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10-04285-brl Doc 127 Filed 08/17/12 Entered 08/17/12 14:29:55 Main Document
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969 (2d Cir. 1980) (Newman, J., concurring) (“It will often be quicker and less expensive to
transfer a witness or a document than to transfer a lawsuit.”). As set forth below, the private
interest factors weigh heavily against litigation in Luxembourg.
a. Litigation in the United States Will Involve Greater Access to
Evidence and Lower Costs
(1) Witnesses
The relevant evidence relates to the circumstances surrounding any transfers made from
BLMIS to the Defendants in the six years prior to December 11, 2008. The key witnesses in the
case will be, generally, the Trustee’s expert witnesses and the Defendants. The Trustee
anticipates that most if not all of its experts will be located in New York and the United States ,
and it obviously will be less burdensome and costly for them to testify in New York. If this
action were in Luxembourg, however, the court would not allow depositions or cross
examination of these experts or any other witnesses. (Schiltz Decl. 12.) Rather, the judge(s)
would conduct interrogations, posing direct questions to the witnesses. (Id.)
As for the Defendants’ testimony, Luxembourg law prohibits defendants from testifying
under any circumstances. (Id. 11.) Consequently, if the litigation proceeded in Luxembourg,
the Trustee would be unable to obtain testimony from any individual Defendant or from any
director, officer, or employee acting on behalf of Defendant entities. (Id.) This Court, however,
has the power to compel testimony from the defendants and/or individuals within the
Defendants’ control. See, e.g., Doe v. Hyland Therapeutics Div., 807 F. Supp. 1117, 1125
(S.D.N.Y. 1992) (“[M]uch of the evidence, in the form of documents and witnesses . . . is apt to
be within defendants’ control, rather than that of third parties. Such evidence consequently will
be subject to the compulsory process of whatever court hears this controversy.” (internal citation
omitted)). Further, it would not be unduly burdensome for the defendants—who willingly
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