In Re: Clara Moussa Boustany

Filing 41

ORDER denying re: 1 EX PARTE MISCELLANEOUS CASE INITIATING DOCUMENT - MOTION Ex Parte Application for Discovery Pursuant to 28 U.S.C. § 1782 in Aid of a Foreign Proceeding . (Filing Fee $ 49.00, Receipt Number ANYSDC-278872 16). It is hereby ORDERED that Petitioner's application to obtain document discovery for use in a foreign proceeding pursuant to 28 U.S.C. § 1782 is DENIED, except that by February 21, 2024, JPMC shall identify to Petitioner the entities t hat have possession of the requested documents, including for each such entity its service address and the name and address of an individual authorized to accept service, or if unknown, the name and address of the chief legal officer for such entity. The Clerk of Court is respectfully directed to close the motion at Dkt. No. 1. (Signed by Judge Lorna G. Schofield on 2/7/2024) (mml)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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IN RE: CLARA MOUSSA BOUSTANY
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23 Misc. 203 (LGS)
ORDER

LORNA G. SCHOFIELD, District Judge:
WHEREAS, Petitioner Clara Moussa Boustany moves for an order pursuant to 28 U.S.C.
§ 1782 granting her leave to conduct document discovery for use in a pending divorce
proceeding in Monaco. Petitioner seeks discovery from JP Morgan Chase & Co. (“JPMC”) and
JP Morgan Private Bank (together, the “Banks”) 1 pertaining to the income and assets of her
husband, Fadi Boustany (“Fadi”). 2 Petitioner contends this information is relevant to monthly
payments that Fadi must pay Petitioner during the divorce proceeding and after the dissolution of
the marriage. On November 3, 2023, Petitioner was ordered to serve Fadi and the Banks with
the papers in support of the application. Fadi and the Banks subsequently appeared and each
filed a memorandum of law in opposition to the application;
WHEREAS, “[t]he district court of the district in which a person resides or is found may
order him 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). “A person may not be
compelled to give his testimony or statement or to produce a document or other thing in violation

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In their memorandum in opposition to the application, the Banks contend that “JP Morgan
Private Bank” is not a proper target of relief under 28 U.S.C. § 1782 because it is only a brand
name, not a legal entity.
2
Fadi Boustany’s first name is used as the short form to avoid confusion with Petitioner, Clara
Moussa Boustany.

of any legally applicable privilege.” Id. A district court conducting the § 1782 analysis proceeds
in two steps. First, the court determines whether the application satisfies the three statutory
requirements: “(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.” Fed. Republic of Nigeria v. VR Advisory
Servs., Ltd., 27 F.4th 136, 148 (2d Cir. 2022). 3 Second, if the statutory requirements are met, the
court may grant discovery in its discretion “in light of the twin aims of the statute: 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.”
Id. To evaluate whether granting an application would further those aims, courts are to consider
the four so-called Intel factors articulated by the Supreme Court: “(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.” Id. (citing Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 264-65
(2004)). “[T]he ultimate decision to grant or deny an application is discretionary,” but courts
“are not free to read extra-statutory barriers to discovery into section 1782 under the guise of
exercising their discretion.” Id. “[I]t is far preferable for a district court to reconcile whatever
Unless otherwise indicated, in quoting cases, all internal quotation marks, alterations, footnotes
and citations are omitted.
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misgivings it may have about the impact of its participation in the foreign litigation by issuing a
closely tailored discovery order rather than by simply denying relief outright.” Mees v. Buiter,
793 F.3d 291, 302 (2d Cir. 2015);
WHEREAS, unless the court prescribes otherwise, documents produced pursuant to 28
U.S.C. § 1782 must be “in accordance with the Federal Rules of Civil Procedure.” Under the
Federal Rules, a subpoenaed party must produce only those documents that are in its
“possession, custody, or control.” Fed. R. Civ. P. 34(a)(1) & 45(a)(1)(A)(iii). “[A] party is not
obliged to produce, at the risk of sanctions, documents that it does not possess or cannot obtain.”
Shcherbakovskiy v. Da Capo Al Fine, Ltd., 490 F.3d 130, 138 (2d Cir. 2007); accord In re Mun,
No. 22 Misc. 163, 2022 WL 17718815, at *2 (S.D.N.Y. Dec. 15, 2022). “‘Control’ does not
require actual physical possession of the documents at issue; rather, documents are considered to
be under a party’s control when that party has the right, authority, or practical ability to obtain
the documents.” Mirlis v. Greer, 80 F.4th 377, 382 (2d Cir. 2023). “[I]f a party has access and
the practical ability to possess documents not available to the party seeking them, production
may be required.” Id. “Where documents ordinarily flow freely between two affiliated entities
or a parent and a subsidiary, courts will typically find that either entity has access and the
practical ability to obtain documents.” In re Application of CBRE Glob. Invs. (NL) B.V., No. 20
Misc. 315, 2021 WL 2894721, at *3 (S.D.N.Y. July 9, 2021); see also In re Liverpool Ltd.
P’ship, No. 21 Misc. 392, 2021 WL 5605044, at *3 (S.D.N.Y. Nov. 24, 2021). The party
seeking discovery has the burden of showing that the other party has control over the materials
sought and, if they fail to do so, the court’s § 1782 analysis need go no further. See, e.g., In re
Application of CBRE Glob. Invs. (NL) B.V., 2021 WL 2894721, at *3, *6; In re Mun, 2022 WL
17718815, at *2; In re FourWorld Event Opportunities Fund, L.P., No. 22 Misc. 330, 2023 WL
3375140, at *1 (S.D.N.Y. May 11, 2023);
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WHEREAS, the Banks assert that “because JPMC is merely a holding company, it lacks
possession, custody, or control over subsidiaries’ records” located overseas. For example, a
declaration submitted alongside Fadi’s memorandum in opposition attests that Fadi’s accounts
are held at J.P. Morgan Bank Luxeumbourg S.A., a foreign entity. In an earlier filing, the Banks
sought, and were granted, a one-month extension to file their responsive papers, in order to
“determine if any of the bank accounts at issue are with a proper U.S. entity operating within this
district and, if appropriate, meet and confer with Ms. Boustany about serving a subpoena on the
correct U.S. entity.” In her reply memorandum, Petitioner alleges that the results of this
investigation have not been shared with her;
WHEREAS, the Banks have done little to persuade the Court that they lack the “practical
ability to obtain the documents” Petitioner seeks. See Mirlis, 80 F.4th at 382. Ultimately,
however, it is Petitioner’s burden to show that those documents are in the Banks’ control. See In
re Liverpool Ltd. P’ship, 2021 WL 5605044, at *3 (rejecting petitioner’s argument that
respondent had not provided evidence that it lacked control over documents because “this
improperly shifts the burden”). Petitioner’s arguments for the Banks’ control of the sought-after
materials are based almost entirely on conjecture. She contends, for example, that JPMC has
over fifty officers focused on operations, and holds itself out as a “leading financial services
firm” with global operations and over 250,000 employees. Given these substantial international
resources, she argues, “[i]t defies logic to assume that none of these officers . . . has the legal or
practical ability to obtain account records.” Petitioner submits that “the evidence presented here
establishes JPMC as more directly involved with the day-to-day operations of its subsidiaries
than the evidence” in other cases. But the “evidence” Petitioner puts forth amounts to little more
than marketing materials, not information that demonstrates a history of close coordination or
cooperation between JPMC and its international affiliates. These allegations alone are
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insufficient to carry Petitioner’s burden of showing that the Banks have the practical ability to
acquire affiliates’ documents. It is hereby
ORDERED that Petitioner’s application to obtain document discovery for use in a
foreign proceeding pursuant to 28 U.S.C. § 1782 is DENIED, except that by February 21, 2024,
JPMC shall identify to Petitioner the entities that have possession of the requested documents,
including for each such entity its service address and the name and address of an individual
authorized to accept service, or if unknown, the name and address of the chief legal officer for
such entity.
The Clerk of Court is respectfully directed to close the motion at Dkt. No. 1.
Dated: February 7, 2024
New York, New York

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