In Re: Bito Storage Solutions US, Inc.

Filing 15

ORDER granting 13 Motion for Leave to Issue Additional Subpoenas. Accordingly, it is hereby ORDERED and ADJUDGED as follows: The Motion is GRANTED. Any discovery taken pursuant to this Order, including related motion practic e, shall be governed by the Federal Rules of Civil Procedure. Applicant is authorized to issue and serve a subpoena on each of the Discovery Targets in substantially similar form to the subpoenas attached to the Motion as Comp osite Exhibit 1. The Applicant is further authorized to issue and serve additional follow up subpoenas on the Discovery Targets as may be necessary to obtain the documentary and testimonial evidence for use in the Foreign Proceedin gs. The Discovery Targets are ordered to preserve all relevant and potentially relevant evidence in their possession, custody or control until further order of this Court. Nothing in this Order should be construed to prevent or otherwise foreclose the Applicant from seeking modification of this Order or leave of Court to serve any additional subpoena on a person or entity. So Ordered. (Signed by Judge J. Paul Oetken on 6/3/2021) (js)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
In re Application of
BITO STORAGE SOLUTIONS US, INC.,
Case No. 1:20-mc-00202
For an Order to Conduct Discovery for

(JPO)

Use in Foreign Proceedings

ORDER GRANTING MOTION
FOR LEAVE TO ISSUE ADDITIONAL SUBPOENAS
THIS CAUSE came before the Court upon the Motion for Leave to Issue Additional
Subpoenas (“Motion”) filed by BITO Storage Solutions US, INC., (“Applicant”). The Court,
having considered the Motion and supporting materials and otherwise being fully advised in the
premises, finds as follows:
A.

On July 31, 2020, this Court granted Applicant’s request for judicial assistance to

obtain discovery in aid of a pending criminal investigation and a contemplated civil proceeding
in Germany and found that the Applicant’s request met the requirements under 28 U.S.C. § 1782
(“Order Granting Initial Application”). See Order Granting Ex Parte Application for Assistance
Pursuant to 28 U.S.C. § 1782 [D.E. 9]. Further, the Order Granting Initial Application provides
that “[n]othing in this Order should be construed to prevent or otherwise foreclose the Applicant
from seeking modification of this Order or leave of Court to serve any additional subpoena on a
person or entity.” Id.
B.

Applicant has met the requirements under 28 U.S.C. § 1782 for granting the

requested judicial assistance in the instant Motion.

C.

For purposes of the Motion, the Court finds Applicant seeks documentary and

testimonial evidence from Wells Fargo Bank, N.A. and Mr. Shane Jennings, which reside or are
found in the Southern District of New York (collectively, “Discovery Targets”).
D.

This Court has previously determined in the Order Granting Initial Application

that the documentary and testimonial discovery sought through the previous judicial assistance
request was for use in foreign proceedings in which Applicant was an interested person, namely
a criminal investigation about the fraud suffered by the Applicant, which is being conducted by
the Public Prosecutors of Diusburg and Lueneburg, Germany, (the “Pending Criminal
Investigation”), and a contemplated civil proceedings to be filed before the German Civil Court
against the fraudsters to recover the funds diverted from Applicant, which proceedings are within
Applicant’s reasonable contemplation (the “Contemplated Civil Proceeding”) (collectively, the
“Foreign Proceedings”). Id.
E.

The discretionary factors, as described by the United States Supreme Court in

Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 247 (2004), weigh in favor of
granting the requested assistance.
F.

More particularly: (1) the Discovery Targets are not parties to the proceedings in

Germany and are not expected to become parties thereto; thus, the need for this discovery is
more apparent; (2) there is no indication that the German courts or public prosecutors would not
be receptive to U.S. federal court judicial assistance as requested in the Application; (3) the
Application does not conceal an attempt to circumvent German proof-gathering restrictions; and
(4) the Application seeks discovery that is not unduly intrusive or burdensome.
Accordingly, it is hereby ORDERED and ADJUDGED as follows:
1.

The Motion is GRANTED.

2.

Any discovery taken pursuant to this Order, including related motion practice,

shall be governed by the Federal Rules of Civil Procedure.
3.

Applicant is authorized to issue and serve a subpoena on each of the Discovery

Targets in substantially similar form to the subpoenas attached to the Motion as Composite
Exhibit 1. The Applicant is further authorized to issue and serve additional follow up subpoenas
on the Discovery Targets as may be necessary to obtain the documentary and testimonial
evidence for use in the Foreign Proceedings.
4.

The Discovery Targets are ordered to preserve all relevant and potentially

relevant evidence in their possession, custody or control until further order of this Court.
5.

Nothing in this Order should be construed to prevent or otherwise foreclose the

Applicant from seeking modification of this Order or leave of Court to serve any additional
subpoena on a person or entity.

IT IS SO ORDERED, this 3rd day of June, 2021.

_______________________________________
J. PAUL OETKEN
UNITED STATES DISTRICT COURT JUDGE