In rе Application of MAN GROUP LIMITED, MAN STRATEGIC HOLDINGS LIMITED, MAN INVESTMENTS LIMITED, and MAN INVESTMENTS AG,
24-MC-559 (JHR) (OTW)
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
January 24, 2025
ONA T. WANG, United States Magistrate Judge
OPINION & ORDER
I. INTRODUCTION
On December 11, 2024, Petitioners Man Group Limited, Man Strategic Holdings Limited, Man Investments Limited, and Man Investments AG (together, “Petitioners“) submitted an ex parte application (the “Applicatiоn“) to this Court seeking an order pursuant to
Beсause I find that Petitioners have met the requirements to obtain discovery under Section 1782, the Application is GRANTED.
II. RELEVANT BACKGROUND
A. Factual History
Petitioners are member entities of a global investment firm whose parent is listed on the London Stock Exchanges. (ECF 7 at ¶ 6). Petitioners rely on intermediaries, such as banks, independent financial advisors, and other asset managers to market and promote Petitioners’ financial products. (ECF 7 at ¶ 10).
Wafra, the target of Petitioners’ subpoena, is an investment firm headquartered in Manhattan, with an address at 345 Park Avenue, New York, New York 10154-0101, registered as an investment advisor with the U.S. Securities and Exchange Commission, and operating as a U.S.-based asset management company. (ECF Nos. 7 at ¶ 12, 7-2 at 2 (Wafra‘s Form ADV, dated May 7, 2024)). Wafra is a subsidiary of the Pension Fund. (ECF 7 at ¶ 12). Wafra is not a party in the English Proceedings. (ECF 7 at ¶ 12). (See also ECF 7-3 at ¶ 11).
The English Proceedings are currently set for trial before the High Court of Justice of England and Wales for March 17, 2025. (ECF 7 at ¶¶ 4, 19). (See also ECF 19). There, the Pension Fund alleges that, between 1996 and 2012, its former Director General, the late Fahad Maziad Rajaan Al Rajaan, (“Al Rajaan“) received secret, unlawful payments intended to
As relevant here, in the English Proceeding, Petitioners arguе, inter alia: that there is no evidence that Al Rajaan‘s authorization or influence was the reason for El Ghazzi‘s alleged payments to Al Rajaan; that there is no evidence that Petitioners knew of El Ghаzzi‘s alleged payments; and that the Pension Fund knew that Al Rajaan was receiving unlawful payments beginning in the 2000s. (ECF 7 at ¶¶ 20–22).
Petitioners propose to subpoena Wafra in connection with six requests for production of documents relating to allegations of bribery, corruption, or receipt of improper payments by Al Rajaan and the Pension Fund, and Wafra‘s knowledge of the same. (ECF Nos. 7 at ¶¶ 29–30, 7-1 (the Subpoena)). Petitioners assert that the discovery is essential to their defenses in the English Proceedings, namely: (1) that the Pension Fund‘s claim against the Petitioners is time-barred; and (2) that the Pension Fund‘s own significant contributory fault extinguishes or diminishes its claims against Petitioners. (ECF Nos. 5 at 11–12, 7 at ¶ 29). Based on prior discovery in the English Proceedings, Petitioners believe that Wafra has relevant evidence regarding thesе issues. (ECF 7 at ¶ 26).
B. Procedural History
Petitioners have thus far been unable to obtain discovery from Wafra. Petitioners have requested that the Pension Fund ask Wafra to voluntarily disclose the materials, but the Pension Fund has prоduced only limited responsive documents, which Petitioners say do not satisfy their document requests. (ECF 7 at ¶¶ 31–40). Furthermore, the High Court has
III. DISCUSSION
A. Legal Standard
Under
Under the framework articulated in Intel Corp. v. Advanced Micro Devices, Inc., a district court should consider four factors when deciding whether to exercise its discretion to grant Section 1782 discovery: (1) whether the target of discovery is a participant in the foreign proceeding; (2) the nature of the foreign tribunal, the proceedings’ character, and the tribunal‘s receptiveness to U.S. federal court assistance; (3) whether thе application attempts to circumvent foreign proof-gathering restrictions; and (4) whether the request is unduly intrusive or burdensome. 542 U.S. 241, 264–65 (2004).
B. Analysis
Petitioner satisfies the three statutory requirements under Section 1782. Petitioner has shown that Wafra is “found” in this District within the meaning of Section 1782, because Wafra is registered as an investment advisor with the U.S. Securities and Exchange Commission, operates as a U.S.-based asset management firm, and has a principal place of business at 345 Park Avenue. (ECF Nos. 7 at ¶ 12, 7-2 at 2). See In re del Valle Ruiz, 939 F.3d 520, 528 (2d Cir. 2019) (holding that “found” “extends to the limits of personal jurisdiction consistent with due process“). Petitioners meet the “for use” requirement because they aver that they intend to use discovery obtained from Wafra to support the merits of their defenses in the English Proceeding—an indisputably foreign proceeding before a foreign court. (ECF Nos. 5 at 11–12, 7 at ¶ 29). See Mees, 793 F.3d at 301. Finally, Petitioner is a party to the foreign proceeding, and thus is an “interested person” under Section 1782. Intel, 542 U.S. at 256.
First, although Wafra is a subsidiary of the English Plaintiff, it is not a namеd party in the English Proceeding because parent companies who are participants to foreign proceedings are considered separate legal entities from their subsidiaries and affiliates for Section 1782 purposes. In re del Valle Ruiz, 939 F.3d at 523.
Second, there is no “authoritative proof” that the English High Court would not be receptive to Section 1782 relief. In re Ernesto Andrade Grp., 712 F. Supp. 3d 438, 441 (S.D.N.Y. 2024) (quoting Euromepa S.A. v. R. Esmerian, Inc., 51 F.3d 1095, 1100 (2d Cir. 1995) (“[The district court] should consider only authoritative proof that a foreign tribunal would reject evidence obtained with the aid of Section 1782“)). Rather, “there is ample evidence that courts in the United Kingdom” are receptive to this Court‘s assistance with discovery under Section 1782. In re Tel. Media Grp. Ltd., 23-MC-215 (JGLC), 2023 WL 5770115, at *8 (S.D.N.Y. 2023). In this specific case, the English Court has already endorsed a consent order, jointly submitted by the parties to the English Proceeding, memoriаlizing Petitioners’ permission to use documents produced to them in that action to support this Application. (ECF Nos. 19, 19-1).
Third, there is similarly no evidence that the English Court prohibits Petitioners from obtaining the information sought. Mees, 793 F.3d at 303 n.20; In re Tiberius Grp. AG, 19-MC-4667 (VSB), 2020 WL 1140784, at *4 (S.D.N.Y. 2020) (“Only where the materials being sought are privileged or otherwise prohibited from being discovered or used is the third Intel factor implicated.“). The English Court adopts a permissive apprоach to obtaining evidence from other jurisdictions for use in litigation before it, including evidence obtained pursuant to
Finally, the Court has reviewed the subpoena and document requests at ECF 7-1, and finds that they are not unduly intrusive or burdensome. See Intel, 542 U.S. at 265. A subpoena is unduly burdensome if the burden to the subpoеnaed party outweighs the value of the information to the serving party, when considering: the relevance of the information sought; the party‘s need for the documents; the breadth of the documents; the time-period the request covers; the particularity with which the documents are described; and the burden imposed. Citizens Union of City of New York v. Att‘y Gen. of New York, 269 F. Supp. 3d 124, 138 (S.D.N.Y. 2017). Petitioners’ subpoena requests documents and information that Wafra would be expected to maintain in the ordinary course of business and/or that the Pension Fund has already confirmed exists in Wafra‘s records. See, e.g., In re Ulmans, 23-MC-23 (GHW)(VF), 2023 WL 3853703, at *6 (S.D.N.Y. Apr. 20, 2023) (finding that a rеquest for documents maintained in the ordinary course of business was not unduly burdensome under Section 1782). Wafra may challenge specific requests by filing a motion to quash pursuant to
For the foregoing rеasons, Petitioners’ Application for discovery pursuant to
The Clerk of the Court is respectfully directed to close ECF Nos. 1 and 3.
SO ORDERED.
/s/ Ona T. Wang
Ona T. Wang
United States Magistrate Judge
Dated: January 24, 2025
New York, New York