Cessna Finance Corporation v. Al Ghaith Holding Company PJSC

Background

Cessna Finance Corporation obtained an order confirming an October 26, 2015 arbitration award against Al Ghaith Holding Company PJSC and a judgment entered on May 8, 2019. Cessna later assigned its rights in the award and judgment to CesFin Ventures LLC. The court granted Cessna’s motion to substitute CesFin as the petitioner on February 16, 2021.

Before that substitution, on September 2, 2020, CesFin issued two subpoenas to Google: a Subscriber Data Subpoena and an Identifier Subpoena. The subpoenas sought information concerning an email account associated with Ali Al Ghaith and information about a Google identifier, payment records, wire transfers, and related entities. CesFin said the discovery could help enforce the judgment and investigate possible alter-ego relationships and asset transfers.

Al Ghaith’s Motion

Al Ghaith moved to quash the Google subpoenas and sought three additional forms of relief: copies of all subpoenas served by CesFin, a pause on deadlines for responding to outstanding subpoenas, and an order requiring CesFin to notify subpoena recipients of the court’s ruling. Al Ghaith argued that CesFin had used federal subpoena forms but had not provided the notice and copies required by Federal Rule of Civil Procedure 45. It also argued that CesFin lacked authority to issue the subpoenas because it was not yet a party and that the subpoenas were overly broad and unrelated to hidden assets.

CesFin argued that it could conduct post-judgment discovery as the assignee of Cessna’s rights and that the subpoenas were authorized by Federal Rule of Civil Procedure 69 and New York law. CesFin also argued that Al Ghaith lacked standing to challenge the subpoenas.

Court’s Analysis

Rule 69(a)(2) permits a judgment creditor or a successor in interest whose interest appears in the record to obtain discovery to help enforce a judgment. Rule 45(a)(4) requires the serving party to provide each party with notice and a copy of a subpoena before serving a subpoena seeking documents or electronically stored information. The court also explained that a party generally lacks standing to challenge a subpoena directed to a nonparty unless the party claims a privilege or another protected interest, but found that CesFin had not shown that Al Ghaith lacked standing to challenge the missing notice.

The court found that CesFin had chosen to issue the Google subpoenas under Rule 45 and therefore had to comply with Rule 45’s notice requirement. CesFin admitted that it used Rule 45 subpoena forms, but did not provide Al Ghaith with the required notice and copies. The court held that this failure warranted quashing the subpoenas.

The court separately found that CesFin was not authorized to issue the subpoenas when it did so. At that time, CesFin was not a party to the action, and the filed notice of assignment was not evidence or an appearance of record establishing CesFin as a successor in interest for purposes of Rule 69(a)(2). The court also noted that CesFin did not cite binding authority allowing a nonparty to issue subpoenas under Rule 45. Because CesFin’s substitution as petitioner was not granted until February 16, 2021, it was not authorized to issue the September 2, 2020 subpoenas in this action.

Disposition

Judge Kevin Nathaniel Fox granted in part and denied in part Al Ghaith’s motion, Docket Entry No. 63. The court granted part (1), which sought to quash the Google subpoenas. It denied parts (2), (3), and (4), which sought copies of other subpoenas, a pause on deadlines, and notice to other subpoena recipients. The opinion did not grant those additional requests because Al Ghaith cited no legal authority supporting them.