USA Law and Practice Contributed by: Jason W. Myatt, Ankita Ritwik and Charline Yim, Gibson, Dunn & Crutcher LLP
Gibson, Dunn & Crutcher LLP 333 S. Grand Ave Los Angeles CA 90071 USA Tel: +1 213 229 7837 Email: ncrotteau@gibsondunn.com Web: www.gibsondunn.com
1. Identifying Assets in the Jurisdiction 1.1 Options to Identify Another Party’s Asset Position In the United States, there are a wide variety of dis - closure or “discovery” tools available to judgment creditors, enabling them to compel production of documents, answers to written questions and witness testimony. (See Fed. R. Civ. P. 69 (a)(2).) Discovery can target debtors and non-parties alike and while pre- judgment asset discovery is limited, the scope of what information may be appropriately sought post-judg - ment is quite broad. The effective use of these tools can encourage judgment debtors to settle their judg - ments without the need for formal execution proceed - ings. Thus, the United States is an attractive location for creditors seeking further clarity on the scope and scale of debtors’ assets. The specific forms of discovery available in the United States vary somewhat from jurisdiction to jurisdiction, as the federal courts and the courts of each US state have their own slate of discovery tools. Nevertheless, while the formal terminology can vary depending on the jurisdiction, the discovery tools available to judg - ment creditors in all jurisdictions generally include: (i) depositions, where a third party or party witness is required to answer questions to opposing counsel under oath; (ii) written questions to be answered by parties (and in some jurisdictions, non-parties) under oath, and (iii) requests for production, by which par - ties can compel both parties and non-parties to pro - vide non-privileged documents for opposing counsel review. In addition, each US state has its own dis -
covery options, which may afford creditors additional paths for collecting relevant information, and each state’s local discovery options may be used in federal courts located within that same state. Creditors can use these tools to investigate a variety of debtor assets and property, including the following. • Tangible and Intangible Assets – Creditors can uncover information concerning assets which might be subject to attachment. Notably, this discovery is not limited to assets in the United States ( Republic of Argentina v NML Capital , 573 U.S. 134 (2014)). Creditors can also compel judg - ment debtors and other persons with knowledge to reveal information concerning the existence of virtually any asset or property owned by the debtor or in which the debtor has a beneficial interest. In addition to assets such as real property and vehi - cles, this includes intellectual property, a debtor’s contract rights, such as licences and leaseholds, as well as any assignable debts owed to the judg - ment debtor. • Financial Accounts – Creditors can obtain infor - mation from bank and securities accounts of the debtor held at financial institutions subject to the jurisdiction of US courts, which can include US banks, non-US banks with US branches, and non-US banks that conduct business in US dollars through the use of correspondent bank accounts. Information concerning accounts of the debtor’s customers and other contractual counterparties may also be subject to production to the extent those accounts may be used to transact business
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