/13/15 02/17/15 Entered Entered 02/13/15 02/17/15 16:27:20 09:22:08 Desc Desc Main Exhibits Document 1-13 Page 41 4 of of 882 Ex

62 Case Doc Filed Filed 02/13/15 02/17/15 Entered Entered 02/13/15 02/17/15 16:27:20 09:22:08 Desc Desc Main Exhibits Document 1-13 Page 42 5 of of 882 Exhibit 1 Ray Dombrowski s Qualifications Ray Dombrowski, Managing Director Alvarez & Marsal North American Commercial Restructuring With more than 20 years of financial restructuring experience, Mr. Dombrowski has served in interim Chief Executive Officer, Chief Financial Officer and Chief Restructuring Officer roles, as well as serving as an adviser to large and mid-size companies both in and out of bankruptcy. Mr. Dombrowski brings expertise across a wide range of industries, including energy, chemicals, financial services, transportation, real estate, telecommunications and entertainment. Some of his clients at A&M have included SIRVA, SLI, Allegheny Energy, VecTour, APW, Inc., Verestar, Inc., Great Basin Gold, Oxford Resources and Marchon Eyeware, as well as the Unsecured Creditors Committee of Kodak. He served as Chief Restructuring Officer of Chemtura Corporation, a $3 billion specialty chemical company, which, after having bonds trade at 19 cents on the dollar, successfully emerged from bankruptcy after paying all creditors in full, along with providing a return to the pre-petition equity. For his work in Chemtura, Mr. Dombrowski was the 2011 recipient of the Turnaround Management Association's Turnaround of the Year- Mega Company Award. Mr. Dombrowski advised the creditors of Horizon Lines, and has advised a number of investors in connection with acquisitions and loans in the shipping industry. Mr. Dombrowski also assists private equity firms with due diligence, integration and profitimprovement activities. He led select finance operations for a private equity sponsor of a $1.2 billion energy-related concern. Within nine months, he achieved $100 million in working capital improvements, reduced the company's leverage from 5.5:1 to 3.5:1, installed all Treasury policies and procedures for Sarbanes-Oxley compliance, and supported the company's successful initial public offering. He served as CEO and oversaw the successful integration of two related businesses that had been acquired by a private equity investor. The integration work included personnel, distribution centers, supply chain, finance and marketing. He has advised a number of private equity firms, particularly in the shipping and energy sectors. More recently, as CRO of the coal operations of Longview Power, Mr. Dombrowski directed the reorganization of that business, reducing production costs by nearly $11/ton in 7 months, and establishing a long range plan for the business. Prior to joining A&M, Mr. Dombrowski served as Senior Vice President and CFO of Ogden Corporation, where he led the successful restructuring of the $3 billion conglomerate. In this role, he divested approximately $800 million of entertainment and aviation assets, and consolidated 24 separate financial facilities valued at $1.6 billion into a single facility, while reorganizing the company around its alternative energy and independent power business. Previously, he served for 14 years as a senior executive with Bell Atlantic Corporation, where he Ex

63 Case Doc Filed Filed 02/13/15 02/17/15 Entered Entered 02/13/15 02/17/15 16:27:20 09:22:08 Desc Desc Main Exhibits Document 1-13 Page 43 6 of of 882 was responsible for the company's $10 billion leasing, finance and real estate businesses, as well as structured finance for the corporation. In this capacity he has financed over $5 billion of various energy projects. While at Bell Atlantic, he also developed a reorganization strategy for the firm's Iusacell (Mexican cellular), Omnitel-Pronto Italia (Italian cellular and landline) and Telecom New Zealand investments. Mr. Dombrowski earned a bachelor's degree, with honors, from the United States Merchant Marine Academy. He earned a juris doctor, with honors, and a master of laws degree in taxation from Temple University. He is a member of the Financial Executives Institute and is a frequent lecturer on operational restructuring issues. He currently serves as the head of training and development for A&M s North American Commercial Restructuring Practice, which works in partnership with the Tuck School of Business at Dartmouth on training initiatives. Ex