Karen Clarke, Author at Castaybert Law, NYC

By Karen E. Clarke, Of Counsel

As discussed in our June 8, 2016 article, 28 U.S.C. § 1782 enables foreign litigants to obtain evidence from U.S. persons for use in a foreign proceeding. Three recent decisions by two Judges in the Southern District of New York have raised interesting questions regarding how strong a showing of personal jurisdiction over the target company is needed to support a discovery order under § 1782. Although the statute itself requires only that the target “reside” or be “found” in the court’s district, the recent decisions have required the applicant to demonstrate that the target is subject to general personal jurisdiction under the Supreme Court’s restrictive “at home” test articulated in Daimler AG v. Bauman, 134 S. Ct. 746 (2014).

Australia & New Zealand Banking Group Ltd. v. APR Energy Holding Ltd.

In Australia & New Zealand Banking Group Ltd. v. APR Energy Holding Ltd., 2017 WL 3841874 (S.D.N.Y. Sept. 1, 2017), Judge Valerie Caproni granted ANZ Bank’s motion to quash a subpoena that had been issued to ANZ Bank’s New York branch office pursuant to an ex parte § 1782 application in which APR sought documents for use in its UNCITRAL arbitration against Australia over an alleged expropriation of APR’s private property. Judge Caproni held that the subpoena could not be enforced because the court lacked personal jurisdiction over ANZ Bank.

As previously noted (here and here), one of the threshold statutory requirements of § 1782 is that the person from whom discovery is sought “resides or is found” in the district in which the application is made. In ANZ Banking Group, Judge Caproni observed that whether this “resides or is found” requirement equates to a general personal jurisdiction requirement “is unclear.” 2017 WL 3841874 at *3. Nonetheless, “regardless of what section 1782 requires, the Constitution’s due process protections apply.” Id. The court held, following Gucci Am., Inc. v. Weixing Li, 768 F.3d 122, 141 (2d Cir. 2014), that the Constitutional due process requirements were not satisfied as to ANZ Bank.

In Gucci, the Second Circuit had held that a federal court must have personal jurisdiction over a non-party to compel it to comply with a subpoena under Fed. R. Civ. P. 45, and Judge Caproni saw “no meaningful distinction from a constitutional standpoint between a subpoena issued to a non-party pursuant to Rule 45 and a subpoena issued to a non-party pursuant to section 1782.” 2017 WL 3841874 at *3. The Gucci court had applied the stringent “essentially at home” general personal jurisdiction test articulated by the U.S. Supreme Court in Daimler in determining that the court did not have general jurisdiction over a non-party foreign bank because “the mere fact that the bank had branch offices in New York did not satisfy the Constitution’s due process requirements.” Id. (citing Gucci, 768 F.3d at 135, 141). Similarly, ANZ Bank, which was chartered and headquartered in Australia and had a branch office in New York that accounted for only a small percentage of its business, could not be considered “at home” in New York and was not subject to general jurisdiction sufficient to enforce the § 1782 subpoena. Id. at *4.

Judge Caproni also rejected APR’s argument that ANZ Bank had consented to personal jurisdiction in the district by registering its New York branch as a U.S. federal branch of a foreign bank under the International Banking Act (“IBA”), subjecting itself to U.S. federal regulation. Following other post-Daimler decisions in the Second Circuit and elsewhere, she explained that “[n]othing in the IBA causes [a foreign bank’s] branches to be ‘at home’ in the U.S.,” and “[t]he lack of express language in the IBA and related regulations providing that a foreign bank consents to general jurisdiction precludes a finding that ABZ Bank consented to general jurisdiction when it subjected itself to the IBA.” Id. at *4-5.

Judge Caproni also considered whether specific personal jurisdiction might be sufficient to support a § 1782 subpoena. Although the case law on this issue “is sparse and unsettled,” a specific jurisdiction analysis would focus on “the connection between the nonparty’s contacts with the forum and the discovery order at issue.” Id. at *5. Specific jurisdiction would not exist in the ANZ Banking case because there was “no nexus between ANZ Bank’s New York contacts and the subject matter of the discovery sought by APR pursuant to the section 1782 subpoena,” and “[n]one of the requested discovery is located in the United States.” Id.

The conclusion might have been different if APR had been seeking documents regarding accounts or transactions that were actually maintained or conducted at the New York branch of ANZ Bank. As the requested materials were located in Australia and not connected to the New York branch, however, the court may have viewed APR’s application as an improper attempt to use the U.S. discovery statute to obtain Australian evidence that should more properly be sought, if possible, through Australian procedures.

APR’s appeal of this decision is presently pending in the Second Circuit (dkt. no. 17-3164). APR’s arguments include that ANZ Bank’s registration under the IBA, agreeing to be subject to federal oversight in return for the privilege of doing business, should suffice to confer personal jurisdiction for the limited purpose of enforcing an informational subpoena (as contrasted with imposing liability); that ANZ Bank “is found” in New York within the meaning of § 1782 because its New York branch has had continuous and systematic business in New York for 50 years, employing over 100 people and generating income over $100 million; and that Constitutional due process does not require that a § 1782 subpoena recipient meet the stringent “at home” test of Daimler, which was a case seeking to impose liability rather than merely to obtain document discovery.

In re Sargeant

Judge William Pauley raised the jurisdictional hurdle a bit further in In re Sargeant, 2017 WL 4512366 (S.D.N.Y. Oct. 10, 2017), ruling that a § 1782 applicant was required to demonstrate the existence of general jurisdiction under the Daimler “at home” standard in his initial ex parte application papers, prior to any objection by the target. (Normally, lack of personal jurisdiction is an affirmative defense that may be waived; but if the defense is asserted by the respondent, as it was in the ANZ Banking case, the applicant bears the burden to establish jurisdiction.)

Sargeant, a plaintiff in a Panamanian attachment proceeding, sought discovery from Burford Capital, LLC, a litigation funding company that had obtained relevant documents in connection with a separate litigation involving some of the same parties. Judge Pauley determined that “Sargeant’s failure to demonstrate that Burford ‘resides’ or ‘is found’ in the Southern District of New York sinks his application.” 2017 WL 4512366 at *3. After reviewing the commentary of a leading academic who participated in drafting the statute, the rationale of the Supreme Court’s Daimler ruling, and prior Second Circuit decisions, Judge Pauley concluded that the “resides or is found” language of § 1782 does equate to the Constitutional general jurisdiction requirement. Therefore, “to ‘reside’ or be ‘found’ in a district for purposes of § 1782, a corporate entity must at the very least be subject to the court’s general jurisdiction under Daimler.” Id. at *3.

Sargeant’s ex parte application failed to make this showing. As Judge Pauley explained, “At most, the papers supporting the application indicate that Burford, a foreign limited liability company, maintains one of its ‘primary business offices’ at 292 Madison Avenue” in New York City. “Burford is clearly not incorporated or formed under the laws of New York, and the mere fact that it maintains an office in New York City … does not establish that its principal place of business is its midtown Manhattan location. Nor is the bare allegation that Burford conducts business in New York sufficient to establish that its operations in that office are “so substantial and of such a nature” as to render Burford at home in New York.” Id. at *4 (citing Gucci and Daimler).

Judge Pauley did not discuss a specific jurisdiction analysis in In re Sargeant, presumably because it was not raised (for example, by an argument in the application that the documents sought were specifically related to activities in Burford’s New York office).

In re Fornaciari

Judge Pauley did recognize the possibility of a § 1782 application resting on a specific jurisdictional predicate in In re Fornaciari, 2018 WL 679884 (S.D.N.Y. Jan. 29, 2018). There, he granted the application for subpoenas to several entities deemed to reside in New York, but denied the application as to the Royal Bank of Canada.

Judge Pauley reiterated that although § 1782 does not define what it means to reside or be found in a district, “at minimum, ‘compelling an entity to provide discovery under § 1782 must comport with constitutional due process.’” This requires, Judge Pauley stated, that Royal Bank’s “affiliations with the State [be] so ‘continuous and systematic’ as to render [it] essentially at home in the forum State,” or “that it have sufficient contacts with the forum that relate to the requested discovery or from which the discovery order arises.” 2018 WL 679884 at *2 (emph. added).

Nonetheless, Fornaciari did not meet either standard on his ex parte application. As Judge Pauley explained, “to the extent that he premises general jurisdiction on the mere existence of Royal Bank’s offices in this District, such argument is foreclosed by Daimler”; and “aside from speculation, Fornaciari does not explain what Royal Bank’s relevant contacts with the forum are or how the requested discovery arises from or relates to these contacts.” Id. Accordingly, the application was denied without prejudice as to Royal Bank, and Fornaciari was given the opportunity to supplement the record if he wished.

Conclusion

All three decisions embrace the view that an applicant for § 1782 discovery assistance is obliged to meet the same post-Daimler Constitutional due process standards as must be met in a plenary action seeking to impose substantive liability on a defendant. There may be an argument, however, that because § 1782 “is simply a discovery mechanism and does not subject a person to liability,” In re Edelman, 295 F.3d 171, 179 (2d Cir. 2002), it should be subject to a less demanding jurisdictional standard than a substantive action is.

Further, Judge Pauley’s two opinions indicate that applicants for § 1782 discovery orders will be expected to make the full jurisdictional showing on their initial ex parte application, without awaiting any objection by the target company. Since personal jurisdiction is typically a waivable affirmative defense, and since the applicant may lack the information needed for a full Daimler analysis of the substantiality of the target’s business in or contacts with the forum, it would be reasonable to allow the applicant to make a colorable showing that the target somehow “resides or is found” in New York and then wait to see if the target challenges the jurisdictional predicate in a motion to quash. As matters presently stand, though, § 1782 applicants in the Southern District of New York should try to include as much jurisdictional detail as they can if seeking discovery from a company that is not incorporated or headquartered in New York.

The attorneys at Castaybert PLLC can assist parties who wish to seek U.S. discovery for use in a foreign proceeding, and those who wish to challenge or respond to a subpoena issued under 28 U.S.C. § 1782.

By Karen E. Clarke, Of Counsel

The litigation over insurance coverage for the claims arising from NASDAQ’s bungling of the Facebook IPO has resulted in a win for NASDAQ’s directors and officers (“D&O”) liability insurance carriers. In Beazley Insurance Co. v. ACE American Insurance Co., 880 F.3d 64 (2d Cir. 2018), the Second Circuit construed the “professional services” exclusion of NASDAQ’s D&O policy to affirm the district court’s denial of coverage for class action claims asserted by unhappy Facebook investors.

In 2012, NASDAQ encountered a series of technical difficulties in executing the Facebook IPO, resulting in orders not being properly processed and confirmed. Retail investors across the country sued NASDAQ and its officers, alleging that they suffered losses as a result of its technical failures, and those claims were all consolidated in the Southern District of New York and eventually settled for $26.5 million.

NASDAQ maintained both errors and omissions (“E&O”) and D&O insurance policies. Beazley Insurance Company, the second-level E&O carrier, paid out its policy limit of $15 million in E&O coverage and took assignment of NASDAQ’s contractual rights against the D&O carriers, ACE and National, which had disclaimed D&O coverage based on the “professional services” exclusion. Beazley sued ACE and National for D&O coverage. The District Court ruled the D&O carriers not liable, and the Second Circuit affirmed.

Construing the Exclusion

The parties disputed the applicability of the D&O policy’s “professional services” exclusion, which excluded liability for “Loss on account of any Claim … by or on behalf of a customer or client of the Company [NASDAQ], alleging, based upon, arising out of, or attributable to the rendering or failure to render professional services.” 880 F.3d at 68. This type of exclusion is common in D&O policies, based on the idea that a company’s professional services failures are intended to be covered by E&O insurance rather than D&O insurance.

The principal issue here was whether the retail investors qualified as “customers” or “clients” of NASDAQ, thus triggering the exclusion. These terms were not defined in the policy, so the court needed to look to custom and usage in the industry to construe them. Although the meaning of undefined policy terms would normally be determined based upon custom and usage under applicable (New York) state law, the Second Circuit observed that in certain paradigmatically federal fields, “a court may find a policy term unambiguous where that term has a clear meaning in federal law.” 880 F.3d at 69. Surveying the federal field of securities law, the Court concluded that “the vast majority of federal courts to consider the issue find retail investors to be ‘customers’ of a stock exchange.” Id.

Beazley argued that NASDAQ itself had clearly stated, in 2012, its view that only its member broker-dealers were its customers, not the retail investors who were customers of the broker-dealers. The Court was not persuaded by this evidence. For purposes of construing the policy language, the Court explained, what is relevant is that NASDAQ purchased the policy “against the backdrop of well-established federal securities law that unambiguously considers retail investors to be customers of the exchange.” 880 F.3d at 70. Further, the fact that retail investors are customers of NASDAQ’s member broker-dealers does not mean they are not also NASDAQ’s customers. Broker-dealers are simply agents of the retail investors in consummating trades, and the “investors may be customers both of NASDAQ and of NASDAQ’s members.” Id. at 70-71.

Beazley also argued that the federal securities claims asserted in the consolidated class action complaint were not “alleging, based upon, arising out of, or attributable to the rendering or failure to render professional services,” as they were federal securities fraud claims accusing NASDAQ and the two officer defendants of making misstatements and omissions in promotional materials regarding NASDAQ’s services, to induce Facebook to choose NASDAQ for its IPO. The crux of the complaint was that the defendants engaged in false and misleading advertising, and advertising is not the performance of professional services. 880 F.3d at 71-72.

The Second Circuit acknowledged that several decisions have indeed held that actions taken to promote a business are not “professional services,” but nonetheless rejected Beazley’s argument because “the [investors] could not win at trial merely by showing that NASDAQ made false and misleading statements as to its capabilities.” 880 F.3d at 72. To succeed on their securities fraud claims, the investors would have to demonstrate that the NASDAQ defendants’ deceptive conduct caused their claimed economic loss. The investors’ complaint, however, alleged that their losses resulted from NASDAQ’s failure to properly execute the purchase and sale orders and deliver timely confirmations, not from NASDAQ’s marketing of itself to Facebook as the best exchange for the IPO. Since the execution failures that caused the losses “go to the heart of NASDAQ’s provision of professional services,” the professional services exclusion applied and the D&O insurers were not liable. 880 F.3d at 73.

Conclusion

This decision underscores that the meaning of undefined terms in an insurance contract will be determined objectively, based upon industry custom and usage and pertinent legal decisions, and may not necessarily mirror the insured’s subjective beliefs. Companies need to be aware of the relevant judicial interpretations of policy terms both when they are obtaining insurance policies and when coverage disputes arise after a claim is made.

The attorneys at Castaybert PLLC can assist parties in handling such insurance coverage disputes when they arise.

By Karen E. Clarke, Of Counsel at Castaybert PLLC

In In re Estate of Hennel, 29 N.Y.3d 487 (2017), an estate litigation originating in the Surrogate’s Court, the New York Court of Appeals took the opportunity to establish a stringent “unconscionability” standard applicable when a party seeks to use the promissory estoppel doctrine to overcome the statute of frauds. The Court stressed that promissory estoppel is a rare exception to the statute of frauds that may only be invoked in cases involving true unconscionability, not mere injustice or unfairness.

In Estate of Hennel, two grandsons of the decedent petitioned to require the estate to pay off a mortgage loan the decedent took in 2001, secured on an apartment building property he then owned. In 2006, the decedent agreed that the grandsons would take over ownership and management of the property, and he orally promised that he would direct his estate to satisfy the balance of the mortgage debt upon his death. To effectuate this agreement, the decedent simultaneously executed (1) a warranty deed that conveyed the property (but not the mortgage) to the petitioners while reserving a life estate to himself, and (2) a will that specifically directed that the mortgage on the property be paid from the assets of his estate. In 2008, however, the decedent executed another will which did not contain that specific direction but did generally direct payment of “any and all just debts” as soon as practicable after his death; yet he assured the grandsons that there had been “no change” in their agreement regarding the property.

The decedent died in 2010, and the grandsons filed a petition pursuant to SCPA § 1809 to determine the validity of their claim against the estate for satisfaction of the mortgage loan. They asserted causes of action for breach of contract and promissory estoppel based upon the 2006 agreement, and sought a ruling that the estate was required to satisfy the mortgage loan as a “just debt” under the 2008 will. The respondent executor asserted that the decedent’s alleged oral promise to direct his estate to pay off the mortgage loan upon his death was not enforceable under the statute of frauds governing testamentary provisions (EPTL § 132.1(a)(2) and GOL § 5-701(a)(1)) because it was not in writing, and the decedent’s 2006 will could not satisfy the writing requirement because it was incomplete and was revoked in 2008.

On the parties’ cross-motions for summary judgment, the Surrogate’s Court concluded that a binding agreement was reached in 2006 and the respondent should not be able to avoid that agreement through the statute of frauds. Given that the petitioners had performed the agreed management and maintenance duties without compensation for four years in reliance on the decedent’s promise to have his estate pay the mortgage debt, the court held that this case fell “squarely within that limited class of cases where promissory estoppel should be applied to remedy a potential injustice,” and accordingly granted summary judgment to petitioners. In re Estate of Hennel, 40 Misc. 3d 547, 557-60 (Sur. Ct. Schenectady Cty. 2013).

A divided Appellate Division affirmed, concluding that the elements of promissory estoppel were met and that the respondent was properly estopped from invoking the statute of frauds defense because it “would wreak an unconscionable result in this case.” In re Estate of Hennel, 133 A.D.3d 1120, 1123 (3d Dep’t 2015).

Court of Appeals Majority Establishes Unconscionability Standard

The Court of Appeals (5-1) reversed, holding that petitioners could not rely on the promissory estoppel doctrine because application of the statute of frauds would not inflict an unconscionable injury upon petitioners. The majority decision, by Judge Eugene Fahey, began by announcing that the Court was now adopting the principle, which it had not previously expressly recognized, that the statute of frauds could be overcome through a showing of promissory estoppel and unconscionable injury. After discussing the policy rationales behind this doctrine, the Court established a general rule that “where the elements of promissory estoppel are established, and the injury to the party who acted in reliance on the oral promise is so great that enforcement of the statute of frauds would be unconscionable, the promisor should be estopped from reliance on the statute of frauds.” 29 N.Y.3d at 494.

To determine what constitutes unconscionability, the Court looked to the general definition of an unconscionable contract – one where the inequality was “so strong and manifest as to shock the conscience and confound the judgment of any person of common sense” – and stated that the standard to avoid the statute of frauds “must be equally demanding, lest the statute of frauds be rendered a nullity.” Id. at 495.

Applying this demanding standard, the Court held that petitioners did not demonstrate an unconscionable injury sufficient to estop respondent’s reliance on the statute of frauds. Although petitioners had performed their end of the bargain for four years, they were not forced to expend any personal funds to pay the mortgage or to manage or maintain the property, nor to sacrifice other responsibilities or opportunities. Petitioners’ arguments that they were misled by the decedent in 2008 and were unfairly denied the full benefit of their oral bargain (receiving only $150,000 in equity in the property rather than the promised full $235,000 equity), also did not suffice. The Court explained that whenever an oral agreement is rendered void by the statute of frauds, one or both parties will be deprived of the benefit of their oral bargain, and some unfairness will typically result; but “what is unfair is not always unconscionable.” Id. at 497.

The Court instructed that, to avoid severely undermining the statute of frauds, unconscionability will be found only when application of the statute of frauds would render “a result so inequitable and egregious ‘as to shock the conscience and confound the judgment of any person of common sense.’” Id. (citation omitted). Finding no such unconscionable result here, the Court reversed the Appellate Division’s order and directed that respondent’s motion for summary judgment dismissing the petitioners’ claim be granted. Id. at 498.

Dissent Focuses on Distinct “Just Debts” Issue

Dissenting Judge Rowan Wilson agreed with the majority regarding the unconscionability standard and petitioners’ failure to meet it, and dissented only as to the result. Instead of reversal, he said, the matter should be remitted to the Appellate Division for resolution of the Surrogate’s Court’s alternative holding that decedent’s estate was obligated to satisfy the mortgage as a “just debt” of the decedent, which the Appellate Division had not addressed. Id. at 498.

The Surrogate’s Court had ruled that the mortgage debt was a “just debt” of the decedent that must be paid by the estate pursuant to the 2008 Will. 40 Misc. 3d at 560. The court rejected respondent’s argument that EPTL § 3-3.6 (which provides generally that encumbrances on a decedent’s property are not chargeable against assets of decedent’s estate) effectively removed the mortgage from the will’s provision for the payment of debts. Section 3-3.6, by its explicit language, only applies when the property is “specifically disposed of by will or passes to a distributee” in intestacy, whereas the property here had been conveyed to the petitioners by deed four years prior to the decedent’s death and never became part of his estate. “Since the Petitioners did not assume the mortgage when accepting title to the property, and the Note that the Decedent gave to Trustco Bank is a ‘just debt’ of the Decedent, the Estate is obligated to pay the outstanding balance of the Note, which would in turn discharge the mortgage on the property.” Id. The Appellate Division did not disturb the “just debt” ruling.

In the Court of Appeals, as dissenting Judge Wilson explained, “The parties did not brief or argue the ‘just debts’ issue …, so the Surrogate Court’s determination remains law of the case, meaning we cannot reverse and order judgment for respondent. The correct result here should be to remit the matter to the Appellate Division to determine the ‘just debts’ issue.” 29 N.Y.3d at 499-500. Thus, the dissenting Judge believed that the question whether the decedent’s mortgage debt owed to the Bank was a “just debt” payable by the decedent’s estate was distinct from, and not necessarily dependent upon, whether the petitioners had a legally enforceable contract with the decedent. The Surrogate’s Court, with its broad equitable authority under SCPA § 201, could deem the Bank loan a “just debt” required to be paid under the will regardless of the legal unenforceability of the decedent’s agreement with the petitioners. Id. at 499.

The majority, in contrast, viewed the Surrogate’s “just debt” ruling as dependent upon its finding that the decedent was bound by the oral agreement. Therefore, to remit for further consideration of the “just debt” issue would be “inconsistent” with the Court’s holding that the oral bargain was not binding. The majority also noted that neither party had raised any argument on the “just debt” issue in the Court of Appeals. Id. at 498.

Conclusion

In Estate of Hennel, the New York Court of Appeals provided a helpful clarification of the demanding unconscionability standard that must be met to avoid the statute of frauds on promissory estoppel grounds. Although the issue arose in an estate case, this instructive ruling will likely apply in all commercial cases. In estate cases, as the dissenting Judge noted, there is an additional lingering question regarding the extent to which a Surrogate’s “just debt” determination may be analytically distinct from a determination of the legal enforceability of an oral promise.

By Karen E. Clarke, Of Counsel at Castaybert PLLC

The Court of Appeals for the Second Circuit has recently reconfirmed the high bar to set aside an arbitration award on the ground that it was procured by fraud. In Odeon Capital Group LLC v. Ackerman, ___ F.3d ___, 2017 WL 3091560, *2 (2d Cir. July 21, 2017), which concerned a FINRA arbitral award, the Court held that a petitioner seeking to vacate an award due to fraud must demonstrate that “the fraud was material to the award.” Odeon Capital failed to meet that burden because, although it argued that respondent had committed perjury in the arbitration hearing, it “failed to establish that [respondent’s] alleged perjury had any impact on the arbitration award.” Id.

Background

Bret Ackerman, a trader at Odeon Capital, commenced a FINRA arbitration seeking more than $5 million in damages on a variety of claims including failure to pay commissions owed, breach of his employment agreement, disability discrimination, retaliation arising out of an investigation into one of his trades, and filing of a false termination notice. A three-arbitrator panel took testimony in a six-day hearing, including substantial testimony from Ackerman regarding an on-the-record interview request he had received from FINRA regarding certain trades. The arbitration panel rejected the bulk of Ackerman’s claims, finding for him only on his unpaid wages claim. The panel awarded him only $1,102,193 on that claim and ordered that negative information be expunged from his U-5 form. 2017 WL 3091560 at *2.

Odeon petitioned to vacate the FINRA award, arguing (among other things) that it had been procured by fraud. Odeon alleged that Ackerman had committed perjury at least twice during his testimony regarding the FINRA interview, misleading the arbitration panel concerning the status and outcome of a FINRA regulatory investigation into his trading activity. Odeon did not become aware of this alleged perjury until after the award was issued. The district court denied Odeon’s motion to vacate and confirmed the FINRA arbitration award. Id. at *2, 3.

The Second Circuit’s Analysis

The Second Circuit, in a unanimous opinion by Judge Pooler, agreed that the arbitration award could not be vacated. (The Second Circuit disagreed with a separate portion of the district court decision regarding attorneys’ fees.)

Under the Federal Arbitration Act (“FAA”), a court may vacate an arbitration award that “was procured by corruption, fraud, or undue means.” 9 U.S.C. § 10(a)(1). The Court began by enunciating a three-part test distilled from Karppinen v. Karl Kiefer Mach. Co., 187 F.2d 32, 34 (2d Cir. 1951): “A petitioner seeking to vacate an award on the ground of fraud must adequately plead that (1) respondent engaged in fraudulent activity; (2) even with the exercise of due diligence, petitioner could not have discovered the fraud prior to the award issuing; and (3) the fraud materially related to an issue in the arbitration.” 2017 WL 3091560 at *3. Then, assuming that a party’s furnishing of “material perjured evidence” to the arbitrators would qualify as fraudulent activity, the key issue presented to the Odeon Court was the appropriate standard for evaluating whether the alleged fraud was “material” to the arbitration. Id.

On that issue, the Second Circuit looked to the materiality standards adopted by other Circuits: “For fraud to be material within the meaning of Section 10(a)(1) of the FAA, petitioner must demonstrate a nexus between the alleged fraud and the decision made by the arbitrators, although petitioner need not demonstrate that the arbitrators would have reached a different result.” Id. (citing cases from the Fifth, Sixth, and Eleventh Circuits). The Court found this “nexus” standard to be consistent with the 1951 Karppinen analysis, where vacatur was denied because the allegedly perjured evidence “had no bearing on the real issues before the arbitrators and cannot reasonably be thought to have affected their decision in determining any relevant questions before them.” Id. at *4 (quoting Karppinen, 187 F.2d at 35).

Applying that materiality standard, the Second Circuit agreed with the district court that “Odeon cannot demonstrate Ackerman’s alleged perjury was material to the arbitration award.” This was due in part to the fact that there was no document explaining the rationale for the arbitrators’ decision because neither party had asked for a reasoned decision from the arbitration panel. The Court observed that the arbitrators had granted Ackerman relief only on his claim for unpaid wages, which alleged that Odeon had failed to pay him amounts due under the terms of his employment agreement. The award did not provide any explanation for how the panel arrived at its $1,102,193 damages award on that claim. Consequently, “[t]here is simply no basis in the record to find that Ackerman’s testimony regarding the FINRA investigation played any role in the arbitrators’ award on his unpaid wages claim.” Id. at *4.

The Second Circuit also rejected Odeon’s argument that that because Ackerman was the primary witness on the wage claim, any perjury he committed during his testimony tainted the entirety of his testimony and undermined his credibility. The Court deemed that argument, which it equated to a position “that any untruth could serve as a basis for vacating the award regardless of its materiality,” to be “wholly inconsistent with the language of the FAA, which allows vacatur only where the award was ‘procured by … fraud.’” The Court explained, “If the alleged fraud went only to a collateral issue, or to an issue that did not influence the arbitrators’ findings, then that fraud cannot serve as a basis for vacating the award because the award was not ‘procured by’ fraud.” Id. After distinguishing other cases in which the perjured testimony did appear to have some effect on the arbitral decision, the Court concluded,

Here, however, nothing in the award indicates that the arbitrators relied heavily on Ackerman’s truthfulness in making its award. Indeed, given that Ackerman sought damages in excess of five million dollars and received roughly one-fifth of that amount, and that Ackerman prevailed on just one of his eleven claims, it appears the arbitrators took most of what Ackerman said with a grain of salt. Accordingly, we affirm the district court’s finding that the alleged perjury was immaterial to the arbitration award.

Id. at *5.

Conclusion

The holding in Odeon Capital may illustrate the perils of not requesting a reasoned decision from the arbitrators. In fact, no one can know what was material to the arbitrators’ decision because there was no document explaining their reasons for finding in Ackerman’s favor on the claim for unpaid commissions or the basis for their calculation of the amounts due. Forgoing a reasoned decision may reduce the costs or duration of the arbitral process, but it may also effectively foreclose any viable appeal.

By Karen E. Clarke, Of Counsel

Since the federal Defend Trade Secrets Act (“DTSA”) took effect in May 2016, a handful of district courts have had occasion to address the pleading requirements for a claim of trade secret misappropriation under the DTSA, in the context of a Rule 12 motion to dismiss or a Rule 15 motion to amend a pleading. These decisions have provided insight as to (1) how much detail is required to state a plausible claim of misappropriation under the DTSA and (2) whether a DTSA claim can be premised on allegations of ongoing use or disclosure of trade secrets where the initial misappropriation occurred prior to the DTSA’s enactment.

1. Degree of Detail Required

The recent decisions reflect that the courts assess DTSA misappropriation pleadings using the same standards and principles they have used, under the Supreme Court’s Twombly/Iqbal plausibility standard, to assess trade secret misappropriation claims under pre-existing state law. The courts’ reliance on the jurisprudence discussing state-law claims is generally appropriate because the elements of a DTSA claim are quite similar to those of most state-law claims, except that a DTSA claim requires an additional showing that “the trade secret is related to a product or service used in, or intended for use in, interstate or foreign commerce.” 18 U.S.C. § 1836(b)(1).

Under the DTSA, a “trade secret” is broadly defined to include various forms of information “if—(A) the owner thereof has taken reasonable measures to keep such information secret; and (B) the information derives independent economic value … from not being generally known to [or] … readily ascertainable through proper means by” other persons. 18 U.S.C. § 1839(3). The term “misappropriation” is defined as “(A) acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or (B) disclosure or use of a trade secret of another without express or implied consent” by a person who used improper means to acquire knowledge of the trade secret or derived knowledge of the trade secret from someone else who used improper means or had a duty to maintain the secrecy of the trade secret. 18 U.S.C. § 1839(5).

Accordingly, a viable DTSA claim needs to allege sufficient facts to show that these elemental requirements are met. In M.C. Dean, Inc. v. City of Miami Beach, Florida, 2016 WL 4179807 (S.D. Fla. Aug. 8, 2016), for example, the court evaluated plaintiff’s allegations under the DTSA and the analogous Florida statute and concluded that both claims failed. First, the allegations were insufficient to establish a trade secret, as plaintiff failed to allege that it took reasonable steps to protect the secrecy of the information at issue when it was initially disseminated to the third party who later provided it to the City. Id. at *5-7. Second, plaintiff failed to allege misappropriation, as it did “not allege the information was acquired through any improper means, such as acts of theft, bribery or a breach of a duty owed to it”; it did not plausibly allege the City had a “duty” to protect the information (and the contract referenced in the complaint negated such a duty); and plaintiff’s allegation of knowledge that the information was acquired by improper means was “wholly unsupported by any plausible facts.” Id. at *7-8.

In ChatterPlug, Inc. v. Digital Intent, LLC, 2016 WL 6395409 (N.D. Ill. Oct. 28, 2016), the court dismissed the DTSA claim (with leave to replead) because the complaint, though prolix, “does not provide Defendants with the general contours of the alleged trade secrets that ChatterPlug is seeking to protect. ChatterPlug is not required to compromise its trade secrets, but Defendants are entitled to be able to discern what trade secrets are at issue.” Id. at *3 (citing cases addressing claims under Illinois and New York law).

Recently, the court in Space Data Corp. v. X, 2017 U.S. Dist. LEXIS 22571 (N.D. Cal. Feb. 16, 2017) dismissed plaintiff’s claims under the DTSA and the analogous California statute (with leave to amend), relying on cases addressing the pleading requirements for a state-law claim. The court explained that although a plaintiff “need not ‘spell out the details of the trade secret,’” it must “describe the subject matter of the trade secret with sufficient particularity to separate it from matters of general knowledge in the trade or of special persons who are skilled in the trade, and to permit the defendant to ascertain at least the boundaries within which the secret lies”; but plaintiff’s allegations, which provided only a “high-level overview” of its data and did not make clear which items were contained in a patent and which were secret, were insufficient. Id. at *4-5. On the misappropriation element, the court stated that “plaintiff must plead facts showing that Google had a duty not to use the information in the way alleged”; but the complaint contained only “conclusory assertions” that defendants had “engaged in other business activity based on” plaintiff’s information, and lacked adequate factual allegations to establish “a reasonable basis for this Court to infer that Google improperly used Space Data’s trade secrets.” Id. at *5.

In contrast, in Syntel Sterling Best Shores Mauritius Ltd. v. TriZetto Grp., Inc., 2016 WL 5338550 (S.D.N.Y. Sept. 23, 2016), the court found that Defendants adequately pled the elements of a DTSA counterclaim, as they had factually alleged that the information at issue fell within the scope of protected trade secrets; the reasonable measures they had taken to keep the information secret; that the information was valuable and crucial to TriZetto’s business functions and competitive position; and that Syntel had, without their consent, downloaded TriZetto’s intellectual property and used it for Syntel’s own use and financial gain. Id. at *6.

In Mission Measurement Corp. v. Blackbaud, Inc., 2016 WL 6277496, at *5-6 (N.D. Ill. Oct. 27, 2016), the court held that a plausible claim was stated under both the DTSA and the analogous Illinois statute where Plaintiff had adequately alleged specific information about the trade secrets at issue, how the defendants had acquired and used the information in their businesses, and how the plaintiff had made reasonable efforts to maintain the information’s secrecy and confidentiality. The court rejected Defendants’ argument that Plaintiff was required “to specifically identify the exact trade secrets at issue,” because prior courts have deemed trade secret allegations adequate “where the information and the efforts to maintain its confidentiality are described in general terms.” Id. at *5 (citing several cases addressing state-law misappropriation claims).

Similarly, in Chubb INA Holdings Inc. v. Chang, 2017 WL 499682 (D.N.J. Feb. 7, 2017), the court deemed a DTSA claim adequately pled where “Plaintiffs set forth factual allegations supporting an inference that Defendants did actually use misappropriated trade secrets” that they had downloaded while they were Chubb employees but were planning to work with a competitor. Id. at *9. The court noted that Plaintiffs “need not make out specific allegations as to exactly how Defendants used or disclosed Plaintiff[s’] trade secrets; there is no heightened pleading standard for a misappropriation claim, and Plaintiff[s are] entitled to seek discovery to support [their] allegations setting forth a prima facie claim.” Id. (citing a case involving misappropriation under New Jersey law).

2. Post-Enactment Conduct

A particular area of debate relates to whether the alleged misappropriation occurred before or after the effective date of the DTSA. The private cause of action created by the DTSA applies only “with respect to any misappropriation of a trade secret … for which any act occurs on or after the date of the enactment of this Act,” which was May 11, 2016. Pub. L. No. 114-153 § 2(e), 130 Stat. 376 (2016). Thus, a plaintiff must be able to point to some “act” of misappropriation – that is, an acquisition, disclosure, or use, 18 U.S.C. § 1839(5)(A)-(B) – that “occur[red] on or after” May 11, 2016.

Absent such an allegation, there can be no DTSA claim. See Champions League, Inc. v. Woodard, 2016 WL 8193292, at *6 (S.D.N.Y. Dec. 15, 2016) (adding a DTSA claim would be futile because there were no post-enactment “acts of misappropriation” and plaintiff did not allege that defendants continued to use its purported trade secrets to directly compete with plaintiff, so the alleged wrongful act could not be treated as continuing to occur post-enactment).

In most of the cases reported to date, the principal wrongful acquisition of trade secret information occurred pre-enactment and the question is whether allegations of continuing use or disclosure of the information post-enactment suffice to state a DTSA claim.

In Adams Arms, LLC v. Unified Weapon Sys., Inc., 2016 WL 5391394 (M.D. Fla. Sept. 27, 2016), the plaintiff alleged two theories of misappropriation, wrongful acquisition and wrongful disclosure. The court observed that the DTSA’s “language suggests that when an ‘act’ occurs after the effective date, a partial recovery is available on a misappropriation claim”; and therefore plaintiff “may state a plausible claim for relief, if [plaintiff] sufficiently alleges a prohibited ‘act’ occurring after May 11, 2016.” Id. at *6. The court concluded that plaintiff’s acquisition theory failed because “[e]ven taking the available inferences in Adams Arms’ favor, the facts indicate that Defendants acquired all information well prior to May of 2016.” Id. at *7. However, plaintiff’s disclosure claim survived, as it sufficiently alleged that the defendants entered into a design contract that used the allegedly misappropriated designs and specifications, which “supports an inference that Defendants disclosed Adams Arms’ trade secrets after the effective date.” Id. at *6.

Similarly, in Syntel Sterling, although all the improper downloading of information occurred well before the DTSA’s effective date, the court found that the proposed DTSA counterclaim sufficed because “[t]he plain language of the Act defines misappropriation to include ‘disclosure or use of a trade secret without the consent of another,’ and accordingly, as it was alleged that “Syntel continues to use [the downloaded information] to directly compete with Trizetto, the wrongful act continues to occur after the date of the enactment.” 2016 WL 5338550 at *6.

And in Chubb, the DTSA claim survived because although the former employees had initially misappropriated the information prior to the DTSA’s effective date, “Plaintiffs further allege that, subsequent to their resignations …, the Former Chubb Employees retained large volumes of documents containing Confidential Information after May 11, 2016, with the intent to disclose and/or use that information for the benefit of Endurance,” which suggested “a clear link between that information and subsequent solicitation of Chubb’s customers by Defendants”; and the inference of misuse was further supported by factual allegations in declarations plaintiffs submitted (in connection with a preliminary injunction motion). 2017 WL 499682 at *9.

See also High 5 Games, LLC v. Marks, 2017 WL 349375, at *6 (D.N.J. Jan. 24, 2017) (proposed amended claim was not clearly futile, as “there are different theories available under the statute, including consideration of continuing post-enactment conduct,” and the pleading included allegations of continuing acquisition and use of trade secrets, whose sufficiency should be assessed on a motion to dismiss rather than a motion to amend).

On the other hand, a purely conclusory allegation of continuing use or disclosure will not suffice. In Hydrogen Master Rights, Ltd. v. Weston, 2017 WL 78582 (D. Del. Jan. 9, 2017), the court dismissed the misappropriation claims (without prejudice) because (1) the complaint “fails to allege any nexus between interstate or foreign commerce and the [documents containing the alleged trade secret information],” and (2) the “complaint does not allege any acts on or after May 11, 2016 other than a conclusory allegation of continuing use and disclosure.” Id. at *10.

In addition, one California district court has recently taken the view that an allegation of continuing disclosure is not legally viable. In Avago Techs. U.S. Inc. v. NanoPrecision Prod., Inc., 2017 WL 412524 (N.D. Cal. Jan. 31, 2017), the court dismissed defendant’s DTSA counterclaims alleging that a continuing disclosure occurred through plaintiff’s continuing prosecution of patent applications that disclosed the secret information. The court stated:

Significantly, nPP does not suggest that any new information was disclosed in the course of the patent prosecutions that had not been disclosed prior to DTSA’s effective date. Rather, it alleges that “Avago again disclosed such information to the world by its continued prosecution of the Avago Applications.” … [T]he confidential information at issue was disclosed when the Avago Applications were published, before the DTSA came into effect. … Simply alleging that the same information was disclosed “again” is not sufficient to avoid this result as “disclosure,” by definition, implies that the information was previously secret. … Because nPP has failed to allege any facts showing that acts of misappropriation occurred after DTSA came into effect, its DTSA claim fails on the pleadings.

Id. at *8-9 (but repleading was allowed).

Conclusion

Parties seeking to craft or respond to DTSA claims must be attentive to the elements of the claim and the federal pleading requirements, as well as any nuanced differences from state-law misappropriation claims.

By: Karen E. Clarke, Of Counsel

As discussed in our June 8, 2016 article, 28 U.S.C. § 1782 is a helpful U.S. statute that enables foreign litigants to obtain documentary or testimonial evidence from U.S. persons “for use in a proceeding in a foreign or international tribunal.” There is an ongoing debate over whether a private arbitration in a foreign country qualifies as “a foreign or international tribunal” within the scope of the statute. A recent decision from the Southern District of New York, In re Ex Parte Application of Kleimar N.V., No. 16-MC-355, 2016 WL 6906712 (S.D.N.Y. Nov. 16, 2016), adds to the number of courts saying yes.

In Application of Kleimar, the applicant sought discovery for use in a series of arbitrations pending before the London Maritime Arbitrators Association (“LMAA”) against Dalian Dongzhan Group. Judge Sullivan granted the ex parte application for a subpoena to Vale S.A. (“Vale”), a foreign mining company with an indirect New York subsidiary. Vale moved to quash the subpoena on several grounds, including that the § 1782 statutory requirements were not met because Vale does not reside and is not “found” within the Southern District of New York and because the London Arbitrations are not a “foreign tribunal” under § 1782. Judge Marrero rejected each of Vale’s arguments and denied the motion.

On the “foreign tribunal” issue, Judge Marrero briefly acknowledged that “the Second Circuit [the Court of Appeals governing the New York district courts] has previously excluded private foreign arbitrations from the scope of qualifying Section 1782 proceedings.” See Nat’l Broad. Co. v. Bear Stearns & Co., 165 F.3d 184, 190 (2d Cir. 1999).

He noted, however, that “dictum of the Supreme Court in Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 258 (2004), suggests the Supreme Court may consider private foreign arbitrations, in fact, within the scope of Section 1782,” and that post-Intel, the Second Circuit had declined to readdress the issue in Chevron Corp. v. Berlinger, 629 F.3d 297, 310-11 (2d Cir. 2011). Application of Kleimar, 2016 WL 6906712 at *2.

Judge Marrero noted that courts outside the Second Circuit, relying on Intel, have found that a private arbitral body is a “foreign tribunal” within the scope of § 1782. He cited the superseded Eleventh Circuit decision in Consorcio Ecuatoriano de Telecomunicaciones S.A. v. JAS Forwarding (USA), Inc., 685 F.3d 987, 994-97 (11th Cir. 2012), which applied a functional analysis (as described in our June 8, 2016 article), as well as two district courts that have specifically found the LMAA to be a “foreign tribunal,” In re Owl Shipping, LLC, No. 14-5655, 2014 WL 5320192, at *2 (D.N.J. Oct. 17, 2014), and In re Application of Winning (HK) Shipping Co. Ltd., No. 09-22659, 2010 WL 1796579, at *9-10 (S.D. Fla. Apr. 30, 2010). Persuaded by the reasoning of those courts, Judge Marrero similarly held § 1782 applicable to the LMAA and upheld the subpoena to Vale in full. 2016 WL 6906712 at *2-3.

This decision reflects the increasing trend in the Southern District of New York of treating private arbitrations as foreign tribunals under § 1782, despite the existing Second Circuit precedent to the contrary, on the strength of the Supreme Court dictum in Intel.

By: Karen E. Clarke, Of Counsel

As discussed in our June 8, 2016 article, 28 U.S.C. § 1782 is a helpful U.S. statute that enables foreign litigants to obtain documentary or testimonial evidence from U.S. persons for use in a proceeding in a foreign or international tribunal. The statute authorizes a U.S. District Court to order discovery from a person who “resides or is found” within the court’s jurisdiction. However, as the Eleventh Circuit has recently held, the evidence itself need not be found in the United States; it need only be within the “control” of a U.S. resident to be obtainable under § 1782.

Sergeeva v. Tripleton Int’l Ltd., 2016 WL 4435616 (11th Cir. Aug. 23, 2016), concerned a Russian proceeding in which an ex-wife contended that her ex-husband was concealing and dissipating assets, for which she sought documentary evidence from a financial planning company located in Atlanta, Trident Atlanta. The order required production of documents within the “possession, custody, or control” of Trident Atlanta and its agents, representatives, and attorneys. Id. at *1. Trident Atlanta objected to the extent that the requested documents were in the possession of a non-U.S. affiliate, Trident Bahamas, and was held in contempt when it failed to comply with an order requiring the production of the Trident Bahamas material. Trident Atlanta argued that the court’s orders were invalid because § 1782 does not have extraterritorial scope and may not be used to reach documents located in foreign countries.

Calling this extraterritoriality argument “a question of first impression in this Circuit,” the Eleventh Circuit held that § 1782 does permit a court to require production of documents located outside the United States. Id. at *4. The extraterritorial “location of responsive documents and electronically stored information – to the extent a physical location can be discerned in this digital age – does not establish a per se bar to discovery under § 1782” and should not serve to “categorically restrict the discretion Congress afforded federal courts” in § 1782. Id.

The Court focused on § 1782’s provision that discovery is to be produced “in accordance with the Federal Rules of Civil Procedure” unless otherwise ordered. Federal Rule 45 requires subpoenaed parties to produce items in their “possession, custody, or control,” and its only geographical limitation concerns the location of the act of production and not the location of the documents or information to be produced. Therefore, the District Court could, consistent with the Federal Rules, require that Trident Atlanta produce responsive documents and information located outside the United States so long as Trident Atlanta had “possession, custody, or control” of such material. Id.

Noting that “control” for discovery purposes means “the legal right to obtain the documents requested upon demand,” the Eleventh Circuit endorsed the District Court’s determination that such a legal right may be established where affiliated corporate entities “have actually shared responsive information and documents in the normal course of their business dealings.” Id. at *5. The evidence showed that Trident Atlanta and Trident Bahamas were affiliates within an international financial planning group and had indeed shared the requested information in servicing their mutual clients. Accordingly, the § 1782 discovery order and contempt order were proper.

This appears to be the first circuit court decision squarely addressing the extraterritoriality issue. Pre-Intel, the Second, Seventh, and Ninth Circuits had suggested in dicta that § 1782 may not authorize discovery of material located in foreign countries. See Kestrel Coal Pty. Ltd. v. Joy Global Inc., 362 F.3d 401, 404 (2004); Four Pillars Enters. Co. v. Avery Dennison Corp., 308 F.3d 1075, 1079 (9th Cir. 2002); Chase Manhattan Corp. v. Sarrio S.A., 119 F.3d 143, 147 (2d Cir.1997). More recent district court decisions reflect a split of authority. Compare, e.g., In re Gemeinschaftspraxis Dr. Med. Schottdorf, No. Civ. M19-88 (BSJ), 2006 WL 3844464, *5 (S.D.N.Y. Dec. 29, 2006) (ordering production of documents in control of U.S.-based entity but located abroad, as the statute “requires only that the party from whom discovery is sought be ‘found’ here; not that the documents be found here”), and In re Applic. of Republic of Kazakhstan, 110 F. Supp. 3d 512, 515 (S.D.N.Y. 2015) (permitting discovery from law firm’s New York office of documents located in the firm’s London branch, because the two entities “operate as a single law firm”), with In re Godfrey, 526 F. Supp. 2d 417, 423-24 (S.D.N.Y. 2007) (discussing congressional intent and policy rationales for limiting § 1782’s reach to documents located within the U.S., and declining to order production of documents located in Russia “because the connection to the United States is slight at best and the likelihood of interfering with Dutch discovery policy is substantial”), and In re Kreke Immobilien KG, No. 13 Misc. 110 (NRB), 2013 WL 5966916, *4 (S.D.N.Y. Nov. 8, 2013) (following Godfrey analysis and denying application seeking documents from Deutsche Bank in Germany for use in German suit). It will be interesting to see which line of authority the other circuit courts adopt.

Category: Business Transactions | Commercial Litigation | Discovery Practice

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Parties to legal proceedings pending outside of the United States should be aware of a helpful U.S. statute, 28 U.S.C. § 1782, which provides a vehicle to obtain evidence from U.S. persons for use in a proceeding in a foreign or international tribunal. There are limitations on the scope and applicability of the statute, as discussed in our white paper on § 1782, “United States Discovery for Foreign Litigants,” but in many cases this statute can be a powerful tool to help foreign litigants obtain U.S. evidence that might not otherwise be accessible to them.

Some of the key points to keep in mind are:

The three basic prerequisites to obtain a discovery assistance order from a U.S. District Court are: (1) the person from whom discovery is sought must be located within the court’s jurisdiction; (2) the applicant must be an “interested person,” e., a party in the foreign proceeding or someone whose complaint triggered the proceeding; and (3) the discovery sought must be “for use in a proceeding in a foreign or international tribunal” – the prong that engenders the most debate in the U.S. courts.

There is a lively debate over whether the statutory language extends to foreign private arbitration proceedings, with courts reaching different conclusions based on whether they follow U.S. Supreme Court dicta suggesting that arbitrations are covered or older Court of Appeals decisions finding arbitrations not covered by § 1782, as discussed in our white paper .

The Supreme Court has instructed that the foreign proceeding need not already be pending but need only be “in reasonable contemplation” at the time of the request – but courts vary in their interpretation of that standard.

Once the statutory requirements are met, the court has a fair amount of discretion, exercised in accordance with guidelines set by the U.S. Supreme Court, to determine whether to grant, deny, or tailor the request for discovery assistance.

The statute provides that the discovery ordered will proceed “in accordance with the Federal Rules of Civil Procedure” – which means it will be governed by the ordinary U.S. discovery rules concerning relevance, proportionality, cost-shifting, custody and control, privilege assertions, and other aspects of U.S. discovery practice.

These and other variables can affect the viability of a request for discovery assistance under § 1782. Castaybert PLLC can assist foreign litigants who wish to request U.S. discovery for a foreign proceeding as well as U.S. persons who need to determine how to respond to a foreign discovery request.

Category: Business and Commercial Litigation | Discovery Practice