The Moldovan Stati brothers, along with related entities (the "Intervenors"), intervened in a Section 1782 matter initiated by Kazakhstan to ask the Southern District of New York on April 6 to vacate an ex parte order and quash a subpoena seeking financial discovery of financial transactions from The Clearing House Payments Company L.L.C related to the Intervenors “during the last seven years” to use in ongoing foreign proceedings.
The Intervenors argued that the discovery sought by Kazakhstan was "not in aid of a foreign proceeding, as required under 28 U.S.C. § 1782[, but r]ather, ... an improper fishing expedition filed in advance of yet another round of contemplated litigation in the U.S." The Intervenors explain that although Kazakhstan claims to seek discovery in order to supports its allegations of fraud in relation to the Intervenors obtaining an arbitration award back in 2013, the financial information sought "goes back, at most, seven years, to 2016." The Intervenors further pointed out that Kazakhstan has recently filed a new action in the District of Columbia arguing that the Intervenors have obtained the 2013 award through fraud, thus proving that "the Petition in this case was in furtherance of a U.S. proceeding."
The Intervenors also ask the Court to reject Kazakhstan's claim that the information is needed “to locate the Statis’ assets to execute on cost orders” because "clear, binding caselaw from the Second Circuit Court of Appeals prohibit[s] § 1782 relief for exactly this kind of request." The Intervenors referred to Euromepa, S.A. v. R. Esmerian, Inc., 154 F.3d 24 (2d Cir.1998) and Jiangsu Steamship Co. v. Success Superior Ltd., No. 14 CIV. 9997 CM, 2015 WL 3439220, at *4 (S.D.N.Y. Feb. 5, 2015) to support their position that “[n]either pre-judgment attachment nor post-judgment proceedings are adjudicative in nature” and thus Section 1782 cannot be used to propound discovery in such cases.
The case is In re Application of the Republic of Kazakhstan for Order Directing Discovery from The Clearing House Payments Company L.L.C. Pursuant to 28 U.S.C. § 1782, No. 1:22-mc-00367-JPO. The Intervenors are represented by Berenice Le Diascorn and Thomas Vandenabeele of Kellner Herlihy Getty & Friedman, LLP.
The Motion to Vacate can be downloaded below.
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