In Re: Bito Storage Solutions US, Inc.

Filing 9

ORDER GRANTING EX PARTE APPLICATION FOR ASSISTANCE PURSUANT TO 28 U.S.C §1782 granting 1 Motion for Discovery. Accordingly, it is hereby ORDERED and ADJUDGED as follows: The Application is GRANTED. Any discovery taken pursuant to this O rder, including related motion practice, 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 Application as Composite Exhibit A. 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 Pro ceedings. 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. (Signed by Judge J. Paul Oetken on 7/31/2020) (rro)

Case 1:20-mc-00202-JPO Document 9 Filed 07/31/20 Page 1 of 3

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
In re Application of
BITO STORAGE SOLUTIONS US, INC.,
Case No. 20 Misc. 202
For an Order to Conduct Discovery for
Use in Foreign Proceedings

ORDER GRANTING EX PARTE APPLICATION
FOR ASSISTANCE PURSUANT TO 28 U.S.C §1782
THIS CAUSE came before the Court upon the Ex Parte Application for Assistance
Pursuant to 28 U.S.C. § 1782 filed by BITO Storage Solutions US, INC., (“Applicant”). The
Court, having considered the § 1782 Application and supporting materials and otherwise being
fully advised in the premises, finds as follows:
A.

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

requested judicial assistance.
B.

For purposes of the instant Application, the Court finds Applicant seeks

documentary and testimonial evidence from Mr. Henry Roske (a/k/a Hendrik Roske) and H.
Roske & Associates LLP, which reside or are found in the Southern District of New York
(collectively, “Discovery Targets”).
C.

The documentary and testimonial discovery sought through this Application is for

use in 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 in contemplated civil proceedings to be filed before the German
Civil Court against the fraudsters to recover the funds diverted from Applicant, which

Case 1:20-mc-00202-JPO Document 9 Filed 07/31/20 Page 2 of 3

proceedings are within Applicant’s reasonable contemplation (the “Contemplated Civil
Proceeding”) (collectively, the “Foreign Proceedings”).
D.

Further, as victim entitled to present evidence in the Pending Criminal

Investigation and as putative claimant in the Contemplated Civil Proceeding, Applicant is an
interested person within the meaning of 28 U.S.C. § 1782.
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 Application 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 Application as Composite
Exhibit A. 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.

Case 1:20-mc-00202-JPO Document 9 Filed 07/31/20 Page 3 of 3

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.

SO ORDERED.
July 31, 2020
_______________________________________
UNITED STATES DISTRICT COURT JUDGE