On December 14, 2023, the United States District Court for the Southern District of New York (the “Court”) granted an unusual ex parte application to serve third-party discovery subpoenas on U.S.-based Deutsche Bank entities. The subpoenas seek evidence to assist the Applicants’ ongoing litigation against Danske Bank, which is taking place in the City Court of Copenhagen. The Court granted this ex parte application without prejudice to the ability of the U.S.-based Deutsche Bank entities to move to quash the subpoenas on the basis of such grounds as relevance and proportionality.
As we will discuss, this discovery action raises interesting questions about the ability of private parties to obtain very sensitive anti-money laundering (“AML”) materials from financial institutions for the purposes of advancing civil litigation (either against the subpoena recipient itself or another financial institution). Likewise, this action highlights the bind which financial institutions and other businesses can face when private litigations attempt to obtain their prior, substantial responses to regulator and law enforcement document demands.