GOLDBERG v. UBS AG

Full title: KAREN GOLDBERG, et al, Plaintiffs, v. UBS AG, Defendant

Court: United States District Court, E.D. New York

Date published: Dec 24, 2008

CV 2008-0375 (CPS) (MDG) (E.D.N.Y. Dec. 24, 2008)

Opinion

CV 2008-0375 (CPS) (MDG).

December 24, 2008

ORDER

MARILYN GO, Magistrate Judge

This order recapitulates the findings and rulings made on the record at a hearing on December 22, 2008 on plaintiffs' letter motion dated December 1, 2008 to compel responses to plaintiffs' forum non conveniens-related (FNC) document requests. See ct. doc. 49. The requests at issue concern, among other things, the location of documents as to transactions conducted by entities or persons that are non-customers of defendant UBS. Plaintiffs also seek to conduct a Rule 30(b)(6) deposition of a witness, or witnesses, who may have knowledge of various enumerated topics cover regarding the policies and practices of UBS branches in the United States, Switzerland and Israel as to its compliance with and enforcement of bank secrecy, anti-money laundering, and anti-terrorism laws.

As the court observed, information regarding non-customers of UBS, may, under certain circumstances, be relevant to plaintiffs' claims, even in the absence of allegations in the complaint as to such non-customers. Thus, discovery regarding the location of documents and witnesses knowledgeable about non-customers, as well as documents pertaining to UBS operations, policies and practices outside the United States may be proper.

This Court is sensitive to defendant's concern that FNC discovery not be converted into wide-ranging and burdensome discovery on the merits of plaintiffs claims. However, the plaintiffs' lack of information generally regarding UBS's operations has impeded the formulation of meaningful (and limited) FNC discovery regarding the location of documents and witnesses concerning the policies and practices related to the claims asserted herein. Accordingly, this Court directs UBS to provide a witness pursuant to Rule 30(b)(6) of the Federal Rules of Civil Procedure who is able to testify as to certain general policies and practices set forth in the narrowed list of Rule 30(b)(6) topics which the parties have submitted following the conference and is filed herewith as attachment 1. After the deposition, the parties must confer on the formulation of revised interrogatories or document requests designed to elicit information regarding UBS's operations in Switzerland and Israel in order to avoid the need for a deposition.

In sum, plaintiffs' motion is granted in part and denied in part without prejudice to its renewal.

SO ORDERED.

PROPOSED RULE 30(B)(6) TOPICS

e.g. 18 U.S.C. §§ 2339A 2339B 2339C 1. The identity and current location of all persons employed by UBS from January 1, 2000 to December 31, 2004 who are, or were, responsible for the creation, implementation and enforcement of policies, procedures and practices for compliance with the Bank Secrecy Act ("BSA"), as amended, anti-terrorism financing, and anti- money laundering ("AML") laws applicable to UBS in the United States, including all technology and detection programs, risk management, and anti-fraud strategies, including but not limited to identification of "the U.S. based team responsible for monitoring on OFAC designation announcements" referenced in UBS's response to Plaintiffs' Interrog. No. 13. 2. A description of the categories and present location of materials that document the practices, policies and procedures from January 1, 2000 to December 31, 2004 concerning UBS's compliance with the Bank Secrecy Act, as amended, AML and anti-terror financing laws and regulations, including the Anti-Terrorism Act ("ATA") as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") (, , and ), Executive Order 12947 and Executive Order 13224. 3. The internal organization of the AML, Regulatory Compliance and Risk Management departments of UBS in the United States. 4. A description of the categories and present location of documents and data generated from January 1, 2000 to December 31, 2004 regarding the dissemination of the U.S. OFAC list and updates to that list by or to UBS AG's U.S. offices and/or branches. 5. A description of the document retention policies applicable to transactions processed in the United States, including document retention policies for non-U.S. customers or accounts with transactions processed in the United States and whether any data or documents created in the United States are retained outside the United States.