USA Law and Practice Contributed by: Jason W. Myatt, Ankita Ritwik and Charline Yim, Gibson, Dunn & Crutcher LLP
• Execution Costs – The US Marshal is entitled to a commission from the sale price of any assets that it seizes and sells to satisfy an outstanding judg - ment. Similarly, local sheriffs, who may be engaged to conduct similar sales in state courts, are typi - cally entitled to a commission or poundage fee. • Local Counsel Billing – Depending on the com - plexity of the judgment and the forum in which the judgment is enforced, attorney fees can range significantly. The timing to enforce a judgment depends on the size of the judgment, type of assets being enforced against and venue of enforcement, among other factors. While it is difficult to estimate, depending on the complex - ity of enforcement actions, judgment creditors should expect to spend anywhere from a few months to a few years on enforcement proceedings. As discussed in 1.1 Options to Identify Another Par- ty’s Asset Position , litigants in the United States have access to a broad array of discovery tools to deter - mine debtor’s assets. Those tools remain in creditors’ hands after obtaining a monetary judgment and are a critical part of fulfilling a judgment. Indeed, US courts routinely recognise that the scope of discovery in enforcement matters is extraordinarily broad, encom - passing more information than is subject to disclosure in the pre-judgment discovery context. • Subpoenas – A subpoena duces tecum is a writ - ten order compelling the debtor to provide written testimony and documents (Fed. R. Civ. P. 45). They may be issued by the court or, in many instances, by the judgment creditor’s counsel. In the post- judgment context, a creditor can use a subpoena to ask banks, employers or business partners to identify account balances or provide information on the location of the debtor’s property. A person “who, having been served [with appropriate due process], fails without adequate excuse to obey the subpoena or an order related to it” may be held in contempt of court (ibid at (g)). Contempt of court carries with it a range of penalties from fines to incarceration, at the discretion of the judge and occasionally by statutory decree. 2.4 Post-Judgment Procedures for Determining Defendants’ Assets
• Depositions – Any person with relevant knowledge may be compelled, via subpoena ad testifican - dum, to provide sworn testimony to the court and opposing counsel on assets that can be used to satisfy a judgment. Known as a deposition, while it may be written, it is traditionally undertaken orally in-person, for up to seven hours of time on the record, with counsel for both parties and a court reporter present (Fed. R. Civ. P. 30–31). A subpoena must be served on the deponent within a reasonable time before the date noticed for the deposition. What is considered “reasonable” varies based on the jurisdiction and the circumstances, but is typically somewhere between 14 and 30 days. • Judgment Debtor Examination – Generally gov - erned by state law, a judgment debtor examination is a formal, court-supervised process in which the debtor appears under oath to disclose financial information and assets that can be used to satisfy a judgment. • Interrogatories – In federal court, parties may serve each other written lists of questions, with full and truthful answers compelled by the power of the court (Fed. R. Civ. P. 33). Recipients of an interrog - atory typically have 30 days to submit their written response, unless the court rules otherwise (ibid at (b)(2)). • Requests for Production – Creditors may request the production of physical documents, electroni - cally stored information (ESI), or “tangible” objects for inspection (Fed. R. Civ. P. 34). This compelled production is not limited to the opposing party, and can extend to any that may have informa - tion that could lead to the discovery of admissible evidence (ibid at (c)). Absent agreement or court order, parties have 30 days to complete production (ibid at (b)(2)). Creditors may also request access to physically inspect property (ibid at (a)(2)). This is most typically used to inspect real property, but may be used to inspect personal property, particu - larly where such property is not readily movable, or original documents, where forensic analysis may be required. Notably, many of these tools can be exercised not only against the judgment debtor but also third parties present in the United States.
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