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When a case is brought in the Cayman Islands involving a disputed question of fact, a litigant is entitled to discovery of documents relevant to the issues raised in the dispute. Relevant means if the documents assist one party, however slightly, to advance his case. The definition of documents is broad to include, paper, computerized including metadata, audio or video, and contents of portable devices. The rules contemplate discovery to be given two weeks after the pleadings close and the…

When a fraud has occurred, a private investigator is often engaged by counsel to gather evidence about the fraud and the fraudsters. If events take you to Canada, one must understand the law surrounding privilege and privacy and be cautious to avoid prejudicing the case. An investigator must be retained "for the dominant purpose of litigation" for his work to be protected from disclosure by litigation privilege. Blair v. Wawanesa Mutual Insurance Co., 1998 ABQB 1025. To maintain the privilege,…

In the past, courts had decided that RICO's reach depended upon the location of the enterprise. European Community v. RJR Nabisco, Inc., 2014 U.S. App. LEXIS 7593 (2d Cir. April 23, 2014) redirected the focus to predicate acts. There, plaintiffs alleged that RJR Nabisco and related entities ("RJR") managed and controlled a global money-laundering scheme involving organized criminal factions in Russia and Colombia. Plaintiffs alleged that RJR employees travelled from the U.S. to Europe, Central America and other locations to…

The Department of Justice and Carl A. Zwerner ("Taxpayer") have agreed to settle the case of United States v. Zwerner (S.D. Fla., No. 1:13-cv-22082). The settlement calls for the Taxpayer to pay penalties and interest totaling about $1.8M in connection with the Taxpayer's failure to file the FBAR in multiple years.  Despite the jury finding the Taxpayer guilty of willful noncompliance of the FBAR filing requirements, the Government agreed to settle the matter for an amount that is significantly less…

For private foundations interested in a "return on investment" on the distribution of their foundation's charitable dollars (that is, a return beyond the satisfaction of doing good), Program Related Investments ("PRI's") are generally the tool of choice.  A PRI can be counted as part of the foundation's required 5% annual distribution provided that the investment accomplishes one or more the foundation's charitable purposes, is not made to achieve a significant investment return, and is not used for lobbying or political…

A recent decision in the Southern District of New York, Wultz v. Bank of China, 2014 U.S. Dist. Lexis 1841 (S.D.N.Y. February 13, 2014), required a non-party bank to prepare a Rule 30(b)(6) witness with information that was only available overseas. There, the Bank of China subpoenaed Bank Hapoalim, a non-party Israeli bank, requesting documents pertaining to transactions and wire transfers involving an alleged Islamic Jihad leader. Bank Hapoalim moved to quash, arguing that Rule 45 did not require it…

For many Gen Y'ers (a/k/a Millennials, and generally understood to be people in their 20's and 30's today), philanthropy goes far beyond writing a check to one's favorite public charity (or, even, texting a donation to the Red Cross following some natural disaster or another). Instead, philanthropy is now understood as a broader deployment of social capital with consideration of the Return on Investment (ROI) to be achieved through that deployment. Outright donations, in which the donor's ROI is a good…

On April 3, 2014, in Matter of Kapon v. Koch, 2014 N.Y. Slip Op 02327, the New York Court of Appeals clarified the standard for enforcing subpoenas to nonparties in civil litigation. There, William Koch commenced a fraud action in California and served nonparty subpoenas for deposition on two New Yorkers who moved to quash the subpoenas. The Court held that "so long as the disclosure sought is relevant to the prosecution or defense of an action, it must be…

Provisional remedies are a powerful tool for creditors. In New York, two recent cases have limited a creditor's ability to attach funds of a defendant at a foreign bank with a correspondent banking relationship with a New York bank. The premise of the attachment is that a foreign defendant has an attachable property interest in its "share" of its bank funds maintained with its correspondent bank in New York. In Toisa Ltd v. PT Transamudra Usaha Sejahtera, 13 CV 1407…

In Italy, Article 671 of the Italian Civil Code permits a precautionary seizure of property if a creditor has a "valid fear of losing the security for his claim." The order will prohibit the debtor from disposing of all of his assets and not just specifically identified ones. A freezing order can be granted if: 1) the Court is persuaded that the claim has a prima facie basis based on the documentary evidence presented, and 2) the Court is persuaded…

The U.S. Court of Appeal for the Eleventh Circuit recently emboldened a litigant's ability to obtain discovery under 28 U.S.C. Section 1782 for a foreign proceeding that was only "within reasonable contemplation." In Consorio Ecuatoriano de Telecomunicaciones S.A. v. JAS Forwarding (USA), Inc., 2014 U.S. App. Lexis 531 (11th Cir. January 10, 2014), Concel filed an ex-parte application for judicial assistance in order to obtain evidence pursuant to Section 1782. Concel's detailed application sought evidence from JAS USA relating to…

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