Post-judgment Discovery in the United States

In the Foreign Sovereign Immunities Act of 1976

Attachment and Execution: Post-judgment Discovery

According to research about Post-judgment Discovery from the Federal Judicial Center:A court may order limited discovery of a foreign sovereign defendant for purposes of identifying assets against which a judgment might be executed. The same considerations that apply at the initial jurisdictional stage also apply here as a function of the presumptive immunity of those assets, even where the sovereign may have waived its jurisdictional immunities. There is some debate about the permissible scope of postjudgment discovery in aid of execution. In Rubin v. Islamic Republic of Iran,204 the plaintiffs obtained a default judgment against Iran for injuries sustained in a suicide bombing in Israel carried out by a terrorist organization with the assistance of Iranian material support and training. They registered that judgment in the Northern District of Illinois for the purpose of attaching two collections of Persian antiquities owned by Iran but on long-term academic loan to the University of Chicago’s Oriental Institute, as well as a third collection of Persian artifacts owned by Chicago’s Field Museum of Natural History. The court of appeals held that general-assets discovery of all Iranian assets in the United States was inconsistent with the presumption of sovereign immunity under § 1609: To overcome the presumption of immunity, the plaintiff must identify the particular foreign-state property he seeks to attach and then establish that it falls within a statutory exception. The district court’s general- asset discovery order turns this presumptive immunity on its head. Instead of confining the proceedings to the specific property the plaintiffs had identified as potentially subject to an exception under the FSIA, the court gave the plaintiffs a “blank check” entitlement to discovery regarding all Iranian assets in the United States. This inverts the statutory scheme.In contrast, in EM Ltd. v. Republic of Argentina,206 the Second Circuit upheld subpoenas duces tecum that sought information from two non-party banks about Argentina’s assets located outside the United States. “[B]ecause the Discovery Order involves discovery, not attachment of sovereign property, and because it is directed at third-party banks, not at Argentina itself, Argentina’s sovereign immunity is not infringed.”207 Noting that it is not unusual for a judgment creditor to seek disclosure related to assets outside the United States, including from third parties, and that Argentina had expressly waived its immunity concerning the bond agreements that were the basis of the plaintiffs’ claims, the court of appeals said: Because sovereign immunity protects a sovereign from the expense, intrusiveness, and hassle of litigation, a court must be “circumspect” in allowing discovery before the plaintiff has established that the court has jurisdiction over a foreign sovereign defendant under the FSIA. . . . But [such concerns are not present when the plaintiff] seeks discovery from a defendant over which the district court indisputably had jurisdiction. 208 Whether sanctions can be imposed for failure to comply with a discovery order has been contested. Recently, in FG Hemisphere Associates, LL.C. v. Democratic Republic of Congo, the D.C. Circuit held that contempt sanctions could in fact be imposed on a foreign sovereign for failure to respond to court-ordered discovery in an action to enforce an arbitral award, but the court distinguished the imposition of those sanctions from the attempt to enforce them (which it said could be “problematic”).

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• Foreign Immunities
• Foreign Sovereign Immunities Act of 1976
• Foreign Sovereign Immunity Government
• Immunities Convention
• Immunity and Privileges
• Immunity of Citizens
• Immunity to Diplomats