276 F.R.D. 143
S.D.N.Y.2011Background
- Plaintiffs seek to compel Banks (BOC, ICBC, CMB) to produce documents under a Rule 45 subpoena served January 2011.
- PI Order of January 3, 2011 required banks with notice to produce records concerning Defendants’ assets and transactions, including Bank of China and ICBC accounts.
- Banks’ NY branches claim no custody/control of documents located outside the US and contend production would violate Chinese law.
- Subpoenas requested communications, account information, credit card transactions, bank statements, loans, wire transfers, SARs, etc., related to Defendants’ counterfeiting operation.
- Court must decide whether Banks have custody/control and whether comity/foreign-law concerns permit production, potentially via the Hague Convention.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the Banks have custody and control over Chinese-branch documents? | Banks overstep presumption of control; New York branches and China branches are same corporate entity. | NY and China branches are not integrated; documents reside in China; cannot compel production. | Banks have custody and control; documents are within the Banks' control. |
| Whether comity and foreign law bar production from China. | U.S. interests and trademark enforcement outweigh China’s bank-secrecy interests; Hague alternative feasible. | Chinese law protects account confidentiality and sanctions for disclosure; comity weighs against production. | Comity weighs in Banks’ favor; production should proceed via Hague Convention first, not direct US subpoena. |
| Is Hague Convention relief a viable alternative to Rule 45 production? | Hague can obtain evidence; China increasingly honors requests; direct US discovery futile. | Hague in China may be slow, costly, uncertain; previous statements by State Dept. are unreliable. | Hague Convention route is favored; if futile, renewal of subpoena later permitted. |
| Are there additional considerations (e.g., evidence origin, specificity, hardship) affecting comity? | Information is highly specific and important to case; origin partly US-based; no easy alternatives. | Overseas location, lack of specificity about particular accounts, and potential hardship justify non-production. | Most factors weigh toward Banks; however importance and specificity favor plaintiffs, yet overall comity favors Banks; proceed via Hague. |
Key Cases Cited
- Hilton v. Guyot, 159 U.S. 113 (1895) (comity framework for cross-border judicial cooperation)
- First Nat'l Bank v. IRS, 271 F.2d 616 (2d Cir.1959) (custody/control presumption and burden on producing party)
- United States v. First Nat’l City Bank, 396 F.2d 897 (2d Cir.1968) (foreign-confidentiality interests and discovery considerations)
- Hermes Int’l v. Lederer de Paris Fifth Ave., Inc., 219 F.3d 104 (2d Cir.2000) (trademark/public policy considerations in discovery)