Preview
FILED: NEW YORK COUNTY CLERK 01/26/2024 07:13 PM INDEX NO. 653028/2023
NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 01/26/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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:
GONGQINGCHENG PANHUI INVESTMENT :
MANAGEMENT PARTNERSHIP (LIMITED : Index No. 653028/2023
PARTNERSHIP), :
: Hon. Louis L. Nock
Plaintiff, :
:
v. :
:
JIMAN ZHU, and LIHUA BAI, :
:
Defendants. :
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MEMORANDUM OF LAW IN SUPPORT OF NON-
PARTIES’ MOTION TO QUASH AND FOR A
PROTECTIVE ORDER
SQUIRE PATTON BOGGS (US) LLP
Attorneys for Non-Parties Century Gain Development Limited, Yu
Heng International Investments Corporation, Pyramid Valley
Limited, and Yihua Zhu
1211 Avenue of the Americas, 26th Floor
New York, NY 10036
212 872 9800
1100132753\3\AMERICAS
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TABLE OF CONTENTS
Page
PRELIMINARY STATEMENT ................................................................................................. 1
FACTUAL AND PROCEDURAL BACKGROUND ................................................................ 3
I. Plaintiff Has Filed Duplicative and Harassing Lawsuits in New York and
California ................................................................................................................ 3
II. Plaintiff Has Failed to Effect Service of Process on Defendants Zhu and
Bai in all Three Lawsuits. ....................................................................................... 4
III. Plaintiff Issued the Subpoena to IATS Twice in Separate Courts to Harass
Non-Party Movants ................................................................................................. 5
IV. Non-Party Movants Attempted to Meet and Confer in Good Faith with
Plaintiff, but Plaintiff Refused to Respond ............................................................. 6
GOVERNING LEGAL STANDARD ......................................................................................... 7
ARGUMENT ................................................................................................................................. 9
Plaintiff’s overbroad Subpoena prying into details of the Non-Party
Movants’ financial information should be quashed, and a protective order
should be issued to prevent a further fishing expedition by Plaintiff. .................... 9
I. Non-Party Movants Have Standing to Move to Quash the Subpoena. ................... 9
II. The Subpoena should be quashed because it seeks information that is
utterly irrelevant to this proceeding for recognition of the alleged PRC
Judgement under the UFMJRA. ........................................................................... 11
III. The Subpoena should be quashed because it is Overly Broad and
Harassing............................................................................................................... 13
CONCLUSION ........................................................................................................................... 15
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TABLE OF AUTHORITIES
Page(s)
Cases
Allen v. Crowell-Collier Publi'g Co.,
21 N.Y.2d 403 (N.Y. 1968) .......................................................................................................8
Butler v. Am. Fed'n of State, Cnty. & Mun. Emps.,
72 A.D.2d 720 (1st Dep't 1979) ...............................................................................................13
Capacity Group of NY, LLC v. Duni,
186 A.D.3d 1482 (2d. Dep't. 2020)..........................................................................................11
CIBC Mellon Trust Co. v. Mora Hotel Corp. N.V.,
100 N.Y.2d 215 (N.Y. 2003) ...................................................................................................12
Matter of D'Alimonte v. Kuriansky,
144 A.D.2d 737 (3d Dep't. 1988).............................................................................................13
Degliuomini v. Degliuomini,
308 A.D.2d 501 (2d Dep't. 2003).........................................................................................8, 14
Dellwood Foods, Inc. v. Abrams,
109 Misc. 2d 263 (Sup. Ct. Bronx Cnty. 1981) .......................................................................13
Etkin v. Sherwood 21 Assoc., LLC,
2021 N.Y. Misc. LEXIS 495 (Sup. Ct. N.Y. Co. Feb. 4, 2021) ................................................9
Harris v. Harris,
2020 N.Y. Misc. LEXIS 2792 (Sup. Ct. N.Y. Co. June 17, 2020) ............................................8
Matter of Home Box Office, Inc.,
64 Misc. 3d 566 (Sup. Ct. N.Y. Cnty. 2019) ...........................................................................13
Jones v. Maples,
257 A.D.2d 53 (1st Dep't. 1999) ................................................................................................9
Kapon v. Koch,
23 N.Y.3d 32 (N.Y. 2014) .........................................................................................................8
Law Firm of Ravi Batra, P.C. v. Rabinowich,
77 A.D.3d 532 (1st Dep't. 2010) ..........................................................................................8, 13
Ravnikar v. Skyline Credit-Ride, Inc.,
79 A.D.3d 1118 (2d Dep't. 2010)...............................................................................................9
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Matter of Reuters Ltd. v. Dow Jones Telerate, Inc.,
231 A.D.2d 337 (1st Dep't. 1997) ........................................................................................8, 13
Rubin v. Sabharwal,
2022 N.Y. Misc. LEXIS 4748 (Sup. Ct. N.Y. Co. Sept. 16, 2022) .....................................7, 11
Schorrv. Schorr, 113 A.D.3d 490 (1st Dep't. 2014) ......................................................................10
Schumacher v. Antiquorum USA, Inc.,
2011 WL 11741321 (N.Y. Sup. Ct. Nov. 21, 2011) ..................................................................8
Sell It Social LLC v. IGS Realty Co., LP,
2018 N.Y. Misc. LEXIS 1780 (Sup. Ct. N.Y. Co. May 4, 2018) ........................................8, 12
Sung Hwan Co. Ltd. v. Rite Aid Corp.,
7 N.Y.3d 78 (N.Y. 2006) .........................................................................................................12
Tantleff v. Kestenbaum & Mark,
2009 N.Y. Misc. LEXIS 6339 (Sup. Ct. N.Y. Co. May 6, 2009) ............................................14
In re Terry D.,
81 N.Y.2d 1042 (N.Y. 1993) .....................................................................................................8
Matter of U.S. Pioneer Elecs. Corp.,
47 N.Y.2d 914 (N.Y. 1979) .......................................................................................................9
Statutes
Article 53, N.Y. CPLR 5301 - 5309 ...................................................................................... passim
Uniform Foreign Money Judgments Recognition Act.....................................................................1
California Rules of Court
Rule 3.110(b) .............................................................................................................................5
N.Y. Civil Practice Law and Rules
Section 2304.........................................................................................................................7, 13
Section 3101(a) ..................................................................................................................11, 13
Section 3103(a) ....................................................................................................................9, 10
Section 3120(2) ..........................................................................................................................8
Convention on the Service Abroad of Judicial and Extrajudicial Documents in
Civil or Commercial Matters (Hague Convention on Service of Process), 20
U.S.T. 361 ..................................................................................................................................4
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PRELIMINARY STATEMENT
Specially appearing non-parties Century Gain Development Ltd., Pyramid Valley Ltd.,
Yu Heng Int’l Investments Corp., and Yihua Zhu (“Yihua”) (collectively “Non-Party Movants”) 1
move for a protective order and to quash Plaintiff Gongqingcheng Panhui Investment
Management Partnership (Limited Partnership)’s (“Plaintiff” or “Gongqingcheng”) subpoena
duces tecum (the “Subpoena”) served in this action on non-party Insured Aircraft Title Service
LLC (“IATS”) on the grounds that it is procedurally and substantively improper.
Plaintiff is a corporate entity located in the People’s Republic of China (“PRC”), which
has filed a complaint in this Court for a single cause of action for Recognition and Enforcement
of an alleged PRC judgment under the Uniform Foreign Money Judgments Recognition Act
(“UFMJRA”) against Defendants ZHU Jiman (“Zhu”) and BAI Lihui (“Bai,” and collectively
“Defendants”) (NYSCEF Doc. No. 2). Whether Plaintiff’s single cause of action succeeds or
fails depends upon whether the alleged PRC judgment may be recognized under the UFMJRA as
adopted by New York at Article 53, N.Y. CPLR 5301 – 5309. Recognition of that judgment is
untethered to Defendants’ ability to satisfy it.
The Subpoena has nothing to do with the UFMJRA Complaint. Instead, it seeks
expansive consumer financial records from Non-Party Movants concerning themselves and
Defendants for the purpose of collecting on the purported PRC judgment that has not been
recognized by this Court or any court in the United States. Specifically, the Subpoena expressly
states its purpose as follows: “WHEREAS, it is reasonably believed that the Company [IATS]
has in its possession information related to the financial transactions of the Judgment-Debtors
The Non-Party Movants specially appear for the limited purpose of moving for a protective order and to quash the
1
Subpoena.
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that will assist Judgment-Creditor in collecting the Judgment.”2 Harkins Aff., Ex. A, Schedule A
at 1. This is not a collection action, so the Subpoena is defective and irrelevant on its face.
Moreover, to support the non-existent collection action, it requests, inter alia, from “January 1,
2017, to the present”, “any documents related to Century Gain Development Limited, Pyramid
Valley Limited, Clear Skyline Limited, Jiman ZHU, and Yu Heng International Investments
Corporation.” Harkins Aff., Ex. A, Schedule A at 5. Because the Subpoena is overly broad, and
entirely untethered to the UFMJRA Complaint, or any claims or defenses related thereto, it
should be quashed in its entirety.
Further, Plaintiff is improperly attempting to utilize the Subpoena to harass the Non-Party
Movants, as evidenced by the fact that Plaintiff has served the same subpoena in different
proceedings pending in different state courts. Plaintiff has filed three (3) lawsuits against
Defendants, two pending in California and the instant pending here in New York. Plaintiff
previously served a duplicative subpoena to IATS in one of the suits pending in California; then
withdrew the subpoena to IATS after one of the Non-Party Movants objected to it. Now,
Plaintiff is attempting to improperly use the Subpoena to obtain information to assist in
litigations not pending before this Court, and previously denied in the pending California
litigation. And, Plaintiff is attempting to improperly force the Non-Party Movants to expend
additional and unnecessary resources to defend multiple legal proceedings in different forums
regarding the same Subpoena.
As explained more fully below, the Subpoena should be quashed in its entirety and a
protective order entered in favor of the Non-Party Movants.
2
A true and correct copy of the Subpoena is attached as Exhibit A to the Affirmation of Daniel C. Harkins, dated
January 26, 2024 (“Harkins Affirmation”). The Non-Party Movants have submitted the Harkins Affirmation
concurrently with this memorandum of law.
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FACTUAL AND PROCEDURAL BACKGROUND
I. Plaintiff Has Filed Duplicative and Harassing Lawsuits in New York and
California
Plaintiff has filed (at least) three (3) lawsuits in the United States based upon the alleged
PRC judgment. They are as follows:
1) The instant action: Gongqingcheng Panhui Investment Management Partnership
(Limited Partnership) v. Zhu Jiman and Bai Lihui, Supreme Court of the State of
New York, New York County, Case No. 653028/2023, filed June 23, 2023
(hereinafter “NY Action”);
2) Gongqingcheng Panhui Investment Management Partnership (Limited
Partnership) v. Zhu Jiman and Bai Lihui, California Superior Court, San Mateo
County, Case No. 23-CIV-02884, filed June 26, 2023 (hereinafter “CA Action”);
and
3) Gongqingcheng Panhui Investment Management Partnership (Limited
Partnership) v. Bai Lihui, Zhu Yihua, et al., California Superior Court, San Mateo
County, Case No. 23-CIV-02886, filed June 26, 2023 (hereinafter “CA Transfers
Action”).3
On June 23, 2023, Plaintiff filed the NY Action for a single cause of action for
Recognition and Enforcement of the alleged PRC judgment under the UFMJRA against
Defendants (NYSCEF Doc. No. 2). Three days later, on June 26, 2023, Plaintiff filed the CA
Action, seeking recognition of the same alleged PRC judgment under the UFMJRA against the
same Defendants. See Ex. A. On that same date, June 26, 2023, Plaintiff filed the CA Transfers
True and correct copies of the complaints in the CA Action and the CA Transfers Action are attached hereto as
3
Exhibits A and B, respectively.
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Action, this time concerning purported voidable transfers based upon the alleged PRC judgment
against Defendant Bai and Non-Party (to this action) Yihua Zhu. See Ex. B.
Plaintiff’s first two suits, the NY Action and CA Action, are entirely duplicative. They
involve the same parties, same single claim (UFMJRA), same alleged damages; the only
difference is that they are pending concurrently in two different state courts. Nevertheless,
Plaintiff elected not to notify this Court, or the California courts (or anyone for that matter) that it
had filed the duplicative suits by filing the required related case notices in either court.
There is no legitimate basis for Plaintiff to file the same lawsuit twice; the only purpose is
to harass Defendants, and now through the instant Subpoena, Plaintiff seeks to harass the Non-
Party Movants as well by making them litigate the same issues in multiple forums. See generally
Affirmation of Yihua Zhu, dated January 26, 2024 (“Yihua Affirmation”).
II. Plaintiff Has Failed to Effect Service of Process on Defendants Zhu and Bai in
all Three Lawsuits.
Despite filing all three lawsuits in June 2023, Plaintiff has failed to serve the complaint
on the Defendants in any of the actions. In the NY Action, Plaintiff sought and obtained an
extension of time of 120 days (until February 23, 2024), from this Court to serve the Defendants
under the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or
Commercial Matters (Hague Convention on Service of Process), 20 U.S.T. 361 (the “Hague
Convention”) (NYSCEF Doc. Nos. 8, 9 and 13). But, to date, Plaintiff has failed to serve the
complaint on Defendants.
Likewise, in the CA Action, Plaintiff also has failed to serve the UFMRJA complaint on
Defendants. On October 11, 2023, the Court in the CA Action issued an order advising that
Plaintiff had failed to “serve the Summons and Complaint upon all named defendants and file
proofs of service of process upon all of those defendants within 60 days after the filing of the
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Compliant” as required by California Rules of Court Rule 3.110(b). 4 This is the last document
filed on the docket in the CA Action.5
In the CA Transfers Action, Plaintiff has failed to serve Defendant Bai. The Court in that
action issued the same order advising that Plaintiff had failed to “serve the Summons and
Complaint upon all named defendants and file proofs of service of process upon all of those
defendants within 60 days after the filing of the Compliant” as required by California Rules of
Court Rule 3.110(b).6
Plaintiff has served the CA Transfers Action complaint on Non-Party Movant Yihua,
who is a California resident. Yihua has answered the complaint and entered a general appearance
for all purposes in the CA Transfers Action. See generally Yihua Aff.
III. Plaintiff Issued the Subpoena to IATS Twice in Separate Courts to Harass
Non-Party Movants
On November 2, 2023, Plaintiff issued a subpoena duces tecum to IATS in the CA
Transfers Action. Yihua Aff. ¶ 7. On November 17, 2023, Yihua, through counsel, objected to
Plaintiff’s subpoena to IATS. Id. After Yihua’s objection, Plaintiff withdrew its subpoena to
IATS in the CA Transfers Action. Id.
On December 22, 2023, Plaintiff issued the instant Subpoena to IATS in the NY Action.
See Harkins Aff., Ex. A. The Subpoena expressly states its purpose as follows: “WHEREAS, it
is reasonably believed that the Company [IATS] has in its possession information related to the
financial transactions of the Judgment-Debtors that will assist Judgment-Creditor in collecting
the Judgment.” Id., Schedule A at 1 (emphasis supplied). The Subpoena “requires production of
any and all documents from January 1, 2017, to the present” and, inter alia, “including but not
4
A true and correct copy of this order in the CA Action (the “CA Action Order”) is attached hereto as Exhibit C.
5
A true and correct copy of the docket sheet in the CA Action is attached hereto as Exhibit D.
6
A true and correct copy of this order in the CA Transfers Action (the “CA Transfers Action Order”) is attached
hereto as Exhibit E.
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limited to any documents related to Century Gain Development Limited, Pyramid Valley Limited,
Clear Skyline Limited, Jiman ZHU, and Yu Heng International Investments Corporation.” Id.,
Schedule A at 5 (emphasis supplied).
IV. Non-Party Movants Attempted to Meet and Confer in Good Faith with
Plaintiff, but Plaintiff Refused to Respond
On December 22, 2023, Non-Party Movants’ counsel emailed Plaintiff’s counsel
objecting to the Subpoena and requesting to meet and confer, as follows:
Larry and Gareth,
Thanks for sending me this subpoena. I was unaware that you had
filed the same lawsuit you filed in California in New York state
(NYS) court. You cannot do that. You only get to litigate your case
in one US court at one time. The courts here are busy enough
without litigants filing duplicative cases. It is a good way to upset
the judges in both courts, and, of course, violates the claim
splitting doctrine as well as the requirement to affirmatively notify
the court of related cases upon the filing of a new action, which
you did not do in California.
After receiving the subpoena this morning, I had my staff pull the
NYS docket and complaint, and they are exactly the same, same
parties, same claims (UFMRJA), same damages, etc., as the
complaint you filed in California last June. Both complaints are
attached for reference. You filed them 3 days apart on 6/23/23 and
6/26/23 respectively. I cannot imagine why you would file the
same case twice. In addition to paying to litigate the case twice,
you also risk disparate rulings where one court’s order could
undermine the other. For example, what if CA says you can
domesticate the PRC judgment but NYS says the opposite? Or the
other way around? You should dismiss one of the two UFMRJA
complaints…
As to the NYS subpoena, I see from the docket that you have not
served the defendants in that case either. And, you just asked the
NYS court to give you more time to serve them in China under the
Hague Convention on Service of Process Abroad, which the court
granted. Memo of law and court order attached. As such, you are
issuing non-party subpoenas for consumer financial records in a
case where you haven’t effected service of process on any
defendant and no defendant has appeared; that is improper. My
client, Yihua Zhu, is not a defendant in the NYS case, but he is an
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interested party – otherwise you wouldn’t have served the
subpoena on me – and he objects to the subpoena.
I request that you withdraw the subpoena and cease issuing
subpoenas until you have effected service of process under the
Hague Convention on the defendants as you told the NYS court
you are trying to do. Please let me know if you agree.
Alternatively, my client reserves his rights to file a motion to quash
or motion for a protective order as to the NYS subpoena.
You also could just dismiss my client without prejudice as I
previously requested.
If you would like to discuss this matter, please let me know, and
we can set up a time next week after Christmas.
Happy holidays.
Harkins Aff., Ex. B.
Plaintiff’s counsel never responded to the Non-Party Movants’ meet and confer efforts.
Accordingly, Non-Party Movants were left with no other option but to file a motion for a
protective order and to quash Plaintiff’s harassing, irrelevant, and improper Subpoena. See
Harkins Aff. ¶¶ 7-8.
GOVERNING LEGAL STANDARD
“A motion to quash, fix conditions or modify a subpoena shall be made promptly in the
court in which the subpoena is returnable.” CPLR § 2304. The movant “bears the initial burden
to show that the information sought is utterly irrelevant or that the process will not lead to
legitimate discovery.” Rubin v. Sabharwal, 2022 N.Y. Misc. LEXIS 4748, at *5 (Sup. Ct. N.Y.
Co. Sept. 16, 2022) (quashing subpoenas to defendants’ bank) (quotation omitted). After that
burden is met, the subpoenaing party must “demonstrate that the information sought is material
and necessary.” Id.
“Material and necessary” facts are those “bearing on the controversy which will assist
preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of
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usefulness and reason.” Allen v. Crowell-Collier Publi’g Co., 21 N.Y.2d 403, 406 (N.Y. 1968).
“Unrestricted or unlimited disclosure is not required … Nor will carte blanche demands be
honored … particularly where the demand at issue would attach undue attention to the collateral
matter to the detriment of the main issue[.]” Schumacher v. Antiquorum USA, Inc., 2011 WL
11741321, at *5 (N.Y. Sup. Ct. Nov. 21, 2011) (quotations and citations omitted).
A subpoena should be quashed “when the futility of uncovering anything legitimate is
obvious, or the information sought is, ‘utterly irrelevant to any proper inquiry.’” Harris v.
Harris, 2020 N.Y. Misc. LEXIS 2792, at *3-4 (Sup. Ct. N.Y. Co. June 17, 2020) (quashing
subpoenas “that improperly [sought] disclosure of the defendants’ personal financial records”)
(quoting Kapon v. Koch, 23 N.Y.3d 32, 39 (N.Y. 2014)). See also Sell It Social LLC v. IGS
Realty Co., LP, 2018 N.Y. Misc. LEXIS 1780, at *3-4 (Sup. Ct. N.Y. Co. May 4, 2018) (a
“motion to quash on relevancy grounds will be granted upon a showing that the materials sought
are utterly irrelevant to the issues raised”).
“Moreover, a subpoena duces tecum may not be used . . . for a fishing expedition to
ascertain the existence of evidence.” Law Firm of Ravi Batra, P.C. v. Rabinowich, 77 A.D.3d
532, 533 (1st Dep’t. 2010) (quotation and citation omitted). “Rather, its purpose is to compel the
production of specific documents that are relevant and material to facts at issue in a pending
judicial proceeding.” In re Terry D., 81 N.Y.2d 1042, 1044 (N.Y. 1993) (quotation omitted).
Thus, subpoenas demanding “any and all documents” are improper as such request fails to
specify the documents sought with “reasonable particularity.” See, e.g., Degliuomini v.
Degliuomini, 308 A.D.2d 501, 501 (2d Dep’t. 2003) (quoting CPLR § 3120(2)). See also Reuters
Ltd. v. Dow Jones Telerate, 231 A.D.2d 337, 340, 342, 344 (1st Dep’t. 1997) (several subpoena
requests for “all documents” were “patently overbroad”; a subpoena should not be “used as a
tool of harassment or for the proverbial ‘fishing expedition’ to ascertain the existence of
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evidence”); Etkin v. Sherwood 21 Assoc., LLC, 2021 N.Y. Misc. LEXIS 495, at *9-10 (Sup. Ct.
N.Y. Co. Feb. 4, 2021) (quashing a subpoena that sought “all documents” and “all
communications” on topics that had no relation to the allegations and causes of action at issue in
the complaint, deeming the subpoena nothing more than a “fishing expedition”).
Pursuant to CPLR § 3103(a),
[t]he court may at any time . . . on motion of any party or of any
person from whom or about whom discovery is sought, make a
protective order denying, limiting, conditioning or regulating the
use of any disclosure device. Such order shall be designed to
prevent unreasonable annoyance, expense, embarrassment,
disadvantage, or other prejudice to any person or the courts.
CPLR § 3103(a) (emphasis added). This provision “gives the courts wide discretion to preclude
or appropriately limit the use of any particular disclosure device where it determines that the use
of that device would cause unreasonable annoyance or embarrassment.” Jones v. Maples, 257
A.D.2d 53, 56 (1st Dep’t. 1999). In other words, the Court “consider[s] whether that device is of
particular value under the circumstances.” Id.
ARGUMENT
Plaintiff’s overbroad Subpoena prying into details of the Non-Party Movants’ financial
information should be quashed, and a protective order should be issued to prevent a further
fishing expedition by Plaintiff.
I. Non-Party Movants Have Standing to Move to Quash the Subpoena.
It is well-settled that this Court has broad discretion in supervising disclosure “to prevent
unreasonable annoyance, expense, embarrassment, disadvantage or other prejudice[.]” See
Ravnikar v. Skyline Credit-Ride, Inc., 79 A.D.3d 1118, 1119 (2d Dep't. 2010); see also Matter of
U.S. Pioneer Elecs. Corp., 47 N.Y.2d 914, 916 (N.Y. 1979) (“[t]he determination as to the terms
and provisions of discovery as regulated to prevent abuse by protective orders under CPLR 3101
(subd. [a]) rests in the sound discretion of the court to which application is made, subject to
review by the intermediate appellate court” for an abuse of discretion). “[H]arassing and
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unnecessary subpoenas” warrant a protective order. Schorr v. Schorr, 113 A.D.3d 490, 491 (1st
Dep't. 2014).
Here, the Subpoena specifically “requires production of any and all documents from
January 1, 2017, to the present . . . including but not limited to any documents related to Century Gain
Development Limited, Pyramid Valley Limited, Clear Skyline Limited, Jiman ZHU, and Yu Heng
International Investments Corporation.” Harkins Aff., Ex. A, Schedule A at 5. Because the
Subpoena requests records concerning Non-Party Movants Century Gain Development Ltd.,
Pyramid Valley Ltd., and Yu Heng Int’l Investments Corp., they all clearly have standing to
quash the Subpoena. See CPLR § 3103(a) (standing conferred on anyone “from whom or about
whom discovery is sought”).
Likewise, Non-Party Movant Yihua has standing to quash the Subpoena because: 1) the
Subpoena seeks collection action records to assist Plaintiff in prosecuting the CA Transfers
Action in which Yihua is the only defendant that has been served with the complaint in that
proceeding; and 2) Plaintiff admitted that Yihua was an interested party by serving the Subpoena
on him through his counsel of record in the CA transfers Action. See Yihua Aff.; Harkins Aff.,
Ex. B. Given that Plaintiff sought the same records from IATS in the CA Transfers Action—and
now asserts in the Subpoena that such records relate to the “financial transactions” of the
Defendants, including Defendant Bai, whom the CA Transfers Action alleges to have
fraudulently transferred property to Yihua—Non-Party Yihua’s connection to the Subpoena is
clear. See Harkins Aff., Ex. A, Schedule A at 1; Ex. B ¶ 33 (alleging, e.g, that “Defendant Bai
transferred her interest in real property . . . to Defendant [Yihua] Zhu for no consideration”).
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II. The Subpoena should be quashed because it seeks information that is utterly
irrelevant to this proceeding for recognition of the alleged PRC Judgement
under the UFMJRA.
The NY Action seeks limited and specific relief: the recognition and enforcement of the
PRC judgment against Defendants. See NYSCEF Doc. No. 2. The financial records of the Non-
Party Movants are not “relevant and material” to this cause of action. See Capacity Group of NY,
LLC v. Duni, 186 A.D.3d 1482, 1483 (2d. Dep’t. 2020) (internal quotation marks and citations
omitted); CPLR § 3101(a) (a party is entitled only to disclosure of matters that actually are
“material and necessary in the prosecution or defense of an action.”). Plaintiffs cause of action
requires it to demonstrate, inter alia, that the PRC judgment was obtained in accordance with
PRC law and the enforcement of the judgment would not be “repugnant to the public policies of
the State of New York.” See NYSCEF Doc. No. 2 ¶¶ 52-54. The Non-Party Movants’ financial
records held with Non-Party IATS concerning certain aircraft that may or may not have
previously been owned by the Defendants in this action have no bearing on Plaintiff’s claim. See
Harkins Aff., Ex. A. Schedule A at 5. At best, they relate to the CA Transfers Action—claims
that Plaintiff, in its discretion, did not bring in the instant action.
Courts routinely quash or limit the scope of subpoenas involving a litigant’s—especially
a non-party’s—financial information where, as here, the requested documents are of no probative
value to the relevant issue. For example, in Rubin, plaintiff claimed that jewelry she bought from
defendants was not worth the $18 million she paid for it. 2022 N.Y. Misc. LEXIS 4748, at *5.
The plaintiff subpoenaed a defendant’s bank to find “evidence of the ascribed value of the pieces
sold as complained of in this action as well as [to] provide evidence of their value and the proof
of payment for the same.” Id. at *7. The Court quashed the subpoena, noting that “the value of a
good is tied to its worth” and thus the price paid by the defendant to acquire the jewelry was not
determinative of the jewelry’s value. Id. at *8-9.
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Similarly, in Sell It Social LLC, a dispute between a landlord and commercial tenant, the
tenant served a subpoena on the landlord’s bank seeking “any and all documents related to any
bank accounts and/or records related to any escrow money” held by the landlord, and “any and
all” records related to a specific account. 2018 N.Y. Misc. LEXIS 1780 at *4-5. On the
landlord’s motion, the Court significantly restricted the scope of the tenant’s subpoena to only
“documents and information directly relating to the opening, maintenance, and closing of the
escrow account” in which the tenant’s security deposit was kept and to documents pertaining to
the transfer of those funds. Id. at *7. The requests in the subpoena for “documents and
information outside those parameters” were quashed. Id.
Here, the Subpoena requests documents “from January 1, 2017 to the present” related to
Defendants’ and Non-Party Movants’ financial transactions. Harkins Aff., Ex. A, Schedule A at
5. They are irrelevant to the single cause of action in the NY Action seeking to domesticate the
alleged PRC judgment under the UFMJRA as adopted by New York at Article 53, N.Y. CPLR
5301 – 5309. See NYSCEF Doc. No. 2 ¶¶ 43-55. As alleged in the Complaint, Plaintiff claims
the issues are limited to the purportedly “ministerial function of recognizing the foreign country
money judgment and converting it into a New York judgment.” CIBC Mellon Trust Co. v. Mora
Hotel Corp. N.V., 100 N.Y.2d 215, 222 (N.Y. 2003). Therefore, resolution of the NY Action, if it
is ever served on the Defendants under the Hague Convention, will turn on whether the Court
determines that the PRC tribunal had subject matter and personal jurisdiction over the
Defendants and whether the alleged PRC judgement is final, and properly comports with New
York's “notions of procedure and due process of law.” Sung Hwan Co. Ltd. v. Rite Aid Corp., 7
N.Y.3d 78, 83 (N.Y. 2006). Plaintiff’s Subpoena is utterly irrelevant because it does not relate to
the attempted recognition of the alleged PRC judgment under the UFMJRA.
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III. The Subpoena should be quashed because it is Overly Broad and Harassing
Plaintiff’s Subpoena should also be quashed on the grounds that it is overly broad and
unduly burdensome. A subpoena cannot be used “as a tool of harassment or for the proverbial
‘fishing expedition’ to ascertain the existence of evidence”; such improper subpoenas should be
quashed pursuant to CPLR 2304. Matter of Reuters Ltd. v. Dow Jones Telerate, Inc., 231 A.D.2d
337, 341-42 (1st Dep't. 1997); Matter of D'Alimonte v. Kuriansky, 144 A.D.2d 737, 739 (3d
Dep't. 1988) (quashing subpoena where “all” payment records were requested with no limitation
as to time or client, and stating that “[s]uch a demand obviously encompasses materials beyond
the scope of respondent's investigation . . . and, as such, is unreasonable and overbroad”); Matter
of Home Box Office, Inc., 64 Misc. 3d 566 (Sup. Ct. N.Y. Cnty. 2019); Law Firm of Ravi Batra,
P.C. v. Rabinowich, 77 A.D.3d 532, 533 (1st Dep't. 2010) (“Moreover, a subpoena duces tecum
may not be used for the purpose of discovery or to ascertain the existence of evidence . . . and a
subpoena should be quashed when the subpoena is being used for a fishing expedition to
ascertain the existence of evidence[.]”); Dellwood Foods, Inc. v. Abrams, 109 Misc. 2d 263, 267-
268 (Sup. Ct. Bronx Cnty. 1981) (citations omitted) (“subpoenas have been modified as
overbroad . . . or quashed as harassing and unreasonable[.]”).
Applying these principles, the Court should grant the motion to quash as the documents
requested are not discoverable under CPLR 3101. Here, the first request in the Subpoena seeks
“all documents related to any transaction involving [certain] Aircraft which [IATS] acted in any
capacity . . . including but not limited to any documents related to Century Gain Development
Limited, Pyramid Valley Limited, Clear Skyline Limited, Jiman ZHU, and Yu Heng
International Investments Corporation.” Harkins Aff., Ex. A, Schedule A at 5. Requests for “all
documents” are improper. See, e.g., Butler v. Am. Fed’n of State, Cnty. & Mun. Emps., 72
A.D.2d 720, 720-721 (1st Dep’t 1979) (disapproving of “blunderbuss” discovery requests and
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noting that “[a]ttempts to designate documents by the use of the phrase ‘All’ are plainly
improper”); Degliuomini, 308 A.D.2d at 501 (accord). See also Tantleff v. Kestenbaum & Mark,
2009 N.Y. Misc. LEXIS 6339, at *10-11 (Sup. Ct. N.Y. Co. May 6, 2009) (“Broad,
unparticularized document demands . . . and those employing categorical or unrefined
introductory terminology, such as ‘all,’ ‘any and all ’or ‘each and every’ are generally
disfavored”) (citation omitted). Additionally, the Subpoena’s timeframe of “January 1, 2017 to
the present”—seven (7) years’ worth of records regarding the Non-Party Movants and
Defendants—is overly broad, unduly burdensome, and not remotely relevant to the UFMJRA
claim pending in the NY Action. Harkins Aff., Ex. A, Schedule A at 5.
Further, Plaintiff’s Subpoena was improperly issued to harass Non-Party
Preview
FILED: NEW YORK COUNTY CLERK 01/26/2024 07:13 PM INDEX NO. 653028/2023 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 01/26/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ------------------------------------------------------------------------x : GONGQINGCHENG PANHUI INVESTMENT : MANAGEMENT PARTNERSHIP (LIMITED : Index No. 653028/2023 PARTNERSHIP), : : Hon. Louis L. Nock Plaintiff, : : v. : : JIMAN ZHU, and LIHUA BAI, : : Defendants. : ------------------------------------------------------------------------x MEMORANDUM OF LAW IN SUPPORT OF NON- PARTIES’ MOTION TO QUASH AND FOR A PROTECTIVE ORDER SQUIRE PATTON BOGGS (US) LLP Attorneys for Non-Parties Century Gain Development Limited, Yu Heng International Investments Corporation, Pyramid Valley Limited, and Yihua Zhu 1211 Avenue of the Americas, 26th Floor New York, NY 10036 212 872 9800 1100132753\3\AMERICAS 1 of 20 FILED: NEW YORK COUNTY CLERK 01/26/2024 07:13 PM INDEX NO. 653028/2023 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 01/26/2024 TABLE OF CONTENTS Page PRELIMINARY STATEMENT ................................................................................................. 1 FACTUAL AND PROCEDURAL BACKGROUND ................................................................ 3 I. Plaintiff Has Filed Duplicative and Harassing Lawsuits in New York and California ................................................................................................................ 3 II. Plaintiff Has Failed to Effect Service of Process on Defendants Zhu and Bai in all Three Lawsuits. ....................................................................................... 4 III. Plaintiff Issued the Subpoena to IATS Twice in Separate Courts to Harass Non-Party Movants ................................................................................................. 5 IV. Non-Party Movants Attempted to Meet and Confer in Good Faith with Plaintiff, but Plaintiff Refused to Respond ............................................................. 6 GOVERNING LEGAL STANDARD ......................................................................................... 7 ARGUMENT ................................................................................................................................. 9 Plaintiff’s overbroad Subpoena prying into details of the Non-Party Movants’ financial information should be quashed, and a protective order should be issued to prevent a further fishing expedition by Plaintiff. .................... 9 I. Non-Party Movants Have Standing to Move to Quash the Subpoena. ................... 9 II. The Subpoena should be quashed because it seeks information that is utterly irrelevant to this proceeding for recognition of the alleged PRC Judgement under the UFMJRA. ........................................................................... 11 III. The Subpoena should be quashed because it is Overly Broad and Harassing............................................................................................................... 13 CONCLUSION ........................................................................................................................... 15 i 2 of 20 FILED: NEW YORK COUNTY CLERK 01/26/2024 07:13 PM INDEX NO. 653028/2023 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 01/26/2024 TABLE OF AUTHORITIES Page(s) Cases Allen v. Crowell-Collier Publi'g Co., 21 N.Y.2d 403 (N.Y. 1968) .......................................................................................................8 Butler v. Am. Fed'n of State, Cnty. & Mun. Emps., 72 A.D.2d 720 (1st Dep't 1979) ...............................................................................................13 Capacity Group of NY, LLC v. Duni, 186 A.D.3d 1482 (2d. Dep't. 2020)..........................................................................................11 CIBC Mellon Trust Co. v. Mora Hotel Corp. N.V., 100 N.Y.2d 215 (N.Y. 2003) ...................................................................................................12 Matter of D'Alimonte v. Kuriansky, 144 A.D.2d 737 (3d Dep't. 1988).............................................................................................13 Degliuomini v. Degliuomini, 308 A.D.2d 501 (2d Dep't. 2003).........................................................................................8, 14 Dellwood Foods, Inc. v. Abrams, 109 Misc. 2d 263 (Sup. Ct. Bronx Cnty. 1981) .......................................................................13 Etkin v. Sherwood 21 Assoc., LLC, 2021 N.Y. Misc. LEXIS 495 (Sup. Ct. N.Y. Co. Feb. 4, 2021) ................................................9 Harris v. Harris, 2020 N.Y. Misc. LEXIS 2792 (Sup. Ct. N.Y. Co. June 17, 2020) ............................................8 Matter of Home Box Office, Inc., 64 Misc. 3d 566 (Sup. Ct. N.Y. Cnty. 2019) ...........................................................................13 Jones v. Maples, 257 A.D.2d 53 (1st Dep't. 1999) ................................................................................................9 Kapon v. Koch, 23 N.Y.3d 32 (N.Y. 2014) .........................................................................................................8 Law Firm of Ravi Batra, P.C. v. Rabinowich, 77 A.D.3d 532 (1st Dep't. 2010) ..........................................................................................8, 13 Ravnikar v. Skyline Credit-Ride, Inc., 79 A.D.3d 1118 (2d Dep't. 2010)...............................................................................................9 ii 3 of 20 FILED: NEW YORK COUNTY CLERK 01/26/2024 07:13 PM INDEX NO. 653028/2023 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 01/26/2024 Matter of Reuters Ltd. v. Dow Jones Telerate, Inc., 231 A.D.2d 337 (1st Dep't. 1997) ........................................................................................8, 13 Rubin v. Sabharwal, 2022 N.Y. Misc. LEXIS 4748 (Sup. Ct. N.Y. Co. Sept. 16, 2022) .....................................7, 11 Schorrv. Schorr, 113 A.D.3d 490 (1st Dep't. 2014) ......................................................................10 Schumacher v. Antiquorum USA, Inc., 2011 WL 11741321 (N.Y. Sup. Ct. Nov. 21, 2011) ..................................................................8 Sell It Social LLC v. IGS Realty Co., LP, 2018 N.Y. Misc. LEXIS 1780 (Sup. Ct. N.Y. Co. May 4, 2018) ........................................8, 12 Sung Hwan Co. Ltd. v. Rite Aid Corp., 7 N.Y.3d 78 (N.Y. 2006) .........................................................................................................12 Tantleff v. Kestenbaum & Mark, 2009 N.Y. Misc. LEXIS 6339 (Sup. Ct. N.Y. Co. May 6, 2009) ............................................14 In re Terry D., 81 N.Y.2d 1042 (N.Y. 1993) .....................................................................................................8 Matter of U.S. Pioneer Elecs. Corp., 47 N.Y.2d 914 (N.Y. 1979) .......................................................................................................9 Statutes Article 53, N.Y. CPLR 5301 - 5309 ...................................................................................... passim Uniform Foreign Money Judgments Recognition Act.....................................................................1 California Rules of Court Rule 3.110(b) .............................................................................................................................5 N.Y. Civil Practice Law and Rules Section 2304.........................................................................................................................7, 13 Section 3101(a) ..................................................................................................................11, 13 Section 3103(a) ....................................................................................................................9, 10 Section 3120(2) ..........................................................................................................................8 Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Hague Convention on Service of Process), 20 U.S.T. 361 ..................................................................................................................................4 iii 4 of 20 FILED: NEW YORK COUNTY CLERK 01/26/2024 07:13 PM INDEX NO. 653028/2023 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 01/26/2024 PRELIMINARY STATEMENT Specially appearing non-parties Century Gain Development Ltd., Pyramid Valley Ltd., Yu Heng Int’l Investments Corp., and Yihua Zhu (“Yihua”) (collectively “Non-Party Movants”) 1 move for a protective order and to quash Plaintiff Gongqingcheng Panhui Investment Management Partnership (Limited Partnership)’s (“Plaintiff” or “Gongqingcheng”) subpoena duces tecum (the “Subpoena”) served in this action on non-party Insured Aircraft Title Service LLC (“IATS”) on the grounds that it is procedurally and substantively improper. Plaintiff is a corporate entity located in the People’s Republic of China (“PRC”), which has filed a complaint in this Court for a single cause of action for Recognition and Enforcement of an alleged PRC judgment under the Uniform Foreign Money Judgments Recognition Act (“UFMJRA”) against Defendants ZHU Jiman (“Zhu”) and BAI Lihui (“Bai,” and collectively “Defendants”) (NYSCEF Doc. No. 2). Whether Plaintiff’s single cause of action succeeds or fails depends upon whether the alleged PRC judgment may be recognized under the UFMJRA as adopted by New York at Article 53, N.Y. CPLR 5301 – 5309. Recognition of that judgment is untethered to Defendants’ ability to satisfy it. The Subpoena has nothing to do with the UFMJRA Complaint. Instead, it seeks expansive consumer financial records from Non-Party Movants concerning themselves and Defendants for the purpose of collecting on the purported PRC judgment that has not been recognized by this Court or any court in the United States. Specifically, the Subpoena expressly states its purpose as follows: “WHEREAS, it is reasonably believed that the Company [IATS] has in its possession information related to the financial transactions of the Judgment-Debtors The Non-Party Movants specially appear for the limited purpose of moving for a protective order and to quash the 1 Subpoena. 1 5 of 20 FILED: NEW YORK COUNTY CLERK 01/26/2024 07:13 PM INDEX NO. 653028/2023 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 01/26/2024 that will assist Judgment-Creditor in collecting the Judgment.”2 Harkins Aff., Ex. A, Schedule A at 1. This is not a collection action, so the Subpoena is defective and irrelevant on its face. Moreover, to support the non-existent collection action, it requests, inter alia, from “January 1, 2017, to the present”, “any documents related to Century Gain Development Limited, Pyramid Valley Limited, Clear Skyline Limited, Jiman ZHU, and Yu Heng International Investments Corporation.” Harkins Aff., Ex. A, Schedule A at 5. Because the Subpoena is overly broad, and entirely untethered to the UFMJRA Complaint, or any claims or defenses related thereto, it should be quashed in its entirety. Further, Plaintiff is improperly attempting to utilize the Subpoena to harass the Non-Party Movants, as evidenced by the fact that Plaintiff has served the same subpoena in different proceedings pending in different state courts. Plaintiff has filed three (3) lawsuits against Defendants, two pending in California and the instant pending here in New York. Plaintiff previously served a duplicative subpoena to IATS in one of the suits pending in California; then withdrew the subpoena to IATS after one of the Non-Party Movants objected to it. Now, Plaintiff is attempting to improperly use the Subpoena to obtain information to assist in litigations not pending before this Court, and previously denied in the pending California litigation. And, Plaintiff is attempting to improperly force the Non-Party Movants to expend additional and unnecessary resources to defend multiple legal proceedings in different forums regarding the same Subpoena. As explained more fully below, the Subpoena should be quashed in its entirety and a protective order entered in favor of the Non-Party Movants. 2 A true and correct copy of the Subpoena is attached as Exhibit A to the Affirmation of Daniel C. Harkins, dated January 26, 2024 (“Harkins Affirmation”). The Non-Party Movants have submitted the Harkins Affirmation concurrently with this memorandum of law. 2 6 of 20 FILED: NEW YORK COUNTY CLERK 01/26/2024 07:13 PM INDEX NO. 653028/2023 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 01/26/2024 FACTUAL AND PROCEDURAL BACKGROUND I. Plaintiff Has Filed Duplicative and Harassing Lawsuits in New York and California Plaintiff has filed (at least) three (3) lawsuits in the United States based upon the alleged PRC judgment. They are as follows: 1) The instant action: Gongqingcheng Panhui Investment Management Partnership (Limited Partnership) v. Zhu Jiman and Bai Lihui, Supreme Court of the State of New York, New York County, Case No. 653028/2023, filed June 23, 2023 (hereinafter “NY Action”); 2) Gongqingcheng Panhui Investment Management Partnership (Limited Partnership) v. Zhu Jiman and Bai Lihui, California Superior Court, San Mateo County, Case No. 23-CIV-02884, filed June 26, 2023 (hereinafter “CA Action”); and 3) Gongqingcheng Panhui Investment Management Partnership (Limited Partnership) v. Bai Lihui, Zhu Yihua, et al., California Superior Court, San Mateo County, Case No. 23-CIV-02886, filed June 26, 2023 (hereinafter “CA Transfers Action”).3 On June 23, 2023, Plaintiff filed the NY Action for a single cause of action for Recognition and Enforcement of the alleged PRC judgment under the UFMJRA against Defendants (NYSCEF Doc. No. 2). Three days later, on June 26, 2023, Plaintiff filed the CA Action, seeking recognition of the same alleged PRC judgment under the UFMJRA against the same Defendants. See Ex. A. On that same date, June 26, 2023, Plaintiff filed the CA Transfers True and correct copies of the complaints in the CA Action and the CA Transfers Action are attached hereto as 3 Exhibits A and B, respectively. 3 7 of 20 FILED: NEW YORK COUNTY CLERK 01/26/2024 07:13 PM INDEX NO. 653028/2023 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 01/26/2024 Action, this time concerning purported voidable transfers based upon the alleged PRC judgment against Defendant Bai and Non-Party (to this action) Yihua Zhu. See Ex. B. Plaintiff’s first two suits, the NY Action and CA Action, are entirely duplicative. They involve the same parties, same single claim (UFMJRA), same alleged damages; the only difference is that they are pending concurrently in two different state courts. Nevertheless, Plaintiff elected not to notify this Court, or the California courts (or anyone for that matter) that it had filed the duplicative suits by filing the required related case notices in either court. There is no legitimate basis for Plaintiff to file the same lawsuit twice; the only purpose is to harass Defendants, and now through the instant Subpoena, Plaintiff seeks to harass the Non- Party Movants as well by making them litigate the same issues in multiple forums. See generally Affirmation of Yihua Zhu, dated January 26, 2024 (“Yihua Affirmation”). II. Plaintiff Has Failed to Effect Service of Process on Defendants Zhu and Bai in all Three Lawsuits. Despite filing all three lawsuits in June 2023, Plaintiff has failed to serve the complaint on the Defendants in any of the actions. In the NY Action, Plaintiff sought and obtained an extension of time of 120 days (until February 23, 2024), from this Court to serve the Defendants under the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Hague Convention on Service of Process), 20 U.S.T. 361 (the “Hague Convention”) (NYSCEF Doc. Nos. 8, 9 and 13). But, to date, Plaintiff has failed to serve the complaint on Defendants. Likewise, in the CA Action, Plaintiff also has failed to serve the UFMRJA complaint on Defendants. On October 11, 2023, the Court in the CA Action issued an order advising that Plaintiff had failed to “serve the Summons and Complaint upon all named defendants and file proofs of service of process upon all of those defendants within 60 days after the filing of the 4 8 of 20 FILED: NEW YORK COUNTY CLERK 01/26/2024 07:13 PM INDEX NO. 653028/2023 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 01/26/2024 Compliant” as required by California Rules of Court Rule 3.110(b). 4 This is the last document filed on the docket in the CA Action.5 In the CA Transfers Action, Plaintiff has failed to serve Defendant Bai. The Court in that action issued the same order advising that Plaintiff had failed to “serve the Summons and Complaint upon all named defendants and file proofs of service of process upon all of those defendants within 60 days after the filing of the Compliant” as required by California Rules of Court Rule 3.110(b).6 Plaintiff has served the CA Transfers Action complaint on Non-Party Movant Yihua, who is a California resident. Yihua has answered the complaint and entered a general appearance for all purposes in the CA Transfers Action. See generally Yihua Aff. III. Plaintiff Issued the Subpoena to IATS Twice in Separate Courts to Harass Non-Party Movants On November 2, 2023, Plaintiff issued a subpoena duces tecum to IATS in the CA Transfers Action. Yihua Aff. ¶ 7. On November 17, 2023, Yihua, through counsel, objected to Plaintiff’s subpoena to IATS. Id. After Yihua’s objection, Plaintiff withdrew its subpoena to IATS in the CA Transfers Action. Id. On December 22, 2023, Plaintiff issued the instant Subpoena to IATS in the NY Action. See Harkins Aff., Ex. A. The Subpoena expressly states its purpose as follows: “WHEREAS, it is reasonably believed that the Company [IATS] has in its possession information related to the financial transactions of the Judgment-Debtors that will assist Judgment-Creditor in collecting the Judgment.” Id., Schedule A at 1 (emphasis supplied). The Subpoena “requires production of any and all documents from January 1, 2017, to the present” and, inter alia, “including but not 4 A true and correct copy of this order in the CA Action (the “CA Action Order”) is attached hereto as Exhibit C. 5 A true and correct copy of the docket sheet in the CA Action is attached hereto as Exhibit D. 6 A true and correct copy of this order in the CA Transfers Action (the “CA Transfers Action Order”) is attached hereto as Exhibit E. 5 9 of 20 FILED: NEW YORK COUNTY CLERK 01/26/2024 07:13 PM INDEX NO. 653028/2023 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 01/26/2024 limited to any documents related to Century Gain Development Limited, Pyramid Valley Limited, Clear Skyline Limited, Jiman ZHU, and Yu Heng International Investments Corporation.” Id., Schedule A at 5 (emphasis supplied). IV. Non-Party Movants Attempted to Meet and Confer in Good Faith with Plaintiff, but Plaintiff Refused to Respond On December 22, 2023, Non-Party Movants’ counsel emailed Plaintiff’s counsel objecting to the Subpoena and requesting to meet and confer, as follows: Larry and Gareth, Thanks for sending me this subpoena. I was unaware that you had filed the same lawsuit you filed in California in New York state (NYS) court. You cannot do that. You only get to litigate your case in one US court at one time. The courts here are busy enough without litigants filing duplicative cases. It is a good way to upset the judges in both courts, and, of course, violates the claim splitting doctrine as well as the requirement to affirmatively notify the court of related cases upon the filing of a new action, which you did not do in California. After receiving the subpoena this morning, I had my staff pull the NYS docket and complaint, and they are exactly the same, same parties, same claims (UFMRJA), same damages, etc., as the complaint you filed in California last June. Both complaints are attached for reference. You filed them 3 days apart on 6/23/23 and 6/26/23 respectively. I cannot imagine why you would file the same case twice. In addition to paying to litigate the case twice, you also risk disparate rulings where one court’s order could undermine the other. For example, what if CA says you can domesticate the PRC judgment but NYS says the opposite? Or the other way around? You should dismiss one of the two UFMRJA complaints… As to the NYS subpoena, I see from the docket that you have not served the defendants in that case either. And, you just asked the NYS court to give you more time to serve them in China under the Hague Convention on Service of Process Abroad, which the court granted. Memo of law and court order attached. As such, you are issuing non-party subpoenas for consumer financial records in a case where you haven’t effected service of process on any defendant and no defendant has appeared; that is improper. My client, Yihua Zhu, is not a defendant in the NYS case, but he is an 6 10 of 20 FILED: NEW YORK COUNTY CLERK 01/26/2024 07:13 PM INDEX NO. 653028/2023 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 01/26/2024 interested party – otherwise you wouldn’t have served the subpoena on me – and he objects to the subpoena. I request that you withdraw the subpoena and cease issuing subpoenas until you have effected service of process under the Hague Convention on the defendants as you told the NYS court you are trying to do. Please let me know if you agree. Alternatively, my client reserves his rights to file a motion to quash or motion for a protective order as to the NYS subpoena. You also could just dismiss my client without prejudice as I previously requested. If you would like to discuss this matter, please let me know, and we can set up a time next week after Christmas. Happy holidays. Harkins Aff., Ex. B. Plaintiff’s counsel never responded to the Non-Party Movants’ meet and confer efforts. Accordingly, Non-Party Movants were left with no other option but to file a motion for a protective order and to quash Plaintiff’s harassing, irrelevant, and improper Subpoena. See Harkins Aff. ¶¶ 7-8. GOVERNING LEGAL STANDARD “A motion to quash, fix conditions or modify a subpoena shall be made promptly in the court in which the subpoena is returnable.” CPLR § 2304. The movant “bears the initial burden to show that the information sought is utterly irrelevant or that the process will not lead to legitimate discovery.” Rubin v. Sabharwal, 2022 N.Y. Misc. LEXIS 4748, at *5 (Sup. Ct. N.Y. Co. Sept. 16, 2022) (quashing subpoenas to defendants’ bank) (quotation omitted). After that burden is met, the subpoenaing party must “demonstrate that the information sought is material and necessary.” Id. “Material and necessary” facts are those “bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of 7 11 of 20 FILED: NEW YORK COUNTY CLERK 01/26/2024 07:13 PM INDEX NO. 653028/2023 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 01/26/2024 usefulness and reason.” Allen v. Crowell-Collier Publi’g Co., 21 N.Y.2d 403, 406 (N.Y. 1968). “Unrestricted or unlimited disclosure is not required … Nor will carte blanche demands be honored … particularly where the demand at issue would attach undue attention to the collateral matter to the detriment of the main issue[.]” Schumacher v. Antiquorum USA, Inc., 2011 WL 11741321, at *5 (N.Y. Sup. Ct. Nov. 21, 2011) (quotations and citations omitted). A subpoena should be quashed “when the futility of uncovering anything legitimate is obvious, or the information sought is, ‘utterly irrelevant to any proper inquiry.’” Harris v. Harris, 2020 N.Y. Misc. LEXIS 2792, at *3-4 (Sup. Ct. N.Y. Co. June 17, 2020) (quashing subpoenas “that improperly [sought] disclosure of the defendants’ personal financial records”) (quoting Kapon v. Koch, 23 N.Y.3d 32, 39 (N.Y. 2014)). See also Sell It Social LLC v. IGS Realty Co., LP, 2018 N.Y. Misc. LEXIS 1780, at *3-4 (Sup. Ct. N.Y. Co. May 4, 2018) (a “motion to quash on relevancy grounds will be granted upon a showing that the materials sought are utterly irrelevant to the issues raised”). “Moreover, a subpoena duces tecum may not be used . . . for a fishing expedition to ascertain the existence of evidence.” Law Firm of Ravi Batra, P.C. v. Rabinowich, 77 A.D.3d 532, 533 (1st Dep’t. 2010) (quotation and citation omitted). “Rather, its purpose is to compel the production of specific documents that are relevant and material to facts at issue in a pending judicial proceeding.” In re Terry D., 81 N.Y.2d 1042, 1044 (N.Y. 1993) (quotation omitted). Thus, subpoenas demanding “any and all documents” are improper as such request fails to specify the documents sought with “reasonable particularity.” See, e.g., Degliuomini v. Degliuomini, 308 A.D.2d 501, 501 (2d Dep’t. 2003) (quoting CPLR § 3120(2)). See also Reuters Ltd. v. Dow Jones Telerate, 231 A.D.2d 337, 340, 342, 344 (1st Dep’t. 1997) (several subpoena requests for “all documents” were “patently overbroad”; a subpoena should not be “used as a tool of harassment or for the proverbial ‘fishing expedition’ to ascertain the existence of 8 12 of 20 FILED: NEW YORK COUNTY CLERK 01/26/2024 07:13 PM INDEX NO. 653028/2023 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 01/26/2024 evidence”); Etkin v. Sherwood 21 Assoc., LLC, 2021 N.Y. Misc. LEXIS 495, at *9-10 (Sup. Ct. N.Y. Co. Feb. 4, 2021) (quashing a subpoena that sought “all documents” and “all communications” on topics that had no relation to the allegations and causes of action at issue in the complaint, deeming the subpoena nothing more than a “fishing expedition”). Pursuant to CPLR § 3103(a), [t]he court may at any time . . . on motion of any party or of any person from whom or about whom discovery is sought, make a protective order denying, limiting, conditioning or regulating the use of any disclosure device. Such order shall be designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts. CPLR § 3103(a) (emphasis added). This provision “gives the courts wide discretion to preclude or appropriately limit the use of any particular disclosure device where it determines that the use of that device would cause unreasonable annoyance or embarrassment.” Jones v. Maples, 257 A.D.2d 53, 56 (1st Dep’t. 1999). In other words, the Court “consider[s] whether that device is of particular value under the circumstances.” Id. ARGUMENT Plaintiff’s overbroad Subpoena prying into details of the Non-Party Movants’ financial information should be quashed, and a protective order should be issued to prevent a further fishing expedition by Plaintiff. I. Non-Party Movants Have Standing to Move to Quash the Subpoena. It is well-settled that this Court has broad discretion in supervising disclosure “to prevent unreasonable annoyance, expense, embarrassment, disadvantage or other prejudice[.]” See Ravnikar v. Skyline Credit-Ride, Inc., 79 A.D.3d 1118, 1119 (2d Dep't. 2010); see also Matter of U.S. Pioneer Elecs. Corp., 47 N.Y.2d 914, 916 (N.Y. 1979) (“[t]he determination as to the terms and provisions of discovery as regulated to prevent abuse by protective orders under CPLR 3101 (subd. [a]) rests in the sound discretion of the court to which application is made, subject to review by the intermediate appellate court” for an abuse of discretion). “[H]arassing and 9 13 of 20 FILED: NEW YORK COUNTY CLERK 01/26/2024 07:13 PM INDEX NO. 653028/2023 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 01/26/2024 unnecessary subpoenas” warrant a protective order. Schorr v. Schorr, 113 A.D.3d 490, 491 (1st Dep't. 2014). Here, the Subpoena specifically “requires production of any and all documents from January 1, 2017, to the present . . . including but not limited to any documents related to Century Gain Development Limited, Pyramid Valley Limited, Clear Skyline Limited, Jiman ZHU, and Yu Heng International Investments Corporation.” Harkins Aff., Ex. A, Schedule A at 5. Because the Subpoena requests records concerning Non-Party Movants Century Gain Development Ltd., Pyramid Valley Ltd., and Yu Heng Int’l Investments Corp., they all clearly have standing to quash the Subpoena. See CPLR § 3103(a) (standing conferred on anyone “from whom or about whom discovery is sought”). Likewise, Non-Party Movant Yihua has standing to quash the Subpoena because: 1) the Subpoena seeks collection action records to assist Plaintiff in prosecuting the CA Transfers Action in which Yihua is the only defendant that has been served with the complaint in that proceeding; and 2) Plaintiff admitted that Yihua was an interested party by serving the Subpoena on him through his counsel of record in the CA transfers Action. See Yihua Aff.; Harkins Aff., Ex. B. Given that Plaintiff sought the same records from IATS in the CA Transfers Action—and now asserts in the Subpoena that such records relate to the “financial transactions” of the Defendants, including Defendant Bai, whom the CA Transfers Action alleges to have fraudulently transferred property to Yihua—Non-Party Yihua’s connection to the Subpoena is clear. See Harkins Aff., Ex. A, Schedule A at 1; Ex. B ¶ 33 (alleging, e.g, that “Defendant Bai transferred her interest in real property . . . to Defendant [Yihua] Zhu for no consideration”). 10 14 of 20 FILED: NEW YORK COUNTY CLERK 01/26/2024 07:13 PM INDEX NO. 653028/2023 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 01/26/2024 II. The Subpoena should be quashed because it seeks information that is utterly irrelevant to this proceeding for recognition of the alleged PRC Judgement under the UFMJRA. The NY Action seeks limited and specific relief: the recognition and enforcement of the PRC judgment against Defendants. See NYSCEF Doc. No. 2. The financial records of the Non- Party Movants are not “relevant and material” to this cause of action. See Capacity Group of NY, LLC v. Duni, 186 A.D.3d 1482, 1483 (2d. Dep’t. 2020) (internal quotation marks and citations omitted); CPLR § 3101(a) (a party is entitled only to disclosure of matters that actually are “material and necessary in the prosecution or defense of an action.”). Plaintiffs cause of action requires it to demonstrate, inter alia, that the PRC judgment was obtained in accordance with PRC law and the enforcement of the judgment would not be “repugnant to the public policies of the State of New York.” See NYSCEF Doc. No. 2 ¶¶ 52-54. The Non-Party Movants’ financial records held with Non-Party IATS concerning certain aircraft that may or may not have previously been owned by the Defendants in this action have no bearing on Plaintiff’s claim. See Harkins Aff., Ex. A. Schedule A at 5. At best, they relate to the CA Transfers Action—claims that Plaintiff, in its discretion, did not bring in the instant action. Courts routinely quash or limit the scope of subpoenas involving a litigant’s—especially a non-party’s—financial information where, as here, the requested documents are of no probative value to the relevant issue. For example, in Rubin, plaintiff claimed that jewelry she bought from defendants was not worth the $18 million she paid for it. 2022 N.Y. Misc. LEXIS 4748, at *5. The plaintiff subpoenaed a defendant’s bank to find “evidence of the ascribed value of the pieces sold as complained of in this action as well as [to] provide evidence of their value and the proof of payment for the same.” Id. at *7. The Court quashed the subpoena, noting that “the value of a good is tied to its worth” and thus the price paid by the defendant to acquire the jewelry was not determinative of the jewelry’s value. Id. at *8-9. 11 15 of 20 FILED: NEW YORK COUNTY CLERK 01/26/2024 07:13 PM INDEX NO. 653028/2023 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 01/26/2024 Similarly, in Sell It Social LLC, a dispute between a landlord and commercial tenant, the tenant served a subpoena on the landlord’s bank seeking “any and all documents related to any bank accounts and/or records related to any escrow money” held by the landlord, and “any and all” records related to a specific account. 2018 N.Y. Misc. LEXIS 1780 at *4-5. On the landlord’s motion, the Court significantly restricted the scope of the tenant’s subpoena to only “documents and information directly relating to the opening, maintenance, and closing of the escrow account” in which the tenant’s security deposit was kept and to documents pertaining to the transfer of those funds. Id. at *7. The requests in the subpoena for “documents and information outside those parameters” were quashed. Id. Here, the Subpoena requests documents “from January 1, 2017 to the present” related to Defendants’ and Non-Party Movants’ financial transactions. Harkins Aff., Ex. A, Schedule A at 5. They are irrelevant to the single cause of action in the NY Action seeking to domesticate the alleged PRC judgment under the UFMJRA as adopted by New York at Article 53, N.Y. CPLR 5301 – 5309. See NYSCEF Doc. No. 2 ¶¶ 43-55. As alleged in the Complaint, Plaintiff claims the issues are limited to the purportedly “ministerial function of recognizing the foreign country money judgment and converting it into a New York judgment.” CIBC Mellon Trust Co. v. Mora Hotel Corp. N.V., 100 N.Y.2d 215, 222 (N.Y. 2003). Therefore, resolution of the NY Action, if it is ever served on the Defendants under the Hague Convention, will turn on whether the Court determines that the PRC tribunal had subject matter and personal jurisdiction over the Defendants and whether the alleged PRC judgement is final, and properly comports with New York's “notions of procedure and due process of law.” Sung Hwan Co. Ltd. v. Rite Aid Corp., 7 N.Y.3d 78, 83 (N.Y. 2006). Plaintiff’s Subpoena is utterly irrelevant because it does not relate to the attempted recognition of the alleged PRC judgment under the UFMJRA. 12 16 of 20 FILED: NEW YORK COUNTY CLERK 01/26/2024 07:13 PM INDEX NO. 653028/2023 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 01/26/2024 III. The Subpoena should be quashed because it is Overly Broad and Harassing Plaintiff’s Subpoena should also be quashed on the grounds that it is overly broad and unduly burdensome. A subpoena cannot be used “as a tool of harassment or for the proverbial ‘fishing expedition’ to ascertain the existence of evidence”; such improper subpoenas should be quashed pursuant to CPLR 2304. Matter of Reuters Ltd. v. Dow Jones Telerate, Inc., 231 A.D.2d 337, 341-42 (1st Dep't. 1997); Matter of D'Alimonte v. Kuriansky, 144 A.D.2d 737, 739 (3d Dep't. 1988) (quashing subpoena where “all” payment records were requested with no limitation as to time or client, and stating that “[s]uch a demand obviously encompasses materials beyond the scope of respondent's investigation . . . and, as such, is unreasonable and overbroad”); Matter of Home Box Office, Inc., 64 Misc. 3d 566 (Sup. Ct. N.Y. Cnty. 2019); Law Firm of Ravi Batra, P.C. v. Rabinowich, 77 A.D.3d 532, 533 (1st Dep't. 2010) (“Moreover, a subpoena duces tecum may not be used for the purpose of discovery or to ascertain the existence of evidence . . . and a subpoena should be quashed when the subpoena is being used for a fishing expedition to ascertain the existence of evidence[.]”); Dellwood Foods, Inc. v. Abrams, 109 Misc. 2d 263, 267- 268 (Sup. Ct. Bronx Cnty. 1981) (citations omitted) (“subpoenas have been modified as overbroad . . . or quashed as harassing and unreasonable[.]”). Applying these principles, the Court should grant the motion to quash as the documents requested are not discoverable under CPLR 3101. Here, the first request in the Subpoena seeks “all documents related to any transaction involving [certain] Aircraft which [IATS] acted in any capacity . . . including but not limited to any documents related to Century Gain Development Limited, Pyramid Valley Limited, Clear Skyline Limited, Jiman ZHU, and Yu Heng International Investments Corporation.” Harkins Aff., Ex. A, Schedule A at 5. Requests for “all documents” are improper. See, e.g., Butler v. Am. Fed’n of State, Cnty. & Mun. Emps., 72 A.D.2d 720, 720-721 (1st Dep’t 1979) (disapproving of “blunderbuss” discovery requests and 13 17 of 20 FILED: NEW YORK COUNTY CLERK 01/26/2024 07:13 PM INDEX NO. 653028/2023 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 01/26/2024 noting that “[a]ttempts to designate documents by the use of the phrase ‘All’ are plainly improper”); Degliuomini, 308 A.D.2d at 501 (accord). See also Tantleff v. Kestenbaum & Mark, 2009 N.Y. Misc. LEXIS 6339, at *10-11 (Sup. Ct. N.Y. Co. May 6, 2009) (“Broad, unparticularized document demands . . . and those employing categorical or unrefined introductory terminology, such as ‘all,’ ‘any and all ’or ‘each and every’ are generally disfavored”) (citation omitted). Additionally, the Subpoena’s timeframe of “January 1, 2017 to the present”—seven (7) years’ worth of records regarding the Non-Party Movants and Defendants—is overly broad, unduly burdensome, and not remotely relevant to the UFMJRA claim pending in the NY Action. Harkins Aff., Ex. A, Schedule A at 5. Further, Plaintiff’s Subpoena was improperly issued to harass Non-Party