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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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“debtor’s computer data, business documents, customers’ correspondence, and bank-account
records relating to money and assets transferred by either movement or documents of title”). The
Trustee, through discovery under the Federal Rules of Civil Procedure and the Federal Rules of
Bankruptcy Procedure, can obtain any relevant documents or information possessed by Luxalpha
or any other Defendants. To the extent these documents are located in Luxembourg, these
documents can be shipped or obtained digitally. See Bodner v. Banque Paribas, 114 F. Supp. 2d
117, 132-33 (E.D.N.Y. 2000). Further, to the extent third-parties possess pertinent information,
the Trustee can compel disclosure pursuant to Rule 45, as made applicable through Bankruptcy
Rule 9016, or through the Hague Evidence Convention. See Fed. R. Civ. P. 45; Fed. R. Bankr.
P. 9016; In re: Assicurazioni Generali S.p.A. Holocaust Ins. Litig., 228 F. Supp. 2d 348, 362
(S.D.N.Y. 2002) (“Numerous courts have held that the use of international letters rogatory is a
viable alternative to forum non conveniens dismissal.” (internal quotations omitted)).
If this proceeding were in Luxembourg, however, the Defendants would not be required
to produce any documents that are harmful to their case or to preserve any documents. (Schiltz
Decl. 14.) The Defendants, as well as any non-parties from whom the Trustee had requested
documents, would only be “required” to produce a document that the Trustee can identify with
specificity, such as the date, name, and recipients of the document. (Id. 15.) Even then, if the
party or non-party in question failed to produce the document, the Luxembourg court may be
unable to compel production of the document. (Id. 16-17.) Moreover, because there are no
significant sanctions for the failure to comply with discovery requests or orders beyond a fine,
parties frequently decline to make productions that will be adverse to their legal positions. (Id.)
Accordingly, the factor relating to ease of access to evidence also weighs against dismissal.
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