1 9

- 2480

- c v Stadtwerke Frankfurt am Main Holding GmbH v. RWE Trading Americas Inc

.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT ’ S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FED ERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “ SUMMARY ORDER ” ). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit
, 1 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 2 City of New York, on the 1 1 t h day of M a y , two thousand twenty

. 3 4 PRESENT: RAYMOND J. LOHIER, JR., 5 JOSEPH F. BIANCO, 6 MICHAEL H. PARK
, 7 Circuit Judges

. 8

------------------------------------------------------------------ 9 STADTWERKE FRANKFURT AM MAIN 10 HOLDING GMBH
, 11 12 Applicant

- Appellant
, 13 14

v. No. 1 9

- 2480

- c v 15 16 RWE TRADING AMERICAS INC., 17 18 Respondent

- Appe ll ee

. * 19

------------------------------------------------------------------ 20

* The Clerk of Court is directed to amend the caption as set forth above.2 FOR APPLICANT

- APPEL L ANT : A MY C. G ROSS (J. Manly Parks, 1 on the brief ), Duane Morris 2 LLP, New York, NY

. 3
4 FOR RESPONDENT

- APPELL EE : J ASON C. H EGT , Latham & 5 Watkins, LLP, New York, NY

. 6

Appeal from a n order of the United States District Court for the Southern 7

District of New York ( Jesse M. Furman
, J udge ). 8

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 9

AND DECREED that the order of the D istrict C ourt is AFFIRMED

. 10

Applicant

- Appellant Stadtwerke Frankfurt am Main Holding GmbH 11

(SWF) appeals from a n order entered July 10, 2019 by the United States District 12

Court for the Southern District of New York ( Furman
, J. ) quashing its subpoena 13

directed at Respondent

- Appellee RWE Trading Americas Inc. (RWETA )

. We 14

assume the parties ’ familiarity with the underlying facts and the record of prior 15

proceedings, to which we refer only as necessary to explain our decision to 16

affirm

. 17

In January 2019 SWF filed an ex parte application under 28 U .S.C. § 1782 18

for a subpoena ordering RWETA to produce documents related to a transaction 19

between RWETA’s parent company, RWE Aktiengesellschaft (RWE AG)
, and a 203 German energy company

. The District Court granted the application , and 1

RWETA filed a motion to quash the subpoena in response

. The District Court 2

then granted RWETA’s motion to quash , concluding
, as relevant here, that 3

RWETA : (1) “c onducted a reasonable search for responsive documents

. . . [that] 4

came up empty ”; and (2) “ has neither the legal right nor the practical ability to 5

obtain documents that may be in the possession or control of RWE AG .” 6

Special App’x 3

– 4. SWF disputes both conclusions on appeal and asks us to 7

reverse the Di strict Court’s order quashing its subpoena

. 8

We review “[a] district court ’ s ruling on a motion to quash a subpoena

. . . 9

for abuse of discretion ,” Brandi

- Dohrn v. IKB Deutsche Industriebank AG , 673 10

F.3d 76, 79 (2d Cir. 2012)
, mindful that “ Congress planned for district courts to 11

exercise broad discretion over the issuance of discovery orders pursuant to 12

§ 1782(a) ,” In re Edelman , 295 F.3d 171, 181 (2d Cir. 2002)

. For the reasons set 13

forth below, w e conclude that the District Court did not a buse its wide discretion 14

in quashing SWF’s subpoena. 15

First, it was not impermissible for the District Court to conclude that 16

RWETA conducted a reasonable search in response to SWF’s subpoena. Among 174 other things, RWETA ’s General Counsel personally interviewed all RWETA 1

employees to determine whether they possessed any responsive ma terial and, 2

after learning that they did not, further c onfirmed those employees ’ responses 3

with the company’s information

- technology staff. RWET A’s General Counsel 4

also confirmed that RWETA ’s employees “performed no work with respect to” 5

the transaction between RWE AG and the Germany energy company. App’x 6

355. W hile SWF argues that RWETA could have done more to respond to 7

SWF’s subpoena, both parties agree that only a “reasonable search ” wa s 8

necessary. Applicant’s Br. 18. We see no reason to conclude that the District 9

Court abused its “broad discretion to manage the manner in which discovery 10

proceeds ” when it determined that RWETA conducted a reasonable search here. 11

In re Subpoena Issued to Dennis Friedman
, 350 F.3d 65, 69 (2d Cir. 2003)

. 12

Second, t he District Court also did not abuse its discretion when it 13

concluded that RWETA could not obtain responsive documents from RWE AG. 14

“ [A] party is not obliged to produce

. . . documents that it does not possess or 15

cannot obtain .” Shcherbakovskiy v. Da Capo Al Fine, Ltd. , 490 F.3d 130, 138 (2d 16

Cir. 2007)

. Here, RWETA’s General Counsel affirmed that : (1) “ RWETA does 175 not have access to the hard copy files, archives, shared drives, or other central 1

files on which RWE AG might maintain documents related to the” subpoena 2

topics, App’x 355, and (2) it was her understanding, “ [b]ased on

. . . discussions 3

with RWE AG [,]

. . . that if RWETA were to request documents from RWE AG, 4

RWE AG would refuse to provide said documents ,” id. at 381. We agree with 5

the District Court that SWF’s speculative assertion that RWETA could 6

nonetheless obtain documents from RWE AG “ offers no basis to question ” 7

RWETA’s General Counsel’s sworn declaration to the contrary . Special App’x 8

4. 9

We have considered SWF’s remaining arguments and conclude that they 10

are without merit. For the foregoing reasons, the order of the District Court is 11

AFFIRMED

. 12

FOR THE COURT: 13 Catherine O ’ Hagan Wolfe, Clerk of Court 14