ABC v. DEF

Filing 38

ORDER: granting 36 Letter Motion to Stay re: 36 EMERGENCY LETTER MOTION to Stay Subpoenas Pending Resolution of Motion to Quash addressed to Judge P. Kevin Castel from Michael O. Ware dated April 8, 2021. Compliance with subpoenas stayed pending further order of the Court. The subpoenaed parties shall preserve all documents. SO ORDERED. (Signed by Judge P. Kevin Castel on 4/12/2021) (ama)

Case 1:20-mc-00203-PKC Document 36 Filed 04/08/21 Page 1 of 3
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04/12/21
Mayer Brown LLP
1221 Avenue of the Americas
New York, NY 10020-1001
United States of America
T: [phone]
F: [phone]

April 8, 2021
BY ECF AND FAX
Hon. P. Kevin Castel
United States District Judge
500 Pearl St.
New York, N.Y. 10007
Re:

Compliance with subpoenas stayed pending
further order of the Court. The subpoenaed
parties shall preserve all documents.

mayerbrown.com

Michael O. Ware
T: [phone]
F: [phone]
[e-mail]

SO ORDERED.
Dated: 4/12/2021

Ex parte Application of Klein
20 Misc. 203 (PKC)
Urgent Motion Related To Discovery

Dear Judge Castel:
This is an emergency discovery motion by Gertrudes Benedek and three of her adult children,
Alexandre R. Benedek, Vivian Noemy Benedek Moas and Evelyn Benedek (together the
“Gertrudes Group”). The four members of the Gertrudes Group are the defendants in a Brazilian
lawsuit, called an Ação de Sonegados, filed by the Applicants herein, Sylvia Benedek Klein and
Eliane Benedek Segal. The Applicants are also adult daughters of Gertrudes. No conferences
before the Court are presently scheduled, but we would welcome the opportunity to discuss these
matters with the court right away.
Under the authority of a § 1782 order entered February 17, 2021, on March 12, 2021, the
Applicants issued subpoenas to eight U.S. financial institutions seeking a very broad range of
financial information on dozens of persons and companies for a period of many years. The
subpoenas are returnable April 12.
Because the § 1782 orders were improvidently granted on a distorted record, we have today
submitted a Pre-Motion Letter (ECF No. 35) on a motion to vacate the orders, to quash the
subpoenas and to dismiss this proceeding (and if necessary to intervene).
In virtually every § 1782 case in this procedural posture, the applicant agrees to suspend
enforcement of the subpoenas until the court rules on the propriety of their issuance. Here, by
contrast, the Applicants have been badgering the witnesses to complete document productions
before April 12.
Applicants have offered only that they will not use materials the witnesses produce until after the
Court rules on the motion – but only if (a) two Ação de Sonegados defendants presently in Israel
waive Hague service of the Ação de Sonegados and (b) the Gertrudes Group agrees that there
Mayer Brown is a global services provider comprising an association of legal practices that are separate entities including
Mayer Brown LLP (Illinois, USA), Mayer Brown International LLP (England), Mayer Brown (a Hong Kong partnership)
and Tauil & Chequer Advogados (a Brazilian partnership).

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Mayer Brown LLP
Hon. P. Kevin Castel
April 8, 2021
Page 2
will be no material transactions in any account with any of the financial-institution witnesses
until after the Court overrules the motion and Applicants have had a period of time in which to
take action against assets identify from the witnesses’ productions. The Gertrudes Group has
other counsel in the Ação de Sonegados; I do not know what considerations inform decisions in
that case about service of process, but I will ask them to consider waiving service. The idea of a
Mareva-style asset freeze, however, is absurd. It is said to be necessary to avoid dissipation, but
there is no explanation for why a Gertrudes Group member wanting to take assets beyond reach
would not have acted already. The demand undermines the § 1782 action by suggesting that its
purpose is not to provide evidence for the Ação de Sonegados, which as our Pre-Motion Letter
demonstrates is not interested in assets outside Brazil, but instead to identify attachable assets in
other countries for litigation in those countries.
We therefore ask that the Court issue an order staying the March 12 subpoenas pending further
order.
*

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Less urgently, Applicants have refused to share with us the materials they received from the
witnesses subpoenaed in 2020. We are offered access only to documents concerning “entities or
individuals … that [Mayer Brown] either represents or that [Mayer Brown] confirms[s] are
owned or controlled by the Brazilian Defendants that [Mayer Brown] represent[s].”
That makes no sense. Applicants’ indiscriminate subpoenas were certainly a fishing expedition,
and the nets probably pulled in all sorts of fish besides what Applicants were looking for. But
Applicants hold that material, extraneous or not, by virtue of their status as litigants opposed to
the Gertrudes Group in the Ação de Sonegados. There is no basis to withhold anything, and we
request that Applicants be directed to share with us what they collected in 2020.
*

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*

I have conferred extensively on the subjects of this motion with Applicants’ attorney, Martin de
Luca of Kobre & Kim, but the matters could not be resolved.
We thank the Court for its consideration.
Respectfully submitted,
/s/ Michael O. Ware
Michael O. Ware

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Mayer Brown LLP
Hon. P. Kevin Castel
April 8, 2021
Page 3
cc by email:
E. Martin de Luca, Esq.
Scott C. Nielson, Esq.
(Kobre & Kim São Paulo)