BAKER & HOSTETLER LLP 45 Rockefeller Plaza New York, New ...

10-04285-brl Doc 127 Filed 08/17/12 Entered 08/17/12 14:29:55 Main Document
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to “gauge the extent of [parent’s] control over [subsidiary] and whether such control would
provide a basis for jurisdiction . . . .”); see also Amsellem v. Host Marriot Corp., 280 A.D.2d
357, 359 (N.Y. App. Div. 2001) (finding jurisdictional discovery appropriate “especially since
the corporate relationships are complex and the relevant facts are exclusively within the control
of the party seeking dismissal” (internal citation omitted)).
A. Jurisdictional Discovery Is Warranted to Fully Reveal the Nature of the
Moving UBS Defendants’ Contacts with This Forum
Jurisdictional discovery would permit the Trustee to fully develop the facts and confirm
his understandings regarding each of the Moving UBS Defendants’ contacts with the forum.
This is especially the case because relevant documents have been withheld by the Moving UBS
Defendants who, along with UBS AG, produced only minimal documents (many of which were
so heavily redacted that that they were of no value) after months of delay and stalling in response
to the Trustee’s Rule 2004 subpoena. 46
First, UBSFSL has declared that its employees “did not regularly contact any employee
of BLMIS, or any agent acting on behalf of Mr. Madoff or BLMIS.” (Boulat Decl. 15 [Bankr.
S.D.N.Y. ECF No. 111.]) However, the Trustee’s review of BLMIS’s files and phone records
indicates that UBSFSL employees did communicate with BLMIS in New York. Likewise,
documents received from Access (but that were not included in UBS’s limited document
production) show UBSFSL communicated and worked with Access employees in New York.
46 The Trustee served six Rule 2004 document subpoenas on UBS AG and UBS SA in 2009, which contained a total
of 122 distinct requests for documents. In an effort to obtain relevant documents located abroad without burdening
the Court with motion practice, the Trustee’s counsel then attempted to meaningfully meet and confer with UBS on
these document requests. Although some documents were received by the Trustee in 2009 and early 2010, it was
not until September 2010 (after the Trustee provided UBS with a draft motion to compel) that UBS began to
meaningfully comply with its document production obligations. Subsequent productions were made on November
10, 2010 and November 15, 2010, over 18 months after the Trustee first served a Rule 2004 subpoena on UBS and a
mere eight days before the Trustee filed his initial complaint on November 23, 2010, at which point the Trustee
could no longer seek documents under Rule 2004. In addition, many of the documents produced by UBS are
heavily redacted and of questionable relevance, and it is clear that UBS’s production is not complete and that
numerous relevant documents have been withheld from the Trustee.
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