X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.

MEMORANDUM OPINION AND ORDER In this case, familiarity with which is presumed, China Construction Bank (Asia) Corporation Limited (“CCBA”) filed an ex parte application seeking discovery pursuant to 28 U.S.C. §1782 (“Section 1782″), which the Court granted on January 23, 2023. ECF No. 9. On March 6, 2023, the Court granted the unopposed motion of Zhang Kangyang (“Zhang”) and Suning Sports International Limited (collectively, “Intervenors”) to intervene. ECF No. 13. Intervenors now move to quash the subpoenas CCBA issued pursuant to its Section 1782 application. ECF No. 27. For the reasons that follow, Intervenors’ motion is DENIED, but the Court will hold a conference — after the parties meet and confer — to address the breadth of the subpoenas. Intervenors’ principal argument is that the discovery CCBA seeks is not “for use” in a foreign proceeding, as required by Section 1782. See ECF No. 28 (“Intervenors’ Mem.”), at 8; see also Fed. Republic of Nigeria v. VR Advisory Servs., Ltd., 27 F.4th 136, 148 (2d Cir. 2022) (listing the statutory requirements for a Section 1782 application). In its Application, CCBA alleged that there are four pending or contemplated foreign proceedings in which it intends to use the discovery: a debtor examination of Zhang in Hong Kong; a committal proceeding against Zhang in Hong Kong; a civil proceeding in Italy to invalidate a shareholder resolution of Inter Milan Football Club, of which Zhang is the president; and a proceeding to enforce a Hong Kong judgment against Zhang in Italy. ECF No. 4 (“Pet.’s 1782 Mem.”), at 2-3. At least three of these proceedings qualify as foreign proceedings within the meaning of Section 1782 and the discovery CCBA seeks will plainly be of some use in each of these proceedings. First, substantially for the reasons discussed in CCBA’s opposition, see ECF No. 34 (“Pet.’s Opp’n”), at 15-19, the Court holds that the Hong Kong debtor examination is “adjudicative,” as required to constitute a Section 1782 proceeding. See Euromepa, S.A. v. R. Esmerian, Inc., 154 F.3d 24, 27 (2d Cir. 1998). Although it is a post-judgment proceeding, and a Hong Kong court has already found that Zhang is liable for a debt owed to CCBA, see Intervenors’ Mem. 9, the debtor examination will involve judicial factfinding, see, e.g., In re YS GM Marfin II LLC, No. 20-MC-182 (PGG), 2022 WL 624291, at *5-6 (S.D.N.Y. Mar. 2, 2022) (explaining that a post-judgment proceeding involving a court hearing at which the judgment debtor would be questioned about its assets was adjudicative). In fact, based on the information revealed during the debtor examination, the Hong Kong court could even order Zhang to be imprisoned if it concludes that he willfully failed to satisfy the underlying judgment or failed to make complete disclosure. See ECF No. 5 (“1st Ip Decl.”), 39; see also ECF No. 5-30.1 Accordingly, CCBA will have “some means of actually using the evidence” it seeks in its subpoenas — including information related to Zhang’s assets and his potentially unlawful dissipation of those assets, see Pet.’s 1782 Mem. 19-20, ECF No. 7-2 (“Wire Transfer Subpoena”),

1, 4 — in the Hong Kong debtor examination. Certain Funds, Accts. &/or Inv. Vehicles v. KPMG, L.L.P., 798 F.3d 113, 122 n.11 (2d Cir. 2015); see also In re Accent Delight Int’l Ltd., 869 F.3d 121, 131 (2d Cir. 2017) (noting that, in assessing the “for use” requirement, the Second Circuit has “focused in each on the practical ability of an applicant to place a beneficial document…before a foreign tribunal”; it has “never required…that an applicant be pursuing a certain type of relief in that tribunal” (emphasis in original)). Second, although CCBA had not commenced the Italian recognition proceeding at the time it filed the Section 1782 Application, Pet.’s Opp’n 20-21, the Court finds that it was “within reasonable contemplation,” Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 258-59 (2004), which is sufficient to satisfy the statutory requirement. In its Application, CCBA provided “some objective indicium that the action [wa]s being contemplated,” and that the proceeding was not “merely speculative.” Certain Funds, 798 F.3d at 123-24. Among other things, it identified concrete steps it had taken to initiate the proceeding: It applied for certified copies of the Hong Kong judgment and certifications stating that the judgment was final, both of which are necessary to commence the proceeding. Pet.’s 1782 Mem. 11; see also ECF No. 6 (“1st D’Andrea Decl.”),

 
Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.

More From ALM

With this subscription you will receive unlimited access to high quality, online, on-demand premium content from well-respected faculty in the legal industry. This is perfect for attorneys licensed in multiple jurisdictions or for attorneys that have fulfilled their CLE requirement but need to access resourceful information for their practice areas.
View Now
Our Team Account subscription service is for legal teams of four or more attorneys. Each attorney is granted unlimited access to high quality, on-demand premium content from well-respected faculty in the legal industry along with administrative access to easily manage CLE for the entire team.
View Now
Gain access to some of the most knowledgeable and experienced attorneys with our 2 bundle options! Our Compliance bundles are curated by CLE Counselors and include current legal topics and challenges within the industry. Our second option allows you to build your bundle and strategically select the content that pertains to your needs. Both options are priced the same.
View Now
September 05, 2024
New York, NY

The New York Law Journal honors attorneys and judges who have made a remarkable difference in the legal profession in New York.


Learn More
April 29, 2024 - May 01, 2024
Aurora, CO

The premier educational and networking event for employee benefits brokers and agents.


Learn More
May 15, 2024
Philadelphia, PA

The Legal Intelligencer honors lawyers leaving a mark on the legal community in Pennsylvania and Delaware.


Learn More

Atlanta s John Marshall Law School is seeking to hire one or more full-time, visiting Legal WritingInstructors to teach Legal Research, Anal...


Apply Now ›

Shipman is seeking an associate to join our Labor & Employment practice in our Hartford, New Haven, or Stamford office. Candidates shou...


Apply Now ›

Evergreen Trading is a media investment firm headquartered in NYC. We help brands achieve their goals by leveraging their unwanted assets to...


Apply Now ›
04/15/2024
Connecticut Law Tribune

MELICK & PORTER, LLP PROMOTES CONNECTICUT PARTNERS HOLLY ROGERS, STEVEN BANKS, and ALEXANDER AHRENS


View Announcement ›
04/11/2024
New Jersey Law Journal

Professional Announcement


View Announcement ›
04/08/2024
Daily Report

Daily Report 1/2 Page Professional Announcement 60 Days


View Announcement ›