Republic of Kazakhstan v. Wells Fargo Bank, National Association

Background

The Republic of Kazakhstan sought discovery from Wells Fargo under 28 U.S.C. § 1782, a federal law allowing a district court to order a person found in the district to provide testimony or documents for use in a proceeding before a foreign or international tribunal, including certain criminal investigations before formal charges. In an earlier order, the court had authorized Kazakhstan to subpoena Wells Fargo for documents related to foreign proceedings in which Kazakhstan was challenging recognition and enforcement of a foreign arbitral award.

Some of those proceedings remained ongoing in Belgium, Luxembourg, the Netherlands, and Italy. Kazakhstan also described an ongoing criminal investigation in Luxembourg involving the parties who obtained the foreign arbitral award. Kazakhstan sought authority for a Federal Rule of Civil Procedure 30(b)(6) deposition concerning documents Wells Fargo had produced. Wells Fargo did not oppose the request, subject to Kazakhstan’s reimbursement of certain reasonable costs to be determined through good-faith negotiations.

Analysis

The court found that the statutory requirements for discovery under § 1782 were met. Wells Fargo continued to be found in the District of Minnesota. Kazakhstan was an interested person because it was a party to the proceedings in Belgium, Luxembourg, the Netherlands, and Italy and was entitled to submit relevant evidence in connection with the Luxembourg criminal investigation.

The court also considered the discretionary factors identified by the Supreme Court in Intel Corp. v. Advanced Micro Devices, Inc. The court concluded that Wells Fargo was not a participant in the foreign proceedings and could possess relevant evidence because it had been the former trustee for the indenture governing the investment at issue. The court found no indication that the foreign courts would reject the evidence, that Kazakhstan was trying to bypass foreign evidence-gathering procedures, or that the deposition would be unduly intrusive or burdensome. The deposition topics were narrowly tied to Wells Fargo’s role and the previously produced documents, and the parties had agreed on the topics.

Disposition

The court granted Kazakhstan’s Consent Motion for Supplemental Authority. It authorized Kazakhstan, through counsel, to issue, sign, and serve a subpoena on Wells Fargo substantially in the form attached to the supporting declaration. The order required the discovery and related motion practice to comply with the Federal Rules of Civil Procedure and the District of Minnesota’s local rules. It further stated that violations could result in appropriate remedies, including costs, fines, attorney fees and expenses, waiver of objections, limits on witnesses or evidence, and other relief.