Case of the Day: Islamic Republic of Pakistan v. Arnold & Porter Kaye Scholer LLP, 2019 U.S. Dist. LEXIS 61780 (D.D.C. Apr. 10, 2019)

Summary:

The government of Pakistan petitioned to take discovery of a DC-based international law firm pursuant to 28 U.S.C. s. 1782, in order to obtain materials relevant to the corruption investigation of one of the law firm's clients, a Turkish company operating in Pakistan. In addition to the investigation, the Turkish corporation was involved in an investor-state arbitration against the government of Pakistan. The Turkish company resisted document production, the government lost the arbitration, and the government filed for annulment. The defendant law firm opposed, arguing the investigation was a bad faith, political harassment campaign.

The court largely rejected the defendant law firm's arguments. The court found the investor-state arbitration was sufficient grounds for 1782 discovery, and declined weigh the propriety of the Pakistani investigation. The court denied the request for production of the materials that the defendant claimed to not have, but ordered the defendant to respond to interrogatories asking where the materials are located.

Takeaway:

What's remarkable is how this case is not all that different from any other 1782 discovery litigation, although the defendant is a law firm. There may be additional background that does not appear on the face of this opinion, but the law firm never attempted to raise any point about attorney client privilege.

Case of the Day: In re Med. Corp. H&S, 2019 U.S. Dist. LEXIS 42926 (N.D. Cal. Mar. 15, 2019)

Summary:

A dental clinic in Japan filed a 28 U.S.C. s. 1782 discovery application against Google, to assist the contemplated action in Japan for defamation and unlawful business interference. Allegedly, the petitioner received a number of one-star reviews on its Google Maps, and it wished to ascertain the identities of the Google account holders who left those reviews. 

The court granted the application.

Takeaway:

Considering the general hostility that US courts have had over assisting defamation proceedings abroad, the court's willingness here to breezily grant the discovery request for the petitioner is somewhat surprising, although a 1782 application does not exactly require a public policy assessment like, say, foreign judgment recognition does.

Case of the Day: Nike, Inc. v. Wu, 2018 U.S. Dist. LEXIS 158174 (S.D.N.Y. Sept. 11, 2018)

Summary:

Plaintiffs shoe manufacturers have obtained default judgment against a number of individuals and companies in China based on trademark violation. To enforce the judgment, the plaintiffs sent post-judgment subpoenas to several Chinese banks with branches in New York. The Chinese banks moved to quash the subpoena.

The court found that it had specific jurisdiction over the banks, which have a branch in New York and transact business out of it. The court also found, inter alia, that the separate entity rule did not bar the exercise of jurisdiction as to the subpoena.

Takeaway:

For practitioners of post-judgment enforcement, this is quite a judgment. For all the talks that US courts are pulling back on asserting jurisdiction on extraterritorial affairs, there is an end-run on the presumption of extraterritoriality by, for example, reaching China through Chinese bank branches in New York.

Case of the Day: In re Abilify Aripiprazole Prods. Liab. Litig., 2019 U.S. Dist. LEXIS 3279 (N.D. Fla. Jan. 8, 2019)

Summary:

In a discovery dispute, the plaintiff (who requested the documents) challenged the validity of the privilege log produced by the defendant. The plaintiff claimed the log did not differentiate the legal personnel involved in Japan, whether they were members of the bar (bengoshi), law student clerks or patent attorneys (benrishi). Plaintiffs claimed the distinction was necessary as attorney-client privilege attaches only to licensed attorneys.

The court held the issue was moot, as the defendant submitted a declaration that it made no claim of privilege based only on unlicensed personnel.

Takeaway:

You need to know so much in case of international litigation, including the classification of legal personnel in a foreign jurisdiction!

Case of the Day: Export-Import Bank of Korea v. ASI Corp., 2018 U.S. Dist. LEXIS 111198 (C.D. Cal. June 28, 2018)

Summary:

Defendant alleged the plaintiff EXIM Bank of Korea improperly deleted relevant documents, in violation of the court order. Plaintiff's counsel first issued the litigation hold on June 5, 2015 and issued another litigation hold the day before filing suit on March 25, 2016. The counsel, however, did not circulate the litigation hold to top executives of the plaintiff bank. In March 2017, the plaintiff wiped the computer of the bank's president when he retired, although the president had relevant documents. Plaintiff did not notify the defendant of the deletion; the defendant only learned it by asking questions during a deposition. 

Initially, the magistrate judge imposed monetary sanctions on the plaintiff and ordered additional discovery. The defendant further moved for evidentiary sanctions. The magistrate judge issued the findings of fact that while the plaintiff improperly discarded relevant material and failed to timely search for responsive documents, there was no irremediable prejudice to the defendant, nor was there an intent to deprive defendants of information.

Takeaway:

This can never be said enough: when working with a non-US party, the attorney must be extremely, extremely, extremely cautious that the client is complying with the litigation hold. Litigation hold is peculiar to US court actions, and foreign parties often do not understand how strictly a litigation hold must be observed, or how severe the consequences are if the hold is violated. This particular situation is doubly bad because the party in violation of the hold is the plaintiff. This is certainly an easy way to lose all credibility for your case before the judge.

Case of the Day: Packard v. City of New York, 2018 U.S. Dist. LEXIS 101618 (S.D.N.Y. June 18, 2018)

Summary:

Defendant City of New York moved to compel the plaintiff, who previously lived in New York but now resides in Taiwan, to appear in New York for a deposition. The plaintiff cross-moved to allow for deposition by video conference.

The court granted the cross-motion for video conference. The court first noted Taiwan was not a signatory to the Hague Evidence Convention, but the plaintiff may contact the U.S. State Department to conduct the deposition in Taiwan for a fee.

Takeaway:

It is always worth remembering--Taiwan is not a signatory to any of the Hague Conventions! That Taiwan is an advanced economy does not change this fact. This is also the first time I learned that the fees for conducting deposition through the State Department are somewhat hefty.  (Approximately $1200 in one-time fee and $300 per hour for the facilities.)

Case of the Day: Benge v. Williams, 2018 Tex. LEXIS 441 (Tex. May 25, 2018)

Summary:

In a medical malpractice case involving a botched hysterectomy surgery, the plaintiff patient prevailed in the lower courts. In the appeal, the defendant-appellant argued that the plaintiff-appellee's expert witness was not qualified to give testimony because he was not "practicing medicine." The expert was a board certified obstetrician and gynecologist who later also attended and graduated from law school, and began a teaching career in Texas by teaching law at the University of Houston Law Center and medicine at Baylor College of Medicine. In 2011, the expert moved to South Korea to teach law and medicine at Yonsei University, while continuing to collaborate with a Baylor professor.

The court rejected the argument that the expert was not "practicing medicine" because he was not accredited to see patients in South Korea, and also rejected the argument that Yonsei University Medical School was not an accredited institution because the school was not accredited in accordance with U.S. standards.

Takeaway:

It is of course the litigant's prerogative to make this type of hyper technical argument, but the argument needs to pass the laugh test. It is an impossibly heavy lift to claim that a person with a credential like the expert described here, going from teaching at one elite hospital after another, was not "practicing medicine," even though the legal battle may be over a term of art.

Case of the Day: B&M Kingstone, LLC v. Mega Int'l Commercial Bank Ltd., 2018 N.Y. Misc. LEXIS 1515 (N.Y. Sup. Ct. Apr. 25, 2018)

Summary:

Plaintiff is a judgment creditor of a Florida state court judgment rendered in 2003, valued $39 million at the time and currently worth $73 million. The judgment debtor, allegedly, owns a property in Panama for which the defendant Taiwanese bank (with a branch in New York) holds the mortgage. The plaintiff previously served deposition subpoenas to the bank, which was quashed. Subsequently, the New York State Department of Financial Services found the bank in violation of anti-money laundering rules. The plaintiff then served subpoenas again. The defendant moved to quash.

The court found that the intervening event of the NY DFS enforcement action was sufficient to establish the defendant may be holding relevant information. The court, however, denied the plaintiff's motion for contempt.

Takeaway:

The lesson here is just how broad the discovery reach is for a judgment creditor. Based on the facts adduced in the opinion, it appears unlikely that the defendant bank is holding any property of the judgment debtor upon which the plaintiff may execute. Yet an intervening government enforcement action is enough to renew the subpoena that was previously denied.

Case of the Day: Princeton Digital Image Corp., 2018 U.S. Dist. LEXIS 67485 (D. Del. Apr. 16, 2018)

Summary:

Plaintiff sued alleging patent infringement against several videogame companies, including a U.S. subsidiary of Konami, a Japanese corporation. In the course of the litigation, plaintiff requested documents from Konami Japan, affiliate of the defendant Konami US. (The two companies are owned by the same parent.) 

The court noted Konami Japan's legal department handles patent matters for Konami US based on power of attorney. Because there may be a plausible argument that Konami US had control over Konami Japan's document, the court ordered additional discovery on the relationship between the two firms.

Takeaway:

If you're counting, the court in this case orders discovery in order to determine whether discovery is appropriate. Turtles all the way down!

Case of the Day: Dongkuk Int'l, Inc. v. U.S. Dept. of Justice, 204 F.Supp.3d 18 (D.D.C. 2016)

Summary:

Plaintiff is a Korean national facing criminal trial in Korean courts for a habitual gambling. To prosecute the plaintiff, the Korean prosecutors sent a Request for Assistance (RFA) letter to the U.S. Department of Justice pursuant to the Mutual Legal Assistance Treaty (MLAT). Plaintiff sought to obtain the RFA letter through the Freedom of Information Act, apparently because the contents of the RFA letter contains information that may affect his sentencing. When the U.S. Department of Justice refused, the plaintiff filed the instant action.

The court denied the action. FOIA Exemption 3 permits an agency to withhold a record that is "specifically exempted from disclosure by statute." The court then determined that MLAT is a "statute" within the meaning of FOIA. Because MLAT provides that RFA letters are to be treated as confidential, the court found the RFA letter cannot be subject to a FOIA request.

Takeaway:

Always fun to see the interaction between a treaty and domestic statutes. This decision is notable that it applies Medellin v. Texas, 552 U.S. 491 (2008), which held self-executing treaties are equivalent to domestic statutes.

Case of the Day: Synopsys, Inc. v. Ubiquiti Networks, Inc., 2018 U.S. Dist. LEXIS 14147 (N.D. Cal. Jan. 29, 2018)

Summary:

Plaintiff alleges the defendant pirated its software and stored the software in servers based in Taiwan. Then the defendant allegedly had its employees access the software remotely, for which the plaintiff sued for the Digital Millennium Copyright Act (DMCA) and fraud. In the course of the litigation, Plaintiff sought to conduct discovery over the Taiwanese servers, and the defendant objected.

The court granted the motion to compel. The court found the information stored in the servers in Taiwan is relevant. The court also rejected the defendant's claim that the DMCA did not apply to violations occurring wholly outside of the country, noting that this is a discovery motion and there are plausible scenarios under which the information stored in Taiwanese servers may be relevant--because, for example, the court may yet hold that the act of piracy happened in the United States rather than Taiwan. The court also found the Ninth Circuit's "Server Test" from Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007) to be inapposite, as the Server Test does not cover the situation in which the violative act was initiated in the United States.

Takeaway:

Thrillsville! This is about as exciting as a case can get if you care about territoriality principles. Here is the perfect manifestation of the contradictions in Equity Extraterritoriality. On one hand, the question is: if territoriality principles are to be observed, on what basis could the United States court exercise jurisdiction over servers located in Taiwan? On the flip side: if the Server Rule is an attempt to apply the territoriality principles into digital information, why formulate a separate test based on "control," i.e. the location of the person initiating the action? The difference runs from the fact that the court is taking a different approach to a discovery motion rather than the merits, but such distinction cannot be considered meaningful when we are discussing the application of territoriality, a bedrock principle in international law.

Case of the Day: Williams v. Shulkin, 2017 U.S. App. Vet. Claims LEXIS 353 (Ct. App. Vet. Claims Mar. 13, 2017)

Summary:

Plaintiff is a veteran who served in the U.S. Army stationed in Thailand during the Vietnam War, and claimed he developed cancer and diabetes because he was exposed to Agent Orange during the war. His initial claim was denied because he was not stationed in Vietnam. Later, he re-filed his claim, alleging he handled chemicals while being stationed in Thailand. The Veterans Administration again denied the claim, finding that it could not verify presence of Agent Orange in the base in Thailand in which the plaintiff served.

On appeal, the court found that the VA did not adequately assist the plaintiff in obtaining evidence necessary to substantiate his claim for benefit, as provided in 38 U.S.C. s.5103A(a)(1). The court vacated the denial and remanded, allowing the plaintiff to re-file the claim with additional evidence.

Takeaway:

One of the more under-explored areas of U.S.'s relationship with Asia is how the U.S. military engagement in Asia winds up in U.S. courts. Military justice system belongs in its own ecosystem, which makes it an interesting read every time.

Case of the Day: Dyson, Inc. v. Sharkninja Operating LLC, 2017 U.S. Dist. LEXIS 14435 (N.D.Ill. Feb. 2, 2017)

Summary:

Plaintiff sued the defendant alleging patent violation regarding a handheld vacuum cleaner. Defendant, in turn, sought to examine the plaintiffs' employees in United Kingdom, Singapore and Denmark pursuant to the Hague Convention. The magistrate judge issued a letter rogatory allowing examination as to one of the three patents involved. Defendant appealed to the district judge.

Although the defendant submitted additional information indicating that the plaintiffs' employees are likely to have information regarding the other two patents, the district judge affirmed the magistrate judge's order, based on the "clearly erroneous standard"--if there are there are two permissible views of facts, choosing one or the other cannot be clearly erroneous.

Takeaway:

This is one of the opinions that makes you wonder if there is a bigger backstory. Asking for a letter rogatory is a big step--especially considering that one can simply ask the district court to examine witnesses who are located abroad. Why bother going through the Hague Convention? And why are these witnesses so important that the party needed to file an interlocutory appeal, expending more lawyer time?

One final lesson: evidentiary ruling is difficult to win on appeal. It is important to get it right on the first shot, because "clearly erroneous" standard is a hard one to overcome.

Case of the Day: Peiqing Cong v. ConocoPhillips Co., 2016 U.S. Dist. LEXIS 154505 (S.D. Tex. Nov. 8, 2016)

Summary:

Chinese fishermen suffered harm from a massive oil spill in China's Bohai Bay, in an oil field developed by (among other parties) ConocoPhillips China. The plaintiffs fishermen sued in the Texas state court, petitioning for a pre-suit deposition of ConocoPhillips executive to investigate potential claims pursuant to Texas Rules of Civil Procedure 202. Defendant removed to the federal court. Plaintiffs claimed that the removal was improper, because a Rule 202 petition is a discovery device rather than a civil lawsuit.

The court found that a Rule 202 petition was a civil lawsuit, which is removable to a federal court. Further, the court found that the plaintiffs filed the petition for the purpose of harassment rather than good faith investigation of the facts. The court found that the plaintiffs were substituting a properly pleaded complaint with a simpler Rule 202 petition. The court denied the petition.

Takeaway:

Texas Rule 202 is a kind of a crazy thing. It allows a party to conduct discovery prior to filing a suit for investigative purposes. Because discovery in U.S. civil litigation may become abusive very quickly, it is a great way to harass a defendant without filing a case. And because Texas is a home to a number of international energy companies like ConocoPhillips, this device is exploited to the maximum. Who would have thought Chinese fishermen would be able to engage in this type of sophisticated international litigation tactic?

Don't cry for the international energy companies, however. When oil companies become the plaintiffs, they are quite happy to exploit Rule 202 as well.

Case of the Day: Estate of Zhong Zhuang, 2016 N.Y.L.J. LEXIS 3424 (N.Y. Surr. Ct. Oct. 27, 2016)

Summary:

Decedent died in China, leaving assets in New York corporations. Decedent's mother, who is the administratrix of the estate, sought to take deposition of the decedent's girlfriend and business partner regarding the New York assets. The business partner objected, noting that she is currently residing in China and is unable to travel to U.S. for in-person deposition. The administratrix then sought leave of the court to depose the business partner in China.

Noting that China is a signatory to the Hague Evidence Convention, the court granted the leave to issue letters rogatory to China's Central Authority, pursuant to the Evidence Convention.

Takeaway:

In a nice change of pace, here is an example of a U.S. court actually following the Hague Evidence Convention. This is likely because this is a state court case--in cases involving the Federal Rules of Civil Procedure, the U.S. Supreme Court has ruled in Aerospatiale that the Hague Evidence Convention is not the exclusive means of taking extraterritorial discovery.

This case opens up another interesting question: why does the New York court have to be involved here at all? The estate is in China and is being administered out of China. The person who controls the decedent's asset is also in China. New York court's interest lies with the fact that those assets are located in New York, but is this really enough? Does it even make sense to require the Chinese administratrix to go through the Hague Convention procedure (which is time-consuming and cumbersome,) just to conduct discovery in China?

Case of the Day: State v. Harris, 2016 Iowa App. LEXIS 951 (Iowa App. Ct. Sept. 14, 2016)

Summary:

Defendant challenges his conviction for robbery, based inter alia on the claim that the district court erred in allowing a witness deposition to be read into the record. The witness, who was Korean, relocated to Korea after the deposition and the prosecution was unable to contact him for the trial testimony.

The court found that the prosecution expanded reasonable effort in trying to locate the witness. After attempting to contact the family of the witness, the prosecution found the witness's Facebook page that appeared to show that the witness relocated to Korea to serve his mandatory military service. Although the prosecution did not attempt to contact the Korean government or take other actions, the court found that the prosecution did enough.

Takeaway:

Procuring witness is a constant challenge when the litigation involves a foreign witness. Here is the standard when you have a witness who leaves the country.

Case of the Day: In re O'Keeffe, 2016 U.S. App. LEXIS 16755 (11th Cir. Sept. 13, 2016)

Summary:

Petitioner O'Keeffe is a journalist who is being sued by billionaire Sheldon Adelson in Hong Kong for libel. To use in the Hong Kong litigation, the petitioner issued a subpoena to Adelson's former architect in Florida pursuant to 28 U.S.C. s. 1782. Adelson moved to quash the subpoena.

The court found that the district court did not abuse its discretion in granting the subpoena because the architect's testimony is relevant.

Takeaway:

The case itself is nothing new, but the person involved is interesting. Clearly this appeal was borderline frivolous--almost certainly made only to make life difficult for the journalist.

Milestones: In re Letters Rogatory from Tokyo Dist., 539 F.2d 1216 (9th Cir. 1976)

Summary:

Tokyo District Court sent a 28 U.S.C. s.1782 letter rogatory to the U.S. District Court for the Central District of California. Defendants argued that the letter did not fulfill the requirements of s.1782 because it was not assisting a "tribunal"; Tokyo District Court issued the letter upon request from the Tokyo District Public Prosecutor's Office, which according to the plaintiffs meant that the court was serving an administrative function.

The court found that while s.1782 was not designed to assist "foreign governmental bodies whose purpose is to conduct investigations unrelated to judicial or quasi-judicial controversies," Tokyo District Court was a tribunal within the meaning of s.1782.

Takeaway:

As one can see from this case, s.1782 is interpreted very broadly.

Case of the Day: Punwaney v. Punwaney, 2016 N.Y. Misc. LEXIS 2346 (N.Y. Sup. Ct. June 23, 2016)

Summary:

Plaintiff alleges that the defendant, who is the plaintiff's sister, converted money deposited in the bank account in India. Plaintiffs sought to depose the bank officials in India pursuant to N.Y. C.P.L.R. 3108. The court granted the application, and issued a commission (i.e. letters rogatory) to the Clerk of the High Court of Bombay to depose the witnesses in India.

Takeaway:

This is a relatively rare case in which the parties actually go through the C.P.L.R. 3108 application rather than simply stipulating to the discovery. For New York practitioners of international litigation, C.P.L.R. 3108 is a must-have arrow in the quiver.

Case of the Day: United States v. Malik, 2016 U.S. Dist. LEXIS 71511 (D. Kan. June 1, 2016)

Summary:

Defendant, an immigrant from Pakistan, faces a denaturalization proceeding on the charges that he had already been married when he married a U.S. citizen, thereby obtaining U.S. citizenship. Plaintiff United States sought to depose Defendant's daughter from the alleged first marriage. Defendant sought to quash the deposition subpoena, or in the alternative, limit the scope of the subpoena such that the deposition would not tread on embarrassing personal details. The court granted the second request.

Takeaway:

How often do you see the charges of bigamy in modern cases?