United States District Court, District of Columbia
D. BATES, United States District Judge
before the Court is  plaintiffs' renewed motion to
compel post-judgment discovery from Sudan. For the reasons
that follow, the motion will be granted as to the narrowed
set of requests laid out in plaintiffs' reply brief and
June 21, 2017 proposed order.
discovery request stems from a default judgment issued
against Sudan under the terrorism exception to the Foreign
Sovereign Immunities Act (FSIA). Six years ago, this Court
found Sudan liable for plaintiffs' injuries in connection
with the 1998 bombings of the U.S. embassies in Kenya and
Tanzania. Order of Nov. 28, 2011 [ECF No. 62] at 2. The Court
entered judgment in favor of plaintiffs for approximately
$878 million in compensatory damages and interest, Order of
July 25, 2014 [ECF No. 254], part of a combined $5.9 billion
damages award in several consolidated cases that the D.C.
Circuit has since upheld, see Owens v. Republic of
Sudan, 864 F.3d 751, 767, 825 (D.C. Cir.
2017). Plaintiffs now seek to collect on their
initially sought broad discovery of Sudan's assets both
here and abroad. Sudan contended that discovery was
unnecessary because records of all of its attachable assets
may be obtained from the Treasury Department's Office of
Foreign Assets Control (OFAC). OFAC had already agreed to
produce its records regarding Sudan in a companion case,
subject to a protective order. See Protective Order,
Wamai v. Republic of Sudan, No. 08-CV-1349 (JDB)
(D.D.C. May 2, 2016) [ECF No. 287]. At a hearing held on
November 18, 2016, the parties and the Court reached an
interim agreement under which the Court would modify the
protective order in Wamai. Representatives of Sudan
would review OFAC's production and determine whether
OFAC's records contained a complete list of Sudan's
assets available for attachment; if Sudan's
representatives determined during this review that OFAC's
records were incomplete, Sudan was to supplement OFAC's
Court proceeded to modify the Wamai protective
order. See Amended Protective Order, Wamai,
No. 08-cv-1349 [ECF No. 290]. On March 28, 2017, the Governor
of the Central Bank of Sudan executed a declaration
responding to and supplementing the resulting disclosures
from OFAC. Decl. of Hazem Abdel Kader Ahmad (“Ahmad
declaration”) [ECF No. 324-3 *SEALED*]. The declaration
stated that Sudanese officials looked only for assets owned
directly by the Sudanese government or central bank, and
attempted without success to cross-reference OFAC's
information with Sudanese governmental information.
Id. ¶¶ 3, 5. The assets identified by
Sudan as currently in the United States are worth only $7
million, a mere fraction of plaintiffs' judgment.
Id. ¶ 5. Sudan now argues that the Ahmad
declaration is all that it must provide under Rule 69 of the
Federal Rules of Civil Procedure, and that plaintiffs are not
entitled to any further discovery. Defs.' Mem. in
Opp'n to Pls.' Renewed Mot. to Compel Post-J.
Discovery (“Opp'n”) [ECF No. 327] at 4-6.
Plaintiffs, on the other hand, urge that the Ahmad
declaration is woefully insufficient, and have moved for
discovery reaching back to 1997 from Sudan and its agencies
and instrumentalities. Pls.' Renewed Mot. to Compel Rule
69 Discovery from the Republic of Sudan (“Pls.'
Mot.”) [ECF No. 325] at 2-4.
initial discovery requests sought financial information from
a large number of Sudanese entities stretching back over the
last twenty years. See Pls.' Req. for Produc. of
Docs. and Electronically Stored Information from J. Debtor
Republic of Sudan (“Disc. Req.”) [ECF No. 325-1].
The parties have engaged in a spirited and largely
uncompromising debate over the legality of those requests.
However, this debate has since lost much of its potency,
because in their reply brief plaintiffs considerably narrowed
their initial discovery request. See Reply in
Further Supp. of Pls.' Renewed Mot. to Compel Rule 69
Disc. From the Republic of Sudan (“Reply”) [ECF
No. 328] at 19-20; accord Proposed Order [ECF No.
328-3]. Plaintiffs now ask for four categories of
information: (1) the identities of and principal points of
contact for all regional and satellite banks used by Sudan
and BNP Paribas (BNPP) to make transfers or payment through
the United States after the implementation of U.S. sanctions
in November 1997; (2) the identities of and principal points
of contact for Sudanese banks directed or instructed to use
BNPP as their correspondent bank in Europe after November
1997; (3) information regarding transactions through Sudanese
state-owned or controlled financial institutions from January
17, 2017 to the present that had certain connections to the
United States; and (4) the identities of and certain
information about any Sudanese governmental agencies and
instrumentalities that have done business in the U.S. or with
U.S. persons since January 17, 2017 or that plan to do so in
2017 or 2018. Proposed Order at 1- 2. Plaintiffs also ask
Sudan to produce one or more witnesses to testify as to each
category of information. Id. at 3. The Federal Rules
of Civil Procedure allow plaintiffs to make these requests.
general rule, legal victors may engage in broad post-judgment
discovery. A judgment creditor, “[i]n aid of the
judgment or execution, . . . may obtain discovery from any
person- including the judgment debtor-as provided in [the
Federal Rules of Civil Procedure] or by the procedure of the
state where the court is located.” Fed.R.Civ.P. 69. The
Federal Rules allow for discovery “regarding any
nonprivileged matter that is relevant to any party's
claim or defense and proportional to the needs of the
case.” Fed.R.Civ.P. 26(b)(1). Thus, the standards for
receiving post-judgment discovery “are quite
permissive.” Republic of Argentina v. NML Capital,
Ltd., 134 S.Ct. 2250, 2254 (2014). That defendant here
is a foreign government sued under the Foreign Sovereign
Immunities Act (FSIA), rather than a private party sued under
some other legal authority, does not alter these standards.
See id. at 2256-58.
raises four arguments in opposition to plaintiffs'
renewed motion to compel, but all four are either fatally
diminished in force by plaintiffs' narrowing of their
discovery request or are otherwise unavailing. Sudan's
first-and farthest-reaching-claim is that the Ahmad
declaration gave plaintiffs all of the information to which
they are legally entitled, and that plaintiffs are precluded
from seeking anything more. Opp'n at 4-11. That is not
the case. The declaration indicates that Governor Ahmad could
not cross-reference any of the assets that OFAC listed as
blocked with Sudanese records, which itself suggests that
Sudanese officials may not have conducted a thorough
investigation. Ahmad Decl. ¶¶ 3-4. The declaration
also states that the Sudanese officials conducting the search
looked only at assets owned directly by the Sudanese
government or its central bank-and not, therefore, at assets
owned by the government's agencies and instrumentalities.
Id. ¶ 5; see Opp'n at 6.
most importantly, while Governor Ahmad asserts that he was
asked to “identify any assets located in the United
States owned by the Sudanese government, ” Ahmad Decl.
¶ 2, his discussion of his ultimate findings mentioned
only funds that were “blocked by banks in the United
States, ” id. ¶ 5. Yet BNP Paribas has
admitted to working with the Sudanese government to route
monetary transfers through the United States in defiance of
sanctions. See Statement of Facts, United States
v. BNP Paribas, S.A., No. 14-CR-00460 (LGS) (S.D.N.Y.
July 10, 2014) (Exh. J, Pls.' Mot. [ECF No. 325-10])
¶ 14. Given that fact, plaintiffs are justified in their
concern that Governor Ahmad's enumeration only of blocked
assets-an enumeration that also does not include assets owned
by Sudanese government agencies-may not provide a full
accounting of Sudan's assets in the United States. Nor
does the declaration, which was signed on March 28, 2017,
account for any Sudanese assets that may have entered the
United States in the intervening months, now freed by the
temporary lifting of sanctions on Sudan in January 2017 and
the further, permanent extension of that order in October
2017. See Exec. Order 13, 761, 82 Fed. Reg. 5331
(Jan. 13, 2017); Notice Regarding Positive Actions by the
Government of Sudan, 82 Fed. Reg. 47, 287 (Oct. 11, 2017).
responds that it has no duty to collect information about its
agencies and instrumentalities; that the Ahmad declaration,
issued two months after the U.S. lifted sanctions, would have
taken into account any effect that change would have had on
Sudanese assets in the U.S.; and that plaintiffs cannot base
discovery requests on the U.S. government's Specially
Designated Nationals List (“SDN”), as plaintiffs
suggest, because the SDN's definition of agencies and
instrumentalities is broader than that used in the FSIA.
See Opp'n at 6-10. These arguments are
unavailing. None of these objections apply to the first two
categories of information plaintiffs seek, which involve only
the identities of banks Sudan and its central bank used to
evade sanctions. See Reply at 3. And while
Governor Ahmad may have been able to speak to any
transactions entered into as of late March, more than eight
months have gone by since, and any transactions in which
Sudan or its agencies or instrumentalities may have engaged
in the intervening time are quite relevant to determining
Sudan's potentially attachable assets. It is reasonable
to assume that Sudanese entities may be engaging in such
transactions now, even if they were not in March-
particularly since the United States recently made permanent
what was originally temporary sanctions relief, thereby
reducing the risk that any money transferred into the United
States would become blocked by OFAC at a later date.
See 82 Fed. Reg. 47287.
Federal Rules also allow plaintiffs to request discovery from
Sudan regarding recent and planned transactions by
Sudan's agencies and instrumentalities. Certainly Sudan
cannot complain about requests for discovery from any
political subdivisions or government agencies that are not
separate juridical entities, or with whom Sudan enjoys a
principal-agent relationship, since these are considered to
be part of the government of Sudan itself. See,
e.g., McKesson Corp. v. Islamic Republic of
Iran, 185 F.R.D. 70, 78 (D.D.C. 1999). As to any other
Sudanese instrumentalities, plaintiffs ask Sudan only for any
information it might have in its own “possession,
custody, or control” regarding those entities'
recent transactions in the United States. Fed.R.Civ.P.
34(a)(1); see Reply at 7. If Sudan owns or controls
a particular entity, any documents in that entity's
possession are likely also within Sudan's control and
therefore subject to discovery. See, e.g.,
Shcherbakovskiy v. Da Capo Al Fine, Ltd., 490 F.3d
130, 138 (2d Cir. 2007) (“[I]f a party has access and
the practical ability to possess documents not available to
the party seeking them, production may be required.”);
DL v. District of Columbia, 251 F.R.D. 38, 46
(D.D.C. 2008) (“‘With regards to the term
“control, ” it has been well established that the
test for control is not defined as mere possession, but as
the legal right to obtain such documents on demand.' . .
. Defendant District of Columbia has such control with
respect to documents in the possession of its agencies . . .
.” (citation omitted)); McKesson Corp., 185
F.R.D. at 78. If there are responsive documents that are not
within Sudan's control-either because Sudan does not
exercise control over a particular entity, or because it has
no “legal right to obtain [those] documents on demand,
” DL, 251 F.R.D. at 46-it can provide an
explanation in lieu of the documents.
also why Sudan's objection regarding plaintiffs' use
of the SDN as a guidepost is out of place. It is reasonable
for plaintiffs to rely on the SDN list as a preliminary
assessment of which entities may have Sudanese assets subject
to attachment. Federal regulation imposed sanctions on (1)
the government of Sudan, including its subdivisions, agencies
or instrumentalities; (2) entities owned or controlled by the
government of Sudan as so defined; and (3) people acting on
behalf of the foregoing. 31 C.F.R. § 538.305. This list
well defines the set of entities that may hold Sudanese
government assets and over whose documents Sudan would be in
a position to exercise control. The regulation also looked to
the SDN to provide a non-exhaustive list of entities meeting
those definitions. Id. § 538.305 note 2. Thus,
Sudan can likely exercise control over responsive documents
that these entities possess. Again, however, plaintiffs ask
only for documents that are actually within Sudan's
control, Reply at 7; Sudan may provide a reasoned explanation
as to why it does not exercise control over a given entity or
set of documents in response to plaintiffs' discovery
request. That request, particularly with its newly narrowed
time period, is well within the range of reasonable discovery
in cases such as this one. See, e.g., Aurelius
Capital Master, Ltd. v. Republic of Argentina, 589 Fed.