Devas Multimedia Private Ltd. v. Antrix Corp. Ltd., No. 2:2018cv01360 - Document 133 (W.D. Wash. 2021)
Court Description: ORDER granting in part and denying in part Intervenor's 112 Motion to Compel; granting in part and denying in part Respondent's 115 Motion for Protective Order. Respondent is hereby ORDERED to answer Intervenors' interrogatori es, produce the responsive documents, and comply with any notices of deposition, see docket no. 114 -28, subject to and as consistent with this Order, see Section 4(B), and to file any necessary privilege log with the Court, on or before September 17, 2021. Signed by Judge Thomas S. Zilly.(MW) (cc: Liquidator, USCA via email)
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Devas Multimedia Private Ltd. v. Antrix Corp. Ltd. Doc. 133 Case 2:18-cv-01360-TSZ Document 133 Filed 08/16/21 Page 1 of 22 1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 6 7 8 DEVAS MULTIMEDIA PRIVATE LTD., Petitioner, 9 10 and 13 DEVAS MULTIMEDIA AMERICA, INC.; DEVAS EMPLOYEES MAURITIUS PRIVATE LIMITED; TELCOM DEVAS MAURITIUS LIMITED; and CC/DEVAS (MAURITIUS) LTD., 14 Intervenor-Petitioners, 11 12 C18-1360 TSZ ORDER v. 15 ANTRIX CORP. LTD., 16 Respondent. 17 18 19 20 21 THIS MATTER comes before the Court on Intervenor-Petitioners’ motion to compel discovery, docket no. 112, and Respondent Antrix Corp. Ltd.’s motion for a protective order, docket no. 115. Having reviewed all papers filed in support of, and in opposition to, the motions, the Court enters the following Order. 22 23 ORDER - 1 Dockets.Justia.com Case 2:18-cv-01360-TSZ Document 133 Filed 08/16/21 Page 2 of 22 1 Background 1 In November 2020, the Court entered an order confirming the foreign arbitral 2 3 award at issue (“Award”) and entered a $1.29 billion judgment (“Judgment”) in favor of 4 Petitioner Devas Multimedia Private Ltd. and against Respondent. Respondent appealed 5 the Court’s order, see Notice of Appeal (docket no. 53), but to date, Respondent has not 6 paid the Judgment, sought to stay enforcement of the Judgment, or posted a supersedeas 7 bond. See Champion Decl. at ¶ 33 (docket no. 114). 8 On January 18, 2021, Respondent petitioned the National Company Law Tribunal 9 (“NCLT”) in India to “wind up” or liquidate Petitioner based on newfound allegations of 10 fraud and illegality. See Babbio Decl. at ¶ 18 (docket no. 68). The NCLT granted 11 Respondent’s petition the following day, appointing M. Jayakumar as the provisional 12 Liquidator to take over Petitioner and prepare its liquidation. Id. at ¶ 20. The Liquidator 13 promptly fired Petitioner’s global counsel, prompting Petitioner’s shareholders, Devas 14 Multimedia America, Inc. (“DMAI”), Devas Employees Mauritius Private Limited 15 (“DEMPL”), Telcom Devas Mauritius Limited (“Telcom Devas”), and CC/Devas 16 (Mauritius) Ltd. (“CC/Devas”) (collectively, “Intervenors”), to intervene in this action to 17 defend the Court’s confirmation order and Judgment. Id. at ¶¶ 23, 26–28. The Court 18 granted their motion to intervene. See Order (docket no. 76). 19 20 1 Because the parties are familiar with the facts and procedural history, the Court recounts only the 21 relevant background information here. See Orders (docket nos. 45, 49, 72, 76, & 108) (summarizing background facts and procedural history). 22 23 ORDER - 2 Case 2:18-cv-01360-TSZ Document 133 Filed 08/16/21 Page 3 of 22 1 In late May 2021, the NCLT issued a final liquidation order, appointed 2 M. Jayakumar as the official Liquidator, and ordered him to liquidate Petitioner. NCLT 3 Winding Up Order, Ex. 1 to Dutt Decl. (docket no. 113-1). The NCLT also ruled that 4 DEMPL, an Intervenor in this action, could not join or intervene in the NCLT liquidation 5 proceedings. NCLT Implead Order, Ex. 2 to Dutt Decl. (docket no. 113-2). 6 Intervenors believe that Respondent has been transferring certain business assets 7 to a new company, NewSpace India Limited (“NewSpace”), which, like Respondent, is 8 wholly owned by the Government of India and is under the direct control of India’s 9 Department of Space (“DOS”). DOS Annual Report 2020–2021, Ex. 2 to Champion 10 Decl. (docket no. 114-2 at 97); see April 2019 Article, Ex. 9 to Champion Decl. (docket 11 no. 114-9 at 7) (reporting that certain individuals believe “Antrix is being hollowed out,” 12 as its business dealings are being “shifted” to NewSpace, possibly “due to the Devas, 13 Deutsche Telekom, Columbia Capital and Telecom Ventures liability claims”). 14 On May 24, 2021, Intervenors served Respondent with discovery requests, 15 consisting of seven interrogatories, ten requests for production (“RFPs”), and a notice of 16 deposition, relating to Respondent’s assets and purported alter egos. See Interrog. & 17 RFPs, Ex. 28 to Champion Decl. (docket no. 114-28). Respondent objected to these 18 requests, see Champion Decl. at ¶ 31, but responded that Respondent does not maintain 19 any financial accounts in the United States and that it owns approximately $186,000 in 20 old receivables owed by U.S. companies, see Resp. & Obj. to Interrog. & RFPs, Ex. C to 21 Meehan Decl. (docket no. 116-3). The parties have attempted to resolve this discovery 22 dispute without Court intervention, but Respondent maintains that Intervenors lack the 23 ORDER - 3 Case 2:18-cv-01360-TSZ Document 133 Filed 08/16/21 Page 4 of 22 1 authority to seek postjudgment discovery and that the scope of the requested discovery is 2 overbroad and unduly burdensome. See Champion Decl. at ¶¶ 32–33; Meehan Decl. at 3 ¶¶ 8–9. Intervenors now move to compel discovery, docket no. 112, and Respondent 4 moves for a protective order, docket no. 115. 5 Discussion 6 1. 7 “Once a notice of appeal is filed, the district court is divested of jurisdiction over Jurisdiction 8 matters being appealed.” Nat. Res. Def. Council, Inc. v. Sw. Marine Inc., 242 F.3d 1163, 9 1166 (9th Cir. 2001) (citing Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 10 (1982) (per curiam)). Federal Rule of Civil Procedure 62.1 limits the actions a district 11 court may take when it “lacks authority to grant [certain motions] because of an appeal 12 that has been docketed and is pending.” Fed. R. Civ. P. 62.1(a). The district court 13 nevertheless “retains jurisdiction during the pendency of an appeal to act to preserve the 14 status quo.” Nat. Res. Def. Council, 242 F.3d at 1166. 15 Despite the pending appeal, this Court’s authority is not confined to the actions 16 listed in Federal Rule of Civil Procedure 62.1 because the parties’ pending motions do 17 not raise any issues that are currently on appeal. Moreover, resolving such motions will 18 “preserve[] the status quo and [will] not materially alter the status of the case on appeal.” 19 See Nat. Res. Def. Council, 242 F.3d at 1166; see also Icenhower v. Diaz-Barba (In re 20 Icenhower), 755 F.3d 1130, 1138 (9th Cir. 2014) (concluding bankruptcy court “retained 21 jurisdiction to supervise the course of conduct mandated in the judgment” and “[t]o 22 23 ORDER - 4 Case 2:18-cv-01360-TSZ Document 133 Filed 08/16/21 Page 5 of 22 1 account for . . . changed facts” after judgment was entered). The Court has jurisdiction to 2 decide the instant motions. 3 2. 4 Federal Rule of Civil Procedure 69(a)(2) provides that, “[i]n aid of the judgment Postjudgment Discovery Standard 5 or execution, the judgment creditor or a successor in interest whose interest appears of 6 record may obtain discovery from any person--including the judgment debtor--as 7 provided in these rules or by the procedure of the state where the court is located.” 8 Fed. R. Civ. P. 62(a)(2); see also Fed. R. Civ. P. 26(b)(1) (“Parties may obtain discovery 9 regarding any nonprivileged matter that is relevant to any party’s claim or defense and 10 proportional to the needs of the case.”). These “rules governing discovery in 11 postjudgment execution proceedings are quite permissive.” Republic of Argentina v. 12 NML Capital, Ltd., 573 U.S. 134, 138 (2014). A judgment creditor or successor in 13 interest “has a right to conduct reasonable post-judgment discovery and to inquire into [a 14 judgment debtor’s] assets,” including “a very thorough examination of the judgment 15 debtor.” Credit Lyonnais, S.A. v. SGC Int’l, Inc., 160 F.3d 428, 430 (8th Cir. 1998) 16 (internal quotation marks and citation omitted). 17 Likewise, under the Washington Superior Court Civil Rules (“CR”), which 18 Federal Rule of Civil Procedure 69(a)(2) incorporates, a judgment creditor may take a 19 judgment debtor’s deposition “anywhere at any time, and if the debtor objects to the time 20 and place, the burden is on them to seek a protective order.” See Ward v. Icicle Seafoods, 21 No. C06-431JLR, 2008 WL 11506711, at *2 (W.D. Wash. Feb. 19, 2008) (citing 22 CR 26(c), 30(b)(1), & 69(b) (“In the aid of the judgment or execution, the judgment 23 ORDER - 5 Case 2:18-cv-01360-TSZ Document 133 Filed 08/16/21 Page 6 of 22 1 creditor or successor in interest when that interest appears of record, may examine any 2 person, including the judgment debtor.”)). 3 3. 4 The parties dispute whether Intervenors are “judgment creditors” or “successors Intervenors’ Authority to Seek Postjudgment Discovery 5 in interest” within the meaning of the applicable procedural rules, and whether a party 6 must be a judgment creditor or successor in interest to seek postjudgment discovery. 7 Intervenors DEMPL, Telecom Devas, and CC/Devas argue that as shareholders of 8 Petitioner, they are Petitioner’s successors in interest. Intervenor DMAI argues that it is a 9 judgment creditor based on its collection services agreement with Petitioner. 10 Furthermore, according to Intervenors, because they are parties to this action, the Court 11 has the inherent authority to permit them to examine Respondent about its assets, 12 regardless of their specific status under the applicable procedural rules. The Court 13 addresses each argument in turn. 14 15 16 17 18 A. Whether Intervenors DEMPL, Telcom Devas, and CC/Devas are Successors in Interest Intervenors DEMPL, Telcom Devas, and CC/Devas, as Petitioner’s Mauritian shareholders, contend that, because they are entitled to Petitioner’s assets once it is liquidated (subject to creditors’ claims), they are successors in interest within the meaning of Federal Rule of Civil Procedure 69(a)(2). 19 A “successor in interest” is defined as “[s]omeone who follows another in 20 ownership or control of property.” Successor In Interest, BLACK’S LAW DICTIONARY 21 (11th ed. 2019). Under Washington law, the ownership of stock in a company “carries 22 23 ORDER - 6 Case 2:18-cv-01360-TSZ Document 133 Filed 08/16/21 Page 7 of 22 1 with it the inherent right to participate in the control of the corporation, . . . and the 2 inherent right to share in the assets of the corporation—after creditors—when it is in the 3 process of dissolution.” Deer Park Pine Indus. v. Stevens County, 46 Wn.2d 852, 855– 4 56, 286 P.2d 98 (1955); see also James S. Black & Co., Inc. v. F.W. Woolworth Co., 14 5 Wn. App. 602, 606, 544 P.2d 112 (1975) (permitting shareholders, as dissolved 6 corporation’s “successors in interest,” to join dissolved corporation as plaintiffs in 7 lawsuit). 8 Respondent appears to concede that Intervenors have “contingent or future interest 9 in proceeds from [Petitioner’s] dissolution or liquidation,” but argues that such interests 10 do not convert Intervenors into “successors in interest” for purposes Federal Rule of Civil 11 Procedure 69(a)(2). See Resp. to Mot. to Compel (docket no. 119 at 10). Respondent 12 relies on unpublished, non-Washington case law, arguing that Intervenors never 13 possessed any right to bring this action in their own name, as the “right to pursue a cause 14 of action either belongs to the dissolved corporation or no longer exists; at no time does it 15 pass to another party.” See id. (citing, inter alia, Mikkilineni v. United States, 53 F. 16 App’x 82, 83 (Fed. Cir. 2002), and Cohen v. Ford Motor Co., No. 1:91CV2148, 1992 17 WL 46104, at *2 (N.D. Ohio Feb. 10, 1992) (concluding that a shareholder may not 18 institute a lawsuit on a dissolved corporation’s behalf until the “corporation has paid all 19 its creditors” and the shareholder “succeed[s] to the interests of the corporation”)). These 20 authorities, however, appear to be in conflict with Washington law and Federal Rule of 21 Civil Procedure 69(a)(2)’s incorporation of the state’s procedural rules. See James S. 22 Black, 14 Wn. App. at 606. Nor do Respondent’s authorities directly address whether 23 ORDER - 7 Case 2:18-cv-01360-TSZ Document 133 Filed 08/16/21 Page 8 of 22 1 shareholders of a soon-to-be-dissolved corporation are successors in interest for purposes 2 of seeking discovery to aid in the execution of a Judgment. 2 3 In light of the permissive rules governing postjudgment discovery, the Court 4 concludes that the future, contingent interests held by Intervenors DEMPL, Telcom 5 Devas, and CC/Devas in Petitioner’s assets (once Petitioner is wound up and satisfies its 6 creditors’ claims), including any interest in the Judgment, are sufficient to show that 7 these Intervenors are successors in interest for purposes of Federal Rule of Civil 8 Procedure 69(a)(2) and are therefore entitled to obtain discovery to enforce execution of 9 the Judgment. 10 B. Whether Intervenor DMAI is a Judgment Creditor Intervenor DMAI argues that it is a judgment creditor under Federal Rule of Civil 11 12 Procedure 69(a)(2) based on the Collection Services Agreement (“CSA”) that it executed 13 with Petitioner in early 2018. The Court previously had “serious doubts about whether 14 Petitioner, in executing the [CSA], transferred to DMAI any interest in the Award or the 15 claims giving rise to this action.” Order (docket no. 108 at 11). Nevertheless, the Court 16 denied DMAI’s motion to substitute or join Petitioner for the primary reason that the 17 18 19 20 21 22 2 Respondent also appears to question shareholders’ rights under Indian law, namely whether shareholders “have the right to all of [Petitioner’s] residual proceeds after [Petitioner] is wound up,” including “the proceeds from any judgment arising out of the . . . Award and the sale thereof.” Dutt Decl. at ¶¶ 8–9 (docket no. 113). Respondent contends that shareholders “do not have any inherent right in the assets of” Petitioner, and once Petitioner “is in liquidation, only the liquidator retains [Petitioner’s] rights and powers, so the liquidator decides how to distribute its assets consistent with Indian law.” John Decl. at ¶¶ 1–5, 9–10 (docket no. 121). For purposes of the instant motions, however, the Court need not address which party’s understanding of Indian law is correct because Federal Rule of Civil Procedure 69 directs the Court to consult the other federal procedural rules “or the procedure of the state where the court is located.” Fed. R. Civ. P. 69(a)(2). 23 ORDER - 8 Case 2:18-cv-01360-TSZ Document 133 Filed 08/16/21 Page 9 of 22 1 CSA was executed several months before this action commenced, and Federal Rule of 2 Civil Procedure 25(c) “allows for substitution only in cases involving transfers of interest 3 occurring during the pendency of litigation, but it does not apply to transfers “occurring 4 before the litigation begins.” Order (docket no. 108 at 11) (quoting 6 Moore’s Federal 5 Practice § 25.31 (Matthew Bender 3d ed.)). The Court’s prior order, did not, however, 6 directly resolve whether the CSA conferred any right in DMAI to seek discovery to 7 enforce execution of the Judgment under Federal Rule of Civil Procedure 69(a)(2). 8 A “judgment creditor” is defined as “[a] person having a legal right to enforce 9 execution of a judgment for a specific sum of money.” Judgment Creditor, BLACK’S 10 LAW DICTIONARY (11th ed. 2019). As a matter of Washington law, any “party in whose 11 favor a judgment of a court has been or may be filed or rendered, or the assignee or the 12 current holder thereof, may have an execution . . . or other legal process issued for the 13 collection or enforcement of the judgment at any time within ten years from entry of the 14 judgment or the filing of the judgment in this state.” RCW 6.17.020; see also 15 RCW 6.17.030 (providing “when a judgment recovered in any court of this state has been 16 assigned, execution may issue in the name of the assignee after” certain steps are taken). 17 The CSA provides that DMAI will “[t]ake all actions necessary to protect, defend 18 and enforce the Award, including searching for and, to the extent possible, attaching 19 assets for the purposes of collecting any outstanding amounts on the Award” and “shall 20 use best efforts to provide Collection Services.” CSA at §§ 2.2(b) & 2.3, Ex. T to Babbio 21 Decl. (docket no. 68-20 at 3). Although the CSA provides that Petitioner “shall at all 22 times be the legal and beneficial owner of all funds collected” and that DMAI shall hold 23 ORDER - 9 Case 2:18-cv-01360-TSZ Document 133 Filed 08/16/21 Page 10 of 22 1 such funds “for the benefit of” Petitioner, the CSA also provides that DMAI “shall have a 2 lien on” 30 percent of amounts actually collected “until the disbursement” of such 3 amounts. Id. at § 2.4 & Ex. B. The Court is persuaded that the CSA assigns DMAI a legal right to enforce 4 5 execution of Judgment for a specific sum of money, namely 30 percent of any collected 6 amounts, and that DMAI can therefore avail itself of Washington’s legal processes for the 7 collection or enforcement of the Judgment. See RCW 6.17.020 & .030. Regardless of 8 whether the CSA creates a contractual obligation or right on the part of DMAI, there is 9 little doubt that the CSA authorizes DMAI to “[t]ake all actions necessary to protect, 10 defend and enforce the Award, including searching for and . . . attaching assets for the 11 purposes of collecting any outstanding amounts on the Award.” CSA at § 2.2(b). 3 The 12 Court concludes that DMAI is a judgment creditor within the meaning of Federal Rule of 13 Civil Procedure 69(a)(2) and can therefore obtain, for purposes of executing on the 14 Judgment, discovery related to Respondent’s assets. 15 C. Inherent Authority to Order Postjudgment Discovery Intervenors also contend that, irrespective of Federal Rule of Civil Procedure 16 17 69(a)(2), this Court has the inherent authority to permit Intervenors to seek postjudgment 18 discovery. Although district courts possess “inherent powers” that are “necessarily 19 20 3 Respondent also argues that DMAI is not a “legal representative” of Petitioner under § 41 of the 21 Restatement of Judgments. For purposes of whether Intervenors are entitled to postjudgment discovery of Federal Rule of Civil Procedure 69(a)(2), the Court need not decide whether DMAI is a legal 22 representative of Petitioner. 23 ORDER - 10 Case 2:18-cv-01360-TSZ Document 133 Filed 08/16/21 Page 11 of 22 1 vested in courts to manage their own affairs so as to achieve the orderly and expeditious 2 disposition of cases,” the U.S. Supreme Court recognizes certain limits on those powers. 3 See Dietz v. Bouldin, 136 S. Ct. 1885, 1891 (2016) (quoting Link v. Wabash R.R. Co., 370 4 U.S. 626 (1962)). “First, the exercise of an inherent power must be a ‘reasonable 5 response to the problems and needs’ confronting the court’s fair administration of justice” 6 and “[s]econd, the exercise of an inherent power cannot be contrary to any express grant 7 of or limitation on the district court’s power contained in a rule or statue.” Id. at 1892 8 (quoting Degen v. United States, 517 U.S. 820, 823–24 (1996)). 9 In light of the unique circumstances in this case, the Court concludes that 10 authorizing Intervenors to seek postjudgment discovery to enforce execution of the 11 Judgment on behalf of Petitioner is a reasonable response to the problems and needs 12 confronting the Court’s fair administration of justice. Petitioner is in the process of being 13 liquidated under the auspices of a court-appointed Liquidator. NCLT Winding Up Order, 14 Ex. 1 to Dutt Decl. (docket no. 113-1). Although the Liquidator has now hired new 15 counsel to represent Petitioner, at the direction of the Court and in compliance with Local 16 Civil Rule 83.2(b)(4), the first motion filed by this new counsel was an apparent attempt 17 to delay the proceedings. See Minute Order (docket no. 132). Because Petitioner is 18 hindered in its ability to seek postjudgment discovery or to execute the Judgment, the 19 responsibility has fallen to Intervenors to do so. 20 Furthermore, the Court’s exercise of its inherent power to authorize Intervenors to 21 obtain such discovery is not contrary to any express grant of or limitation on the Court’s 22 authority contained in the applicable rules or statutes. Respondent argues that Federal 23 ORDER - 11 Case 2:18-cv-01360-TSZ Document 133 Filed 08/16/21 Page 12 of 22 1 Rule of Civil Procedure 69(a)(2) permits only “a judgment creditor or a successor in 2 interest” to obtain postjudgment discovery, but Respondent would have the Court read 3 the word “only” into that provision, a word that is plainly not there. Nor does that rule 4 limit (or even address) the Court’s authority to permit, as opposed to a party’s ability to 5 seek, postjudgment discovery. Given the absence of any indication that ordering the 6 requested discovery would conflict with the Federal Rules of Civil Procedure or 7 applicable laws, the Court exercises its inherent authority to permit Intervenors to obtain 8 postjudgment discovery based on the unusual facts of this case and as a matter of fairness 9 and justice. 10 4. 11 Respondent moves for a protective order under Federal Rule of Civil Scope of Intervenors’ Discovery Requests 12 Procedure 26(c) “to protect [itself] from annoyance, embarrassment, oppression, or undue 13 burden or expense.” Fed. R. Civ. P. 26(c)(1); see Blum v. Merrill Lynch Pierce Fenner & 14 Smith Inc., 712 F.3d 1349, 1355 (9th Cir. 2013) (“A party asserting good cause bears the 15 burden, for each particular document [it] seeks to protect, of showing that specific 16 prejudice or harm will result . . . .” (citation omitted)). 17 Respondent makes general and specific objections to Intervenors’ discovery 18 requests, principally arguing that such requests exceed the scope of permissible 19 discovery. See Resp. & Obj. to Interrog. & RFPs, Ex. C to Meehan Decl. (docket 20 no. 116-3). Intervenors respond that they made reasonable concessions during the 21 parties’ meet-and-confer process to narrow the breadth of these requests both in terms of 22 time and subject matter, and that Respondent refused to even propose any further 23 ORDER - 12 Case 2:18-cv-01360-TSZ Document 133 Filed 08/16/21 Page 13 of 22 1 revisions. See Resp. to Mot. for Prot. Ord. (docket no. 117 at 3 n.1). The Court 2 addresses each of Respondent’s objections to Intervenors’ discovery requests. 3 A. 4 Respondent’s General Objections i. 5 Respondent’s Extraterritorial Assets Respondent objects to production of information related to its extraterritorial 6 assets on the ground that the Court lacks jurisdiction to authorize Intervenors to attach or 7 execute against assets located outside the United States, and that any related discovery is 8 thus unlikely to lead to any relevant assets. 4 9 Regardless of whether this Court lacks authority to permit execution against assets 10 located in other countries, Intervenors are entitled to obtain discovery of Respondent’s 11 assets both within and outside of the United States. In NML Capital, the U.S. Supreme 12 Court assumed that district courts are within their discretion “to order the discovery of 13 third-party banks about the judgment debtor’s assets located outside the United States.” 14 573 U.S. at 140. The Supreme Court went on to hold that the Foreign Sovereign 15 Immunities Act (“FSIA”), 28 U.S.C. §§ 1130, 1602, does not immunize a foreign16 sovereign judgment debtor from postjudgment discovery of information concerning its 17 18 4 Relatedly, Respondent contends that Intervenors seek information about Respondent’s dealings with the Government of India, as well as communications with the Liquidator, which will “further embroil this Court in matters that have absolutely no connection to the United States”; and it appears to revive its 20 argument that this matter should have been dismissed based on the doctrine of forum non-conveniens. Resp. to Mot. to Compel (docket no. 119 at 23). The Court has already declined to dismiss this action on 21 that ground, see Minute Order at ¶ 1(b) (docket no. 28), and has appropriately considered comity interests and the burden that discovery might cause to Respondent and the Government of India. See NML Capital, 573 U.S. at 146 n.6. 19 22 23 ORDER - 13 Case 2:18-cv-01360-TSZ Document 133 Filed 08/16/21 Page 14 of 22 1 extraterritorial assets; and it expressly rejected Argentina’s argument that “if a judgment 2 creditor could not ultimately execute a judgment against certain property, then it has no 3 business pursuing discovery of information pertaining to that property.” NML Capital, 4 573 U.S. at 144. The NML Capital Court explained that “information about Argentina’s 5 worldwide assets generally” allowed the judgment creditor to “identify where Argentina 6 may be holding property that is subject to execution.” Id. at 145 (emphasis in original); 7 see also SAS Inst., Inc. v. World Programming Ltd., No. 10-CV-25-FL, 2018 WL 8 1144585, at *4 (E.D.N.C. Mar. 2, 2018) (concluding that a judgment creditor “should be 9 entitled to discover where and in what amounts [a judgment debtor] has assets outside of 10 the United States to enable it to make . . . fully informed decisions about pursing or 11 continuing execution proceedings abroad”). Respondent fails to address these cases or 12 point to any other authority indicating that a district court is precluded from ordering 13 postjudgment discovery simply because that same court lacks jurisdiction with respect to 14 the attachment or execution against extraterritorial assets. 5 15 Notwithstanding this conclusion, the Court agrees with Respondent that certain 16 discovery requests involving Respondent’s assets and asset transfers are overbroad and 17 18 19 5 The Court notes that in October 2020, Intervenors DEMPL, Telcom Devas, and CC/Devas obtained a 20 separate arbitral award against the Government of India by the Arbitral Tribunal of the United Nations Commission on International Trade Law (“UNCITL”) seated in the Hauge, the Netherlands, see UNCITL 21 Award, Ex. 1 to Champion Decl. (docket no. 114-1), and that Petitioner and/or Intervenors have sought to enforce this Award in courts throughout Europe, including France and the United Kingdom. See Petition at ¶¶ 37–39 (docket no. 1). 22 23 ORDER - 14 Case 2:18-cv-01360-TSZ Document 133 Filed 08/16/21 Page 15 of 22 1 unduly burdensome. The Court addresses these issues in connection with its discussion 2 of Respondent’s specific objections in Section 4(B) below. 3 ii. 4 Respondent’s Purported Alter Egos Respondent also objects to any discovery related to Respondent’s relationship with 5 the Government of India or NewSpace, arguing that such discovery is unlikely to lead to 6 any recoverable assets because neither entity can be joined in this action on account of 7 their foreign sovereign immunity, 6 and because the International Chamber of Commerce 8 (“ICC”) tribunal has already found that Respondent and the Government of India are 9 separate legal entities. Intervenors are not precluded from obtaining certain discovery related to 10 11 Respondent’s relationship with the Government of India and NewSpace. See Fed. R. 12 Civ. P. 69(a)(2) (concluding judgment creditors and successors in interest “may obtain 13 discovery from any person, including the judgment debtor”) (emphasis added). 14 Discovery of a third party’s assets is permitted so long as the relationship between the 15 third party and the judgment debtor “is sufficient to raise a reasonable doubt about the 16 bona fides of [any] transfer of assets between them.” Credit Lyonnais, 160 F.3d at 431; 17 see also Brown v. Sperber-Porter, No. 16-2801, 2017 WL 11482463, at *7 (D. Ariz. 18 Dec. 8, 2017) (permitting discovery of “information relevant to the judgment 19 enforcement proceedings,” considering “the liberal discovery Rule 69(a) permits for 20 21 22 6 Respondent, however, appears to concede that a foreign state cannot avail itself of the protections of the FSIA when a party seeks to confirm an arbitral award against a foreign state, as in this case. See 28 U.S.C. §§ 1604 & 1605(a)(6); see also Resp. to Mot. to Compel (docket no. 119 at 20). 23 ORDER - 15 Case 2:18-cv-01360-TSZ Document 133 Filed 08/16/21 Page 16 of 22 1 judgment creditors, and the relationship between [the judgment creditor] and [third-party 2 intervenors’] bank accounts at issue”). 3 Respondent challenges this conclusion on the ground that the ICC tribunal already 4 found that Respondent is not an alter ego of the Government of India. See Award at 5 ¶¶ 221–26, Ex. 1 to Hellmann Decl. (docket no. 2-1). Respondent exaggerates the import 6 of this finding. When the ICC tribunal issued the Award in 2015, it could not have 7 possibly resolved whether Respondent has transferred or is transferring assets or business 8 operations to NewSpace or any other government-affiliated entity during the period from 9 2019 to the present. Nor could the ICC tribunal have resolved whether Respondent has 10 transferred or is transferring such assets to avoid paying any amounts due with respect to 11 the Award that the ICC tribunal had issued years earlier. 12 Nevertheless, the Court again agrees with Respondent that certain discovery 13 requests concerning Respondent’s relationship with the Government of India and 14 NewSpace are overbroad and unduly burdensome, and the Court addresses these issues in 15 Section 4(B) below. 16 17 iii. Intervenors’ Obligation to Not Seek Double Recovery Respondent also argues that it need not produce the requested discovery related to 18 the Government of India or NewSpace because Intervenors are attempting to enforce a 19 separate arbitral award directly against the Government of India and they “cannot recover 20 a penny more than the compensation that they were awarded in” that arbitration. Mot. for 21 Prot. Ord. (docket no. 115 at 23). Respondent then leaps to the conclusion that 22 “Intervenors do not need such discovery,” so it would be a “pointless” and “extremely 23 ORDER - 16 Case 2:18-cv-01360-TSZ Document 133 Filed 08/16/21 Page 17 of 22 1 expensive and burdensome[] endeavor” to permit them to seek such discovery. Id. at 23– 2 24. Respondent notably fails to mention that Intervenors have not actually recovered any 3 amounts due in connection with the separate arbitral award, meaning the risk of double 4 recovery is merely hypothetical at this point. See Champion Decl. at ¶ 33 (docket 5 no. 114). Respondent also fails to cite any authority that Intervenors are precluded from 6 seeking discovery to aid execution of this Judgment on behalf of Petitioner simply 7 because they obtained a separate arbitral award against the Government of India. 8 Assuming that Intervenors actually recover amounts due in connection with the other 9 award, Intervenors might then be precluded from executing the full amount of this 10 Judgment to avoid double recovery, whenever that time comes. Until then, Intervenors 11 are entitled to discover Respondent’s assets, as well as Respondent’s relationships with 12 the Government of India and NewSpace. See Credit Lyonnais, 160 F.3d at 431. 7 13 iv. Respondent’s Other General Objections Although Respondent did not address its other general objections in its motion for 14 15 a protective order, or its response to Intervenors’ motion to compel, some of 16 Respondent’s objections warrant further discussion. See Resp. & Obj. to Interrog. & 17 RFPs (docket no. 116-3). For example, Respondent objects to certain requests on the 18 ground that Federal Rule of Civil Procedure 69 “requires that discovery ‘be tailored to the 19 20 7 Respondent also argues, in a conclusory fashion, that Intervenors seek such discovery merely to “gin up new claims against India.” See Mot. for Prot. Ord. (docket no. 115 at 24). To the contrary, the record 21 demonstrates that Intervenors have legitimate interests in defending this Award and their separate arbitration award against the Government of India, as well as enforcing this Judgment on behalf of 22 Petitioner. 23 ORDER - 17 Case 2:18-cv-01360-TSZ Document 133 Filed 08/16/21 Page 18 of 22 1 specific purpose of enabling a judgment creditor to discover assets upon which it can 2 seek to execute a judgment.’” Id. (see Gen. Obj. Nos. 3 & 5) (citing E.I. DuPont de 3 Nemours & Co. v. Kolon Indus., Inc., 286 F.R.D. 288, 292 (E.D. Va. 2012)). The Court 4 agrees and will address Respondent’s concerns in Section 4(B). 5 Respondent also objects to the date range of Intervenors’ discovery requests, from 6 July 1, 2011, to present, as overbroad. See docket no. 116-3 (Gen. Obj. No. 6). Again, 7 the Court agrees and shall limit the date range of such requests from September 14, 8 2015, the date of the Award, to the present. Intervenors have already agreed to this 9 timeframe. See Resp. to Mot. for Prot. Ord. (docket no. 117 at 3 n.1). 10 Finally, Respondent objects to Intervenors’ discovery requests to the extent that 11 they call for information protected by attorney-client privilege or another privilege, see 12 docket no. 116-3 (Gen. Obj. No. 8). To the extent Respondent withholds materials on the 13 basis of a privilege, Respondent is DIRECTED to file the required privilege log with the 14 Court on or before September 17, 2021. 15 16 B. Respondent’s Specific Objections Respondent makes specific objections to each of the seven interrogatories and ten 17 RFPs, as well as the notice of deposition. See Resp. & Obj. to Interrog. & RFPs, Ex. C to 18 Meehan Decl. (docket no. 116-3): 19 Interrogatories Nos. 1 and 2: Respondent objects to these interrogatories on the 20 ground that they are overbroad and/or not reasonably calculated to reveal executable 21 assets (as well as on grounds that have already been rejected by this Court). The Court 22 concludes that these interrogatories are reasonably calculated to reveal executable assets 23 ORDER - 18 Case 2:18-cv-01360-TSZ Document 133 Filed 08/16/21 Page 19 of 22 1 and thus DENIES Respondent’s motion for a protective order with respect to 2 interrogatories nos. 1 and 2, and DIRECTS Respondent to answer these interrogatories on 3 or before September 17, 2021, subject to any privilege issues and subject to and as 4 consistent with this Order. 5 Interrogatory No. 4: Respondent objects to this interrogatory on the ground that 6 it is overbroad, unduly burdensome, and not reasonably calculated to reveal executable 7 assets. The Court agrees that the request for information regarding financial and in-kind 8 transfers “over $10,000 in each calendar year that Antrix paid to . . . any third party” is 9 overbroad and unduly burdensome. See docket no. 116-3 (emphasis added). The Court 10 therefore GRANTS in part Respondent’s motion for a protective order with respect to 11 interrogatory no. 4 and REVISES this interrogatory as follows: 12 13 Identify and describe all financial and in-kind transfers over $50,000 in each calendar year that Antrix paid to India or NewSpace on or after September 14, 2015, or to any third party on or after November 4, 2020. 14 Interrogatories Nos. 3, 5, 6, and 7: Respondent objects to these interrogatories 15 on the ground that they are overbroad, unduly burdensome, and not reasonably calculated 16 to reveal executable assets. The Court agrees and hereby GRANTS Respondent’s motion 17 for a protective order with respect to interrogatories nos. 3, 5, 6, and 7, and STRIKES 18 these interrogatories. 19 RFPs Nos. 3, 9, and 10: Respondent objects to these RFPs on the ground that 20 they are overbroad, unduly burdensome, and/or not reasonably calculated to reveal 21 executable assets. The Court concludes that such RFPs are reasonably calculated to 22 reveal executable assets, DENIES Respondent’s motion for a protective order with 23 ORDER - 19 Case 2:18-cv-01360-TSZ Document 133 Filed 08/16/21 Page 20 of 22 1 respect to RFPs nos. 3, 9, and 10, and DIRECTS Respondent to produce the requested, 2 non-privileged documents on or before September 17, 2021, subject to and as consistent 3 with this Order. 4 RFPs Nos. 1, 2, 5, 7, and 8: Respondent objects to these RFPs on the ground that 5 they are overbroad, unduly burdensome, and/or not reasonably calculated to reveal 6 executable assets. The Court agrees that these RFPs are not reasonably calculated to 7 reveal executable assets and thus GRANTS in part Respondent’s motion for a protective 8 order with respect to RFPs nos. 1, 2, 5, 7, and 8, and REVISES these RFPs as follows: 9 10 11 12 13 14 15 16 17 18 RFP No. 1: All communications from September 14, 2015, between Respondent and the Liquidator concerning Respondent’s financial assets, property, and any other assets valued at more than $50,000. RFP No. 2: All documents and communications on or after September 14, 2015, reflecting any transfer of accounts, transfer of assets, contracts, business, revenues, “business segments,” business opportunities, functions, personnel, intellectual property, customer relationships, or any other thing valued at more than $50,000 from Respondent to NewSpace. RFP No. 5: All documents dated on or after September 14, 2015, reflecting payments over $50,000 that Respondent has made to any entity in the U.S. RFP No. 7: All documents dated on or after September 14, 2015, reflecting communications between and among Respondent, India, or NewSpace, or any combination thereof, concerning documents reflecting communications regarding the transfer of business from Respondent to NewSpace. 19 RFP No. 8: All documents dated on or after September 14, 2015, reflecting amounts over $50,000 owed to Respondent. 20 RFPs Nos. 4 and 6: Respondent objects to these RFPs on the ground that they are 21 overbroad, unduly burdensome, and/or not reasonably calculated to reveal executable 22 23 ORDER - 20 Case 2:18-cv-01360-TSZ Document 133 Filed 08/16/21 Page 21 of 22 1 assets. The Court agrees and hereby GRANTS Respondent’s motion for a protective 2 order with respect to RFPs nos. 4 and 6, and STRIKES these RFPs. 3 In sum, Intervenors’ motion to compel discovery, docket no. 112, is GRANTED in 4 part as to Intervenors’ authority to obtain certain information related to Respondent’s 5 assets and asset transfers, both within and outside of the United States, and related to 6 Respondent’s relationship to the Government of India and NewSpace, subject to and as 7 consistent with this Order. Intervenors’ motion to compel is otherwise DENIED. 8 Respondent’s motion for a protective order, docket no. 115, is GRANTED in part 9 as to (i) interrogatory no. 4, which is revised, (ii) interrogatories nos. 3, 5, 6, and 7, which 10 are stricken, (iii) RFPs nos. 1, 2, 5, 7, and 8, which are revised, and (iv) RFPs nos. 4 and 11 6, which are stricken, as the Court finds these discovery requests to be overbroad, unduly 12 burdensome, and not reasonably calculated to reveal executable assets. Respondent’s 13 motion for a protective order is otherwise DENIED. 14 Conclusion 15 For the foregoing reasons, the Court ORDERS: 16 (1) Intervenors’ motion to compel discovery, docket no. 112, is GRANTED in 17 part and DENIED in part; 18 (2) Respondent’s motion for a protective order, docket no. 115, is GRANTED 19 in part and DENIED in part; 20 (3) Respondent is hereby ORDERED to answer Intervenors’ interrogatories, 21 produce the responsive documents, and comply with any notices of deposition, see docket 22 23 ORDER - 21 Case 2:18-cv-01360-TSZ Document 133 Filed 08/16/21 Page 22 of 22 1 no. 114-28, subject to and as consistent with this Order, see Section 4(B), and to file any 2 necessary privilege log with the Court, on or before September 17, 2021; and 3 (4) The Clerk is directed to send a copy of this Order to all counsel of record, 4 to the Liquidator via email addressed to ol-bangalore-mca@nic.in, and to the United 5 States Court of Appeals for the Ninth Circuit (Case No. 20-36024). 6 IT IS SO ORDERED. 7 Dated this 16th day of August, 2021. 8 9 A 10 Thomas S. Zilly United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 ORDER - 22
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