Al-Attabi v. JPMorgan Chase Bank, N.A. et al

Filing 55

ORDER terminating 52 Letter Motion for Discovery. By May 24, 2022, the parties shall email Word document versions of their proposed protective orders to [e-mail]. The Clerk of Court is respectfully directed to close the open motion at docket number 52. (Signed by Judge Vernon S. Broderick on 5/23/2022) (ate)

Case 1:21-mc-00207-VSB-RWL Document 55 Filed 05/23/22 Page 1 of 6

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May 18, 2022
Via ECF
The Honorable Vernon S. Broderick
United States District Court, Southern District of New York
Thurgood Marshall United States Courthouse
40 Foley Square
New York, New York 10007

By May 24, 2022, the parties shall email Word
document versions of their proposed protective orders
to [e-mail]. The
Clerk of Court is respectfully directed to close the open
motion at docket number 52.
05/23/22

Re: In re Ex Parte Application of Majed Amir Al-Attabi for an Order
Pursuant to 28 U.S.C. § 1782 to Take Discovery for use in Foreign
Proceedings Pending in the Republic of Lebanon, 1:21-mc-00207-VSB-RWL
Dear Judge Broderick:
Pursuant to Rule 3 of the Court’s Individual Practices in Civil Cases, Petitioner Majed
Amir Al-Attabi and Intervenor Bank Audi S.A.L. submit this joint letter concerning their dispute
with respect to the terms of a protective order to govern the treatment of the certain records
Petitioner has subpoenaed from BNY Mellon, N.A./The Bank of New York Mellon, Citibank,
N.A., Standard Chartered Bank, and JPMorgan Chase Bank & Co. (collectively, the “N.Y.
Banks”) pursuant to this Court’s September 3, 2021 order (ECF 10) granting Petitioner’s abovecaptioned application for discovery pursuant to 28 U.S.C. §1782.
Petitioner seeks production by the N.Y. Banks of: (1) the periodic account statements they
provided to their customer Bank Audi between October 17, 2019 and the present; and (2) records
reflecting all U.S. dollar wire transfers, electronic funds transfers, automated clearing house
transfers, or checking transactions made during the same period through or using Bank Audi’s
correspondent account at each of the N.Y. Banks. See ECF 4-1 at p. 4, ¶¶ 1-2. Petitioner
explicitly does not seek the names or account numbers of the transferors and transferees for whose
benefit the U.S. dollar transfers were made, but does seek documents sufficient to identify the
geographic location of the bank accounts of those transferors and transferees. See id. at p.5, ¶ 3.
Petitioner and Intervenor Have Met and Conferred
On March 9, 2022, the undersigned counsel for Petitioner and Bank Audi conferred by
telephone concerning the terms of a protective order. Counsel subsequently exchanged drafts of a
proposed protective order via emails on March 16 and 17, 2022. On March 29, 2022, counsel for
Bank Audi provided a further revised draft to Petitioner’s counsel. On May 10, 2022, Petitioner’s
counsel emailed Petitioner’s proposed protective order to counsel for Bank Audi, writing that Bank
Audi’s counsel had 72 hours under this Court’s Local Rules to provide its position for this joint
letter. Petitioner’s proposed protective order was the first to include procedures for designating
any of the “Subpoenaed Information” as “Confidential Information.” See, e.g., ECF No. 44-4
(Petitioner’s Proposed Protective Order as of March 17, 2022). Counsel have been unable to reach
agreement on the terms of an appropriate protective order and have agreed to present to the Court
their respective proposed orders. Petitioner’s proposed protective order is annexed hereto as
Exhibit 1. Bank Audi’s proposed protective order is annexed hereto as Exhibit 2. A comparison
of Exhibits 1 and 2 is annexed hereto as Exhibit 3.

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The Honorable Vernon S. Broderick
May 18, 2022
Page 2
For the reasons set forth below, Petitioner now seeks entry of a protective order as soon as
possible.
Petitioner’s Proposed Protective Order (Exhibit 1)
Petitioner’s proposed order provides for any discovery material designated “confidential”
(“Confidential Information”) to be filed in this Court under seal. See Ex. 1 at ¶ 5. However, as
there is no mechanism for filing documents under seal in Lebanese courts (see ECF 44-1
(Declaration of Bank Audi’s Chief Legal Officer) at ¶ 12), Petitioner’s proposed order
contemplates that “to the extent that Confidential Information becomes part of, or is reflected in,
records of the Lebanon Courts,” any person authorized under Lebanese law [will be permitted] to
have access to such records.” See Ex. 1 at ¶ 3(h). As a practical matter, it is unlikely that any of
the records produced by the N.Y. Banks will constitute Confidential Information because, as
explained above, Petitioner has requested that the N.Y. Banks redact the names and account
numbers of all transferors and transferees. In the event that any of the N.Y. Banks fails to redact
the records as requested, Petitioner will redact all account names and numbers before filing any
such records in the Lebanon Courts.
Without any evidentiary basis, Bank Audi has falsely accused Petitioner of intending to
publicize the discovery from the N.Y. Banks in the Lebanese press in an effort to embarrass Bank
Audi and/or precipitate civil unrest in Lebanon. See, e.g., ECF 44-1 at ¶¶ 12-16. Petitioner’s
proposed order explicitly precludes Petitioner, or anyone else, from using any of the discovery—
even the anonymized, non-confidential records—“for any purpose other than proving or rebutting
any claim, issue, argument, or defense raised in any of the Related Lebanon Proceedings.” See
Ex. 1 at ¶ 1.
Petitioner respectfully submits that Intervenor Bank Audi’s objections to the terms of
Petitioner’s proposed order are a frivolous continuation of its scorched-efforts to thwart
Petitioner’s access to the discovery that this Court granted to Petitioner on September 3, 2021. As
a preliminary matter, having twice moved to quash Petitioner’s subpoenas without ever suggesting
that the subpoenaed records—requested in anonymized form—will reflect Bank Audi’s trade
secrets or other confidential research, development, or commercial information entitled to
protection under Rule 26(c), Bank Audi has waived any right to be heard with respect to the
appropriate terms of a protective order. Bank Audi’s assertion that Lebanese law requires it to
intervene in this proceeding “to protect the confidentiality of its customers’ information” is simply
false. See Ex. 2 at p.1. As this Court has already found, Lebanon’s bank secrecy law prevents
Lebanese banks from disclosing their customer’s secrets—it has no application to the N.Y. Banks,
or to the Petitioner. See ECF 10 at 5-6. In any event, Lebanon’s Law of September 3, 1956 on
Banking Secrecy precludes Lebanese banks from disclosing information about their “clients’
names, funds, or personal matters” without authorization. See ECF 28-2 at Article 2. As
previously noted, Petitioner’s subpoenas seek anonymized information that will not identify any of
Bank Audi’s clients.
Petitioner specifically objects to the following provisions of Bank Audi’s proposed
protective order (Exhibit 2). Paragraph 4 (which would preclude Petitioner from submitting any
discovery to a Lebanon Court without first seeking an order from that court directing itself to
retain the discovery in a locked safe) would constitute improper interference by this Court in the

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The Honorable Vernon S. Broderick
May 18, 2022
Page 3
procedures of a foreign tribunal. Furthermore, the order that Paragraph 4 requires Petitioner to
seek is not one that a Lebanon Court could issue. As Bank Audi’s Chief Legal Officer has
admitted, there is “no mechanism to file documents under seal in Lebanese civil procedure.” See
ECF 44-1 at ¶ 12. Thus, Paragraph 4 of Bank Audi’s proposed order is simply another attempt by
a vexatious adversary to thwart and/or delay Petitioner’s efforts to prosecute his claims.
The following paragraphs of Bank Audi’s proposed order are unnecessary and will
needlessly increase the cost of the litigation: (1) paragraphs 2(b) and (c) (which would require the
parties’ legal counsel (including paralegals and other personnel) to individually execute
Confidentiality Agreements prior to receiving the discovery); (2) paragraph 3(a) (which would
require Petitioner to translate the order and Confidentiality Agreement into Arabic before any need
for such translations has been determined); and (3) paragraph 3(b) (which would require U.S.
Counsel’s ongoing involvement in the Lebanese litigation as custodians of all executed
Confidentiality Agreements).
Bank Audi’s Proposed Protective Order
Bank Audi requests entry of a protective order in the form annexed as Exhibit 2 (“Bank
Audi PPO”). Petitioner’s proposed protective order (“Petitioner’s PPO”) allows for the public
filing of redacted and misleading banking information that will have an incendiary impact in
Lebanon, a country that is in the throes of a severe financial crisis. By effectively allowing for the
public dissemination of all of the information to be produced by the N.Y. Banks, the PPO
threatens grave harm to Bank Audi and its personnel that could be avoided by an appropriate
protective order tailored to permit legitimate use of that information in the Lebanese Proceedings
while giving the Lebanese Court the opportunity to determine whether the information should be
subject to public dissemination.
Specifically, the subpoenas call for the production of records reflecting all U.S. dollar
transfers made since the beginning of Lebanon’s financial crisis in October 2019 through Bank
Audi’s correspondent accounts at the N.Y. Banks. See ECF 4-1, Request Nos. 2-3. As described
in the Declaration of Chahdan Jebeyli (ECF No. 44-1), submitted with Bank Audi’s Objections,
public dissemination of this information in Lebanon would cause irreparable injury to Bank Audi.
Since late 2019, as a result of Lebanon’s ongoing financial crisis, all Lebanese banks have been
operating under a system of de facto capital controls that restrict overseas transfers of foreign
currency, with certain exceptions, such as for trade financing and the payment of urgent personal
expenses. Id. ¶ 6. The Lebanese press has been highly critical of the entire Lebanese banking
sector, id. ¶¶ 7-9, including by publishing speculation that “billions of U.S. dollars have reportedly
been transferred abroad by influential politicians and businessmen before and during the crisis,
despite the restrictions.”1 Lebanon has a strict bank secrecy law that precludes disclosure of
customer banking information even to government authorities; as a result, no bank in Lebanon has
been subject to public disclosure of the number or amounts of overseas transfers it has made since
the beginning of the financial crisis. Id. ¶ 13. If the Subpoenaed Information is publicly filed in
Lebanon, the Lebanese press will undoubtedly seize upon it and assert (inaccurately) that Bank
1

Dalal Saoud, Depositors turn to courts to free money from Lebanese banks, (Dec. 21, 2021),
https://www.upi.com/Top_News/World-News/2021/12/21/lebanon-Lebanon-frozen-bank-accountslawsuits/5221640106629/

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The Honorable Vernon S. Broderick
May 18, 2022
Page 4
Audi has violated Lebanon’s de facto capital controls and played favorites among its customers.
Id. Because the subpoenas do not call for the production of customer names or other identifying
information about the transfers, the inaccuracy of those inferences will not be evident from the
face of the Subpoenaed Information. And Bank Audi will be unable provide those corrective
details since it is a criminal violation of Lebanon’s bank secrecy law for Bank Audi to disclose the
banking information of its other customers. Id. ¶¶ 14-15. The resulting harm to Bank Audi’s
reputation and its personnel are incalculable, but immense. Id. ¶¶ 15-16.
Petitioner’s PPO does nothing to mitigate these concerns, but rather makes clear that he
intends to exploit Lebanon’s lack of established procedures for filing documents under seal in
order to embarrass Bank Audi. To the extent the Court overrules Bank Audi’s pending Objections
and any documents are produced at all, the documents should be produced pursuant to Bank
Audi’s PPO. We address below the principal differences between the two proposals:
1. Bank Audi’s PPO requires the parties to jointly seek an order from the Lebanese Court
that any Subpoenaed Information submitted in the Lebanon Proceedings be filed in camera and
maintained by the Lebanese Court in a locked safe. Bank Audi PPO ¶ 4. This precaution is
necessary because Lebanese courts have no procedures to file documents under seal, or to
segregate sensitive documents from courthouse personnel not working on a matter. Petitioner does
not and cannot claim that he would be prejudiced by this provision; instead, he claims it “would
constitute improper interference by this Court in the procedures of a foreign tribunal.” But
Paragraph 4 requires only that the parties “seek to obtain” such an order; it does not direct the
Lebanese Court to do anything at all. Other district courts have not hesitated to direct parties to
jointly move for a protective order in a foreign jurisdiction when granting a § 1782 petition. See,
e.g., Siemens AG v. W. Digital Corp., No. 8:13-cv-01407-CAS-(AJWx), 2013 WL 5947973, at *6
(C.D. Cal. Nov. 4, 2013) (court “direct[ed] the parties to jointly seek a protective order” in German
patent court).
2. Petitioner’s PPO does not impose any procedural limitations on use or disclosure of the
Subpoenaed Information, but only on a defined category of “Confidential Information.”
Petitioner’s PPO ¶¶ 2-6. “Confidential Information” is confined to trade secrets, personal
information such as social security numbers or financial account numbers, and the names of
children and third-parties. Id. ¶¶ 2(a)-(d). But this is information explicitly not sought by the
Subpoenas. See ECF No. 4-1, Request No. 3. Indeed, Petitioner admits that “[a]s a practical
matter, it is unlikely that any of the [Subpoenaed Information] will constitute Confidential
Information.” Thus, the limited protections of Petitioner’s PPO are completely illusory because
they do not apply to any of the Subpoenaed Information. By contrast, Bank Audi’s PPO applies to
all of the Subpoenaed Information, since it is all sensitive banking information, even as
anonymized.
3. Bank Audi’s PPO appropriately limits who will have access to the Subpoenaed
Information to employees of U.S. and Lebanese counsel who are “actually engaged” in working on
this matter or the Lebanese Proceedings. Bank Audi PPO ¶¶ 2(b), 2(c), 2(e). Petitioner has
refused to agree to this limitation, in the absence of which persons not working on this matter
could access and potentially publicize highly sensitive information.

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The Honorable Vernon S. Broderick
May 18, 2022
Page 5
4. Bank Audi’s PPO requires all personnel to whom Subpoenaed Information is disclosed
to execute a Confidentiality Agreement submitting to the jurisdiction of this Court, to be
maintained by U.S. Counsel to the disclosing party. Bank Audi PPO ¶¶ 2(b), 2(c), 2(e), 3(b) & Ex.
A. This provision is necessary to assure that there will be a remedy for any breach of the
Protective Order, since Lebanese courts are not equipped to provide such a remedy. Similarly,
Bank Audi’s PPO requires that copies of all executed Confidentiality Agreements must be
provided upon request where the requesting party “reasonably believes there has been
unauthorized disclosure of the Subpoenaed Information.” Bank Audi PPO ¶ 3(b). This provision
is necessary so that Bank Audi can seek a judicial remedy for any breach of the Protective Order.
5. Once any Subpoenaed Information is filed in a Lebanese Court, Petitioner’s PPO
permits disclosure of that information to “any person authorized under Lebanese law to have
access to” records filed in a Lebanese Court. Petitioner’s PPO ¶ 3(h). Since Lebanese law does
not restrict public access to court records, this means that Subpoenaed Information could be
disclosed to anyone once filed. There is no litigation purpose for such a provision, which appears
calculated to allow Petitioner to disclose Subpoenaed Information to the Lebanese press.
6. Bank Audi’s PPO provides that if Subpoenaed Information is filed in this Court, it
“shall be filed under seal.” Bank Audi’s PPO ¶ 4. Petitioner’s PPO provides only that he “shall
move to file it under seal.” Petitioner’s PPO ¶ 5. Because this Court is not adjudicating the merits
of the parties’ dispute, it is unclear why there should be any need to file Subpoenaed Information
here. Nonetheless, if such a filing is made, it should not be a backdoor to public dissemination of
the Subpoenaed Information in Lebanon, requiring that it be filed under seal.
Bank Audi’s PPO appropriately protects Bank Audi from “embarrassment” as defined in
Fed. R. Civ. P. 26(c), especially in light of Bank Audi’s submission showing that the
“embarrassment resulting from the dissemination of the information would cause a significant
harm to its competitive and financial position.” Application of Akron Beacon J., No. 94 CIV. 1402
(CSH), 1995 WL 234710, at *11 (S.D.N.Y. Apr. 20, 1995) (adopting and quoting Cipollone v.
Liggett Group, Inc., 785 F.2d 1108, 1121 (3d Cir. 1986)). Because the Subpoenaed Information
will be produced in a misleading redacted form, and because it would violate Lebanese law for
Bank Audi to disclose the confidential banking information needed to correct those misleading
inferences, and because this misleading information can only fuel anti-bank protests, there can be
no countervailing public interest in its disclosure. See In re Gen. Motors LLC Ignition Switch
Litig., No. 14-MC-2543 JMF, 2015 WL 4522778, at *4 (S.D.N.Y. July 24, 2015) (balancing the
showing of good cause for a protective order with countervailing interests). Bank Audi’s PPO will
prevent the threatened harm to Bank Audi’s reputation, it is the least restrictive means of
preventing such harm if the Subpoenaed Information is indeed turned over to Petitioners, and it
does no harm to Petitioner or to any public interest.
Petitioner’s Request for Expedited Consideration of this Letter Motion
Petitioner’s application for § 1782 discovery was filed more than 14 months ago. Since it
was granted on September 3, 2021, Petitioner has been forced to fight off no fewer than eight

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The Honorable Vernon S. Broderick
May 18, 2022
Page 6
unsuccessful attempts by Intervenor Bank Audi to thwart or delay the discovery.2 The current
dispute over the terms of a protective order is merely the latest salvo. Petitioner’s next—and
possibly last—opportunity to present evidence to the Court of First Instance in Beirut will be on
June 2, 2022. See ECF 46-4 (March 22, 2022 Declaration Petitioner’s Lebanese counsel) at ¶¶ 23. It is imperative that Petitioner obtains the records subpoenaed from the N.Y. Banks more than
seven months ago in sufficient time to prepare for the June 2, 2022 hearing.
Bank Audi’s Position on Expedited Consideration of this Letter Motion
Bank Audi does not oppose Petitioner’s request for expedited consideration of this lettermotion, although it notes that his invocation of the June 2 hearing in Lebanon creates a false sense
of urgency. Petitioner’s own counsel has conceded that it is within the discretion of the Lebanese
Court to adjourn that hearing. See ECF 48-02 ¶ 4.
Respectfully submitted,
/s/ Susan M. Davies
Attorney for Petitioner Majed Amir Al-Attabi
/s/ Linda C. Goldstein
Attorney for Intervenor Bank Audi S.A.L.

Attachments – Exhibits 1-3
CC: Via email with attachments
Hendrick van Hemmen, Esq., Standard Chartered Bank ([e-mail])
Sharon Schneier, Esq., Citibank, N.A. ([e-mail])
Sarah Wariner, Esq., JPMorgan Chase Bank & Co. ([e-mail])
Stephanie Wilson, Esq., BNY Mellon, N.A. and The Bank of New York Mellon
([e-mail])

2

(1) On October 21, 2021, Bank Audi moved unsuccessfully to vacate this Court’s September 3, 2021 order. ECF
18-23. (2) On February 25, 2022, Bank Audi renewed that motion, again without success, and (3) unsuccessfully
sought to stay compliance with Petitioner’s subpoenas pending determination of that unsuccessful renewed motion.
ECF 35. (4) On March 8, 2022, Bank Audi unsuccessfully sought a stay from Judge Lehrburger pending an appeal to
the Second Circuit. See Transcript of Telephone Conference on March 8, 2022 at 15-16; ECF 39. (5) On March 14,
2022, Bank Audi noticed a appeal from this Court’s decisions in Petitioner’s favor that was dismissed on jurisdictional
grounds on May 9, 2022, and (6) filed a motion in the Second Circuit for an emergency stay pending determination of
that appeal that was denied as moot. (7) On March 22, 2022, Bank Audi filed objections to Judge Lehrburger’s March
8, 2022 order and sought a stay pending determination of those objections, and (8) on May 9, 2022 filed a letter
motion seeking a stay. On May 17, 2022, this Court overruled Bank Audi’s objections and denied its stay motions.