In the matter of the application of Isabella Hranov for an order to take discovery pursuant to 28 U.S.C. §1782

Filing 26

OPINION AND ORDER: re: 23 FIRST LETTER MOTION for Oral Argument by applicant Isabella Hranov. addressed to Judge P. Kevin Castel from Stuart M, Riback dated December 22, 2021. filed by Isabella Hranov, 14 LETTER MOTION for Oral Argument of Respondent Deutsche Bank AG's Motion to Quash Subpoena. addressed to Judge P. Kevin Castel from Joshua Dorchak dated October 29, 2021. filed by Deutsche Bank AG, 10 MOTION to Quash Section 1782 Discovery Order Entered By The Court Septembe r 22, 2021 [ Docket No. 8 ] filed by Deutsche Bank AG. For the reasons explained, Deutsche Bank's motion to quash the subpoena is GRANTED. The Clerk is directed to terminate the motion, the related letter-motions and to close the case. (Docket # 10, 14, 23.). SO ORDERED. (Signed by Judge P. Kevin Castel on 4/28/2022) (ama)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------------------------------x
IN THE MATTER OF THE APPLICATION OF
ISABELLA HRANOV FOR AN ORDER TO
TAKE DISCOVERY PURSUANT TO 28
U.S.C. § 1782
-----------------------------------------------------------x

21-mc-751 (PKC)
OPINION AND ORDER

CASTEL, U.S.D.J.
On September 22, 2021, this Court granted an ex parte application brought by
Isabella Hranov to take discovery in aid of a foreign proceeding. See 28 U.S.C. § 1782. Hranov
seeks a wide range of documents from Deutsche Bank AG (“Deutsche Bank”), or, alternatively,
from Deutsche Bank Trust Corporation, in connection with a civil proceeding in the courts of
Germany, where she has sued Deutsche Bank.
Deutsche Bank moves to quash the subpoena. It urges that because it is not
“found” this District, Hranov’s application does not satisfy the mandatory criteria of section
1782(a). It further urges that if the mandatory criteria is satisfied, the discretionary factors set
forth in Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 264-65 (2004), weigh
against the application.
As will be explained, Hranov has not pointed to a causal relationship between
Deutsche Bank’s forum contacts and the discovery that she seeks in this application. The Court
therefore concludes that, for the purposes of Hranov’s application, Deutsche Bank is not “found”
in this district, and Hranov has not satisfied the mandatory factors of section 1782(a). See In re
del Valle Ruiz, 939 F.3d 520, 527 (2d Cir. 2019). Alternatively, if the Court were to reach the
discretionary Intel factors, these factors weigh strongly against Hranov’s application, and the
motion to quash would be granted.

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Accordingly, Deutsche Bank’s motion to quash will be granted.
BACKGROUND.
On or about October 31, 2016, applicant Isabella Hranov commenced a civil
proceeding in the Main Regional Court of Frankfurt, Germany, asserting claims against Deutsche
Bank and one of its employees, Simon Biner (the “Complaint”). (Kern Dec. Ex. 2.) The
Complaint describes Hranov’s husband, Rumen Hranov, as “an extremely wealthy Swiss citizen”
who was damaged when Biner carried out a scheme that rendered worthless his short-term call
options on shares of OC Oerlikon AG (“Oerlikon”). (Id. at 9.) As described in the Complaint,
Rumen Hranov assigned his claims to Isabella Hranov, who then brought claims on behalf of
Rumen, his mother, and his deceased sister. (Id. at 10, 15-16.)
Broadly summarized, the Complaint alleges that Biner approached Rumen
Hranov and proposed to invest his money in high-volume options trading, a field in which
Rumen lacked knowledge and experience, and that, after a series of profitable transactions, Biner
advised Rumen to acquire options in Oerlikon shares “at a massive scale.” (Id. at 11.) As
described in the Complaint, Deutsche Bank was the counterparty to Rumen’s options, and set
prices on the options that exceeded their fair market value by 18%. (Id. at 10, 12.) The
Complaint alleges that the investments were “geared toward total loss” to Hranov, with the intent
of maximizing gains to Deutsche Bank. (Id. at 12.) According to the Complaint, due to Biner’s
scheme, Hranov suffered a total loss on the options when the Oerlikon share price was lower
than the options’ strike price on their exercise date. (Id. at 32.) The Complaint alleges losses
totaling 316,011,961 Swiss francs, or approximately €326.8 million. (Id.; Schmitt Dec. ¶ 4.)
The Complaint brings claims against Deutsche Bank and Biner under German law that appear
similar to fraud, breach of fiduciary duty and/or securities fraud. (Id. at 94-108.)

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Hranov’s section 1782 application seeks a wide range of documents relating to
Biner’s advice to Rumen Hranov and his Oerlikon transactions. Hranov asserts that for the
purpose of this application, Deutsche Bank “is found” in this District based on an email that
Biner sent to others within Deutsche Bank on March 28, 2008, which copied a New York-based
employee. He also points to a declaration filed in an ongoing dispute in the German litigation
about conflicting versions of this email (the “Disputed Email”) and Deutsche Bank’s process for
archiving and retrieving electronic data. In the Disputed Email, Biner appears to make
observations about the options holdings of Rumen Hranov and another Deutsche Bank client.
The email was copied to Noreddine Sebti, the former Global Head of Equity Trading at Deutsche
Bank, who was located in New York at the time the email was sent. (Kern Dec. ¶ 16.) In a
version of the email that Hranov purportedly obtained as a “printout” from “an unknown third
party,” the email states in regard to Rumen Hranov: “no matter what, we can adjust the pricing in
our favour. client is not aware at all.” (the “Disputed Language”) 1 (Kern Dec. ¶ 11.)
After being presented with this email by Hranov during the German litigation,
Deutsche Bank then located a version of this email in its own electronic archives that was nearidentical, except that it did not contain the Disputed Language.
Hranov’s application asserts that under German law, parties do not exchange
documents in a formal discovery process, and that each party is responsible for obtaining and
developing its own evidence independently. (Kern Dec. ¶ 14.) In support of the authenticity of
its own archived version of the Disputed Email, Deutsche Bank submitted to the German Court a

1
Deutsche Bank’s attorney in the German proceedings states that the email proffered by Hranov “was a paper
printout; it was not a .pst email file or any other electronic file.” (Schmitt Dec. ¶ 10.) In the German proceedings,
Hranov has attempted to confirm the authenticity of the email by submitting a “‘Picture’ from the ‘Dark Web’ that
purportedly confirms the authenticity of the Disputed Document” and was taken by a detective agency. (Schmitt
Dec. ¶ 17 & Ex. 3.)

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declaration from Margaret Dolson, who has the title Global Head of eDiscovery Services at
Deutsche Bank and is located in New York. (Kern Dec. ¶ 12 & Ex. 3.) Dolson described how
Deutsche Bank’s electronic data is archived and retrieved, including historical employee emails.
(Kern Dec. ¶ 12 & Ex. 3.) As described by Dolson, Deutsche Bank produced the email after a
search of archived emails belonging to Sebti, and Dolson stated that the data retrieved from Sebti
“was not altered or amended.” (Dolson Dec. ¶ 31.) Deutsche Bank has described the email
proffered by Hranov as “a possible forgery.” (Deutsche Bank Mem. at 1.)
Hranov asserts that for the purposes of this application, Deutsche Bank “is found”
in this District through the forum contacts reflected in Sebti’s receipt of the Disputed Email, as
well as through the New York presence of Dolson. (Kern Dec. ¶¶ 19-20.)
Hranov’s application seeks broad categories of documents related to Biner’s
trading activities and his communications within Deutsche Bank. Her application is not directed
toward Biner’s communications with the New York-based Sebti, who is not mentioned in the
document requests, nor is it directed toward Dolson’s process for retrieving materials from
Deutsche Bank’s electronic archives. Rather, Hranov cites to the New York presence of Sebti
and Dolson to access a wide range of materials without temporal or geographic limitations.
Request 1 seeks “[a]ll communications” between Biner and “anyone employed
by Deutsche Bank” concerning Rumen Hranov’s accounts. Request 2 seeks “[a]ll documents
and communications concerning any investment advice or strategy provided by Biner to Hranov
concerning Oerlikon stock or stock options.” Request 3 seeks “[a]ll communications” sent or
received by Deutsche Bank supervisory or compliance personal about Biner’s involvement with
any Oerlikon transactions. Request 4 weeks “[a]ll communications” sent or received by Biner as
to Oerlikon trading strategies. Request 5 seeks Deutsche Bank’s ethics and conflict-of-interest

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guidelines. Request 6 seeks “[a]ll documents and communications” concerning the termination
of Biner’s employment at Deutsche Bank. Request 7 seeks “[a]ll documents and
communications” about the inspection of the security systems concerning Deutsche Bank’s
electronic documents. Hranov also seeks an order that would direct Deutsche Bank to permit a
forensic expert to enter Deutsche Bank’s premises and examine its systems for storing and
retrieving electronic data, and to take the Rule 30(b)(6), Fed. R. Civ. P., deposition of a witness
designated by Deutsche Bank.
The Court granted Hranov’s ex parte application for the issuance of a subpoena
directed to documents covered by requests 1-4 and 6, and for the testimony of a Rule 30(b)(6)
witness as to the same topics. (Docket # 1-1, 8.) It denied the remainder of the application.
DISCUSSION.
I.

The Mandatory and Discretionary Factors of 28 U.S.C. § 1782.

A district court may, “upon the application of any interested person,” order a
person within its jurisdiction to “give his testimony or statement or to produce a document or
other thing for use in a proceeding in a foreign or international tribunal . . . .” 28 U.S.C.
§ 1782(a). To grant a section 1782 application, the Court must be satisfied that three mandatory
factors are satisfied: “‘(1) the person from whom discovery is sought resides (or is found) in the
district of the district court to which the application is made, (2) the discovery is for use in a
foreign proceeding before a foreign [or international] tribunal, and (3) the application is made by
a foreign or international tribunal or any interested person.’” Mees v. Buiter, 793 F.3d 291, 297
(2d Cir. 2015) (quoting Brandi-Dohrn v. IKB Deutsche Industriebank AG, 673 F.3d 76, 80 (2d
Cir. 2012)); accord In re Accent Delight Int’l Ltd., 869 F.3d 121, 128 (2d Cir. 2017).

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If the applicant satisfies the mandatory factors, the district court then weighs four
discretionary factors listed in Intel, 542 U.S. at 264-65. “These are: (1) whether ‘the person from
whom discovery is sought is a participant in the foreign proceeding,’ in which case ‘the need for
§ 1782(a) aid generally is not as apparent’; (2) ‘the nature of the foreign tribunal, the character of
the proceedings underway abroad, and the receptivity of the foreign government or the court or
agency abroad to U.S. federal-court judicial assistance’; (3) ‘whether the § 1782(a) request
conceals an attempt to circumvent foreign proof-gathering restrictions or other policies of a
foreign country or the United States’; and (4) whether the request is ‘unduly intrusive or
burdensome.’” Mees, 793 F.3d at 298 (quoting Intel, 542 U.S. at 264-65). The Court’s exercise
of discretion “‘is not boundless,’” and must be guided by the goals of “‘providing efficient
means of assistance to participants in international litigation in our federal courts and
encouraging foreign countries by example to provide similar means of assistance to our courts.’”
Mees, 793 F.3d at 297-98 (quoting Schmitz v. Bernstein Liebhard & Lifshitz, LLP, 376 F.3d 79,
83-84 (2d Cir. 2004)).
II.

Hranov Has Not Demonstrated that Deutsche Bank “Is Found” in This
District.

Deutsche Bank does not dispute that the discovery sought is for use in a foreign
proceeding and that the application is brought by an interested person. See Mees, 793 F.3d at
297. However, Deutsche Bank urges that the subpoena should be quashed because Hranov
cannot demonstrate that “the person from whom discovery is sought resides (or is found) in the
district of the district court to which the application is made . . . .” Id.
In applying section 1782(a), “the statutory scope of ‘found’ extends to the limits
of personal jurisdiction consistent with due process.” del Valle Ruiz, 939 F.3d at 527. Hranov
does not urge that Deutsche Bank is subject to general jurisdiction in this district, and asserts that
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that based on its forum contacts through Sebti and Dolson, Deutsche Bank “is found” in this
District under the reasoning of del Valle Ruiz.
To exercise specific jurisdiction over a foreign person, “‘there must be an
affiliation between the forum and the underlying controversy, principally, [an] activity or an
occurrence that takes place in the forum State.’” Id. at 529 (quoting Bristol-Myers Squibb Co. v.
Superior Ct. of Cal., 137 S. Ct. 1773, 1780 (2017)). “In the liability context, ‘[t]he exercise of
specific jurisdiction depends on in-state activity that gave rise to the episode-in-suit.’” Id. at 530
(quoting Waldman v. Palestine Liberation Org., 835 F.3d 317, 331 (2d Cir. 2016) (emphasis in
original)). In the context of a section 1782 application, the due process analysis looks to the
relationship between the respondent’s forum contacts and the discovery sought:
Translated to account for a § 1782 respondent’s nonparty status, we
thus hold that, where the discovery material sought proximately
resulted from the respondent’s forum contacts, that would be
sufficient to establish specific jurisdiction for ordering discovery.
That is, the respondent’s having purposefully availed itself of the
forum must be the primary or proximate reason that the evidence
sought is available at all. On the other hand, where the respondent's
contacts are broader and more significant, a petitioner need
demonstrate only that the evidence sought would not be available
but for the respondent’s forum contacts.
Id. Although “the use of terminology relating to causation is a somewhat awkward fit for
discovery . . . the focus on the relationship between a § 1782 respondent’s forum contacts and the
resulting availability of the evidence is a workable translation of the normal personal-jurisdiction
framework. For instance, an applicant could target its discovery to all documents relating to x
created during the course of respondent’s engagement with forum entity y. That our holding will
generally require a § 1782 applicant to provide additional specificity concerning the discovery it
seeks is a feature, not a flaw.” Id. at 530 n.12. “[I]t [is] enough for purposes of due process in

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these circumstances that the nonparty’s contacts with the forum go to the actual discovery sought
rather than the underlying cause of action.” Id. at 530.
In del Valle Ruiz, the Second Circuit concluded that the respondent’s forum
contacts were insufficient to exercise jurisdiction consistent with due process. Id. at 531. The
respondent, Banco Santander S.A. (“Santander”), had used two New York City firms, UBS and
Citibank, to conduct due diligence on the potential acquisition of a Spanish bank, BPE. Id. at
524. Before Santander made an offer, BPE “suffered an all-out run on deposits” and conducted a
government-forced sale. Id. Santander then acquired BPE for €1, and its CEO stated that it had
been able to do so only because it previously conducted due diligence. Id. at 524-25. A group of
investors in BPE brought legal proceedings in the European Union and Spain directed to the
forced sale and filed a section 1782 application in New York seeking discovery of Santander. Id.
at 525. The Second Circuit concluded that Santander’s pre-acquisition due diligence was
insufficient to exercise specific jurisdiction over the application because the diligence “only”
related to the acquisition of BPE prior to the forced sale. Id. at 531. The applicants’ legal claims
“and likewise the bulk of discovery sight” arose from the forced sale of BPE, which was a
separate transaction. Id. Thus, because Santander’s in-forum retention of UBS and Citibank
were not connected to BPE’s forced sale, they were not “the primary or proximate reason that the
evidence sought is available at all.” Id. at 531. Similarly, Santander’s forum contacts that
postdated the BPE acquisition could not constitute “even but-for ‘causes’ of the availability of
the evidence sough in discovery.” Id.
Hranov urges that Deutsche Bank’s forum contacts should be scrutinized under
del Valle Ruiz because its status in this proceeding is that of a respondent to a section 1782
application and not that of a defendant facing civil liability in this District. Deutsche Bank

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points out that del Valle Ruiz was expressly tailored to a section 1782 respondent who was a
non-party to the foreign proceeding. See 939 F.3d at 530 n.11 (“Although [respondents] are
technically ‘parties’ to this § 1782 proceeding, they are functionally nonparties in the sense that
they are not subject to liability in the underlying foreign proceedings.”). Deutsche Bank urges
that because it is a defendant in the German litigation, there is no specific jurisdiction over
Hranov’s application because she has not pointed to forum “activity that gave rise to the episodein-suit.” Waldman, 835 F.3d at 331 (emphasis in original).
The Court assumes, without deciding, that the reasoning of del Valle Ruiz applies
to Hranov’s application, rather than the “episode-in-suit” requirement of Waldman. del Valle
Ruiz considered an application made against a non-party to the underlying foreign proceeding,
but it was premised on established principles about the exercise of specific jurisdiction. See 939
F.3d at 529. That is, there must be “an ‘affiliation between the forum and the underlying
controversy, principally, [an] activity or an occurrence that takes place in the forum State’” and
“‘[s]pecific jurisdiction . . . permits adjudicatory authority only over issues that ‘aris[e] out of or
relat[e] to the [entity’s] contacts with the forum.’” Id. (quoting Bristol-Myers Squibb, 137 S. Ct.
at 1780, and Gucci Am., Inc. v. Weixing Li, 768 F.3d 122, 134 (2d Cir. 2014) (alterations in
original)). 2 del Valle Ruiz tailored these general principles to a discovery application under
section 1782.
In this case, the “underlying controversy” before the Court is Hranov’s discovery
application and not Deutsche Bank’s liability to Hranov. The Court will therefore apply del

Contrary to Deutsche Bank’s characterization, del Valle Ruiz rejected the notion that the exercise of jurisdiction
over a nonparty affords weaker due process protections than the exercise of jurisdiction over a defendant. 939 F.3d
at 530 (“We decline to hold that there is a categorically lower showing of due process needed to obtain discovery
from a nonparty. Instead, we think it enough for purposes of due process in these circumstances that the nonparty’s
contacts with the forum go to the actual discovery sought rather than the underlying cause of action.”).
2

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Valle Ruiz to Hranov’s application. Hranov has not demonstrated that Deutsche Bank’s forum
contacts are either the proximate or but-for cause of the materials that she seeks in discovery. del
Valle Ruiz, 939 F.3d at 530.
Sebti held the job title of Global Head of Equities Trading at Deutsche Bank from
2008 to 2010. (Mucke Dec. ¶ 5.) The Disputed Email of March 28, 2008 was sent by Biner to a
recipient named Richard Carson, and copied to four recipients within Deutsche Bank, including
Sebti. (See Schmitt Dec. Exs. 1-3.) There is no dispute that at the time he was copied on this
email, Sebti was located in New York, although he moved to Hong Kong a few weeks later, on
May 1, 2008. (Mucke Dec. ¶ 5.) In a memorandum, Hranov states that “it was necessary” for
Biner to keep Sebti updated about Hranov’s options holdings, given their size and Sebti’s
authority over Deutsche Bank’s derivatives risks. (Opp. Mem. at 9.) Hranov asserts that
Deutsche Bank’s “purposeful contact with this district in the form of having Sebti here . . . is the
direct and proximate reason why communications between Biner and Sebti . . . concerning the
trades in Oerlikon stock at issue in the German Action exist,” therefore satisfying the standard
set forth in del Valle Ruiz. (Id.)
But Hranov seeks discovery that goes far beyond Deutsche Bank’s forum ties
through Sebti, who is not mentioned in the discovery requests. Hranov seeks materials like “[a]ll
communications” between Biner and “anyone employed by Deutsche Bank” concerning Rumen
Hranov’s accounts, among other things. The requests are not focused on Biner’s
communications with Sebti and contain no geographic or temporal limitations. Hranov does not
explain how Deutsche Bank’s forum contacts, through Sebti, could be either a primary or but-for
reason “that the evidence sought is available at all.” del Valle Ruiz, 939 F.3d at 530. Hranov
speculates that Sebti bore ultimate responsibility for Biner’s trading activities, and, as support,

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cites to articles published in 2005 to the website Risk.net and a German-language site called
“eFinancialCareers,” both of which broadly described Sebti’s workplace responsibilities.
(Watnik Dec. Exs. B, C.) These two posts have no bearing on the Disputed Email, Sebti’s
authority over Biner, or any materials sought in this application.
Hranov’s attempt to identify a forum contact based on the Dolson Declaration is
even more strained. As discussed, Dolson submitted a declaration in the German litigation that
described the process for retrieving Deutsche Bank’s archived electronic data. (Kern Dec. Ex.
3.) Her declaration is dated July 10, 2020, and identifies her as Deutsche Bank’s Global Head of
eDiscovery Services based in New York. (Dolson Dec. ¶¶ 1-2.) Dolson’s declaration states that
archives of Biner’s emails were found in the United Kingdom, as was a backup tape. (Dolson
Dec. ¶ 4.) Archives of Sebti’s emails were found in Deutsche Bank’s “compliance messaging
archive called ‘the Digital Safe’ located in the US.” (Dolson Dec. ¶ 22.) Dolson described the
“Digital Safe” as a “compliance archive” that a vendor hosts externally in the United States,
United Kingdom, Germany and Singapore. (Dolson Dec. ¶ 24.) Much of Dolson’s declaration
describes technical details about Deutsche Bank’s data archives and endeavors to explain why
the archived data could not be altered or amended.
Hranov urges that Dolson’s presence in New York is a forum contact sufficient to
confer specific jurisdiction over its application. She explains:
The technical details are not important here. What is important is
that no email, spreadsheet or other document existed before Ms.
Dolson commenced the Investigation. It is only because of the
Investigation that the emails and other documents of Biner and
Sebti were extracted, reconstructed and made available.
(Opp. Mem. at 11; emphasis in original.)

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Hranov conflates Dolson’s role in supervising the mere extraction of archived
data with the creation of the underlying documents and emails. In essence, Hranov urges that a
company should be “found” in any forum where an information technology professional can
access and retrieve archived electronic data. Given the ubiquity of electronic data and
communications, this approach could allow for a presence similar to general jurisdiction in any
forum where the respondent maintains an information-technology team. Moreover, Hranov’s
application is not limited to evidence about Dolson’s supervision of document extraction, the
maintenance of Deutsche Bank’s electronic archives or the process used to locate Deutsche
Bank’s version of the Disputed Email. It instead relies on the relatively discrete issues
surrounding the Disputed Email as the entry point to seek a trove of information that goes well
beyond the underlying email.
Neither Sebti’s receipt of the Disputed Email nor Dolson’s supervision of data
extraction demonstrates causation between Deutsche Bank’s forum contacts and the documents
that Hranov’s seeks. Given the breadth and generality of Hranov’s discovery requests, the Court
need not consider whether any narrower, hypothetical request might demonstrate causation
between Deutsche Bank’s forum contacts and the discovery sought. See In re del Valle Ruiz,
939 F.3d at 530 n.12 (“That our holding will generally require a § 1782 applicant to provide
additional specificity concerning the discovery it seeks is a feature, not a flaw.”).
Because the application does not demonstrate that Deutsche Bank “is found” in
this district, the Court concludes that Hranov has not satisfied the mandatory criteria of section
1782(a). Deutsche Bank’s motion to quash will therefore be granted.

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III.

The Intel Factors Weigh in Favor of Deutsche Bank’s Motion to Quash.

Hranov has not satisfied the mandatory factors of section 1782. If she had, the
Court would conclude that the Intel factors weigh against the application and that the subpoena
should be quashed. The Court affords particular weight to the first and fourth Intel factors.
On the first Intel factor, Hranov and Deutsche Bank are both parties to the
German proceeding. “Intel suggests that because [respondent] is a participant in the German
litigation subject to German court jurisdiction, petitioner’s need for § 1782 help ‘is not as
apparent as it ordinarily is when evidence is sought from a nonparticipant in the matter arising
abroad.’” Schmitz v. Bernstein Liebhard & Lifshitz, LLP., 376 F.3d 79, 85 (2d Cir. 2004)
(quoting Intel, 542 U.S. at 264); see also Kiobel by Samkalden v. Cravath, Swaine & Moore
LLP, 895 F.3d 238, 245 (2d Cir. 2018) (district court erred by not giving sufficient weight to the
fact that the real party in interest to the response was a party to the underlying foreign
proceedings). This is because “[a] foreign tribunal has jurisdiction over those appearing before
it, and can itself order them to produce evidence.” Intel, 542 U.S. at 264. Deutsche Bank states
that all of the documents Hranov seeks are accessible in Germany, that some of the documents
covered by Hranov’s application have been produced in Germany, and that Hranov already has
pending applications before the German court that requests access to many of the documents
sought in this application. (Schmitt Dec. ¶¶ 22-27 & Ex. 5.) The first Intel factor weighs
strongly against the application.
The fourth Intel factor, which considers whether a request is unduly intrusive or
burdensome, also weighs against the application. The requests include “[a]ll communications”
between Biner and “anyone employed by DB” concerning the Hranov accounts, “[a]ll
communications sent or received by supervisory or compliance personnel at DB concerning

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Biner’s conduct, role or involvement in connection with any transactions in Oerlinkon stock and
derivatives” and “[a]ll documents and communications concerning the termination of Biner’s
employment by DB in 2008 or 2009.” (Docket # 1-1.) There is no geographic or temporal
limitation on these requests, and it appears that the bulk of the requests would involve materials
located outside the United States, as indicated by the United Kingdom location of Biner’s data
archives. See In re del Valle Ruiz, 939 F.3d at 533 (“[A] court may properly, and in fact should,
consider the location of documents and other evidence when deciding whether to exercise its
discretion to authorize such discovery.”).
The third Intel factor looks to whether the section 1782 request conceals an
attempt to circumvent foreign proof-gathering restrictions. “In the context of § 1782 and the
third Intel factor, circumvention occurs where the applicant uses a § 1782 application to avoid
measures that are intended to restrict certain means of gathering or using evidence.” Fed.
Republic of Nigeria v. VR Advisory Servs., Ltd., 27 F.4th 136, 153 (2d Cir. 2022). Deutsche
Bank points to Hranov’s express acknowledgement that Germany’s discovery process is more
restrictive than that of the United States. (Hranov Mem. 17; Deutsche Bank Mem. 18-19.) It
also appears that Hranov has brought various applications to the German court to access certain
documents. (Schmitt Dec. Ex. 5.) While a section 1782 application should not be a vehicle “to
circumvent the [forum country’s] more restrictive discovery practices,” Kiobel, 895 F.3d at 245,
“courts [also] should not give undue weight to the mere absence in foreign jurisdictions of proofgathering mechanisms available in the United States . . . .” Fed. Republic of Nigeria, 27 F.4th at
153. Here, the statements of Hranov’s counsel and the apparent existence of her discovery
applications in Germany implicate the concerns noted by Kiobel, but Deutsche Bank also has not
urged that Germany’s procedures amount to “a proof-gathering restriction, or at least a policy

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preference for use of its processes over other means by which [applicant] can gather evidence in
the United States . . . .” Fed. Republic of Nigeria, 27 F.4th at 153. Because there is no
indication that Germany has a policy preference for its own proof-gathering processes, this factor
weighs in favor of the application.
The second Intel factor similarly tips in favor of the application. The underlying
litigation is a civil dispute in Germany that has been pending since 2016. There is no suggestion
that Germany’s courts are not generally receptive to the assistance of the United States federal
courts.
On balance, the Court concludes that even if Hranov had satisfied the mandatory
criteria of section 1782(a), the Court would grant Deutsche Bank’s motion to quash based on the
discretionary Intel factors, affording particular weight to the first and fourth factors.
CONCLUSION.
For the reasons explained, Deutsche Bank’s motion to quash the subpoena is
GRANTED. The Clerk is directed to terminate the motion, the related letter-motions and to
close the case. (Docket # 10, 14, 23.)
SO ORDERED.

Dated: New York, New York
April 28, 2022

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