Opinion
Civil Action 19-10155-RA
06-29-2021
SUSAN F. BLOOM and FIDUCIARY TRUST COMPANY INTERNATIONAL, as Executors of the Last Will and Testament of ADELE KLAPPER, Plaintiffs, v. JUAN CARLOS EMDEN, MIGUEL ERIC EMDEN, and NICOLAS MARCELO EMDEN, Defendants.
The United States District Court for the Southern District of New York (“District Court”) presents its compliments to Obergericht des Kantons Zürich and respectfully requests assistance to obtain documentary evidence from the Zürcher Kunstgesellschaft, to be used at trial in a civil lawsuit before this Court in the above-captioned action (“Action”).
This request is made pursuant to, an in conformity with the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (“Hague Evidence Convention”), to which both Switzerland and the United States are a party.
The Court considers that the evidence sought is directly relevant to the issues in dispute.
The particulars of this Hague Evidence Request are as follows:
1.
Sender
Honorable Katharine H. Parker United States District Court, Southern District of New York Daniel Patrick Moynihan United States Courthouse 500 Pearl St. New York, NY 1007-1312 USA Chambers phone: (212) 805-0234 Chambers email: Parker-_NYSDChambers@nysd.uscourts.gov
2.
Central Authority of the Requested State
Obergericht des Kantons Zürich Internationale Rechtshilfe Hirschengraben 13/15 Postfach 8021 Zürich 1
3.
Person to whom the executed request is to be returned
Nicholas O’Donnell, Esq. Sullivan & Worcester LLP One Post Office Square Boston, Massachusetts 02109 USA Email: nodonnell@sullivanlaw.com On behalf of: Honorable Katharine H. Parker United States District Court, Southern District of New York Daniel Patrick Moynihan United States Courthouse 500 Pearl St. New York, NY 1007-1312 USA
4.
Specification of the date by which the requesting authority requires receipt of the response to the Letter of Request
n/a
5a.
Requesting judicial authority
United States District Court for the Southern District of New York Daniel Patrick Moynihan United States Courthouse 500 Pearl St. New York, NY 1007-1312 USA
5b.
To the competent authority of
Switzerland
6.
Names of the case and identifying number
Susan F. Bloom v. Juan Carlos Emden, No. 19-cv-10155
6a.
Plaintiffs
Susan F. Bloom 7800 Peconic Bay Boulevard Lauren, NY 11948 and Fiduciary Trust Company International 280 Park Avenue New York, NY 10017 Represented by: John D. Winter, Esq. Emma Ellman-Golan Patterson Belknap Webb & Tyler LLP 1133 Avenue of the Americas New York, NY 10036 USA Email: jwinter@pbwt.com
6b.
Defendants
Juan Carlos Emden Luz Vicuna 190-194 Zapallar 5TA Region Chile Miguel Eric Emden Candelaria Goyenechea 3930, Dpt 304 Vitacura, Santiago, Chile and Nicolas Marcelo Emden Valle del Monasterio 2332 Dpt. Z01, Lo Barnechea, Santiago, Chile Represented by: Nicholas O’Donnell, Esq. Sullivan & Worcester LLP One Post Office Square Boston, Massachusetts 02109 USA Email: nodonnell@sullivanlaw.com
7a.
Nature of the proceedings
Declaratory judgment.
7b.
Summary of complaint
See below.
7c.
Summary of defense
7d.
Other necessary information or documents.
NATURE AND SUMMARY OF THE PROCEEDING
This case is a declaratory judgment action regarding title to a painting by Monet known as Le Palais Ducal.
Max Emden, a German businessman and art collector, was persecuted by Germany as a Jew during the Holocaust. He owned the Painting at the time of his death in 1940. The Painting passed to Max's son, Hans Erich Emden. The defendants (Juan Carlos Emden, Miguel Eric Emden, and Nicolas Marcelo Emden) are the sons and heirs of Hans Erich Emden.
Plaintiffs allege that, in 1942, Olga Ammann-a secretary and confidant of Max Emden and Hans Erich Emden-sold the Painting on behalf of Hans Erich Emden. They allege that Ms. Amman was fully and properly authorized to enact a sale, and that the alleged sale was valid. Plaintiffs allege that either (1) Ms. Ammann sold the Painting to Walter Feilchenfeldt, who later sold it to Herman Lutjens, or (2) that Ms. Ammann sold the Painting to Walter Feilchenfeldt on behalf of Herman Lutjens. The Plaintiffs and Defendants agree that, in 1952, Herman Lutjens displayed the Painting at the Kunsthaus Zürich. The Kunsthaus Zürich is overseen by the Zürcher Kunstgesellschaft.
The Painting later came into the custody of Adele Klapper, who died in 2018. Plaintiffs Susan F. Bloom and Fiduciary Trust Company International are the executors of the last will and testament of Adele Klapper. They desire to sell the Painting. In order to sell it, they have asked the United States District Court for the Southern District of New York for a declaration that
Adele Klapper's estate possesses clear and marketable title to the Painting, free of any claim by the Defendants or any other unknown heir of Hans Erich Emden.
8a.
Evidence to be obtained
Documents to be obtained from the Zürcher Kunstgesellschaft (please see list of documents itemized in Schedule A, attached).
8b.
Purpose of the evidence sought
The Kunsthaus Zürich displayed the Painting in 1952 when it was held by Herman Lutjens. Defendants believe that the Zürcher Kunstgesellschaft, which oversees the Kunsthaus Zürich, may have documents relevant to the provenance of the Painting.
9.
Identity and address of any person to be examined
Not applicable; Defendants do not seek depositions. The person from whom documents are sought is: Zürcher Kunstgesellschaft Winkelwiese 4 Postfach
10.
Questions to be put to the persons to be examined or statement of the subject matter about which they are to be examined
Not applicable; Defendants do not seek depositions.
11.
Documents or other property to be inspected
Please see the attached Schedule A. Defendants seek photocopies of the documents.
12.
Any requirement that the evidence to be given on oath or affirmation and any special form to be used
Not applicable; Defendants do not seek depositions.
13.
Special methods or procedure to be followed (e.g. oral or in writing, verbatim transcript or summary, cross-examination, etc.)
Not applicable; Defendants do not seek depositions.
14.
Request for notification of the time and place for the execution of the Request and identity and address of any person to be notified
Please notify the counsel listed in Section 6 regarding the time and place for the execution of the Request.
15. Request for attendance or participation of judicial personnel of the requesting authority at the execution of the Letter of Request
No attendance of judicial personnel is requested.
16. Specification of privilege or duty to refuse to give evidence under the law of the Requesting State
Under the laws of the United States, a witness has a privilege to refuse to give evidence if to do so would disclose a confidential communication between the witness and his attorney that was communicated specifically for the purpose of obtaining legal advice and which privilege has not been waived. United States law also recognizes a privilege against self-incrimination. Certain limited immunities are also recognized outside the strict definition of privilege, such as the limited protection of work product created by attorneys during or in anticipation of litigation.
17. The fees and costs incurred which are reimbursable under the second paragraph of Article 14 or under Article 26 of the Convention will be borne by
Should there be any costs associated with the service herein, including the required fees and costs incurred in executing this letter of request, in serving process to compel the appearance of the witness and his attendance, and in preparing a transcript of the proceedings, pursuant to Article 26 of the Hague Convention, it will be the responsibility of the attorneys for Defendants to reimburse the judicial authorities of Switzerland for any costs and fees. Please direct any correspondence or communications concerning costs to Defendants’ Counsel identified in 6b.
Reciprocity
In the furtherance of justice and by the proper and usual process of this court, the District Court assures the judicial authorities of Switzerland that it is willing to provide similar cooperation and assistance to the judicial authorities of Switzerland in the event that Switzerland requests similar assistance.
SCHEDULE A - Zürcher Kunstgesellschaft
Please provide photocopies of the documents listed.
1. All documents concerning Max Emden, including (without limitation) his persecution and/or art collection.
2. All documents concerning the painting known as Le Palais Ducal by Claude Monet, dated 1908, and previously owned by Max Emden (the “Painting”).
3. All documents concerning the display of the Painting at the Kunsthaus Zürich in or around 1952.
4. All documents concerning Herman Lütjens' purchase, ownership, possession, and/or custody of the Painting.