BANOKA S..r.l. et al v. Alvarez & Marsal, Inc. et al

Filing 51

OPINION re: 12 MISCELLANEOUS CASE INITIATING DOCUMENT - MOTION for Discovery (PETITION FOR AN ORDER PURSUANT TO 28 U.S.C. §1782 TO CONDUCT DISCOVERY FOR USE IN FOREIGN PROCEEDINGS). (Filing Fee $ 49.00, Receipt Number ANYSDC- 26425415) filed by ATYS S.A., Jean Bissonnet, BANOKA S..r.l., Jacques Champy, Renato Picciotto. For the reasons set forth above, Petitioners' motion for discovery is DENIED as to both Respondents. The Clerk of the Court is respectfully directed to terminate the motion at ECF No. 12. So ordered. (Signed by Magistrate Judge Katharine H. Parker on 2/1/2023) (vfr)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
2/1/2023

BANOKA S.à.r.l, et al,

OPINION

Petitioners,

22-MC-00182 (GHW)(KHP)

-againstAlvarez & Marshal, Inc. et al,
Respondents.

KATHARINE H. PARKER, UNITED STATES MAGISTRATE JUDGE:
Petitioners BANOKA S.à.r.l., ATYS S.A., Renato Picciotto, Jacques Champy, and Jean
Bissonnet bring this action pursuant to 28 U.S.C. § 1782 seeking permission to issue subpoenas
on Alvarez & Marsal, Inc. (“A&M Inc.”), Alvarez & Marsal Transaction Advisory Group, LLC
(“A&M Transaction Advisory Group”), and Alvarez & Marsal Holdings, LLC (“A&M Holdings”)
(collectively the A&M Respondents”), as well as Elliott Management Corporation (“Elliott
Management”), Elliott Investment Management, L.P. (“Elliott Investment Management”), Elliott
Associates, L.P. (“Elliott Associates”), and Elliott International, L.P. (“Elliott International”)
(collectively the “Elliott Respondents”). Petitioners seek documents and deposition testimony
for use in a contemplated suit against another entity, Westmont International Development
Inc. (“Westmont”) to be commenced in the English High Court of Justice (the “UK Action”).
BACKGROUND
Petitioners contend that Westmont committed fraud in connection with negotiations
over a potential acquisition of Petitioners’ shares in Clichy Victor Hugo (“CVH”), a French
company that operated a Holiday Inn branded hotel in Paris, France (the “Hotel”). (Pet’r’s Br.
1.) In October 2019, Petitioners granted Westmont exclusive negotiating rights to acquire their
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shares in CVH based on Westmont’s alleged representation in an October 16, 2019 non-binding
Offer Letter that it would pay Petitioners €55 million for the shares. 1 (Id.; ECF No. 16, Didelot
Declaration (“Didelot Decl.”), Exh. 2.) Respondents Elliott Associates and Elliott International
are two funds with a long-standing relationship with Westmont that planned to provide some
or all of the financing for purchase of the Hotel through WNE Investor Sarl, an entity in which
they are substantial majority owners. (ECF No. 35-14, Stott Declaration (“Stott Decl.”) ¶¶ 7, 9.)
The Elliott Respondents’ London-based affiliate, Elliott Advisors (UK) Limited (“Elliott UK”),
liaised with Westmont on the progress of the negotiations but did not directly participate.
(Stott Decl. ¶¶ 9-10.)
The exclusive negotiating period was October 17-December 31, 2019, during which time
Westmont was to complete due diligence and negotiate and finalize the share purchase
agreement (“SPA”). (Pet’r’s Br. 4-5.)
Petitioners contend that Westmont never intended to purchase the shares for €55, but
rather sought to cause Petitioners to stop negotiating with other potential buyers who had
made bids and then manufacture issues in due diligence to delay the acquisition and extract
price concessions. (Id. at 5-6.)
Petitioners appointed Cofis S.A. (“Cofis”) to manage and negotiate the proposed share
purchase transaction with Westmont. (Id. at 4.) Christie & Co. (“Christie”) served as the broker
for the transaction. (Id.) Gordon Drake, a Senior Vice President, lead the negotiations on
behalf of Westmont. (Id.) Alvarez & Marsal France SAS (“A&M France”) conducted due

The parties agreed in writing that any disputes relating to the offer would be adjudicated in the courts of England
and Wales. (Didelot Decl., Exh. 2; ECF No. 15, Levy Declaration (“Levy Decl.”) ¶ 20).

1

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diligence on behalf of Westmont pursuant to an engagement letter with an affiliate of
Westmont. 2 (ECF No. 31, Martinez Declaration (“Martinez Decl.”) ¶ 2, Exh. A.)
On December 9, 2019, Westmont alerted Petitioners to two concerns: (1) that the costs
for certain staff members of the Hotel had not been properly accounted for and (2) that the
interest rate on a loan related to the transaction was misstated. (Pet’r’s Br. 5.) Petitioners
characterize the first concern as minor and the second one as unwarranted insofar as the
correct rate had been previously provided. Westmont raised other concerns about the fire and
safety certification for the Hotel, disability access to the Hotel, and costs for work on the Hotel
lobby, which Petitioners contend were not material to the transaction and a pretext for delay
and securing price concessions. (Id. at 5-6.)
On December 12, 2019, Westmont proposed price adjustments to reflect the concerns it
raised while assuring Petitioners it wanted to close the transaction. (Id. at 6.) Petitioners
agreed to drop the price €1 million and extend the exclusivity period to January 31, 2020. (Id.
at 7.) The extension of the negotiation period necessarily caused Petitioners to incur additional
fees and expenses in operating the Hotel. (Id.)
Petitioners contend Westmont further delayed the transaction by failing to promptly
provide “know your customer” (“KYC”) documents to its financial lender and seeking to delay
negotiations with the gas supplier to the Hotel until after the transaction closed. (Didelot Decl.
¶ 21.) This necessitated a further extension of the exclusivity period to February 12, 2020,

2

A&M France’s parent company, A&M Europe Holdings Limited, is located in the United Kingdom, which is in turn
owned by Alvarez & Marsal Holdings, LLC (“A&M Holdings”). Respondent Alvarez & Marsal Inc., a New York
corporation, holds a majority interest in A&M Holdings. Respondent Alvarez & Marsal Transaction Advisory
Services, LLC is wholly owned by A&M Holdings. (ECF No. 30, Feigenbaum Declaration (“Feigenbaum Decl.”) ¶¶ 34.)

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which Petitioners say they extended in reliance on Westmont’s representations that it did
indeed intend to complete the acquisition by March 2020. (Id. at ¶ 23.)
As everyone now knows, the Covid-19 virus emerged during the parties’ negotiations,
and the World Health Organization declared a global pandemic on March 11, 2020. CDC
Museum COVID-19 Timeline, CDC, https://www.cdc.gov/museum/timeline/covid19.html (last
visited January 30, 2023). Reports that COVID-19 was a serious concern emerged in January
2020, and the Centers for Disease Control began screening passengers from certain flights for
the virus in mid-January 2020. Id. Petitioners assert that Westmont ceased all communications
about the transaction for three weeks starting at the end of January and into February because
it was re-evaluating the transaction in light of significant and emerging worldwide concerns
about the virus. (Didelot Decl. ¶ 25.) They also assert that Westmont had superior knowledge
about the virus due to its substantial commercial presence in Asia, where the virus first
emerged. (Id.)
On February 13, 2020, Westmont postponed the target date for the anticipated closing
because of an outstanding consultant report—something Petitioner characterizes as a pretext
for delay. (Id. at ¶ 27.) Nevertheless, Westmont’s representatives still indicated Westmont
intended to close by the end of February. (Id. at ¶ 29.) On February 25, 2020, Westmont
sought to introduce an “earn-out structure”—something that had never before been
discussed—and renegotiate the purchase price downward in light of the rapidly deteriorating
landscape, especially in the hospitality industry, due to COVID-19. (Id. at ¶ 30.) It also
contended that the Elliott Respondents’ special investment committee required more time to

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approve the transaction. (Pet’r’s Br. 9.) Petitioners rejected Westmont’s attempt to
renegotiate, negotiations broke off, and the transaction was never consummated. (Id. at 10.)
Petitioners contend that but for Westmont’s fraudulent representations, they would not
have agreed to bargain exclusively with Westmont and could have sold their shares in CVH to
one of the other bidders, one of whom (Catella Hospitality Group) had bid €53.6 million in late
2019. (Id. at 11.) However, due to changes in market conditions related to the Covid-19
pandemic, Petitioners were not able to sell their shares until November 2020. At that time,
they sold their shares to Catella Hospitality Group for €48 million, a price that was €7 million
less than it had offered a year prior. (Id.)
On April 23, 2020 and June 30, 2020, Petitioners sent pre-litigation letters to Westmont
setting out the purported factual and legal basis for fraud claims against Westmont under
English law, a required procedure in England. (Id. at 10.) Petitioners also made a pre-suit
demand for documents and communications between and among Westmont, the A&M
Respondents and the Elliott Respondents concerning A&M Respondents’ due diligence and
Elliott Management’s role as co-investor in the transaction. (Id.) Westmont refused to provide
documents and information.
In December 2020, Petitioners filed an action pursuant to 28 U.S.C. § 1782 in the
Southern District of Texas, where Westmont maintains its global headquarters, seeking much of
the same information they had requested directly from Westmont. (Id. at 11.); see In re
Petition of Banoka S.á.r.l, ATYS S.A. et al., Case No. 4:20-cv-04131 (S.D. Tex. Dec. 4, 2020) (the
“Prior Application”, ECF No. 1). The court in Texas found that the documents sought were “for
use” in a foreign proceeding that was reasonably contemplated but ultimately concluded that a
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forum selection clause in Westmont’s Offer Letter to Petitioners to purchase the shares
required Petitioners to seek disclosure from Westmont in England in accordance with English
pre-suit disclosure procedures and that the application should not be granted, a decision
affirmed by the Fifth Circuit. (Pet’r’s Br. 13-14.) Thus, the court quashed the subpoena after
initially granting the Section 1782 application ex parte and without a hearing. The lower court
also stated that it would be inappropriate to apply Section 1782 extraterritorially when
Westmont’s responsive documents, and the custodian of those documents, were located in
England. Banoka v. Westmont Int’l Dev. Inc., 2022 WL 480118, at *4 (S.D. Tex. Feb. 10, 2022),
aff’d sub nom. Bissonnet v. Westmont Int’l Dev., Inc., 2022 WL 636680, at *1 (5th Cir. Mar. 4,
2022).
THE INSTANT PETITION
In this action, Petitioners seek information they were not able to obtain directly from
Westmont, and they seek much the same information from both sets of Respondents. The list
of documents requests in items 1-10 below are propounded on both sets of Respondents. (ECF
No. 17, Pencu Declaration (“Pencu Decl.”), Exh. 1-8.) Items 11-14 are propounded on the Elliott
Respondents only. (Pencu Decl., Exh. 4-8.) The specific requests are set forth below:
1.
2.
3.
4.
5.

All documents and communications between Elliott Respondents/A&M Respondents
and Westmont concerning CVH.
All documents and communications, including pricing calculations, evidencing the
basis of Westmont’s initial and revised offers to purchase the shares of CVH.
All documents and communications concerning any exclusivity agreement between
Westmont and the Shareholders in connection with Westmont’s plan to purchase the
shares of CVH.
All documents and communications concerning any extensions of the exclusivity
period between Westmont and the Shareholders for the purchase of the shares of
CVH.
All documents and communications evidencing any due diligence performed in
connection with Westmont’s plan to purchase of the shares of CVH.
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6.
7.
8.
9.

10.
11.
12.
13.
14.

All documents and communications between Elliott Respondents/A&M Respondents
and Westmont concerning the impact and effect of the COVID-19 pandemic on
Westmont’s plans to purchase the shares of CVH.
All documents and communications between Elliott Respondents/A&M and
Westmont concerning the SPA and Westmont’s plan to purchase the shares of CVH.
All documents and communications between or among Elliott Respondents/A&M
Respondents, Westmont and Christie & Co. concerning the SPA and Westmont’s plan
to purchase the shares of CVH.
All communications between Elliott Respondents/A&M Respondents and Kingsley
Seeveratnam, Jan-Willem Terlouw, Christopher Rawstron, Gordon Drake, Stephan
Jacques or any other senior employees of Westmont concerning Westmont’s plan to
purchase the shares of CVH.
Communications between Elliott Respondents/A&M Respondents and Westmont
concerning the impact and effect of the COVID-19 pandemic on Westmont’s plan to
purchase the shares of CVH.
All documents and communications evidencing the basis for postponing signing the
SPA on February 13, 2020.
All documents and communications concerning the basis for Westmont’s requests to
reduce the €55 million purchase price of the shares of CVH.
All documents and communications evidencing the decision and date upon which
Westmont decided to reformulate its share purchase proposal to the Shareholders on
or about February 25, 2020.
All documents and communications evidencing Westmont’s funding, including
without limitation any co-investment by Elliott Respondents, and available capital that
Westmont, directly or indirectly, intended to rely upon in order to purchase the shares
of CVH.
Petitioners also seek deposition testimony, though the people with knowledge are

located in France and England. (Pet’r’s Br. 25.) They admit that they currently are unable to bring
a fraud claim against Westmont in the UK because they lack information concerning Westmont’s
state of mind. (ECF No. 15, Levy Decl. ¶¶ 12, 38.) They contend that the requested documents
and information will shed light on Westmont’s state of mind and/or intent and fill-in the
information they need to initiate suit in the UK.
Both sets of Respondents object to the Petition. For their part, the A&M Respondents
state that an indirect affiliate located in France provided diligence services and possesses the
documents and information sought—not the A&M Respondents in this action. (A&M Resp’t’s Br.
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12.) The French A&M entity is wholly owned by a U.K. affiliate of the A&M Respondents, and
neither the French nor the U.K. entities maintain offices in the United States. (Id.) In other words,
Petitioners are going after the wrong A&M entities in the wrong place and thus they cannot be
“found” in this District. (ECF No. 31, Martinez Decl. ¶¶ 4-5).
The Elliott Respondents similarly state that a related entity based in the UK not named in
this action was directly involved with Westmont and that Respondents are the incorrect target
for discovery and thus cannot be “found” in this district. (Elliott Resp’t’s Br. 15.) They argue that
Petitioners cannot show that the information sought is actually for use in a foreign proceeding
because they threatened suit two years ago but still haven’t brought suit and admit that they do
not have sufficient facts to bring a claim against Westmont. (Id. at 15-16.)
Both sets of Respondents characterize Petitioners’ application as a fishing expedition and
contend that even if the statutory factors for obtaining discovery are met, the Court should
exercise its discretion and deny the discovery.

LEGAL STANDARD
Section 1782 empowers a United States district court to order any person residing
within its jurisdiction to provide discovery for use in a foreign proceeding pursuant to the
application of an interested party. 28 U.S.C. § 1782(a). Applicants for discovery under Section
1782 must meet three statutory requirements: “(1) the person from whom discovery is sought
must reside or be found in the district in which the application was made, (2) the discovery
must be ‘for use in a foreign proceeding before a foreign tribunal’, and (3) the applicant must
be either a foreign tribunal or an ‘interested person.’” In re Accent Delight Int’l Ltd., 869 F.3d
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121, 128 (2d Cir. 2017) (citing Certain Funds, Accounts and/or Inv. Vehicles v. KPMG, LLP, 798
F.3d 113, 117 (2d Cir. 2015)).
Provided the statutory requirements for discovery are met, the Court must then
determine, in its discretion, whether the discovery should be permitted in light of the four socalled Intel factors. Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004). These
factors are as follows:
•
•
•
•

Whether the person from whom discovery is sought is a participant in the foreign
proceeding;
The nature and character of the foreign tribunal and proceedings before it, as well as
the tribunal’s receptivity to U.S. federal-court judicial assistance;
Whether the discovery requested is an attempt to circumvent foreign proof-gathering
restrictions or policies of a foreign country or the United States; and
Whether the discovery is unduly intrusive or burdensome.

Intel, 542 U.S. at 264-65. When evaluating these factors, the Court must be mindful of the
goals of Section 1782: to provide efficient means of assistance to participants in international
litigation and to encourage foreign countries by example to provide similar means of assistance
to U.S. courts. Mangouras v. Squire Patton Boggs, 980 F.3d 88, 97 (2d Cir. 2020). Finally, “[t]he
Intel factors are not to be applied mechanically,” and instead, “[a] district court should also take
into account any other pertinent issues arising from the facts of the particular dispute.” Kiobel
by Samkalden v. Cravath, Swaine & Moore LLP, 895 F.3d 238, 245 (2d Cir. 2018).

ANALYSIS
Only the first and second statutory elements of Section 1782 are at issue, while all four
of the Intel factors are disputed. The Court addresses only the statutory elements, as they are
dispositive.

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1. Whether Respondents “reside” in this District
Both sets of Respondents concede that they reside in this District. However, both
contend that the true target of the discovery is a foreign-based affiliate and that Petitioners are
therefore improperly targeting them merely to satisfy this element of Section 1782. The A&M
Respondents say A&M France or its parent, A&M Europe Holdings, are the entities that were
involved and/or that might reasonably have relevant documents. The Elliott Respondents
contend Elliott UK is the entity that was involved and/or that might reasonably have relevant
documents.
In In re del Valle Ruiz, the Second Circuit addressed the contours of this element of
Section 1782. 939 F.3d 520 (2d Cir. 2019). It held that the statute’s reach extends “to the limits
of personal jurisdiction consistent with due process.” Id. at 523; see also In re Edelman, 295
F.3d 171, 178-79 (2d Cir. 2002) (endorsing “flexible reading” of the statute’s “resides or is
found” language). It also held that the statute may be used to reach documents located
outside of the United States, but that such discovery is within the discretion of the district
court. In re del Valle Ruiz, 939 F.3d at 524. In so finding, it upheld the district court’s grant of
Section 1782 discovery from a New York-based affiliate of Spain-based Santander Bank for
certain documents located in Spain. It stated, however, that “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.” Id. at 533.
Respondents urge the Court to follow Fuhr v. Deutsche Bank, 2014 WL 11460502
(S.D.N.Y. Aug. 6, 2014), aff’d 615 F. App’x 699, 700 (2d Cir. 2015), to find that Petitioners do not
satisfy the first statutory element of Section 1782. In Fuhr, the Court upheld denial of a Section
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1782 petition when the true target of the petition was Deutsche Bank (Suisse) in Geneva,
Switzerland, not Deutsche Bank AG, and the relevant documents were all located in
Switzerland, not the Southern District of New York. The Court found that even if Deutsche Bank
AG were “found” in this District, the court did not abuse its discretion in denying the petition
when there was no evidence that any information was located within this District. However,
reliance on Fuhr is not appropriate insofar as it is a summary order without precedential effect
and given the Circuit’s later holding that extraterritorial discovery is permitted and
endorsement of a flexible reading of the statute’s first element.
Insofar as Respondents all concede they themselves can be found in this District, the
first statutory element is met.
2. Whether the Information Sought is “for use” in a Foreign Proceeding Before a
Foreign Tribunal
Next, Respondents contend that the second statutory element is not met because
Petitioners (1) concede they do not currently have sufficient evidence to bring a claim against
Westmont in England because they lack evidence on state of mind and (2) have been
threatening suit against Westmont for two years but still have not brought suit and that the
delay suggests an empty threat.
The U.S. Supreme Court in Intel expressly stated Section 1782 “requires only that a
dispositive ruling by the Commission, reviewable by the European courts, be within reasonable
contemplation.” 542 U.S. at 247; see also In re Sargeant, 278 F. Supp.3d 814, 823 (S.D.N.Y.
2017) (“Courts must guard against the specter that parties may use § 1782 to investigate
whether litigation is possible before launching it”); Jiangsu Steamship Co. v. Success Superior
Ltd., 2015 WL 3439220, at *6 (S.D.N.Y. Feb. 5, 2015) (“The only thing that the contemplated §
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1782 discovery would assuredly be ‘in aid’ of is [applicant’s] decision-making, and the statute is
not designed to provide potential litigants with information that will help them decide whether
and where to commence proceedings.”); In re Asia Mar. Pac. Ltd., 253 F. Supp. 3d 701, 707
(S.D.N.Y. 2015) (petitioner’s burden on this statutory factor “is not satisfied because the
petitioner has retained counsel and is discussing the possibility of initiating litigation”); cf. Mees
v. Buiter, 793 F.3d 291, 300, n.13 (2d Cir. 2015) (finding discovery under § 1782 is not limited to
what is necessary to commence suit).
In Mangouras v. Squire Patton Boggs, 980 F.3d 88, 100-101 (2d Cir. 2020), the Second
Circuit stated that a future proceeding that is “merely speculative” does not satisfy the second
element of Section 1782. In that case, the Court found the district court erred in finding that
the petitioner satisfied the element for a possible claim to be filed in Spain where the petitioner
stated he planned to use the discovery to prove that certain individuals had provided false
testimony in another proceeding. The petitioner did not provide the legal theory supporting
his planned criminal action, lay out the content of his claims or provide a factual basis for his
belief that the witnesses gave false testimony. Id. at 101. Additionally, he did not provide a
time frame within which he would bring the planned proceeding. This was because his future
action depended on the evidence obtained through the petition. Id.
In this case, Petitioners concede they currently do not have sufficient information to
bring a suit against Westmont. They also do not provide the factual basis for their theory that
Westmont fraudulently led them on and sought extensions solely to extract price concessions
as opposed to the far more plausible explanation for slowing down the deal and backing out
due to the looming COVID pandemic that evolved rapidly in January-February 2020. Although
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they characterize concerns raised in due diligence as frivolous, the factual basis for fraudulent
intent is lacking. Petitioners do not state with any specificity the information they expect
Respondents to have in their possession that would reflect fraudulent intent. During oral
argument, upon probing, it became clear to this Court that Petitioners are merely speculating
that Westmont did not have real due diligence concerns and other negotiating points to string
out the negotiations to extract a lower price. Petitioners’ broad demands reveal the discovery
sought is more in the nature of a fishing expedition with the hope that it will turn up sufficient
factual information to support a colorable claim of fraud.
Petitioner’s cases are all distinguishable on this point. In re Kuwait Ports Auth., 2021 WL
5909999 (S.D.N.Y. Dec. 13, 2021) (action permitted under Cayman law when fraud is merely
suspected and facts established that fund needed to be wound up in accordance with Cayman
law; petitioner not relying on requested discovery to assess whether to initiate winding up
proceeding); In re Top Matrix Holdings Ltd., 2020 WL 248716 (S.D.N.Y. Jan. 16, 2020) (no
indication that petitioner could not plead underlying claims absent the requested discovery); In
re Furstenberg Finance SAS, 2018 WL 3392882 (S.D.N.Y. July 12, 2018) (same); Union Fenosa
Gas, S.A. v. Depository Trust Company, 2020 WL 2793055 (S.D.N.Y. May 29, 2020) (underlying
proceeding already ongoing). In sum, the Court has strong suspicions that the petition is a presuit fishing expedition and that the planned action is speculative at the current time.
The Court notes that nearly two years have passed since the suit was first threatened.
This passage of time also suggests that the suit is not reasonably contemplated. Certain Funds,
Accounts and/or Investment Vehicles v. KPMG, L.L.P. (the “Certain Funds case”), 798 F.3d 113
(2d Cir. 2015) (passage of five years from events on which planned action premised rendered
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action not within “reasonable contemplation” for purposes of the second element of Section
1782).
Finally, while it is true that the federal court in Texas stated that the lawsuit against
Westmont was reasonably contemplated when declining petitioners’ Section 1782 petition for
pre-suit discovery against Westmont, that petition was filed in 2020. Banoka, 2022 WL 480118,
*2. Two years have passed since then. There is no reason the Petitioners could not have
pursued discovery in New York at the same time or conducted further investigation during the
past two years. That they did not shore up their planned claim against Westmont and did not
resort to an action in English courts to pursue pre-action disclosure by Westmont (which they
could have done) only underscores why this Court is suspicious that this action is a fishing
expedition.3 Id. The Texas court’s decision is not dispositive because it concerned different
respondents, was decided much closer in time to the events underlying the planned action, and
even that court expressed some skepticism at the planned action, noting that it was
“speculative.” Banoka, 2022 WL 480118, at *5.
Accordingly, Petitioners do not satisfy all of the statutory prerequisites for obtaining
discovery pursuant to Section 1782 because the discovery sought is not for use in a
contemplated action and is in the nature of a fishing expedition.

3

Petitioners are not obliged to first seek discovery in the U.K. before seeking discovery from Respondents and
there is no evidence that a U.K. court would reject evidence obtained through this action. Mees, 793 F.3d at 303,
n.20. Nevertheless, a Court may “consider[ ] ... foreign discoverability (along with many other factors) when it
might otherwise be relevant to the § 1782 application.” Mees, 793 F.3d at 303. Here, Petitioners were denied
discovery from the named target of the alleged fraud and did not seek discovery from the target in the U.K. or
from the affiliates of Respondents who were directly involved with the negotiations at issue. Nor have they
identified specific documents or witnesses located in the United States. Rather, it appears that all documents and
witnesses are located outside the United States and these Respondents are targeted solely because of their
presence in the United States, not because of their direct involvement in or knowledge of the transaction at issue.

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CONCLUSION
For the reasons set forth above, Petitioners’ motion for discovery is DENIED as to both
Respondents.
The Clerk of the Court is respectfully directed to terminate the motion at ECF No. 12.
Dated: February 1, 2023
New York, New York

So ordered,
______________________________
KATHARINE H. PARKER
United States Magistrate Judge

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