In Re: ExParte Petition of Ismael Reyes for an order to take discovery Under 28…

Background

Ismael Reyes obtained a subpoena under 28 U.S.C. § 1782(a), a federal law allowing a court to authorize discovery for use in a proceeding in another country. The subpoena directed the Bank of New York Mellon to produce documents and provide a deposition for use in a civil defamation action in the Philippines. Reyes and a co-plaintiff had sued Bangladesh Bank in that proceeding.

Bangladesh Bank, which was not initially a party to the federal discovery proceeding, filed motions to intervene under Federal Rule of Civil Procedure 24 and to challenge the subpoena. It sought to vacate the subpoena under Rule 60(b), which permits relief from certain court orders, or alternatively to quash it under Rule 45, which governs subpoenas.

Intervention

Bangladesh Bank sought both intervention as of right and permissive intervention. The court granted permissive intervention and therefore did not decide whether intervention as of right was also warranted. The court found that the motion was timely because Bangladesh Bank filed it the week after the subpoena was issued, and that Bangladesh Bank had an interest because the discovery would be used against it in the Philippines Proceeding. The court was not persuaded that Bangladesh Bank had shown its interests would be impaired or that the subpoenaed bank would inadequately protect sensitive information, but it concluded that the first two factors favored intervention and that Reyes did not oppose it.

Motion to Vacate

Bangladesh Bank argued that Reyes should have treated his application as related to another Southern District of New York case under the court’s local rules and had failed to disclose that case. The court rejected the argument. It found that Reyes’s application discussed the other case, so he had not failed to disclose it. The court also found that the cases were not related under the applicable factors: the other case involved an alleged conspiracy to steal and launder Bangladesh Bank’s funds, while the Philippines Proceeding involved later alleged defamatory statements and different legal claims. Bangladesh Bank also had not shown that approving Reyes’s subpoena could conflict with a ruling in the other case.

The court therefore denied Bangladesh Bank’s motion to vacate the subpoena.

Motion to Quash

Bangladesh Bank separately argued that the subpoena should be quashed because Reyes did not timely serve it with the notice required by Rule 45(a)(4). The court agreed that Reyes initially failed to serve Bangladesh Bank properly: he mailed materials one day late, and the materials initially omitted the subpoena and other supporting papers. The court admonished Reyes to follow deadlines in the court’s orders.

The court nevertheless declined to quash the subpoena. It explained that courts do not automatically quash subpoenas for notice violations without a showing of prejudice. Bangladesh Bank had been able to timely move to intervene and challenge the subpoena, and it did not show that the delayed notice prejudiced it. The court therefore denied the motion to quash.

Disposition

Judge Analisa Torres granted Bangladesh Bank’s motion to intervene and denied its motion to vacate or quash the subpoena. The Clerk of Court was directed to amend the caption and terminate the motions at ECF Nos. 4 and 7.