Accent Delight International Ltd. et al v. Sotheby's et al

Filing 454

ORDER granting 453 Letter Motion for Discovery. Application GRANTED. The Court reserves judgment on whether or to what extent any portion of the transcript, including the disputed portions, would be admissible in this case. The Clerk of Court is directed to terminate ECF No. 453. SO ORDERED.. (Signed by Judge Jesse M. Furman on 5/9/2022) (kv)

Case 1:18-cv-09011-JMF Document 454 Filed 05/09/22 Page 1 of 12

Sara L. Shudofsky
+1 212.836.7922 Direct
[e-mail]

May 6, 2022
VIA ECF
The Honorable Jesse M. Furman
United States District Judge
Southern District of New York
40 Centre Street, Room 2202
New York, New York 10007
Re:

Accent Delight International Ltd. et al. v. Sotheby’s et al., 18-cv-9011

Dear Judge Furman:
We write respectfully on behalf of Defendants Sotheby’s and Sotheby’s, Inc.
(collectively, “Sotheby’s”) to provide the Court with an order recently issued by the
Swiss Court in connection with Mr. Bouvier’s deposition in Switzerland, and to request
that the Court approve the deposition transcript that will soon be transmitted to Your
Honor by the Swiss Court.
On January 25 and 26, 2022, the Swiss Court took the deposition of Mr. Bouvier.
Last week, the Swiss Court issued an order noting a disagreement between the parties as
to whether the transcript of the deposition should include conversations between Mr.
Bouvier and his counsel in the course of the deposition. A copy of the Swiss Court’s
order, which Sotheby’s received on April 27, is attached here as Exhibit A in its original
French; we have also attached a certified English translation of the order as part of
Exhibit A. We understand from Sotheby’s Swiss Counsel that the Swiss Court will soon
send to Your Honor the transcript of the deposition in Microsoft Word format with
markups indicating the portions of the transcript containing those conversations. We
understand from Sotheby’s Swiss Counsel that the transcript will be deemed finalized
once the Court has decided whether to accept or reject those portions.
Although Sotheby’s Swiss Counsel took the position before the Swiss Court that
conversations between Bouvier and his counsel should not be included as part of the
transcript, Sotheby’s now requests, in the interest of finalizing the transcript as quickly as
possible, that the conversations be included in the official transcript, subject to any later
ruling by the Court as to the admissibility of any portion of those conversations.1

1

Similarly, we do not think it necessary for the Court to rule at this time on the
admissibility of any portion of Mr. Bouvier’s written responses to the deposition
Arnold & Porter Kaye Scholer LLP
250 West 55th Street | New York, NY 10019-9710 | www.arnoldporter.com

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The Honorable Jesse M. Furman
May 6, 2022
Page 2
Accordingly, Sotheby’s respectfully requests that Your Honor approve the
transcript of Mr. Bouvier’s deposition, inclusive of the portions reflecting conversations
between Bouvier and his counsel, upon receipt of the transcript from the Swiss Court.
We thank the Court for its consideration of this request.
Respectfully submitted,
/s/ Sara L. Shudofsky
Sara L. Shudofsky
cc:

All counsel of record (via ECF)

Application GRANTED. The Court reserves judgment on whether or to what extent any
portion of the transcript, including the disputed portions, would be admissible in this
case. The Clerk of Court is directed to terminate ECF No. 453.
SO ORDERED.

May 9, 2022

questions, which Mr. Bouvier submitted to the Swiss Court and which we understand the
Swiss Court will also be transmitting to Your Honor. See Ex. A, at 4.

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EXHIBIT A

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Republic and Canton of Geneva Judicial Power
Civil Court
Geneva, date of the postage stamp
Received by
BAR & KARRER on
April 27, 2022
Tribunal of First Instance

CR/50/2021 19 THO XCR

6-8 rue de l'Athénée
P.O. Box 3736
CH - 1211 GENEVA 3

SOTHEBY'S
Care of Solicitors LEMBO and CONRAD HARI
Bär & Karrer Ltd
12, Quai de la Poste
P.O. Box 5056
1211 Geneva 11

Reference:

CR/50/2021 19 THO XCR
to be referenced in all communication

We are forwarding you here attached the order in the case mentioned under heading.

CIV_ORO_TYPE

Tribunal of First Instance

FRM

Case 1:18-cv-09011-JMF Document 454 Filed 05/09/22 Page 9 of 12

Republic and Canton of Geneva Judicial Power
Civil Court
Geneva, date of the postage stamp
Tribunal of First Instance

CR/50/2021 19 THO XCR

6-8 rue de l'Athénée
P.O. Box 3736
CH - 1211 GENEVA 3
Registered mail tracking number
98.41.900053.52155953
SOTHEBY'S
Care of Solicitors LEMBO and CONRAD HARI
Bär & Karrer Ltd
12, Quai de la Poste
P.O. Box 5056
1211 Geneva 11
Reference:

CR/50/2021 19 THO XCR
to be referenced in all communication

We are forwarding you here attached the order in the case mentioned under heading.

CIV_ORO_TYPE

Tribunal of First Instance

FRM

Case 1:18-cv-09011-JMF Document 454 Filed 05/09/22 Page 10 of 12

Republic and Canton of Geneva Judicial Power
Civil Court
CR/50/2021 19 THO XCR
Tribunal of First Instance
6-8 rue de l'Athénée
P.O. Box 3736
CH - 1211 GENEVA 3

Reference:

CR/50/2021 19 THO XCR
to be referenced in all communication

ORDER DATED
APRIL 20, 2022
Plaintiffs

Defendants

ACCENT DELIGHT INTERNATIONAL LTD

SOTHEBY'S

Care of Solicitor GIROUD Sandrine

Care of Solicitor LEMBO et CONRAD HARI

Lalive SA

Bär & Karrer Ltd

Rue de la Mairie 35

Quai de la Poste 12

P.O. Box 6569

P.O. Box 5056

1211 Geneva 6

1211 Geneva 11

XITRANS FINANCE LTD

SOTHEBY'S INC

Care of Solicitor GIROUD Sandrine

Care of Solicitor LEMBO et CONRAD HARI

Lalive SA

Bär & Karrer Ltd

Rue de la Mairie 35

Quai de la Poste 12

P.O. Box 6569

P.O. Box 5056

1211 Geneva 6

1211 Geneva 11

On this day the Court issued the following order:
In the matter of ACCENT DELIGHT INTERNATIONAL Ltd. and XITRANS FINANCE Ltd., Plaintiffs, against
SOTHEBY'S and SOTHEBY'S INC., Defendants, before the UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT NY.
In the matter of the request for legal assistance made by the above Court on August 9, 2021, to the Courts of
Geneva, consisting of the hearing of Yves BOUVIER as witness.
Considering that, on the eve of the hearing, which was scheduled for January 25 and 26, 2022, the latter provided
written answers to the questions asked by the letter rogatory.

CIV_ORO_TYPE

Tribunal of First Instance

FRM

Case 1:18-cv-09011-JMF Document 454 Filed 05/09/22 Page 11 of 12

Considering that during the hearing of the witness on January 25 and 26, 2022, the parties objected to whether
the witness' written responses should be provided to the U.S. judge, with the plaintiffs objecting and the
defendants requesting, conversely, their transmission.
Considering that in addition, by letters dated March 25, 2022, ACCENT DELIGHT INTERNATIONAL Ltd and
XITRANS FINANCE Ltd indicated that the parties remained in disagreement about the inclusion or not of "the
interpellations made by Yves BOUVIER to his counsel Mr. Yves KLEIN during his hearing", SOTHEBY'S and
SOTHEBY'S INC. opposing this inclusion.
Considering that, in law, although article 9 paragraph 1 CLaH 70, convention which is applicable to this case,
provides for the principle of lex loci executionis , in other words that the judge proceeds in principle in accordance
with their own procedural law, the admissibility of the means of proof, the probative value of the evidence and its
assessment remain subject to the lex loci processialis (GULDENER, IZPR, p. 18 n. 7; HAUSERISCHWERI, §117
GVG, n° 16).
That, consequently, it will be at the discretion of the U.S. judge to determine whether or not the written answers,
of the witness BOUVIER, should be admitted as evidence in his proceedings, as well as the question of the
transcription of the interpellations made by Yves BOUVIER to his counsel.
For these reasons,
THE TRIBUNAL
•

States that the written answers of the witness Yves BOUVIER to the questions contained in the letter
rogatory CR/50/2021 are transmitted to the UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT NY.

•

States that it will be at the discretion of the American judge to determine whether or not Yves BOUVIER's
interpellations to his counsel should appear in the transcripts.

'
Sophie THORENS-ALADJEM
Judge

This order has been communicated for notification by the clerk's office on April 26, 2022.

CIV_ORO_TYPE

Tribunal of First Instance

FRM

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