In re Application of Berlamont (S.D.N.Y. 2014)

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In re Application of FRANCK
BERLAMONT for an Order Pursuant to
28 U.S.C. § 1782 to Conduct
Discovery for Use in Foreign
14-mc-00190 (JSR)
Petitioner Franck Berlamont commenced the instant proceeding on
June 18, 2014, seeking to obtain pursuant to 28 U.S.C.
transcripts and exhibits (hereinafter referred to as the "Jaitly
documents") associated with an examination of one Rajiv Jaitly
conducted during discovery in a case formerly pending before this
Court, Rembaum et al. v. Banco Santander, S.A., et al., 10-cv-4095
( "Rembaum") . 1 The stated purpose of the requested production of the
Jaitly documents was to aid in a Swiss criminal investigation of
Jaitly's former colleague in Optimal Investment Services ("OIS"),
Manuel Echevarria. The application was originally brought ex parte,
and on June 20, 2014, Judge Gardephe granted this application,
including a subpoena issued to OIS's counsel, Hunton and Williams
ors and H&W now seek to have this Court vacate the Order
granting petitioner's
1782 application and quash the subpoena, or
in the alternative, to have this Court issue a protective order to
During discovery in Rembaum, the parties sought an examination of Jaitly, who
was residing in England at the time. The Rembaum Court issued Letters Rogatory to
the English High Court of Justice, Queen's Bench Division, requesting that
Jaitly's examination be ordered in London. Declaration of Shawn Patrick Regan,
dated June 30, 2014 ("Regan Decl.n), Exhibit ("Ex.n) A. The English High Court
granted the application and ordered the examination of Jaitly. Regan Deel., Ex B.
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maintain the confidentiality of the documents that petitioner
In the interests of international comity, 28 U.S.C.
permits federal courts to grant discovery within the United States
for use in foreign proceedings. See, e.g., Lancaster Factoring Co.
90 F.3d 38, 41 (2d Cir. 1996)
Ltd. v. Mangone,
(stating that the
goal of § 1782 is to "provide 'equitable and efficacious' discovery
procedures in the United States courts 'for the benefit of tribunals
and litigants involved in [international]
allege that the
litigation'"). OIS and H&W
1782 Subpoena should be quashed because,
(1) Berlamont has failed to show that the requested
documents are for "use in a foreign proceeding" as required by
the Intel factors counsel against granting
Intel Corp. v. Advanced Micro Devices,
1782 aid, see
542 U.S. 241, 264-65
the Rembaum proceedings do not permit disclosure of the
Jaitly documents;
(4) Swiss attorney-client privilege prohibits
disclosure of the Jaitly documents; and (5)
the Hague Convention and
principles of comity prohibit disclosure of the requested documents.
The Court, for the reasons following, denies the motion in its
First, OIS and H&W's argument that Berlamont somehow fails to
satisfy the "for use in a foreign proceeding" prong of
because Berlamont is not attempting to admit the Jaitly documents
into evidence in a foreign Court, is without merit. A complaining
witness's presentation of evidence to an investigating magistrate
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satisfies the "for use" prong of
1782. Intel,
542 U.S. at 257-58.
Here, the Swiss prosecutor, Marc Tappolet, has explicitly stated
that "[t]he official report and explanations in the United States by
Mr. Rajiv Jaitly .
. is of great usefulness for my inquiry."
Declaration of 0. Andrew F. Wilson dated July 15, 2014
Supp. Deel."), Ex. A at 1. Thus the Court finds that the Jaitly
documents are for "use in a foreign proceeding" as required by §
Second, the Intel factors weigh in favor of granting aid in
this instance. Those factors are:
(1) whether the person from whom
discovery is sought is a participant in the foreign proceeding (in
which case the discovery can be sought through other means);
(2) the
nature of the foreign tribunal and the receptivity of the foreign
court to federal court assistance; and 3) whether the application is
unduly intrusive or burdensome. Intel, 542 U.S. at 264-65. Here, 1)
OIS and H&W are not parties to the Swiss proceeding; 2) the Swiss
prosecutor has explicitly stated that the Jaitly documents are "of
great usefulness" for the foreign proceeding, Wilson Supp. Deel.,
Ex. A at 1; and 3) the petitioner is seeking a specific, discrete
set of documents that are easily identifiable and not unduly
Third, the Rembaum proceedings do not prevent the Court from
granting Berlamont's application. To begin with, the Rembaum
Confidentiality Order does not prevent the Court from granting
Berlamont's application. While the parties dispute whether the
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Confidentiality Order applies to the Jaitly documents, it is
undisputed that the Confidentiality Order in Rembaum explicitly
states that "[n]othing contained herein shall prevent disclosure to
persons who are not Qualified Persons under the terms of this
Confidentiality Stipulation and Order if .
. the Court, after
notice to all affected persons, allows such disclosure."
Declaration of Shawn Patrick Regan, dated June 30, 2014
Deel."), Ex. Cat 8. This is the situation here.
Additionally, the Letters Rogatory in Rembaum do not prevent
the Court from granting Berlamont's application. OIS and H&W argue
that English law of confidentiality applies to this case because the
Letter Rogatory states "[t]he District Court additionally requests
that the confidentiality of any evidence produced be maintained
pursuant to the laws of England." Regan Deel., Ex. A. at 10.
However, the Order that governed the Jaitly examination in England
was not the Letters Rogatory, which are nothing but a request for
judicial assistance, but rather the English High Court's Order,
Regan Deel., Ex. B, which contains no reference to the language in
the Letters Rogatory on which OIS and H&W rely.
Fourth, Swiss attorney-client privilege does not prohibit
disclosure. In fact,
Swiss privilege law does not even apply here
because the Jaitly documents, in the language of relevant authority,
fail to "touch base" with Switzerland. See, e.g., Anwar v. Fairfield
Greenwich Ltd., 982 F. Supp. 2d 260, 264
(S.D.N.Y 2013). Instead,
the Jaitly documents are located in New York, were created and
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produced in the context of a case pending in New York, and are being
sought from United States lawyers in a court in New York pursuant to
a United States statute.
Fifth, neither the Hague Convention nor principles of comity
prohibit disclosure.
and H&W argue that granting the application
contravenes Article 1 of the Hague Convention, which prohibits using
Letters Rogatory "to obtain evidence which is not intended for use
in judicial proceedings, commenced or contemplated." Convention on
the Taking of Evidence Abroad in Civil or Commercial Matters, art. 1
July 27, 1970, U.S.T. 2555, 847 U.N.T.S. 231. But Berlamont's
application does not run afoul of this treaty language because
Article 1 does not impose any restrictions on the subsequent use of
evidence obtained pursuant to properly issued Letters Rogatory.
and H&W's appeal to principles of comity is also misplaced, as the
English High Court's Order includes no express condition that
Jaitly's examination only be used in Rembaum.
For the foregoing reasons,
and H&W's motion is hereby
denied in its entirety. The Clerk of the Court is directed to close
docket numbers 1, 7, and 10 on the docket of this case.
New York, NY
August 1, 2014