Respondent appears to concede that Intervenors have "contingent or future interest in proceeds from [Petitioner's] dissolution or liquidation," but argues that such interests do not convert Intervenors into "successors in interest" for purposes Federal Rule of Civil Procedure 69(a)(2). See Resp. to Mot. to Compel (docket no. 119 at 10). Respondent relies on unpublished, non-Washington case law, arguing that Intervenors never possessed any right to bring this action in their own name, as the "right to pursue a cause of action either belongs to the dissolved corporation or no longer exists; at no time does it pass to another party." See id. (citing, inter alia, Mikkilineni v. United States, 53 F. App'x 82, 83 (Fed. Cir. 2002), and Cohen v. Ford Motor Co., No. 1:91CV2148, 1992 WL 46104, at *2 (N.D. Ohio Feb. 10, 1992) (concluding that a shareholder may not institute a lawsuit on a dissolved corporation's behalf until the "corporation has paid all its creditors" and the shareholder "succeed[s] to the interests of the corporation")). These authorities, however, appear to be in conflict with Washington law and Federal Rule of Civil Procedure 69(a)(2)'s incorporation of the state's procedural rules. See James S. Black, 14 Wn. App. at 606. Nor do Respondent's authorities directly address whether shareholders of a soon-to-be-dissolved corporation are successors in interest for purposes of seeking discovery to aid in the execution of a Judgment.2
The Court is persuaded that the CSA assigns DMAI a legal right to enforce execution of Judgment for a specific sum of money, namely 30 percent of any collected amounts, and that DMAI can therefore avail itself of Washington's legal processes for the collection or enforcement of the Judgment. See RCW 6.17.020 & .030. Regardless of whether the CSA creates a contractual obligation or right on the part of DMAI, there is little doubt that the CSA authorizes DMAI to "[t]ake all actions necessary to protect, defend and enforce the Award, including searching for and ... attaching assets for the purposes of collecting any outstanding amounts on the Award." CSA at § 2.2(b).3 The Court concludes that DMAI is a judgment creditor within the meaning of Federal Rule of Civil Procedure 69(a)(2) and can therefore obtain, for purposes of executing on the Judgment, discovery related to Respondent's assets.
Respondent objects to production of information related to its extraterritorial assets on the ground that the Court lacks jurisdiction to authorize Intervenors to attach or execute against assets located outside the United States, and that any related discovery is thus unlikely to lead to any relevant assets.4
Regardless of whether this Court lacks authority to permit execution against assets located in other countries, Intervenors are entitled to obtain discovery of Respondent's assets both within and outside of the United States. In NML Capital, the U.S. Supreme Court assumed that district courts are within their discretion "to order the discovery of third-party banks about the judgment debtor's assets located outside the United States." 573 U.S. at 140. The Supreme Court went on to hold that the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. §§ 1130, 1602, does not immunize a foreign-sovereign judgment debtor from postjudgment discovery of information concerning its extraterritorial assets; and it expressly rejected Argentina's argument that "if a judgment creditor could not ultimately execute a judgment against certain property, then it has no business pursuing discovery of information pertaining to that property." NML Capital, 573 U.S. at 144. The NML Capital Court explained that "information about Argentina's worldwide assets generally" allowed the judgment creditor to "identify where Argentina may be holding property that is subject to execution." Id. at 145 (emphasis in original); see also SAS Inst., Inc. v. World Programming Ltd., No. 10-CV-25-FL, 2018 WL 1144585, at *4 (E.D.N.C. Mar. 2, 2018) (concluding that a judgment creditor "should be entitled to discover where and in what amounts [a judgment debtor] has assets outside of the United States to enable it to make ... fully informed decisions about pursing or continuing execution proceedings abroad"). Respondent fails to address these cases or point to any other authority indicating that a district court is precluded from ordering postjudgment discovery simply because that same court lacks jurisdiction with respect to the attachment or execution against extraterritorial assets.5
Respondent also objects to any discovery related to Respondent's relationship with the Government of India or NewSpace, arguing that such discovery is unlikely to lead to any recoverable assets because neither entity can be joined in this action on account of their foreign sovereign immunity,6 and because the International Chamber of Commerce ("ICC") tribunal has already found that Respondent and the Government of India are separate legal entities.
Respondent also argues that it need not produce the requested discovery related to the Government of India or NewSpace because Intervenors are attempting to enforce a separate arbitral award directly against the Government of India and they "cannot recover a penny more than the compensation that they were awarded in" that arbitration. Mot. for Prot. Ord. (docket no. 115 at 23). Respondent then leaps to the conclusion that "Intervenors do not need such discovery," so it would be a "pointless" and "extremely expensive and burdensome endeavor" to permit them to seek such discovery. Id. at 23– 24. Respondent notably fails to mention that Intervenors have not actually recovered any amounts due in connection with the separate arbitral award, meaning the risk of double recovery is merely hypothetical at this point. See Champion Decl. at ¶ 33 (docket no. 114). Respondent also fails to cite any authority that Intervenors are precluded from seeking discovery to aid execution of this Judgment on behalf of Petitioner simply because they obtained a separate arbitral award against the Government of India. Assuming that Intervenors actually recover amounts due in connection with the other award, Intervenors might then be precluded from executing the full amount of this Judgment to avoid double recovery, whenever that time comes. Until then, Intervenors are entitled to discover Respondent's assets, as well as Respondent's relationships with the Government of India and NewSpace. See Credit Lyonnais, 160 F.3d at 431.7
Identify and describe all financial and in-kind transfers over $50,000 in each calendar year that Antrix paid to India or NewSpace on or after September 14, 2015, or to any third party on or after November 4, 2020.
RFP No. 1: All communications from September 14, 2015, between Respondent and the Liquidator concerning Respondent's financial assets, property, and any other assets valued at more than $50,000.
RFP No. 2: All documents and communications on or after September 14, 2015, reflecting any transfer of accounts, transfer of assets, contracts, business, revenues, "business segments," business opportunities, functions, personnel, intellectual property, customer relationships, or any other thing valued at more than $50,000 from Respondent to NewSpace.
RFP No. 5: All documents dated on or after September 14, 2015, reflecting payments over $50,000 that Respondent has made to any entity in the U.S.
RFP No. 7: All documents dated on or after September 14, 2015, reflecting communications between and among Respondent, India, or NewSpace, or any combination thereof, concerning documents reflecting communications regarding the transfer of business from Respondent to NewSpace.
RFP No. 8: All documents dated on or after September 14, 2015, reflecting amounts over $50,000 owed to Respondent.
(1) Intervenors' motion to compel discovery, docket no. 112, is GRANTED in part and DENIED in part;
(2) Respondent's motion for a protective order, docket no. 115, is GRANTED in part and DENIED in part;
(3) Respondent is hereby ORDERED to answer Intervenors' interrogatories, produce the responsive documents, and comply with any notices of deposition, see docket no. 114-28, subject to and as consistent with this Order, see Section 4(B), and to file any necessary privilege log with the Court, on or before September 17, 2021; and
(4) The Clerk is directed to send a copy of this Order to all counsel of record, to the Liquidator via email addressed to email@example.com, and to the United States Court of Appeals for the Ninth Circuit (Case No. 20-36024).
IT IS SO ORDERED.
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