in this case and the abundant available means for collecting that evidence.
Only plaintiffs Marc Rubinstein and Henry Shery*fn11 have made claims
against Zurich; those plaintiffs allege that family members living in
Poland were denied insurance benefits. (Schenker Corrected Am. Compl.
¶¶ 9-10) Zurich states that to the extent that any documentary or
testimonial evidence exists with respect to plaintiffs Rubinstein and
Shery's claims, that evidence is located either at the company's
headquarters in Switzerland or in the unspecified country where
Rubinstein and Shery's policies were sold. (Landolt Decl. of 6/7/01
Most other plaintiffs have sued Generali with respect to policies that
were sold in the following countries: Italy, Poland, Czechoslovakia,
Hungary, Austria, Yugoslavia, and Latvia. (Catalanotti Decl. of 5/23/02
¶ 135; Carnicelli Decl. of 1/9/02 ¶ 11; Velie Rep. Decl. of 1/8/02
Ex. K) Generali states that all original policies were held locally at
branch offices throughout Europe. (Catalanotti Decl. of 5/23/02 ¶ 17)
To the extent that those documents still exist, they are now "in the
archives of the state-run insurance companies which took over Generali's
branch offices after World War II." (Id. ¶ 21) Generali's
headquarters office in Trieste, Italy also contains an abundance of
relevant documents such as: 1) water copies (similar to a carbon copies)
of the original insurance policies; 2) policy "abstracts" (typically in
German) reproducing the key terms and conditions of the original policy;
3) copies of the General Terms and Conditions in effect when the relevant
policies were issued; and 4)a statistical ledger called "stato fine,"
detailing the policies in force at the end of each year after 1936. (Id.
¶¶ 18-19) Generali speculates that any witnesses who might have
knowledge of the insurance claims at issue — mainly former or
current employees of Generali or the state-run companies that took over
its Eastern European branches — are located in Europe and do not
speak English as their first language. (Id. ¶¶ 154-56).
Generali and Zurich contend that transfer of this evidence from Europe
to this forum will be impossible because compulsory process here cannot
compel the production of documents or witnesses under the control of
Eastern European governments and state-run insurance agencies in those
countries, and in any event, inconvenient and expensive, even were such
process available. (Defs.' Cornell Mem. of 11/21/97 at 20-22; Defs.'
Winters Mem. of 7/30/99 at 10; Defs.' Winters Rep. Mem. of 12/15/99 at
13) Furthermore, because the relevant documents will be written in
— and the relevant witnesses will speak — European
languages, defendants assert that the translation expenses associated
with trial in this forum would be exorbitant. (Id.) Defendants note that
even where witnesses can be deposed abroad through the Hague Convention
on the Taking of Evidence Abroad, Mar. 18, 1970, 28 U.S.C. § 1781
(2000), 847 U.N.T.S. 231, this Circuit has expressed a preference for
live witness testimony where possible. See Alfadda, 159 F.3d at 48;
Schertenleib v. Traum, 589 F.2d 1156, 1165 (2d Cir. 1978)
Defendants' evidentiary concerns are not without merit. See Fustok v.
Banque Populaire Suisse, 546 F. Supp. 506, 510 n.l0 (S.D.N.Y. 1982)
(Weinfeld, J.) (noting the importance of compulsory process); id. at 510
n. 11 ("The location of witnesses is always a key issue in a forum non
conveniens inquiry."); id. at 510 (noting that the need for translation
of the testimony of
foreign witnesses weighs in favor of dismissal);
Transunion Corp. v. Pepsico, Inc., 640 F. Supp. 1211, 1216 (S.D.N.Y.
1986) (Weinfeld, J.) (same), aff'd, 811 F.2d 127 (2d Cir. 1987).
However, as set forth below, defendants' concerns are overstated.
First, it is not uncommon in international litigation for documents or
witnesses to be located abroad. As Judge Sterling Johnson recently
observed in a case involving similar claims arising from the retention of
Jewish assets by French banks during Holocaust era:
[T]he advances of modern technology and the
development of a global economy with instant access
to information worldwide severely undercut
defendants' claim of forum non conveniens. . . . The
costs involved to defendants in defending this
action in New York are significantly mitigated by
the time and money-saving tools including e-mail,
fax, scanners, digital photography, and global
access to the internet.
Bodner v. Banque Paribas, 114 F. Supp.2d 117, 133 (E.D.N.Y. 2000)
(citation omitted); see also Am. Home Assurance Co. v. Ins. Corp. of
Ireland, Ltd., 603 F. Supp. 636, 641 (S.D.N.Y. 1984). ("Allegations by
movants concerning greater access in Britain to documents, witnesses and
evidence . . . even if true, do not amount to the `extreme circumstances'
and `material injustice' needed to overcome the strong private interest
of plaintiffs' choice of a domestic forum.")