Judge Naomi Buchwald
Under 28 USC §1782 German limited partnership Kreke Immobilien KG sought to subpoena documents from Deutsche Bank AG (DB) for use in its lawsuit, in Germany, against DB’s wholly owned subsidiary Sal. Oppenheim jr. & Cie. AG & Co. KGaA (Oppenheim). In addition to asserting DB’s creation and acquisition of relevant documents, Kreke believed that DB controlled documents possessed by Oppenheim. The court denied Kreke’s application. Despite finding that Kreke satisfied the mandatory requirements for discovery in aid of a foreign proceeding under §1782 the court—finding the analysis in In re Godfrey compelling—determined that the bulk of authority in the Second Circuit suggests that a §1782 respondent cannot be compelled to produce documents located abroad. Discussing the factors enumerated in Intel v. Advanced Micro Devices, the court further concluded that even if it were to take the approach in In re Gemeinschaftspraxis—treating the foreign location of the documents as a discretionary consideration rather than as a bar to §1782 assistance—Kreke’s application would be denied. Among other things the court determined that Kreke’s §1782 application appeared an attempt to circumvent German discovery rules.