Commissions Import Export S.A. v. Republic of the Congo et al

Filing 142

MEMO ENDORSEMENT on 141 terminating 140 Letter Motion for Local Rule 37.2 Conference. ENDORSEMENT: The Court is in receipt of Respondent Ecree's letter (Dkt. #140), and the above response from Petitioner (Dkt. #141). As there has been no material change to the posture of this case since the Court's July 10, 2023 Order, discovery shall continue as to Ecree consistent with the Court's prior orders. (Dkt. #132). Had Ecree taken issue with the July 10, 2023 Order,it should have sought reconsideration pursuant to Local Rule 6.3. The Court agrees with Petitioners that forcing truncated briefing of Ecree's motion to dismiss in the form of letter motions regarding discovery is inappropriate at this juncture, especially gi ven Petitioner has not yet filed its opposition. The Court is considering Ecree's motion to dismiss and will rule on such motion in due course. To alleviate any potential burden associated with the Veiga deposition, Petitioners shall provide a t ranslator for the deposition, as offered in their above letter, and shall consent to conduct the deposition in the setting and location of Ecree's choosing, be it in-person or remote. The Clerk of Court is directed to terminate the motion pending at docket number 140.. (Signed by Judge Katherine Polk Failla on 9/8/2023) (rro)

Charles R. Jacob III
[e-mail]
[phone] Tel

September 7, 2023
VIA ECF
Hon. Katherine Polk Failla
United States District Judge
Thurgood Marshall United States Courthouse
40 Foley Square
New York, NY 10007
Re:

MEMO ENDORSED

Commissions Import Export S.A. v.
Republic of the Congo and Ecree LLC, 1:19-mc-00195 (KPF)

Dear Judge Failla:
Petitioner-Judgment Creditor Commissions Import Export S.A. (“Judgment Creditor”)
responds to the letter-motion submitted by counsel for respondent Ecree LLC (“Ecree”) on
September 1, 2023, seeking to stay discovery of Ecree.
1.

Ecree’s Letter Motion Is an Untimely Motion for Reargument

The parties submitted their respective positions on the matters before the Court in this
proceeding by joint letter on July 7, 2023 (ECF Doc. 131). The matters before the Court
included whether discovery should proceed at this time. Ecree joined in the position of the
Republic of the Congo (the “Republic”) that discovery should not proceed during the pendency
of respondents’ current motions to dismiss. The Court continued the stay of discovery as to the
Republic but ordered that discovery could continue as to Ecree, which cannot claim sovereign
immunity without conceding that it is the alter ego of the Republic as alleged. The Court ruled:
“[T]he Court will not stay discovery of Ecree, in line with its prior order.” ECF Doc. 132 at 3.
The prior order referred to is the Court’s Order of May 11, 2022 (ECF Doc. 114), in which the
Court ruled that discovery of Ecree could proceed given that Ecree “is not a sovereign entity
protected by the FSIA.” Id. at 5.
Ecree did not move for reargument or reconsideration of either of the Court’s Orders
within the 14-day period specified in Local Civil Rule 6.3. It should not be permitted to revisit
those Orders now, for a number of reasons outlined below.
Judgment Creditor has received documents in discovery from Ecree, and Ecree contends
its document production in response to Judgment Creditor’s requests is complete. Judgment
Creditor seriously doubts that is true; but the only way to find out is to take the deposition of
Jose Veiga, the principal of Ecree. In interrogatory responses, Ecree stated repeatedly that only
Mr. Veiga has knowledge of the matters at hand. Ecree’s interrogatory responses (without
attachments) are annexed as Exhibit 1. With respect to each of nine specific categories of
730 Third Avenue ● 12th Floor ● New York, NY 10017 ● 212.878.6900 Tel ● 212.878.6911 Fax ● www.goulstonstorrs.com

Case 1:19-mc-00195-KPF Document 141 Filed 09/07/23 Page 2 of 4
Hon. Katherine Polk Failla
September 7, 2023
Page 2

information directly relevant to this case, Ecree responded: “Ecree states that Antonio Jose da
Silva Veiga is the only person with knowledge of information relevant to the subject matter of
this Request ….” Exh. 1 at 6-8 (emphasis added). That Mr. Veiga is the person with all this
knowledge is not surprising. He wrote the letter of recommendation for the President’s
Daughter1 so as to acquire the Condominium (ECF Doc. 102-7 at 5) and has already submitted
his affidavit – in English – to the Court on Ecree’s behalf (ECF Doc. 57).
There is no next step in discovery of Ecree other than the deposition of Mr. Veiga. The
Court has already ruled that discovery of Ecree can continue, in rulings for which the time period
to seek reargument or reconsideration has lapsed. Accordingly, the letter-motion filed by Ecree
on September 1 (ECF Doc. 140) should be summarily denied. But even if the Court considers it,
the letter-motion should be denied as without merit.
2. Judgment Creditor Is Entitled to Post-Judgment Discovery from Ecree
Notwithstanding the Pending Motions to Dismiss.
Judgment Creditor holds two large, unsatisfied judgments of this Court against the
Republic. The Second Circuit has made it clear that sovereign republics which fail to honor the
judgments of this Court are subject to broad discovery of both themselves and third parties
(assuming arguendo Ecree is a third party rather than the Republic’s alter ego), so that judgment
creditors can trace funds as necessary. EM Ltd. v. Republic of Argentina, 695 F.3d 201, 207-08
(2d Cir. 2012); see also NML Capital Ltd. v. Republic of Argentina, 2014 WL 3898021 (D. Nev.
2014) (allowing tracing of funds embezzled from republic).2
Moreover, it is axiomatic that “imposition of a stay [of discovery] is not appropriate
simply on the basis that a motion to dismiss has been filed, as the Federal Rules make no such
provision.” In re Currency Conversion Fee Antitrust Litigation, 2002 WL 88278 at *1
(S.D.N.Y. Jan. 22, 2002). Ecree’s September 1 letter-motion simply recites, in condensed
fashion, the same arguments as in Ecree’s August 21, 2023 motion to dismiss. Compare ECF
Doc. 139 at 10 - 20 with ECF Doc. 140. But the Court has already set a briefing schedule for the
motions to dismiss (ECF Doc. 132) and it would be simply unfair – as well as a poor use of the
Court’s resources – to cram the briefing of the motions to dismiss into Judgment Creditor’s
allotted three-page response to Ecree’s discovery letter-motion and force the Court to consider
1

Capitalized terms not otherwise defined herein are used with the same meanings as in ECF Doc. 128;
and we assume the Court’s familiarity with this matter.
2

Because the discovery Judgment Creditor seeks is post-judgment discovery (that the Court has already
permitted to go forward), Ecree’s reliance on Picture Patents, LLC v. Terra Holdings LLC, 2008 WL
5099947 (S.D.N.Y. Dec. 3, 2008), and Ema Fin., LLC v. Vystar Corp., 336 F.R.D.75 (S.D.N.Y. 2020), as
setting the standard for Ecree’s letter-motion, is misplaced. Neither of those cases was in a post-judgment
posture remotely resembling this proceeding. For avoidance of doubt, however, Judgment Creditor
submits that Ecree’s arguments on its motion to dismiss are without merit for reasons already set forth in
previous filings by Judgment Creditor (see ECF Docs. 98, 116 and 131), and which will be supplemented
in Judgment Creditor’s opposition papers to be filed September 28.

Hon. Katherine Polk Failla
September 7, 2023
Page 3

those issues now. The motions to dismiss will be dealt with as the Court has scheduled; in the
meantime, discovery of Ecree should proceed as the Court has ordered. That means taking Mr.
Veiga’s deposition, which hardly involves prejudice or undue burden.
3. There Is No Prejudice or Undue Burden from the Veiga Deposition.
Ecree argues that taking Mr. Veiga’s deposition will cause “unnecessary burden and
expense” because he is a “non-citizen located in Europe whose first language is not English.”
These arguments are spurious. By his own affidavit testimony (in English) in this case (see ECF
Doc. No. 57), and based on the uncontradicted documents produced by the Condominium Board
(see ECF Docs. 102-7, 128-7), Mr. Veiga, while located in Portugal, formed Ecree for the
purpose of “real estate investment” in New York, and immediately after Ecree’s formation
caused Ecree to purchase the Condominium on Central Park South in Manhattan for the use of
the President’s Daughter, on whose behalf (not Ecree’s behalf) he submitted a letter of
recommendation (in English) to the Condominium Board.
Mr. Veiga clearly finds it convenient to avail himself of investment and use of property in
the Southern District of New York, and to file affidavit testimony in English in this Court, when
it serves his and the Republic’s purposes. There is nothing inconvenient about him sitting for a
deposition in this proceeding. Judgment Creditor has offered to take the deposition remotely, as
has become common since the COVID pandemic but was reasonably common even before then.
See Fed. R. Civ. P. 30(b)(4) (permitting the taking of depositions by “remote means”); Rouviere
v. DePuy Orthopaedics, Inc., 471 F.Supp.3d 571, 574-76 (S.D.N.Y. 2020) (“conducting
depositions remotely is becoming the ‘new normal’”); Alpha Capital Anstalt v. Real Goods
Solar, Inc., 323 F.R.D. 177, 179 (S.D.N.Y. 2017) (“Holding a deposition by videoconference is
‘frequently a preferred solution to mitigate the burden of a deposition location inconvenient to
one or both sides’”), quoting SEC v. Aly, 320 F.R.D. 116, 199 (S.D.N.Y. 2017).3
Ecree’s untimely letter-motion to block Mr. Veiga’s deposition should be denied. It is
prejudicial to Judgment Creditor to have to wait an indeterminate period of time to take an
important deposition in aid of enforcement of this Court’s unsatisfied Judgments.

3

Nor is language a barrier. First, Mr. Veiga has made clear that he can speak English by filing an
affidavit in English with this Court and delivering a letter of recommendation for the President’s
Daughter in English to the Condominium Board. But, in any event, Judgment Creditor has offered to
have a translator available for the deposition to translate as may be needed. Courts routinely allow
depositions to proceed in this manner. See, e.g., Signify Holding B.V. v. TP-Link America Corp., 2022
WL 3656315 at **2-3 (S.D.N.Y. Aug. 25, 2022), citing Goyette v. DCA Advertising Inc., 1991 WL
639599 at *1 (S.D.N.Y. Sept. 16, 1991) (witnesses “have sufficient ability to understand and to answer
questions in English concerning their business decisions, and therefore can testify without the assistance
of direct sequential translation. However, the depositions will be conducted with the presence of a …
translator in order to assist the witnesses in understanding any questions ….”).

Hon. Katherine Polk Failla
September 7, 2023
Page 4

Respectfully submitted,

Charles R. Jacob III
cc:

All Counsel via ECF

The Court is in receipt of Respondent Ecree's letter (Dkt. #140), and the
above response from Petitioner (Dkt. #141). As there has been no material
change to the posture of this case since the Court's July 10, 2023 Order,
discovery shall continue as to Ecree consistent with the Court's prior
orders. (Dkt. #132). Had Ecree taken issue with the July 10, 2023 Order,
it should have sought reconsideration pursuant to Local Rule 6.3. The
Court agrees with Petitioners that forcing truncated briefing of Ecree's
motion to dismiss in the form of letter motions regarding discovery is
inappropriate at this juncture, especially given Petitioner has not yet
filed its opposition. The Court is considering Ecree's motion to dismiss
and will rule on such motion in due course.
To alleviate any potential burden associated with the Veiga deposition,
Petitioners shall provide a translator for the deposition, as offered in
their above letter, and shall consent to conduct the deposition in the
setting and location of Ecree's choosing, be it in-person or remote.
The Clerk of Court is directed to terminate the motion pending at docket
number 140.
Dated:

September 8, 2023
New York, New York

SO ORDERED.

HON. KATHERINE POLK FAILLA
UNITED STATES DISTRICT JUDGE