Pending before this Court is Petitioner Pao Tatneft's  Motion to Compel Production of Documents and Answers to Interrogatories.1 This Memorandum Opinion relates to a discrete post-judgment issue in this case – namely, discovery in aid of execution of the judgment – and as such, this Court incorporates by reference the background sections set forth in its March 19, 2018 Memorandum Opinion, ECF No. 34, May 13, 2020 Memorandum Opinion, ECF No. 48, August 24, 2020 Memorandum Opinion, ECF No. 50, and June 1, 2021 Memorandum Opinion, ECF No. 75. The Court will highlight below the procedural background relevant to this Motion to Compel.
Petitioner Pao Tatneft [formerly known as OAO Tatneft] brought an action in this Court to enforce a 2014 foreign arbitral award in the amount of $112 million plus interest, which was entered in its favor against Respondent Ukraine. On August 24, 2020, this Court granted Pao Tatneft's Petition to Confirm the arbitral award, see Order, ECF No. 49, and on January 11, 2021, the Court entered a Judgment in favor of Pao Tatneft, calculated in the amount of $172,910,493.00 [which includes interest]. See Judgment, ECF No. 61. After expiration of the automatic stay imposed by Fed. R. Civ. P. 62(a), on February 23, 2021, Pao Tatneft commenced discovery in aid of execution, including interrogatories and requests for production of documents. See Jonathan Blackman Declaration ("Blackman Decl."), ECF No. 76-1, Ex. 1 [Petitioner's First Set of Interrogatories to Respondent Ukraine], ECF No. 76-2; Ex. 2 [Petitioner's First Set of Requests for Production of Documents to Respondent Ukraine], ECF No. 76-3.2 On March 22, 2021, Pao Tatneft served nonparty subpoenas on various banks and other financial institutions, and on March 26, 2021, Ukraine filed a motion in the Southern District of New York to quash those nonparty subpoenas. See Blackman Decl., Ex. 7 [Memorandum of Law in Support of Ukraine's Motion to Quash Third-Party Subpoenas], ECF No. 76-8.3
The parties have summarized the four general objections proffered by Ukraine in response to Pao Tatneft's discovery requests, namely, that such requests:
(1) are "overbroad, unduly burdensome, disproportionate to the needs of the case, and not reasonably limited in geographic scope" to the extent they seek worldwide discovery of assets and are not limited to discovery within the territory of Ukraine, and relatedly that enforcement of the Judgment should be sought solely under Ukrainian law;
(2) seek information that is "irrelevant" to the extent they seek information about property Ukraine claims is immune from attachment;
(3) are "overbroad and disproportionate" to the extent that they concern information about state-controlled entities and persons purporting to act for or on behalf of Ukraine; and
(4) seek documents that cannot be produced without violations of various secrecy laws.
Pao Tatneft Mot. to Compel, ECF No. 76, at 7 (citations omitted); Ukraine Opp'n, ECF No. 81, at 8 (citations omitted).4 Each of these objections will be addressed by this Court herein.
Ukraine argues that discovery of worldwide assets is unduly burdensome, but this argument is based on Ukraine's faulty premise that "[t]his burden is unjustified where Tatneft is already [allegedly] aware of Ukrainian assets that are available to pay foreign judgments [and] is already aware of a proven and reliable means for judgment creditors to obtain these assets from the State Treasury..." Ukraine Opp'n, ECF No. 81, at 17. Ukraine ignores that this argument that Pao Tatneft "can enforce the judgment by initiating the appropriate process on Ukraine without any discovery at all" was previously deemed by this Court to be "completely without merit." See Memorandum Opinion, ECF No. 75, at 11-12. The Court noted further that "Tatneft [was] entitled to enforce th[e] judgment through any legal means" and further, that "Ukraine [had] consistently displayed [its] unwillingness to voluntarily pay the Judgment." Id. at 12.
Pao Tatneft also cites to NML Cap., where the Supreme Court "ruled that document requests that target general information about a foreign-sovereign's assets are permissible" even where the request also "end up revealing information about assets that the sovereign  may consider immune from execution." Pao Tatneft Mot. to Compel, ECF No. 76, at 15; see NML Cap., 573 U.S. at 145.5 The NML Cap. case does not bar discovery concerning assets that may be immune. See NML Cap., 573 U.S. at 145 (where the Supreme Court noted that the requests were "bound to turn up information about property that Argentina regards as immune[,] [b]ut NML may think the same property not immune" and in that case, "the District Court will have to settle the matter.")
Additionally, Ukraine challenges Interrogatories 1-4 and Document Requests 1-7 on grounds that they are "so extremely broad that they appear to require production of detailed and comprehensive information about embassy and consular bank accounts used in support of diplomatic missions around the world." Ukraine Opp'n, ECF No. 81, at 11 (citations omitted). Ukraine notes that these same requests "appear to require disclosure of detailed information about Ukraine's military assets and its spending for military equipment ..." and along with Interrogatory No. 5 and Document Requests Nos. 8-10, they also appear to cover "central banking accounts and activities, including sovereign bond offerings..." Id. Ukraine's characterization of the requests it references is misleading at best. There are no requests for information and documents specifically targeting embassy and consular bank accounts or military activity and equipment. Furthermore, Ukraine "cites no case where a district court has simply accepted the foreign state's assertions of execution immunity for military or consular property to prohibit discovery of that property." Pao Tatneft Reply, ECF No. 82, at 11; compare Owens v. Republic of Sudan, No. 01-2244 (JDB), 2020 WL 4039302, at *6 (D.D.C. July 17, 2020) ("[D]iscovery could reveal whether any of Sudan's military and diplomatic assets fall under one of the FSIA's exceptions to immunity from attachment or execution."); FG Hemisphere Assoc., LLC v. Dem. Republic of Congo, 447 F. 3d 835, 843-844 (D.C. Cir. 2006) (examining evidentiary record of the last ten years' use of embassy building despite claims of immunity); TIG Insurance Co. v. Republic of Argentina, No. 18-mc-0129 (DLF), 2019 WL 3017618, at *2 (D.D.C. July 10, 2019) (analyzing provisions of 28 U.S.C. §1610 to determine amenability to attachment of a particular Argentinian embassy building).
While this Court acknowledges that Interrogatories Nos. 1-5 and Document Requests Nos. 1-10 are general in nature and broad in scope, the requests are certainly relevant to Pao Tatneft's attempt to enforce its judgment against Ukraine.6 The reality in this case is that Pao Tatneft does not know what property Ukraine has, where it is, or whether it is executable. Ukraine has responded to the discovery requests by proffering wholesale objections rather than providing any responsive information or proposing any realistic compromise on timing and scope.7 Furthermore, Ukraine has not even provided the information it agreed to produce in response to Pao Tatneft's discovery requests, such as organizational charts and lists of officials. This Court may only conclude that Ukraine is once again stalling and stonewalling Pao Tatneft in its efforts to enforce the Judgment entered by this Court, and such behavior will not be tolerated.
Ukraine argues that "Rule 69 discovery must be in aid of execution and the assets of third parties are generally not attachable[…]" Ukraine Opp'n, ECF No. 81, at 13; see GMA Accessories, Inc. v. Elec. Wonderland, Inc., No. 07 Civ. 3219 PKC DF, 2012 WL 1933558, at *5 (S.D.N.Y. May 22, 2012) ("[D]isclosure concerning the assets of a non-party is generally not contemplated by Rule 69 (a)") (citation omitted); see also Jacobson v. Moller & Moller, Inc., No. CV 2002-6316 (ERK) (MDG), 2007 WL 1989260, at *2 (E.D.N.Y. July 5, 2007) (Discovery "must be limited to information that relates to the judgment debtors, their assets or suspected transfers of their assets."); Costomar Shipping Co. v. Kim-Sail, Ltd., No. 95 CIV. 3349 (KTD), 1995 WL 736907, at *3 (S.D.N.Y. Dec. 12, 1995) ("Generally, non-parties may only be examined about the assets of a judgment debtor and cannot be required to disclose their own assets.") (citation omitted). This Court notes that none of the cases cited by Ukraine prohibit an inquiry into the sovereign/judgment debtor's assets, which is what Pao Tatneft seeks to do in this case, albeit through inquiries concerning third-parties that are partially owned or controlled by Ukraine.8
To sustain an objection on grounds that the discovery requests contravene foreign law, Ukraine must "provide the court with information of sufficient particularity and specificity to allow the Court to determine whether discovery sought is indeed prohibited by foreign law." NML Cap., Ltd. v. Republic of Argentina, No. 03-cv-8845 (TPG), 2013 WL 491522, at *3 (S.D.N.Y. Feb. 8, 2013) (internal citation and quotation marks omitted). Here, with the exception of one conclusory statement — that giving Pao Tatneft information about Naftogaz would provide "sensitive information about the key oil and gas company in Ukraine, which is a direct competitor to Pao Tatneft," see Ukraine Opp'n, ECF No. 81, at 20-21 — Ukraine has not provided any specific details about confidentiality concerns implicated by Pao Tatneft's discovery requests or about concrete conflicts that would arise due to violation of secrecy laws. To determine if there is any merit to Ukraine's arguments, Ukraine must explain why there is a particular confidentiality concern related to disclosure of certain information. See Shvartser v. Lekser, 321 F.R.D. 23, 24-25 (D.D.C. 2017) (granting a motion to compel upon finding defendant's discovery responses deficient where defendant declined to answer certain questions, claiming that the answer was "confidential and privileged," and withheld documents, but failed to specify the applicable privilege); see also NML, 2013 WL 491522, at *3 (explaining that "sworn testimony or affidavits" of foreign law experts are preferred to support an argument that ordering discovery would violate foreign law).9 Ukraine makes no such showing and provides no such affidavits. Merely saying that the discovery requests will violate confidentiality or secrecy laws does not make it true or even take it beyond speculative.10 Accordingly, Ukraine's argument about "comity," see Ukraine Opp'n, ECF No. 81, at 24-25, is premature at best, as Ukraine has not demonstrated any conflict of laws. "Comity is not just a vague political concern favoring international cooperation ..." Societe Nationale Industrielle Aerospatiale v. U.S. Dist. Ct. for S. Dist. of Iowa, 482 U.S. 522, 555 (1987) (Blackmun, J., concurring). Rather, as regarding "the choice-of-law analysis," one must first determine "whether there is in fact a true conflict between domestic and foreign law," id., which Ukraine has failed to demonstrate.
Furthermore, Pao Tatneft asserts that "Ukraine has  continued to avoid discussion of the obvious solution to its generalized concerns about confidentiality," the imposition of a confidentiality agreement or a protective order. Pao Tatneft Mot. to Compel, ECF No. 76, at 21; see Memorandum Opinion, ECF No. 75, at 11 ("The Court notes that Ukraine's claim that the information sought by Tatneft is sensitive and could be shared with the Russian Federation has not been substantiated in any way by Ukraine [n]or does Ukraine explain why a confidentiality agreement or protective order could not resolve any confidentiality concerns.") Ukraine argues that "[e]specially given the close ties between Tatneft and a hostile state [Russia], Ukraine cannot accept the suggestion that "a confidentiality agreement or protective order" would adequately resolve its concerns."11 See Ukraine Opp'n, ECF No. 81, at 23 Ukraine's proffered "rationale" for why a confidentiality agreement or protective order would not resolve any privacy/secrecy concerns is flimsy at best. See, e.g., Amduso, 288 F. Supp. 3d at 93 (involving a motion to compel post-judgment discovery from Sudan and discussing a protective order entered in a related case, which could be modified); Ultradent Prods., Inc. v. Hayman, No. M8-85 RPP, 2002 WL 31119425, at *4 (S.D.N.Y. Sept. 24, 2002) (finding that a confidentiality order signed in a parallel action was "sufficient protection against [the party's] concern of any potential harm"); Jeffries v. Pension Tr. Fund of Pension, Hospitalization & Benefit Plan of Elec. Indus., No. 99 Civ. 4174 (LMM), 2004 WL 1048221, at *6 n. 6 (S.D.N.Y. May 7, 2004) ("[I]n order to alleviate Defendant's privacy concerns of the individual Fund participants, the Court will enter a confidentiality order" and order that the parties may "only use the information gained for purposes of this particular litigation.") In the instant case, this Court finds that Ukraine's vague claims of invasion of privacy concerns and violation of secrecy laws are speculative and furthermore, Ukraine has summarily rejected the possibility of negotiating a confidentiality agreement or protective order. Accordingly, because Ukraine has failed to provide any concrete evidence to support any alleged violation of privacy or secrecy laws (as opposed to merely proffering general allegations), at this time, this Court finds that corresponding limitations on Pao Tatneft's discovery requests are unwarranted.
Pao Tatneft requests that this Court order Ukraine to pay its "reasonable expenses incurred" in making this Motion, "including attorneys' fees. See Federal Rule of Civil Procedure 37(a)(5)(A). Pursuant to the Federal Rules, courts "must" grant a request for costs where they grant a motion to compel unless one of three exceptions applies. See id. at (i)-(iii).12 Pao Tatneft argues that it "attempted in good faith to obtain disclosure from Ukraine before filing this Motion" and Ukraine's "objections are not substantially justified" and finally, "no circumstances would make an award of expenses unjust in this case, particularly considering Ukraine's continuing efforts to avoid satisfaction of the Judgment[…]" Pao Tatneft Mot. to Compel, ECF No. 76 at 22-23.
ORDERED that Pao Tatneft's  Motion to Compel is GRANTED. By November 8, 2021, Ukraine shall provide to Pao Tatneft the uncontested information it originally indicated would be provided (such as organizational charts), and – after consultation with Pao Tatneft – it shall provide this Court with a plan for rolling production of all remaining information and documents, with a November 8, 2021 start date and a March 18, 2022 end date for all such production. If this plan for rolling production is not timely provided, the Court will order the schedule of such production, and the Court will consider awarding additional costs and fees to Pao Tatneft. It is further
ORDERED that the award of Pao Tatneft's expenses and fees will be held in abeyance until such time as Ukraine provides a plan for rolling production and production of documents has commenced. Subsequently, Pao Tatneft shall provide this Court with a record of its costs (and fees) relating to this Motion to Compel, and this Court will determine the appropriate amount of costs (and fees) to be awarded in favor of Pao Tatneft and against Ukraine.
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