253 F. Supp. 3d 701
S.D.N.Y.2015Background
- Asia Maritime Pacific (Petitioner), a Hong Kong company, sought ex parte discovery under 28 U.S.C. § 1782 to locate assets of Arma Shipping & Chartering Co. and obtain banking records from 16 large banks in the Southern District of New York.
- Petitioner alleges Arma breached a charterparty by failing to pay installments; Petitioner initiated a London arbitration to recover damages; Arma defaulted in that arbitration.
- Petitioner sought broad production: any documents relating to financial transactions involving Arma (as originator/intermediary/beneficiary), detailed account statements, and identity of account signatories from Jan 1, 2014 to present.
- Petitioner said the discovery would be used to (a) identify assets for pre-judgment attachment in Turkey and to enforce an anticipated London award, (b) support claims against sub- and sub-sub-charterers, and (c) pursue a possible indemnity claim.
- The court found Petitioner provided no basis showing Arma used any particular New York bank and characterized the request as a broad fishing expedition imposing undue burden on nonparties—especially ex parte.
- The petition was denied: petitioner failed to show the requested discovery was “for use” in a foreign proceeding and, even if statutory requirements were met, discretionary Intel factors counseled denial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 1782 discovery sought is "for use" in a foreign proceeding | Discovery will identify assets to secure an anticipated London award and support collateral proceedings | Petitioner has no showing that materials would be used in the London arbitration or any concrete foreign proceeding | Denied — petitioner failed to show materials were "for use" in foreign tribunal |
| Whether contemplated foreign proceedings are "within reasonable contemplation" | Contemplates attachment in Turkey, enforcement actions, claims vs. sub-parties, and indemnity action | Plans are speculative; petitioner lacks objective indicia of contemplated actions | Denied — contemplated proceedings are speculative |
| Whether Intel discretionary factors support issuing broad subpoenas to many nonparty banks | Broad discovery necessary to locate hidden assets; banks likely hold responsive info | Imposes undue burden; fishing expedition; no nexus to particular banks; ex parte nature problematic | Denied — discretionary factors weigh against relief |
| Whether private foreign arbitration qualifies for § 1782 use | Petitioner assumed London arbitration qualifies and that asset information is relevant | Court questioned relevance of asset-location discovery to arbitration merits and noted circuit ambiguity on arbitrations | Denied — petitioner did not show relevance or usefulness to arbitration; court treated arbitration use as unsupported |
Key Cases Cited
- Brandi-Dohrn v. 1KB Deutsche Industriebank AG, 673 F.3d 76 (2d Cir. 2012) (describes § 1782 statutory prerequisites and district-court discretion)
- Mees v. Buiter, 793 F.3d 291 (2d Cir. 2015) (clarifies “for use” requirement and permissive scope of § 1782 even for stages where foreign discovery rules differ)
- Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (U.S. 2004) (identifies discretionary factors courts must consider under § 1782)
- Certain Funds v. KPMG, 798 F.3d 113 (2d Cir. 2015) (requires objective indicia that contemplated foreign proceedings are reasonably likely and that discovered materials will be usable)
- In re Application for an Order Permitting Metallgesellschaft AG to take Discovery, 121 F.3d 77 (2d Cir. 1997) (rejects broad fishing expeditions under § 1782 and warns against abusive uses of discovery)