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In re Application of Temporary Services Insurance Limited

August 28, 2009

IN RE APPLICATION OF: TEMPORARY SERVICES INSURANCE LIMITED, A CAYMAN ISLANDS EXEMPTED LIMITED INSURANCE COMPANY, APPLICANT.


The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge

DECISION AND ORDER

This case was referred to the undersigned by the Hon. W illiam M. Skretny, pursuant to 28 U.S.C. § 636(b)(1)(A). Dkt. #4.

Currently before the Court is the application of Temporary Services Insurance Limited ("TSIL"), for an order, pursuant to 28 U.S.C. § 1782, directing Jay S. Kutler to produce documents and provide deposition testimony for use in a foreign proceeding. Dkt. #1.

TSIL is a limited liability company in the Cayman Islands. Dkt. #1, ¶ 1. On January 28, 2009, the Grand Court of the Cayman Islands entered judgment in the amount of $231,554.65 USD, plus costs, against Interim Personnel of W.N.Y., Inc. ("Interim Personnel"), pursuant to an action captioned Temporary Services Insurance Ltd. v. Interim Personnel of W.N.Y., Inc., Cause No. 152 of 2007. Dkt. #1, ¶ 5 & pp.5-6. Interim Personnel had ceased operations prior to the entry of judgment. Dkt. #1, ¶ 9.

Jay S. Kutler is the current or former president of Interim Personnel and resides within the City of Buffalo, New York. Dkt. #1, ¶ 3. TSIL seeks discovery from Mr. Kutler in an attempt to locate assets of Interim Personnel so that TSIL can enforce its judgment. Dkt. #1, ¶ ¶ 10-11. Specifically, TSIL seeks production and deposition testimony involving:

All documents relating to any transaction in which all or substantially all of Interim Personnel's assets or business interests were transferred, merged, or otherwise disposed, including without limitation:

(i) signed acquisition documents, including any schedules, exhibits, bills of sale, or other similar documents irrespective of their titles;

(ii) drafts of documents circulated between Interim Personnel and any entity (hereinafter referred to as "Buyer") which acquired by purchase, merger or other transaction all or substantially all of the assets or property of Interim Personnel or of an affiliate of Interim Personnel;

(iii) correspondence between Interim Personnel and any Buyer;

(iv) organizational documents of any Buyer and/or its affiliates, whether in the nature of a parent or subsidiary;

(v) director or shareholder minutes of any Buyer and/or its affiliates relating to the acquisition of Interim Personnel, or the acquisition of any asset, property, or affiliate of Interim Personnel since January 1, 2004; and

(vi) director or shareholder minutes of Interim Personnel and any of its affiliates relating to the acquisition of Interim Personnel, or of any asset, property or affiliate of Interim Personnel since January 1, 2004.

Dkt. #1, ¶ 12. TSIL represents that under Cayman law, a judgment may be enforced as part of the underlying action. Dkt. #1, ¶ 6.

28 U.S.C. ยง 1782 provides, in relevant part, that: The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal, including criminal investigations conducted before formal accusation. The order may be made... upon the application of any interested person and may direct that the testimony or statement be given, or the document or other thing be produced, before a person appointed by the court. By virtue of his appointment, the person appointed has power to administer any necessary oath and take the testimony or statement. The order may prescribe the practice and procedure, which may be in whole or part the practice and procedure of the foreign country or the international tribunal, for taking the testimony or statement or producing the document or thing. To the extent that the order does not prescribe otherwise, the testimony or statement shall be taken, and the document or other thing produced, in accordance with the Federal Rules of Civil Procedure. "Once the statutory requirements are met," to wit, once it has been demonstrated that: (1) the person from whom discovery is sought resides or can be found in this district; (2) the discovery is for use in a proceeding before a foreign ...


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