Case of the Day: Chevron v. Donziger

Okay, I admit it, I cannot write about most of what is going on in the Lago Agrio case anymore—it is too depressing. However, there was an interesting ancillary decision recently that I will cover. The case is Chevron Corp. v. Donziger (S.D.N.Y. 2020), and it involves post-judgment third party discovery. Chevron served a subpoena on Patricio Salazar Cordova, an Ecuadoran lawyer, while he was visiting New York City. A persn can be validly served with a subpoena anywhere in the jurisdiction of the United States. But ordinarily under FRCP 45 a subpoena cannot require the recipient to appear or to produce documents more than 100 miles from where he resides, is employed, or regularly transacts business in person. Everyone agreed that Salazar did not have sufficient contacts with New York to come within the 100-mile rule. Chevron made an argument that the geographical limitations didn’t matter since Salazar could produce the documents electronically with the push of a button, but that argument is obviously incorrect and Judge Kaplan rightly rejected it. (more…)

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Case of the Day: Tracfone v. CNT Wireless

The case of the day is TracFone Wireless, Inc. v. CNT Wireless, LLC (S.D. Fla. 2019). TracFone accused the defendants of an “unlawful international mobile telephone trafficking scheme.” It sought leave to serve subpoenas on non-parties in Canada. The case is similar to TracFone Wireless, Inc. v. Technopark Co. (S.D. Fla. 2012), which I described in a post called The Curse of TracFone. (more…)

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Belfast Project: Ivor Bell Acquitted

Ivor Bell, who was accused of soliciting the murder of Jean McConville, was acquitted last week in a Northern Ireland court after the judge directed a verdict in his favor. The charges against Bell had resulted from his taped confession, given to researchers at the Belfast Project, an oral history project about the Troubles that I’ve written about extensively over the years. The tapes were the subject of years of litigation after the Northern Ireland authorities requested legal assistance from the US government to obtain them from Boston College under the US/UK mutual legal assistance treaty. After the challenges to the subpoenas were finally, and in my view correctly, rejected and the tapes were produced, there were further challenges in the Northern Ireland courts to their use, which again were rejected, and thus the tapes were offered in evidence at Bell’s trial. But the judge excluded them from evidence, and as the confession was the only real evidence of guilt, decided that the jury could not convict. (more…)

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Case of the Day: In re Subpoena Duces Tecum to Dunhuang Group

The case of the day is In re Subpoena Duces Tecum to Dunhuang Group (E.D. Mich. 2019). The facts of the underlying case are not really clear form the decision, but suffice it to say that North Atlantic Operating Co. had attempted to serve a subpoena duces tecum on Dunhuang Group, a Chinese company, and when Dunhuang did not produce the documents, it moved to compel and ultimately for contempt. The subpoena was served by delivery to the registered agent for Dunhuang Group’s payment processor, DHPay, Inc., and also by email to Dunhuang itself apparently in China. You can already see where this is going. (more…)

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Case of the Day: ACL Netherlands BV v. Lynch

The case of the day is ACL Netherlands BV v. Lynch, [2019] EWHC 249. A US grand jury issued a subpoena to Hewlett Packard Enterprises. The subpoena called for HP to produce documents in the possession of direct or indirect subsidiaries in the UK. But those subsidiaries had received the responsive documents in the course of UK litigation, and they were subject to what we would call a protective order allowing them to use the documents only for purposes of the UK litigation, without leave of court. (Unlike in US practice, where protective orders are ad hoc, in English practice there are rules imposing limitations on disclosure that apply more generally). The subsidiaries sought permission from the High Court to produce the documents. (more…)

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Case of the Day: Nike v. Wu

The case of the day is Nike, Inc. v. Wu (S.D.N.Y. 2018). Nike and Converse, the shoe companies, brought trademark infringement cases against hundreds of online retailers. These actions resulted in a default judgment for $1.8 billion, which perhaps will not turn out to be worth the paper it was printed on. The companies assigned their judgment to Next Investments, LLC. Next Investments caused subpoenas to be issued to Agricultural Bank of China, Bank of China, Bank of Communications, China Construction Bank, China Merchants Bank, and Industrial and Commercial Bank of China, seeking information on the judgment debtors’ assets. It’s not clear from the decision how the subpoenas were served, but presumably they were served on the New York branch offices of the Chinese banks, and in any case the banks raised no challenge to the service. The banks’ main claims were that the court lacked personal jurisdiction and that in light of Chinese bank secrecy laws, Next Investments should have been required to make first resort to the Hague Evidence Convention. The magistrate judge denied the banks’ motion to quash, and the banks sought review of the order. (more…)

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Case of the Day: Leibovitch v. Iran

The case of the day is Leibovitch v. Islamic Republic of Iran (7th Cir. 2017). The plaintiffs were the victims of a terrorist attack in Jerusalem by members of Palestine Islamic Jihad, a terrorist group supported by the government of Iran. The plaintiffs had a default judgment against Iran for $67 million. Seeking to collect, the plaintiffs served subpoenas on the Chicago branches of the Bank of Tokyo-Mitsubishi and BNP Paribas. Neither branch held Iranian assets, but the plaintiffs asserted that they should have to produce information about Iranian assets known to the branches’ foreign parents in Japan and France, respectively.

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Case of the Day: Probulk Carriers v. Marvel International

The case of the day is Probulk Carriers Ltd. v. Marvel International Management and Transportation (S.D.N.Y. 2016). The underlying case was for breach of a charter party. Arbitration in London yielded an award in favor of Probulk, and the court in New York had entered a default judgment recognizing and enforcing the award and providing for damages of more than $12 million. Marvel was a Turkish firm; one of its principals was the father of Tolga Karacelik, a Turkish citizen who lived in Turkey.

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Belfast Project: A New Subpoena To Boston College

Update: According to the BBC, McIntyre means to bring an action in the High Court in Belfast to try to stop the latest subpoena.

The US government, acting pursuant to the US/UK mutual legal assistance treaty, has apparently obtained an order from the District Court in Boston for issuance of a subpoena to Boston College in the Belfast Project case. We can glean from the new subpoena that the UK authorities are investigating charges including attempted murder, illegal possession of explosives, conspiracy, illegal possession of an imitation firearm, and membership in a proscribed organization. On their behalf, the US government is seeking the recordings of interviews of Anthony McIntyre (that is, interviews in which he is the person interviewed, not interviews in which he was the interviewer).

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Case of the Day: In re Petrobras

The case of the day is In re Petrobras Securities Litigation (S.D.N.Y. 2016). The action involves investors’ claims of losses due to a bribery and kickback scandal involving Petrobras, a Brazilian oil company. The plaintiffs sought approval from the court to serve a subpoena on Mauro Gentile Rodrigues da Cunha, a former Petrobras independent director. Mr. da Cunha was apparently in Brazil. However, he was born in Philadelphia and was therefore a United States national unless someone could prove by a preponderance that he had lost his US citizenship, and no one tried.

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