Republic of Turkey

Filing 65

MEMORANDUM OPINION AND ORDER signed by the Honorable Matthew F. Kennelly on 7/16/2021: For the reasons stated in the accompanying Memorandum Opinion and Order, the Court denies the petitioner's application under section 1782 to pursue discovery for use in foreign proceedings [dkt. no. 1]. (mk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

In re Application of the REPUBLIC OF
TURKEY for an Order Under 28 U.S.C
§ 1782 to Conduct Discovery for Use in
Foreign Legal Proceedings

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Case No. 20 C 5012

MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
The Republic of Turkey, a sovereign nation, has filed an application for an order
under 28 U.S.C. § 1782 to authorize service of a subpoena on fourteen respondents, a
charter school management company and associated entities and individuals. Turkey
seeks information that it says is relevant to a money laundering criminal investigation in
Turkey. The respondents ask the Court to deny the application. For the following
reasons, the Court denies Turkey's application.
Background
According to the section 1782 application, the Republic of Turkey requests the
assistance of the Court in obtaining information about Concept Schools NFP, a nonprofit charter school management company that oversees thirty-one charter schools
across the United States, including in Illinois and Ohio. Turkey contends that Concept,
as well as shell companies and individuals associated with Concept, engaged in
criminal offenses under U.S. law—procurement fraud, securities fraud, and wire fraud—
to finance the international political activities of Fethullah Gulen, an exiled Turkish cleric

residing in the United States. The respondents contend that Turkey's application is part
of a campaign of political persecution against Gulen and his supporters and that the
application is devoid of evidence that the Turkish authorities are conducting a legitimate
criminal investigation.
Concept's activities have been the subject of U.S. law enforcement
investigations, such as a 2014 False Claims Act investigation by the U.S. Department of
Justice (USDOJ), which resulted in a civil settlement, and an FBI fraud investigation,
which did not result in criminal charges; Concept has also attracted media attention
based on its conduct. See, e.g., Dan Mihalopoulos, Concept Schools charter chain to
pay $4.5 million to end federal investigation, Chicago Sun-Times (Nov. 6, 2020, 11:30
AM), https://chicago.suntimes.com/2020/11/6/21552520/concept-schools-charterschool-chain-investigation-settlement. A 2019 audit report by Dave Yost, the Auditor of
the State of Ohio, found certain conflicts of interest: numerous individuals who served
as board members for Concept-managed schools had overlapping roles as
management leaders of Concept's business partners. But there is no indication that
either Concept or any of the other respondents have faced criminal charges here in the
United States.
Turkey contends that the respondents' claimed criminal activities may give rise to
violations of Article 282 of the Turkish Criminal Code, which makes money laundering
an imprisonable offense. Its theory is that if Concept or others affiliated with it
committed crimes in the U.S. and then sent proceeds of those crimes to Turkey, it would
violate Article 282.
There are fourteen respondents in this action, including Concept and charter

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schools managed by Concept: (1) Concept Schools NFP; (2) Chicago Mathematics and
Science Academy, Inc.; (3) Concept Schools NFP d/b/a Horizon Science Academy
McKinley Park Charter School; (4) Concept Schools NFP d/b/a Horizon Science
Academy Belmont Charter School; and (5) Concept Schools NFP d/b/a Horizon Science
Academy Southwest Chicago Charter School. The respondents also include affiliated
companies that were awarded vendor service contracts by Concept: (1) New Plan
Learning, Inc., a non-profit organization formed by Concept personnel to purchase real
estate that is leased to Concept's charter schools; (2) Quality Builders of Midwest, Inc.;
(3) Design Furniture and Lab Systems, Inc.; (4) Maestro Corporate Group LLC; and (5)
Signature Maker, Inc. Two financial institutions, JP Morgan Chase Bank N.A. and PNC
Bank N.A., which possess financial documents concerning some of the respondents,
are also named as respondents. Finally, two individuals, Edip Pektas, an Illinois citizen
who held leadership positions at Concept schools while also serving as president of
Quality Builders, an affiliated company to which Concept awarded contracts; and
Ridvan Uysaler, an Illinois citizen who is Concept's chief financial officer, are named as
respondents. Turkey proposes to subpoena Pektas and Uysaler for depositions.
Turkey alleges that corporate records, construction permits, and other public
documents reflect that Concept engaged in corruption, namely insider dealing. For
example, it alleges that Concept promised prospective investors that it would award
major contracts through an open and competitive bidding process yet awarded
multimillion-dollar contracts to favored vendors—"insider individuals and companies"—
some of whom are respondents in this case. Pet.'s § 1782 Appl. at 2. According to
Turkey, this evidence reveals Concept's practice of "divert[ing] funds away from their

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intended purpose of educating this country's children"—in other words, children in the
United States. Id. at 3. Further, Turkey contends that affiliated insider companies
bought and sold real estate from Concept-managed charter schools at prices
detrimental to the charter schools' financial well-being. It appears that Concept's
claimed selection of favored technology vendors prompted the USDOJ's False Claims
Act investigation, which ended in a civil settlement but no criminal charges. See Press
Release, U.S. Dep't of Just., Office of Public Affairs, Illinois-Based Charter School
Management Company To Pay $4.5 Million to Settle Claims Relating to E-Rate
Contracts (Nov. 3, 2020), https://www.justice.gov/opa/pr/illinois-based-charter-schoolmanagement-company-pay-45-million-settle-claims-relating-e-rate.
Turkey also argues that the respondents improperly allocated federally funded
school lunch program contracts—in violation of U.S. Department of Agriculture rules—to
a catering company that shares the same home address as a Concept executive. Pet.'s
§ 1782 Appl. at 2-3. It also asserts that Concept is committing immigration and visa
fraud "in order to generate illicit kickbacks and relocate Turkish supporters of Mr. Gulen
into the United States." Id. at 3. Turkey argues that U.S. Department of Labor records
indicate that Concept has sponsored hundreds of Turkish individuals for H-1B visas and
permanent residence and that these persons are kicking back portions of their salaries
to support Gulen. Based on these contentions, Turkey asks the Court to authorize
issuance of subpoenas to the respondents to assist in a claimed criminal investigation in
Turkey.
Turkey has submitted fourteen proposed subpoenas requesting depositions and
document production—including Concept's vendor contracts and related operational

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agreements, financial statements and transactions, employment records, and H-1B
status and visa petitions. In support of its application, Turkey has submitted a
declaration from Ankara's chief public prosecutor and a letter from the Turkish
Ambassador to the United States; both of these documents describe a pending
investigation into Gulen and individuals and entities affiliated with him. Turkey asserts
that the discovery it seeks is necessary for the investigation. In opposition, the
respondents argue that the discovery requests are overbroad, amount to harassment
(for reasons the Court will discuss), and will impose significant burdens and costs on the
respondents, which include multiple non-profit organizations and schools.
Turkey filed similar applications in the Southern District of Ohio and the Northern
District of Ohio. On January 29, 2021, Judge Polster issued an order partially granting
the Republic of Turkey's petition; that petition, which involved different respondents, was
similar to the application before this Court but concerned Concept's activities in
connection to its Ohio-based charter schools. Minute Order, In re Appl. of the Republic
Turkey, No. 20 MC 85 (N.D. Ohio Jan. 29, 2021) (dkt. entry no. 11) (ordering
respondents to "produce any all [sic] documents evidencing the flow of funds between
respondent's schools and the Republic of Turkey or certify that no such documents
exist"). On February 22, 2021, Magistrate Judge Deavers denied a similar application
submitted by Turkey. In re Appl. of the Republic of Turkey, No. 20 MC 36, 2021 WL
671518 (S.D. Ohio Feb. 22, 2021).
Discussion
Under 28 U.S.C. § 1782, a district court may authorize the production of
documents or testimony for use in a foreign legal proceeding, unless the disclosure

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would violate a legal privilege. 28 U.S.C. § 1782(a). Section 1782 requires a petitioner
to show that: (1) the discovery is sought from a person residing in the district of the
court to which the application is made; (2) the discovery is for use in a proceeding
before a foreign tribunal; and (3) the applicant is a foreign or international tribunal or an
"interested person."
The U.S. Supreme Court's decision in Intel Corp. v. Advanced Micro Devices,
Inc., 542 U.S. 241 (2004), is the leading authority on evaluating section 1782
applications. In Intel, the Supreme Court concluded that even if an application meets
the statutory requirements under section 1782, the district court's decision to grant the
application is discretionary. Id. at 255. A district court should assess the following
factors in determining what discovery, if any, to allow:
(1) whether "the person from whom discovery is sought is a participant in
the foreign proceeding";
(2) "the nature of the foreign tribunal, the character of the proceedings
underway abroad, and the receptivity of the foreign government or the
court or agency abroad to U.S. federal-court judicial assistance";
(3) whether the discovery request "conceals an attempt to circumvent
foreign proof-gathering restrictions or other policies of a foreign country or
the United States";
(4) whether the discovery requested is "unduly intrusive or burdensome."
Id. at 264-65. Section 1782 has "twin aims": "providing efficient assistance to
participants in international litigation and encouraging foreign countries by example to
provide similar assistance to our courts." Id. at 252 (internal quotation marks and
citations omitted).
A.

Statutory requirements
The Republic of Turkey contends that its application satisfies all three of section

1782's statutory requirements. First, the subpoenas seek discovery from several

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respondents, all of whom reside or are found within this judicial district. Second, it
requests discovery assistance for use in a proceeding before a foreign tribunal. Third,
Turkey is an interested person within the meaning of the statute. The respondents do
not appear to dispute that the first and third statutory requirements are met, but they
contend that Turkey's application does not satisfy the requirement that the discovery is
for use in a proceeding before a foreign tribunal. Resp. Mem. at 13.
1.

Section 1782's "for use" requirement

Turkey contends that it seeks the requested discovery "for use in an ongoing
criminal investigation into various Turkish criminal offenses, including suspected money
laundering activities." Pet.'s § 1782 Appl. at 5-6. The respondents disagree; they argue
that Turkey's submissions are "devoid of evidence that could lead this Court to conclude
that Turkish authorities are seeking discovery for use in a legitimate investigation into
violations of Turkish law or that any formal accusation is reasonably contemplated."
Resp. Mem. at 1-2. Rather, they contend, Turkey is actually seeking the requested
discovery to harass and obtain information about purported Gulen followers. See id. at
2. In response, Turkey argues that the respondents are improperly seeking to
"delegitimize the actions of a sovereign government" and that "the statement of the
Ambassador and the declaration of the prosecutor responsible for this investigation
more than satisfy th[e] [for use] requirement." Reply Mem. at 5-6. Turkey also
contends that "[t]he actual proceeding need not be pending in order for a district court to
grant discovery request [sic]." Id. at 5. "Rather, Section 1782 requires only that the use
of the information be within 'reasonable contemplation' at the time of the request." Id.
(quoting Intel, 542 U.S. at 259).

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Turkey is correct that under section 1782's "for use" requirement, "the foreign
proceeding need not be pending, so long as it is 'within reasonable contemplation.'"
Mees v. Buiter, 793 F.3d 291, 295 (2d Cir. 2015) (quoting Intel, 542 U.S. at 259). A
number of courts have held that section 1782 permits the district court to provide
discovery assistance for a foreign criminal investigation into violations of non-U.S. law
by public prosecutors. See, e.g., In re Request for Assistance from Ministry of Legal
Affs. of Trinidad & Tobago, 648 F. Supp. 464, 466-67 (S.D. Fla. 1986), aff'd 848 F.2d.
1151 (11th Cir. 1988), cert. denied, 488 U.S. 1005 (1989) ("the pivotal inquiry this Court
must make is whether the evidence sought will eventually be used in a proceeding in a
foreign or international tribunal") (hereinafter In re Trinidad & Tobago); United States v.
Sealed 1, Letter of Request for Legal Assistance from the Deputy Prosecutor Gen. of
the Russian Fed'n, 235 F.3d 1200, 1205 (9th Cir. 2000) (section 1782 permits discovery
for criminal investigations conducted before formal accusation); In re Appl. for an Order
Pursuant to 28 U.S.C. § 1782 to Conduct Discovery for Use in Foreign Proceedings,
773 F.3d 456, 464 (2d Cir. 2014) ("28 U.S.C. § 1782 permits district courts to order the
production of discovery for use in a foreign criminal investigation being conducted by an
investigating [public prosecutor]").
Here, however, Turkey's application seems primarily directed at investigating
violations of United States law. To be sure, it cites an inquiry into Turkey's money
laundering statutes. But the entirety of the application before the Court focuses on
activity undertaken in the United States and whether it violates the laws of this country.
In addition, the application does not provide any details regarding the nature of
the purported criminal investigation in Turkey. The respondents argue that the

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petitioner's failure to provide specific details about the investigation and how it plans to
use the requested discovery forecloses it from satisfying the second statutory
requirement. The Court finds the respondents' argument persuasive. Consider In re
Trinidad & Tobago, in which the Eleventh Circuit upheld the district court's conclusion
that the "for use" requirement was satisfied because Trinidad and Tobago's minister of
legal affairs "set forth the documents he desired, the information he expected to find,
and the reason he would use the documents in the eventual proceeding" when he
"requested the [federal judicial] assistance." In re Trinidad & Tobago, 848 F.2d at 115556. In contrast, the Republic of Turkey's request for assistance in this case is based on
vague and conclusory statements from two Turkish officials, as follows:
This letter confirms that Law Enforcement Authorities of the Republic of
Turkey are conducting various criminal investigations into Fetullah Gulen
and his organization for suspected criminal activity.
....
Specifically, Turkish authorities are investigating a scheme through which
criminally derived funds are being laundered from certain corporations and
individuals throughout the United States, and then returned to Turkey for
the continued financing of illicit activities in violation of Turkish laws.
Turkish Ambassador Letter (dkt. no. 9); see also Ankara Prosecutor Decl. ¶¶ 3-6 (dkt.
no. 35-1); see In re Trinidad & Tobago, 848 F.2d at 1155-56. The petitioner's
application suggests that numerous investigations into "illicit activities" are underway in
Turkey, but it offers nothing about what those claimed illicit activities are, nor does it
offer any support for the proposition that these activities, whatever they are, are being
funded by any of the respondents or others in the United States who are within the
scope of the matters targeted by the section 1782 application. If this Court were to
accept Turkey's application "at face value," its submissions may reflect "more of a
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fishing expedition" into the respondents' financial activities "than a legitimate use of §
1782 to further pursuit of criminals." See In re Appl. of Gov't of Lao People's
Democratic Republic, No. 15 C 00018, 2016 WL 1389764, at *6 (D. N. Mar. I. Apr. 7,
2016). And—though not necessary to the Court's decision in this case—taking such
matters on faith would seem particularly imprudent given the claimed political overlay,
specifically, the apparently undisputed proposition that Gulen and his followers are
political opponents of the current government in Turkey.
In a similar matter filed by Turkey in the federal district court for the Southern
District of Ohio, Judge Deavers noted that the petitioner's submissions—namely the
Ankara prosecutor's declaration about the investigation—contained only "the most
minimal information" and that "more detail and specifics would be expected." In re Appl.
of the Republic of Turkey, 2021 WL 671518, at *7. The Court agrees.
For these reasons, the Court concludes that the Republic of Turkey's application
falls short of satisfying section 1782's "for use" requirement. Nevertheless, because the
parties do not appear to dispute that the first and third statutory requirements are
satisfied, the Court will address the Intel factors based on an assumption that all three
statutory requirements under 28 U.S.C. § 1782 are in fact met.
B.

Intel factors
Even if the statutory requirements are met, the Court's decision to grant a section

1782 application is a discretionary one. Intel, 542 U.S. at 247; see Sealed 1, 235 F.3d
at 1205-06 (explaining that section 1782 "provides considerable discretion to district
courts to decline to order U.S. authorities to assist in situations where the foreign
government . . . is simply seeking to harass political opponents").

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The respondents contend that the Turkish government is pursuing discovery
through section 1782 "to identify, persecute, and harass purported Gulen followers" and
therefore urge this Court to deny the application on the basis that Turkey seeks
discovery in bad faith. Resp. Mem. at 24-25. It is conceivable, however, that Turkey's
request for discovery of evidence that is claimed to support a finding of money
laundering reflects a "good faith effort to elicit evidence that has probative value" in a
pending Turkish criminal investigation. See Chevron Corp. v. Shefftz, 754 F. Supp. 2d
254, 262 (D. Mass. 2010). Nevertheless, the Court recognizes the seriousness of the
allegation that Turkey is seeking discovery under section 1782 as part of a campaign to
target or harass political opponents. In any event, as the Court explains below, the Intel
factors weigh against granting Turkey's section 1782 application.
1.

Respondents' participation in foreign proceeding

None of the respondents in this case are participants in the criminal
investigations or any proceeding underway in Turkey. As a general matter, if "the
person from whom discovery is sought is a participant in the foreign proceeding," then
"the need for § 1782(a) aid generally is not as apparent as it ordinarily is when evidence
is sought from a nonparticipant in the matter arising abroad." Intel, 542 U.S. at 264.
This is because the foreign tribunal has jurisdiction over participants "and can itself
order them to produce evidence." Id. "In contrast, nonparticipants in the foreign
proceeding may be outside the foreign tribunal's reach; hence, their evidence, available
in the United States, may be unobtainable absent § 1782(a) aid." Id. The respondents
do not appear to challenge Turkey's contention that the first Intel factor is satisfied. The
Court therefore accepts the assertion that the respondents "are all nonparties located

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outside the jurisdictional reach of Turkish courts." Pet.'s § 1782 Appl. at 7. The first
Intel factor thus weighs in Turkey's favor.
2.

Receptivity to U.S. judicial assistance

Second, the Court "consider[s] the nature of the foreign tribunal, the character of
proceedings underway abroad, and the receptivity of the foreign government, court, or
agency to federal-court judicial assistance." Intel, 542 U.S. at 264. The Republic of
Turkey is receptive to this Court's assistance, as evidenced by a letter authored by the
Turkish Ambassador to the United States and a declaration from Ankara's chief public
prosecutor. See Turkish Ambassador Letter; Ankara Prosecutor Decl. The
respondents do not dispute that Turkey is seeking federal judicial assistance with
discovery. See Kardas v. Astas Holdings A.S., No. 19 MC 80174 VKD, 2019 WL
3365646, at *2 (N.D. Cal. July 25, 2019) ("The Court infers that the Turkish Court would
not seek the assistance of the United States in obtaining these documents if the
documents were within the reach of the Turkish Court's jurisdiction."). Thus, the second
Intel factor weighs in Turkey's favor.
3.

Circumvention of proof-gathering restrictions

In assessing the third Intel factor, the Court considers "whether the § 1782(a)
request conceals an attempt to circumvent foreign proof-gathering restrictions or other
policies of a foreign country or the United States." Intel, 542 U.S. at 265. The
respondents argue that the Court should deny the petitioner's application because
Turkey can collect evidence located in the United States for use in a foreign criminal
investigation based on the mutual legal assistance treaty (MLAT) between Turkey and
the United States. Resp. Mem. at 20 ("Typically, when a foreign government is seeking

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evidence in the United States for use in a criminal investigation abroad, it will first
request assistance from U.S. prosecutors through an established MLAT procedure.").
Through the MLAT procedure, Turkey may submit a discovery request to the
government of the United States, which then would be reviewed by the U.S. Department
of Justice. If the USDOJ authorized the request, it would then petition a federal district
court to issue subpoenas. 18 U.S.C. § 3512(a)(1). The respondents contend that the
petitioner's bypass of the MLAT process is evidence of the improper purpose of its
application. See Resp. Mem. at 20-24.
As Turkey points out, some courts assessing section 1782 applications have
rejected similar arguments—that the petitioner's application should be denied for failure
to exhaust other discovery options, such as bypassing the MLAT procedure. It is true
that section 1782 does not incorporate an exhaustion requirement. See In re Veiga,
746 F. Supp. 2d 8, 24-25 (D.D.C. 2010) (rejecting argument that the applicants' section
1782 application should be denied for failure to obtain discovery in foreign tribunal);
Euromepa S.A. v. R. Esmerian, Inc., 51 F.3d 1095 (2d Cir. 1995) ("Relying on the plain
language of the statute, this Court has also refused to engraft a 'quasi-exhaustion
requirement' onto section 1782 . . . .").
In this case, however, there is a legitimate basis for concern given the nature of
the material sought. As the Court has indicated, what is happening here is that a
foreign government is seeking to use the American civil legal process to investigate
purported criminal activity supposedly undertaken in the United States—and, to boot,
matters that authorities in the U.S. declined to prosecute criminally. Based on
petitioner's description of Article 282 of the Turkish Criminal Code, it appears that

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Turkey is investigating a "derivative" money laundering offense—conduct that is only a
crime if the perpetrator committed a crime under the law of another country—in this
case, U.S. law. The facts of this application reflect the exact scenario contemplated by
the MLAT, which facilitates requests for legal assistance in foreign criminal cases. The
petitioner's only explanation for avoiding the MLAT process is that it is not required to do
so, and the process is cumbersome. The explanation is not persuasive. In the Court's
experience, the MLAT process likely would have been conducted, at least at the outset,
ex parte, that is, without the participation of the respondents. See United States v.
Trustees of Bos. Coll., 831 F. Supp. 2d 435, 451 (D. Mass. 2011) ("individuals are . . .
precluded from challenging the propriety of MLAT requests"); In re Grand Jury
Subpoena, 646 F.3d 159, 165 (4th Cir. 2011) ("MLAT [does not] give[] rise to a private
right of action that can be used to restrict the government's conduct"). That is the
opposite of cumbersome, particularly when compared with the way Turkey chose to
proceed, which involved providing notice to the respondents, followed by adversary
briefing and argument. This provides some support for the view that Turkey proceeded
as it did because it did not want its application scrutinized by U.S. prosecutorial
authorities.
For these reasons, the Court concludes that the application reflects an attempt to
circumvent an applicable proof-gathering process. In reaching this conclusion, the
Court points to the following passage from the federal district court for the Southern
District of New York's decision in Fed. Republic of Nigeria v. VR Advisory Servs., Ltd.,
No. 20 MISC. 209 (PAE), 2020 WL 6547902 (S.D.N.Y. Nov. 6, 2020), which is
instructive and persuasive:

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To be sure, there is no principle of law compelling a foreign nation seeking
evidence in this country for use in a criminal case to proceed first via an
MLAT. But there are sound reasons for generally channeling such
discovery applications through the MLAT process. Doing so promotes
comity and consistent outcomes as to such requests, adds protection for
the domestic entities from whom discovery is sought by foreign
prosecutors and criminal investigators, and assures that the U.S.
government's expertise and analytic rigor is applied to the application,
including to assure that the discovery is not sought for ulterior (nonprosecutive) ends.
Id. at *7-8 (citation omitted). The Court also finds Judge Deavers's conclusion
persuasive: "Turkey simply has not set forth a reasonable justification for choosing to
bypass the MLAT-review procedure under the circumstances here." In re Appl. of the
Republic of Turkey, 2021 WL 671518, at *12. In short, the third Intel factor weighs
against granting Turkey's application.
4.

Unduly burdensome or intrusive discovery

Discovery requested pursuant to section 1782 "may be rejected or trimmed" if the
request is "unduly intrusive or burdensome." Intel, 542 U.S. at 265. Pursuant to its
"considerable" discretion, the district court may reject discovery requests that seek
overly broad categories of documents and other evidence rather than specific
categories of documents. See In re Appl. for an Order Pursuant to 28 U.S.C. § 1782 to
Conduct Discovery for Use in a Foreign Proceeding, No. 17 1466 (BAH), 2017 WL
3708028, at *4-5 (D.D.C. Aug. 18, 2017); In re Appl. of Degitechnic, No. C07 414 JCC,
2007 WL 1367697, at *5 (W.D. Wash. May 8, 2007).
In their response brief, the respondents contend that the discovery requests are
unduly burdensome and intrusive because they cover nearly every financial record from
the past fifteen years from five respondents and all employee records from seven
respondents, among other documents, and that this would require the respondents,
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many of whom are non-profit entities, to review hundreds of thousands of documents.
Resp. Mem. at 25-29. Respondents' point was well taken. It also sought information
relating to H-1B visa applications. The requests, as written, had the appearance of a
fishing expedition well beyond the claimed legitimate purpose of the Turkish criminal
investigation.
In response to this argument, Turkey, in its reply memorandum, modified all but
one subpoena. Reply Mem. at 11-12. The modifications included limiting the time
period of some of the requests to five years as opposed to fifteen. (Others, however,
retained their original fifteen-year scope—the requests regarding Chicago Math &
Science Academy, Horizon Science Academy (McKinley), Horizon Science Academy
(Southwest), and Horizon Science Academy (Belmont).) Turkey also proposed to
increase the monetary thresholds applicable to requests for documents relating to the
respondents' financial transactions and agreements. For example, it initially sought
documents regarding any vendors who received payments totaling over $5,000 in a
given year, but the petitioner modified its request to payments totaling over $100,000 to
any vendor in a given calendar year, or in some cases, over $25,000 in a given
calendar year.
Despite these limited proposed modifications, Turkey's requests are extremely
broad and, again, are suggestive of a fishing expedition and, perhaps, a purpose
beyond simply investigating potential money laundering in Turkey.
The modified proposed subpoena for Concept, for example, asks for five years of
documents associated with payments to vendors involving more than $100,000 in a
calendar year; documents reflecting the identity of vendors who received payments of

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more than $25,000 in a calendar year; all board of directors meeting agendas and
minutes; extensive information regarding H-1B visa requests; and other matters, such
as information on financial transactions in excess of $1,000 to or from organizations or
individuals located outside of the United States over a ten-year period. See Concept
Schools NFP Modified Subpoena at 4-5 (dkt. no. 54-2). Similarly, the proposed
modified subpoena for New Plan Learning covers all board of directors meeting
agendas and minutes, information related to a municipal bond starting from 2011, and
significant information from 2015 to the present, including H-1B visa information, leases
and lease agreements, and records associated with the "sale, purchase, or lease of any
property to or from any charter school managed by Concept Schools." See New Plan
Learning Modified Subpoena at 5 (dkt. no. 54-2). Next, with respect to the proposed
modified subpoena for Quality Builders of Midwest, Turkey seeks documents and
information going all the way back to 2010, regarding compensation paid to certain
Concept leaders as well as contracts, bids, invoices and other records associated with
construction and other services to Concept schools. And finally, the proposed modified
subpoenas for individual charter schools, request, going back to 2015, documents and
information related to vendor payments that exceed $100,000 in a calendar year,
documents and information reflecting the identity of vendors paid more than $25,000 in
a calendar year, H1-B visa-related information and documents, lease agreements,
property purchase agreements, and employee information; board of directors meeting
agendas and minutes, with no specific time period mentioned; and documents reflecting
transactions in excess of $1,000 "to or from organizations or individuals located outside
of the United States" over a ten-year period. See Horizon Science Academy Belmont

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Charter School Modified Subpoena at 4-5 (dkt. no. 54-2).
Simply put, these requests are fairly characterized as "sweeping." In re Appl. of
Auto-Guadeloupe Investissement S.A., No. 12 MC 221, 2012 WL 4841945, at *9
(S.D.N.Y. Oct. 10, 2012); see In re Appl. of OOO Promnefstroy for an Order to Conduct
Discovery for Use in a Foreign Proceeding, No. M 19-99, 2009 WL 3335608, at *4, *9
(S.D.N.Y. Oct. 15, 2009), abrogated on other grounds by In re del Valle Ruiz, 939 F.3d
520 (2d Cir. 2019) (describing "sweeping" section 1782 request).
The Court assesses independently whether the requests, as modified, are overly
burdensome. See Intel, 542 U.S. at 265. Even considering the modifications, the
requests, given their breadth, are likely to impose a heavy burden, particularly on the
not-for-profit entities and individuals targeted by Turkey's requests. And they remain
significantly intrusive, in particular with respect to requests that the individual charter
schools and Concept produce all documents, forms, notices, and other records
concerning H-1B status and visa petitions from 2015 to the present. These requests, in
particular, are suggestive of an effort to identify Turkish nationals working for or with
Concept, not criminal activity related to money laundering. For at least these reasons,
the requests do not appear to be in any way tailored to the legitimate needs of an actual
criminal investigation. For these reasons, and given the rather opaque description by
Turkey of the nature of the underlying criminal investigation, the Court concludes that
the fourth Intel factor weighs against granting the application.
In sum, after weighing the Intel factors, the Court concludes that granting the
application would not be appropriate even if Turkey met the statutory requirements of 28
U.S.C. § 1782.

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Conclusion
For the foregoing reasons, the Court denies the petitioner's application under
section 1782 to pursue discovery for use in foreign proceedings [dkt. no. 1].

________________________________
MATTHEW F. KENNELLY
United States District Judge
Date: July 16, 2021

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