On April 19, 2024, Justice Reed of the New York County Commercial Division issued a decision in Bagatelle Little W. 12th LLC v. JEC II, LLC, 2024 NY Slip Op. 50453(U), refusing to issue letters rogatory for international discovery because the evidence sought was not crucial to deciding the lawsuit, explaining:
This action involves a dispute over a restaurant joint venture. In motion sequence 008, defendants/counterclaimants move, pursuant to CPLR §3102 and §3108, for the issuance of letters rogatory to the appropriate authority in France to compel the production of documents from nonparty company, NextStage. For the reasons set forth below, this request is denied.
In all cases involving international discovery, the court should take into account the importance of the information sought to the litigation, the degree of specificity of the request, the availability of alternative means of securing the information, the extent to which noncompliance with the request would undermine important interests of the United States, or whether compliance with the request would undermine important interests of the state where the information is located. It is well known that the scope of American discovery is often significantly broader than is permitted in other jurisdictions. Therefore, a number of courts as well as the Restatement have said that a more stringent test should apply in international discovery than in purely domestic discovery. In order to compel the production of discovery from international entities, therefore, the movant must first establish that the sought information is crucial to the resolution of a key issue in this case.
Here, defendants assert that the documents sought are material and necessary to the prosecution of this action because they provide information about the investment that NextStage made in the Bagatelle family of companies who are purportedly counterclaim defendants in this action. According to defendants, the documents will provide information concerning the extent and nature of intercompany transfers and will establish the purported role NextStage’s investment played in counterclaim defendants purported improper transfer of funds out of plaintiff’s accounts which left it without capital to operate.
Defendants submit that it is necessary and convenient to issue a letter rogatory. Convenience is not the standard. Defendants fail to show how its requests differ from anything it could have requested from counterclaim defendants directly, or how the information already obtained from counterclaim defendants failed to include this vital information.
Defendants have not pointed to any deficiencies in production and have not established how information regarding a third party international investment is crucial to the resolution of a key issue in this case, namely, improper transfers between counterclaim defendant entities.
(Internal quotations and citations omitted) (emphasis added).