Republic of Turkey v. Christie's Inc. et al

Filing 62

MEMORANDUM & ORDER granting 47 Letter Motion to Compel; granting 48 Motion to Amend/Correct ; granting 51 Motion to Intervene. In conclusion, the motion to compel is granted. However, Christie's need not provide the information imm ediately. Instead, the parties (including counsel for the Bidder/Intervenor) are ordered to meet and confer to come up with an appropriate protective order. The parties will submit their proposed protective order to the Court on or before August 4 th, 2017. Should they fail to reach agreement, they may submit instead a letter of no more than four pages laying out each party's position as to the appropriate scope of the order. This resolves docket numbers 47, 48, and 51. SO ORDERED. (Signed by Judge Alison J. Nathan on 7/26/2017) (anc)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

Republic of Turkey,
Plaintiff,
17-CV-3086 (AJN)

-vMEMORANDUM &
ORDER

Christie's, Inc. et al.,
Defendants.

ALISON J. NATHAN, District Judge:
Before the Court is the Republic of Turkey's (the "Republic") motion to compel
production of the name and contact information of the unidentified winning bidder (the
"Bidder") at Christie's April 28, 2017 auction of the antiquity that is the subject of this case, a
Kiliya-Type idol (the "Idol"). 1 For the following reasons, that motion is granted. However, the
Court does not order Christie's to provide the requested information immediately; instead, the
Court orders the parties to meet and confer to negotiate the terms of a protective order to govern
that disclosure. 2

I.

Legal Standard

1
The Court assumes that Christie's indeed possesses this information, as Christie's has not suggested to the
contrary throughout the briefing process. See Plaintiffs Memorandum of Law in Response to John Poe's Motion to
Intervene Pseudonymously at 13 (Dkt. No. 55) (hereafter "Pl. Mem.") (in which the Republic addresses this point).

2
On June 26, 2017, the Bidder pseudonymously moved to intervene in this action for the purpose of
opposing the motion to compel. Dkt. No. 51. That motion to intervene is granted for the limited purpose of
opposing the Republic's discovery request. Additionally, in its letter motion to compel, the Republic moved to
compel Christie's to provide several additional categories of information beyond the identity of the Bidder. See Dkt.
No. 47, at 2-3. Christie's represents that it has provided all of the requested information, except for the information
at issue in this Memorandum and Order. See Dkt. No. 54 at 1 n. l. The motion to compel as to these other
categories of information is thus denied as moot (and no sanctions or fees will be awarded).

1

Under Federal Rule of Civil Procedure 26, a party must provide various categories of
evidence as part of its initial disclosures. In particular, "[ e]xcept as exempted by Rule
26(a)(l )(B) or as otherwise stipulated or ordered by the court, a party must, without awaiting a
discovery request, provide to the other parties . . . the name and, if known, the address and
telephone number of each individual likely to have discoverable information--along with the
subjects of that information--that the disclosing party may use to support its claims or defenses,
unless the use would be solely for impeachment." F.R.C.P. 26(a)(l)(A)(i). Beyond initial
disclosures, Rule 26 defines the scope of permissible discovery as follows: "Unless otherwise
limited by court order ... : [p]arties may obtain discovery regarding any nonprivileged matter
that is relevant to any party's claim or defense and proportional to the needs of the case,
considering the importance of the issues at stake in the action, the amount in controversy, the
parties' relative access to relevant information, the parties' resources, the importance of the
discovery in resolving the issues, and whether the burden or expense of the proposed discovery
outweighs its likely benefit." Rule 26(b)(l). "Relevance to the subject matter under Rule 26 is
'construed broadly to encompass any matter that bears on, or that reasonably could lead to other
matter that could bear on, any issue that is or may be in the case.'" US Commodity Futures

Trading Comm'n v. Parnon Energy Inc., 593 F. App'x 32, 36 (2d Cir. 2014) (summary order)
(quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978)).

II.

Discussion

The Republic makes two primary arguments why the Court should order Christie's to
produce the contact information and name of the Bidder. First, the Republic argues that
Christie's must produce that information on the basis of the fact that Christie's initially listed the
Bidder (without any identifying information) in its June 1si, 2017 initial disclosures. See Pl.
Mem. at 3-5. Christie's removed the Bidder from its list of individuals in its amended Rule 26
disclosures, provided on June 27, 2017, after the Bidder pulled out of the sale. Dkt. No. 54-2.
Nevertheless, the Republic argues that inclusion of the Bidder in the unamended disclosures
2

necessitates production of his contact information now. Second, the Republic argues that the
name and contact information of the Bidder is "relevant to" the Republic's claims and defenses
in this action "and proportional to the needs of the case," such that the Republic may seek
disclosure pursuant to Federal Rule of Civil Procedure 26(b). Pl. Mem. at 3, 5.
In response, the Bidder submitted a declaration of counsel disputing that he has any relevant
information. See Dkt. No. 53 ("Pitt Deel."). In that declaration, counsel represents that the
Bidder "first learned of the Idol's existence-and that it would be featured at auction-on or
about April 17, 2017." Id.

ii 4.

He further represents that his client's knowledge of the history

and provenance of the Idol "is limited to the information contained in the auction catalog
prepared by Christie's," that his client "had no private communication with the consignor or any
other prior possessor of the Idol," and that "[ o]ther than publicly filed pleadings in this case, [his
client] possesses no documents about the provenance of the Idol." Id.

ii 5.

Counsel for the

Bidder further represents that his client received assurances from Christie's that his identity
would remain confidential, and that confidentially "has been a condition of [his] bids at every art
auction in which [he] has ever participated." Id.

ii 6.

Counsel also provides a number of

additional reasons why his client wishes to remain anonymous. Id.

iii! 11-16.

As an initial matter, the Court declines to reach the Republic's first argument, that
disclosure of the Bidder's identity is required under Rule 26(a) because Christie's included the
Bidder, anonymously, in the first iteration of its initial disclosures (prior to amending them to
remove the Bidder altogether). The Court holds that the Bidder's name is discoverable under
Rule 26(b), more generally.
Beginning with relevance, the Court finds that the Republic has established its minimal
burden of showing that disclosure of the Bidder's identity "reasonably could lead to ... matter
that could bear on[] any issue that is or may be in the case." Parnon Energy, Inc., 593 F. App'x
at 36 (internal quotation marks omitted). First, and as a general matter, it is reasonable to believe
that the Bidder - who elected to bid a hammer price of more than $12 million dollars on the Idol
notwithstanding an announcement that the Republic had filed this suit, and later pulled out of the
3

sale after the suit was not resolved within 60 days - might have information about the Idol, about
the bidding process, or about Christie's vigilance in determining the provenance of the Idol subjects that at least "may be in the case." Id. Although the Bidder's counsel disclaims that the
Bidder has any relevant information in an affidavit, neither the Bidder nor Christie's cites any
authority for the proposition that the Republic must rely on this affidavit of a third party as proof
that the Bidder has no relevant information, and the Republic explicitly argues that such reliance
should not be required. See Pl. Mem. at 7.
Second, and relatedly, the Republic points to various statements in the submitted affidavit
that it claims require clarification, including that the Bidder "has no interest in owning a piece of
stolen art." Pitt Deel.~ 10. The Bidder's counsel provides various compelling arguments
contextualizing these statements and suggesting the Republic has misconstrued them, see Dkt.
No. 57 at 2, and, as noted, counsel generally represents that the Bidder has no more information
about the provenance of the Idol than what Christie's published. Again, however, it is not clear
why the Republic should have to rely not only on counsel's affidavit, but also on counsel's
unsworn contextualizations of the affidavit in counsel's brief, rather than ask such questions
directly to the Bidder.
Finally, whether or not the Bidder has any information about the Idol's provenance, the
Republic argues that the Bidder may have information as to Christie's and the Consignor's
vigilance in ascertaining the provenance themselves on the basis of communications made prior,
during, or after the bidding process. See Pl. Mem. at 6-7. Putting aside the ultimate merits of
any vigilance argument, the Republic is correct that some cases have held that the vigilance of a
defendant can be relevant to the availability of a laches defense. See Solomon R. Guggenheim

Found. v. Lubell, 153 A.D.2d 143, 152 (N.Y. App. Div. 1st Dep't 1990), ajj'd, 77 N.Y.2d 311,
(1991) ("We comment on this argument only to point up that defendant's vigilance is as much in
issue as plaintiffs diligence, which is another reason why we characterize the defense urged here
as laches. The reasonableness of both parties must be considered and weighed."). Although
Christie's argues that some, if not all, of the Republic's likely arguments as to vigilance rely on
4

speculation and conjecture, see Dkt. No. 56, at 2, the Republic has the right to use reasonable
avenues of discovery to attempt to build this argument before the Court rejects it as insufficiently
developed. See Ratliff v. Davis Polk & Wardwell, 354 F.3d 165, 170 (2d Cir. 2003) ("Discovery
rules 'are to be accorded a broad and liberal treatment []to effectuate their purpose that civil
trials in the federal courts no longer need be carried on in the dark.'" (quoting Schlagenhauf v.
Holder, 379 U.S. 104, 115 (1964)).

As to whether the burden of disclosure would outweigh the significance of this
information, the Court concludes that it would not. The Court is sensitive to the privacy
concerns cited by the Bidder, and cited by Christie's - as well as Christie's own concern with
maintaining the confidentiality of its bidders. However, although these concerns may be
significant, neither Christie's nor the Bidder has presented the Court with a compelling argument
why no protective order could be fashioned to largely safeguard those interests. Instead, the
Bidder appears to take a position that his "right to safeguard from family, friends, and outsiders
information regarding how [he] spends money" is of such importance that even Turkey's
"lawyers" have no business knowing this information. Dkt. No. 52 at 10. Although the court
recognizes that the case for disclosure of the Bidder's identity was stronger prior to the Bidder
pulling out of the sale, it is nevertheless the case that the Bidder was on notice that Turkey had
laid a claim to the Idol, prior to bidding, and nevertheless entered the highest bid. Given that
there is at least a reasonable case that the Bidder might have relevant information to provide the
Republic, the Court will not block such discovery on the basis of a parade of horribles neither the
Bidder nor Christie's compellingly establishes will occur.

III.

Conclusion
In conclusion, the motion to compel is granted. 3 However, Christie's need not provide

the information immediately. Instead, the parties (including counsel for the Bidder/Intervenor)

3

The Republic also moved for leave to file an amended complaint. Dkt. No. 48. Christie's does not
oppose the motion, Dkt. No. 59, and the motion is granted.

5

are ordered to meet and confer to come up with an appropriate protective order. The parties will
submit their proposed protective order to the Court on or before August 4th, 2017. Should they
fail to reach agreement, they may submit instead a letter of no more than four pages laying out
each party's position as to the appropriate scope of the order.
This resolves docket numbers 47, 48, and 51.

SO ORDERED.

'J,. \, ,

Dated: July
2017
New York, New York

United States District Judge

6