In Re Application of GORSOAN LIMITED and GAZPROMBANK OJSC for an Order Pursuant…

Background

Gazprombank OJSC and its assignee, Gorsoan Limited, sought discovery from Janna Bullock under 28 U.S.C. § 1782 for use in a Cyprus proceeding. The underlying Cyprus case alleged that Bullock and other defendants had fraudulently diverted bond proceeds owed to Gorsoan. Earlier, Judge Gardephe had authorized discovery but interpreted the subpoena as reaching only documents located in the United States.

After additional discovery disputes, the court ordered Bullock in November 2020 to collect certain hard-copy documents and bank statements and to sit for another deposition. Bullock later said that the remaining documents sought by Gorsoan included foreign-language files held by her lawyer in Switzerland. She argued that those documents were outside the subpoena’s territorial scope and that Swiss law prevented their production. Gorsoan asked the court to expand discovery to include them.

Law of the Case

The court first considered whether the earlier United States-only limitation remained binding under the law-of-the-case doctrine. That doctrine generally keeps a court from reconsidering issues already decided in the same case, unless compelling circumstances justify revisiting them.

The court found such a circumstance here. In 2019, the Second Circuit held that federal courts are not categorically barred from ordering discovery of evidence located abroad under § 1782. The court concluded that this decision changed the governing law enough to revisit the earlier territorial limitation, even though the earlier decision’s result might still be reached for discretionary reasons.

Discretionary Discovery Analysis

The court then applied the four factors identified by the Supreme Court for deciding whether to allow § 1782 discovery:

1. Participation in the foreign proceeding. Bullock was a named party in the Cyprus case, which ordinarily weighed against discovery. But her repeated refusal to comply with discovery obligations in Cyprus had previously led the court to view this factor as favoring Gorsoan. The court gave that factor very little weight.

2. Nature and receptivity of the foreign proceeding. The court found no evidence that the Cyprus tribunal would reject assistance from a United States federal court. This factor favored Gorsoan.

3. Circumvention of foreign proof-gathering rules. Bullock relied on Swiss rules concerning lawyers’ ability to refuse disclosure of confidential information. The court held that she had not identified Swiss law preventing her, as the client, from being compelled to produce the documents or waive any applicable protection. This factor favored Gorsoan. The court also concluded that producing the documents would not generally threaten attorney-client communications because the files had been provided to her Swiss lawyer by foreign law-enforcement officials and did not appear to contain privileged communications or the lawyer’s work product. The court noted an exception for documents Bullock had sent to United States counsel to obtain legal advice in this proceeding.

4. Burden of the request. Although Gorsoan’s request covered only a few categories of hard-copy documents, most of the documents were abroad and in several foreign languages. Production would likely require moving them across borders and obtaining additional foreign legal assistance or translating them. This factor weighed against production.

The court also considered the broader circumstances. The discovery dispute had continued since 2013, Gorsoan had already received substantial discovery, and Gorsoan waited more than 14 months after the 2019 Second Circuit decision before seeking to expand discovery. The court concluded that reopening the territorial scope at that late stage would be inappropriate and unnecessarily time-consuming.

Disposition

Judge Richard J. Sullivan denied Gorsoan’s request to expand the scope of discovery to reach the Foreign Documents. The court concluded that Bullock had completed her document-production obligations and ordered the parties to proceed with her deposition no later than 21 days after the order. The opinion states that Richard J. Sullivan was a United States Circuit Judge sitting by designation.