Wultz v. Bank of China Ltd.

293 F.R.D. 677, 86 Fed. R. Serv. 3d 1326, 2013 WL 5614331, 2013 U.S. Dist. LEXIS 148279
District Court, S.D. New York·Decided October 15, 2013·No. No. 11 Civ. 1266 (SAS) (GWG)·Published·Cited by 2 cases

Opinion

[678]*678 OPINION AND ORDER

GABRIEL W. GORENSTEIN, United States Magistrate Judge.

Bank of China, Ltd. (“BOC”) has served the New York branch of Bank Hapoalim B.M., a non-party, with a deposition subpoena. The subpoena invokes Rule 30(b)(6) of the Federal Rules of Civil Procedure to seek testimony from Bank Hapoalim about topics that Bank Hapoalim’s New York employees know nothing about. BOC contends that Bank Hapoalim should be required to educate an employee in its New York branch about these topics. We hold that Rule 30(b)(6) cannot be used to extend the subpoena power of this Court beyond the confines of Rule 45 and thus grant Bank Hapoalim’s motion to quash the subpoena.

I. BACKGROUND

A. The Underlying Case

Plaintiffs Sheryl, Yekutiel, Amanda, and Abraham Wultz (“the Wultzes”) allege that BOC and several other named defendants provided material support and resources to a terrorist organization called the Palestine Islamic Jihad (“PIJ”), and in doing so, helped facilitate a suicide bombing attack in Tel Aviv, Israel, on April 17, 2006. See First Amended Complaint, filed Jan. 13, 2009 (Docket # 12) (“Am. Compl.”), ¶¶ 1-2. As a result of this attack, Sheryl and Yekutiel’s son Daniel died, and Yekutiel suffered serious injuries. Id. ¶ 3. The Wultzes seek damages against BOC under the Anti-Terrorism Act, 18 U.S.C. § 2333 and other legal provisions. Id. ¶ 1. They allege that BOC assisted the PIJ by executing dozens of wire transfers totaling several million dollars to a PIJ senior operative named Said al-Shurafa. See id. ¶¶ 68-76. BOC asserts that it cannot be held liable under the Anti-Terrorism Act because there is no evidence that it had actual knowledge of any connection between the PIJ and the wire transfers. See Defendant Bank of China Limited’s Motion to Dismiss the First Amended Complaint, filed Mar. 5, 2009 (Docket #15), at 25. The Wultzes, however, allege that Israeli counter-terrorism representatives met with officials of the People’s Republic of China in April 2005 and warned them that PIJ wire transfers were being made to Shurafa’s BOC account. See Am. Compl. ¶ 77.

B. The Document Subpoena

To dispute the claim that Israeli officials warned it about the wire transfers, BOC subpoenaed a nonparty Israeli bank, Bank Hapoalim B.M. (“Hapoalim”), for documents pertaining to any transactions involving Shurafa. See Document Subpoena, dated Sept. 28, 2012 (“Doc. Sub.”) (annexed as Ex. 1 to Declaration of Carol Goodman in Support of Motion to Quash, filed Aug. 12, 2013 (Docket #297) (“Goodman Dec!.”)). BOC’s logic is that if Hapoalim conducted transactions with Shurafa, then Israeli officials must not have informed Hapoalim about Shurafa’s terrorist connections. See Memorandum of Law by Bank of China in Opposition to Motion to Quash Subpoena, filed Aug. 26, 2013 (Docket #303) (“BOC Mem.”), at 2-5. And if the Israeli officials did not inform an Israeli bank such as Hapoalim about Shurafa, it would be unlikely that they would have informed a Chinese bank such as BOC. See id.

Although Hapoalim is headquartered in Israel, BOC served the document subpoena on Hapoalim’s branch office in New York. See Doc. Sub. Hapoalim responded to the subpoena by producing internal policy documents and transaction records. See Declaration of Gina Frederique in Support of Motion to Quash, filed Aug. 12, 2013 (Docket # 296) (“Frederique Deck”), ¶¶ 2-3.

C. The Disputed Subpoena

On June 20, 2013, BOC served Hapoalim with a second subpoena, which sought a deposition of Hapoalim pursuant to Rule 30(b)(6) of the Federal Rules of Civil Procedure. See Deposition Subpoena, dated June 20, 2013 (annexed as Ex. 2 to Goodman Deck) (“Dep. Sub.”). The subpoena lists sixteen topic areas, many with multiple sub-parts. The subpoena seeks, for example, an explanation of the content of the Shurafa transaction records, the circumstances surrounding the Shurafa transfers, the compliance procedures in place at Hapoalim’s Israeli office at the time of the transfers, any communications between Hapoalim and the [679]*679Israeli government concerning Shurafa and the transfers, the process by which the Israeli government communicates with Hapoalim about terrorist organizations, and explanations of statements in Hapoalim’s annual reports relating to these areas. See id

As part of the briefing on this motion, Hapoalim has offered undisputed evidence that the wire transactions at issue have no connection to the branch office of Hapoalim in New York and that the policies sought in the subpoena do not apply to the New York branch. Frederique Deck ¶4. Most significantly, “[t]here are no individuals working in New York who are familiar with or have any relevant information or knowledge pertaining to” the topic areas described in the subpoena, including the wire transactions, Bank Hapoalim’s internal policies as they relate to the transactions, and the basis for statements in Bank Hapoalim’s internal reports. Id ¶ 5.

On August 12, 2013, Hapoalim filed the instant motion to quash or modify the subpoena pursuant to Rule 45(c)(3) of the Federal Rules of Civil Procedure.1

II. DISCUSSION

In support of its motion to quash, Hapoalim makes several arguments. First, Hapoalim contends that the subpoena violates Rule 45(c)(3)(A)(ii) of the Federal Rules of Civil Procedure because there are no employees with knowledge of the subpoena’s topic areas located in its New York branch. Hapoalim Mem. at 7-8. Hapoalim also argues that the Court should exercise its discretion to prevent disclosure on grounds of international comity because enforcing the subpoena would require Hapoalim to violate Israeli law prohibiting the disclosure of privileged or confidential information. See id at 2-3. Finally, Hapoalim argues that the subpoena must be quashed or at least modified because it calls for information that is cumulative, irrelevant, or improper. See id at 3-4. Because we conclude that Fed.R.Civ.P. 45 requires us to quash the subpoena, we do not reach the other issues raised.

A. Subpoenas Pursuant to Rule 30(b)(6)

Fed.R.Civ.P. 30(b)(6) provides in relevant part that a party’s subpoena for deposition testimony

may name as the deponent a public or private corporation ... and must describe with reasonable particularity the matters for examination.

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Wultz v. Bank of China Ltd., 293 F.R.D. 677, 86 Fed. R. Serv. 3d 1326, 2013 WL 5614331, 2013 U.S. Dist. LEXIS 148279 (S.D.N.Y. 2013).

293 F.R.D. 677 (Wultz v. Bank of China Ltd.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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