The US Court of Appeals for the Second Circuit, which includes the states of Connecticut, New York, and Vermont within its jurisdiction, is currently tasked with addressing and deciding how far to extend an ever narrowing standard applied to proceedings brought pursuant to Section 1782 of the United States Code.
In In re: Application of Gorsoan out of the US District Court for the Southern District of New York, the Second Circuit has been asked to decide whether an application for judicial assistance to obtain discovery for use in aid of a foreign judgment meets the statutory requirements for relief to be granted pursuant to Section 1782. The ramifications of the Second Circuit’s decision are certain to resonate globally, as New York remains a hotbed for seeking US judicial assistance for foreign tribunals, both because of its geographic proximity to Europe and because of the myriad of global businesses that identify New York as their principal places of business.
As many global restructuring and insolvency practitioners are aware, Section 1782 is the product of more than 150 years of effort from the US Congress to provide federal-level court assistance in gathering evidence in the US for use in a foreign tribunal. Generally, whether to grant this assistance is determined by a two-part inquiry: (1) whether a US District Court is authorised to grant relief pursuant to Section 1782; and (2) whether a US District Court should grant relief in its broad discretion.
At issue before the Second Circuit is one of the statutory prongs examined when a US District Court is deciding whether it is authorised to grant relief –to wit, that the evidence sought must be “for use in a proceeding in a foreign or international tribunal.”
The Gorsoan case began with an alleged US$25 million fraud, which caused a Cypriot court to issue a worldwide freezing injunction and asset disclosure order against dozens of defendants, including the Belarusian born, Florida-based socialite Janna Bullock. After Bullock refused to comply with the Cypriot court’s order, Gorsoan, a Cyprus company and fraud victim, sought assistance in the US District Court for the Southern District of New York, pursuant to Section 1782. Upon challenge in the Second Circuit, the appellate court affirmed the order granting judicial assistance and Bullock was required to produce the requested discovery. Much to the dismay of Gorsoan, and fellow fraud victim Gazprombank, Bullock failed to produce substantive discovery in response to Gorsoan’s requests. As a result, Gorsoan obtainedleave of court and a court order to take a second deposition of Bullock. At this second, court-supervised deposition, Bullock refused to answer questions by invoking her Fifth Amendment right against self-incrimination.
Thereafter, Gorsoan led its second application for judicial assistance pursuant to Section 1782, seeking authorisation to subpoena Bullock’s children, mother, and other related persons. The District Court granted that application and Gorsoan’s subsequent motion to compel, which led to Bullock’s intervention and a motion to quash the subpoenas. In January of this year, the Southern District of New York denied Bullock’s defensive motions and granted Gorsoan’s motion to compel related to its subpoenas. Atpresent, the Southern District of New York’s decision remains on appeal at the Second Circuit. However, based upon its own prior precedent in Euromepa, SA v R Esmerian, Inc, which broadly held that enforcement of a foreign judgment does not meet the “for use” prong required for Section 1782 relief, the Second Circuit may well further limit Section 1782’s use for obtaining discovery in the United States for use in foreign tribunals.
In Euromepa, the dispute stemmed from an insurance claim for approximately US$20 million in lost or stolen diamonds and other precious jewelry owned by jeweler Esmerian, Inc. and insured by Euromepa. Underlying the Section 1782 proceedings in the United States was a French action wherein the French trial court issued a judgment of approximately US$10 million in favor of Esmerian, which resulted from a finding of equal fault between Esmerian and Euromepa in the loss of the jewelry. Following the French trial court’s ruling, and after perfecting an appeal, Euromepa filed its Section 1782 petition in the Southern District of New York, seeking discovery of Esmerian regarding, among other items, proof of the jewelry’s ownership, proof of the jewelry’s insurance, and proof of the jewelry lost. Ultimately, Euromepa sought this discovery for use in its appeal of the French trial court’s ruling of equal fault among the parties. Upon review, the Southern District of New York denied Euromepa’s application, resulting in an appeal to the Second Circuit.
In between appellate argument and the Second Circuit’s decision, the French appellate court favorably amended the French trial court’s judgment in Esmerian’s favor, holding Euromepa wholly liable for the US$20 million loss. As a result, Euromepa immediately sought protection in the French bankruptcy court. The Second Circuit, without addressing the decision of the French appellate court, reversed and remanded the case for further proceedings. Contemporaneously, Euromepa sought review of the French appellate court’s decision with the French Supreme Court, which resulted in an affirmance of the lower appellate court’s opinion. Immediately following the French Supreme Court’s decision, the Southern District of New York dismissed Euromepa’s Section 1782 petition as moot because that decision effectively eliminated all pending proceedings in which Euromepa could use the discovery sought in the United States.
Thereafter, Euromepa’s second appeal followed, arguing that the Southern District of New York failed to consider the pending French bankruptcy proceeding and a potential motion to reopen the judgment of the French appellate court, as bases to avoid the Court’s finding of mootness. Upon examination, the Second Circuit found that the French bankruptcy proceeding is not adjudicative within the meaning of Section 1782 because the merits of the dispute between Esmerian and Euromepa have already been adjudicated and would not be considered in the French bankruptcy proceeding, based upon French law. Further, the Second Circuit held that Euromepa’s argument concerning the potential motion to reopen the judgment of the French appellate court was meritless, because its conceded that such a petition was unlikely to be made absent newly discovered evidence. Accordingly, the Second Circuit held that the Southern District of New York did not abuse its discretion in dismissing Euromepa’s Section 1782 petition as moot.
Applying this precedent to the Gorsoan appeal, it is entirely possible that theSecond Circuit will again hold that, because the adjudicative function of the foreign tribunal is complete, there is no basis under Statute 1782 to grant relief, thereby foreclosing Gorsoan’s ability to obtain discovery in the United States.
All hope is not lost for obtaining discovery in the US, however. While the Second Circuit appears to be gradually narrowing the door for discovery pursuant to Section 1782, the Southern District of New York specifically recognised that “[n]one of the decisions [cited by Bullock in Gorsoan] established a broad rule that asset discovery can never be adjudicative and is thus always impermissible under § 1782.” (435 F.Supp.3d at 598). Ultimately, the nuance lies in whether the discovery sought pursuant to Section 1782 could have an effect on the merits of the dispute being decided in the foreign tribunal.
Moreover, District Courts around the US have sought to further clarify the holding in Euromepa. For example, in In re: Stati, the US District Court for the District of Massachusetts held that “the Euromepa court did not universally bar discovery in all bankruptcy proceedings, particularly where issues are being adjudicated.” Further, in JSC MCC EuroChem v. Chauhan, the US District Court for the Middle District of Tennessee held that “Euromepa had not held that ‘all post-judgment proceedings are not adjudicative’.” Finally, even within theSouthern District of New York, there remains some dispute regarding how far the Euromepa decision extends: in In re: Galaxy Energy & Res Co, the court cited Euromepa for the limited proposition that Section 1782 discovery “is inappropriate where the merits of a controversy have already been decided by the foreign tribunal.”
Ultimately, according to the Southern District of New York in In re: Gorsoan Limited, “adopting the proposed far-reaching rule against asset discovery would be incongruent with § 1782’s ‘underlying policy’ that, ‘[a]bsent specific directions to the contrary from a foreign forum, . . . district courts [should] provide some form of discovery assistance’.” (435 F.Supp.3d 589, 599).
At some point later this year, the Second Circuit will likely decide whether Gorsoan will be permitted to obtain the discovery it seeks related to Bullock’s alleged involvement in the US$25 million fraud. At present, proceedings in the Southern District of New York have been stayed by court order, pending resolution of the appeal. Until resolution, and further clarity from the Second Circuit, practitioners should not wait to file their respective applications for judicial assistance pursuant to Section 1782. Instead, non-US practitioners should carefully consider the various jurisdictions where an application for Section 1782 assistance could be filed in the US (any district where the person from whom discovery is sought resides or is found), especially if that location is outside of the Second Circuit’s jurisdiction.
Further, there are other litigation tools that counsel in the US may use to otherwise obtain the discovery needed for use in a foreign tribunal when there is already a judgment – one example is domestication of a foreign judgment pursuant to a variety of state laws allowing the enforcement of foreign judgments in the US. Although differing somewhat from state to state, most states have already adopted the Uniform Foreign Money-Judgments Recognition Act (UFMJRA) and have common law decisions that reinforce a foreign party’s ability to both domesticate and enforce foreign judgments within the US.
In re: Application of Gorsoan (2d Cir. Case No. 20-680, Filed 21 February 2020)
Euromepa, SA v. R Esmerian, Inc, 154 F.3d 24 (2d Cir. 1998)
In re: Stati, No. 15-mc-91509, 2018 WL 474999, at *4 (D. Mass. 2018)
JSC MCC EuroChem v. Chauhan, No. 17-mc-5, 2018 WL 3872197, at *12 (M.D. Tenn. Aug. 15,2019)
In re: Galaxy Energy & Res. Co., 190mc-287 (LIS), 2019 WL 2743205, at *1 (S.D.N.Y. July 1,2019)
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