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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maintained significant contacts with the United States when they were investing in Madoff’s
fraud—to travel or send representatives to New York for this litigation. See Cromer, 158 F.
Supp. 2d at 360 (S.D.N.Y. 2001) (citing Calavo Growers of California, 632 F.2d at 969 (“A
forum is not necessarily inconvenient because of its distance from pertinent parties or places if it
is readily accessible in a few hours of air travel.) (Newman, J., concurring)).
With respect to any unwilling non-party witnesses, U.S. courts may compel testimony
from any individual or entity within the United States, as well as from any U.S. national or
resident located abroad. See Fed. R. Civ. P. 45(b); Fed. R. Bankr. P. 9016. Furthermore, this
court can compel the testimony of foreign non-party witnesses through the use of letters
rogatory. Ingram Micro, Inc. v. Airoute Cargo Express, Inc., No. 99 Civ. 12480, 2001 WL
282696, at *4 (S.D.N.Y. Mar. 22, 2001). Thus, while Luxalpha trumpets the ability of
Luxembourg courts to compel testimony, (see Luxalpha Mot. at 21,) this argument is inapposite
because such testimony is similarly accessible in U.S. proceedings. In any case, although
Luxembourg courts have the nominal authority to require unwilling non-party witnesses to
testify, there is no practical mechanism for exercising that authority. (See Schiltz Decl. 13.)
The factors relating to the cost of willing witnesses’ attendance and the availability of
compulsory process for unwilling witnesses, therefore, weigh against dismissal.
(2) Documents
BLMIS’s internal records of the transfers at issue are located in New York. 51 See In re
Teknek, LLC, 354 B.R. at 209 (considering, in a forum non conveniens analysis, the location of a
51 BLMIS’s records include over 11,700 boxes of paper documents and 19,000 media sources containing
electronically stored information, including various computer systems and storage media. As part of the many
adversary proceedings pending before this Court, the Trustee has created a virtual data room containing over four
million documents necessary to prove that BLMIS was a fraudulent enterprise and that BLMIS was insolvent.
These documents include millions of pages of BLMIS customer account records, correspondence, trading records,
and records of internal BLMIS communications and procedures relating to BLMIS’s investment advisory business.
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