Tiffany and Company v. Andrew
FACTS: Tiffany (plaintiffs) allege that Andrew and others (defendants) sold counterfeit Tiffany
products through several websites hosted in the United States. Andrew accepted payment in U.S.
dollars, used PayPal, Inc. to process customers’ credit card transactions, then transferred the sales
proceeds to accounts held by the Bank of China (“BOC”), Industrial and Commercial Bank of
China (“ICBC”), and China Merchants Bank (“CMB”) (“Banks”).
Andrew defaulted on the suit, and Tiffany sought discovery from the Banks by serving subpoenas
seeking the identities of the holders of the accounts into which the proceeds of the counterfeit sales
were transferred and the subsequent disposition of those proceeds. The Banks involved all
maintained branch offices in the Southern District of New York, and the subpoenas were served
on those branch offices.
The Banks responded to the subpoenas by explaining that the information sought was all
maintained in China and that the New York branches of the Banks lacked the ability to access the
requested information. China’s internal laws prohibited the disclosure of the information except
under certain conditions. The Banks proposed that the plaintiffs pursue the requested discovery
pursuant to the Hague Convention.
The court concluded that Tiffany should pursue discovery through the Hague Convention. Tiffany
submitted its Hague Convention application to China’s Central Authority in November 2010, and
on August 7, 2011, the Ministry of Justice of the People’s Republic of China (“MOJ”) responded
by producing some of the documents requested. For each of the Banks, the MOJ produced account
opening documents (including the government identification card of the account holder), written
confirmation of certain transfers into the accounts and a list of transfers out of the accounts. With
respect to CMB, the records indicate that all funds in the account were withdrawn through cash
transactions at either an ATM or through a teller. BOC and CMB each produced documents
concerning a single account; ICBC produced documents for three accounts.
In its cover letter, the MOJ noted that it was not producing all documents requested. Specifically,
the letter stated, “Concerning your request for taking of evidence for the Tiffany case, the Chinese
competent authority holds that some evidence required lacks direct and close connections with the
litigation. As the Chinese government has declared at its accession to the Hague Evidence
Convention that for the request issued for the purpose of the pre-trial discovery of documents only
the request for obtaining discovery of the documents clearly enumerated in the Letters of Request
and of direct and close connection with the subject matter of the litigation will be executed, the
Chinese competent authority has partly executed the requests which it deems conform to the
provisions of the Convention.”
On the grounds that the MOJ’s production is deficient, Tiffany moved to enforce the subpoenas
previously served on the New York branches of the Banks. The deficiencies Tiffany claims are (1)
whether any of the defendants have any additional accounts at the Banks; (2) detailed wire transfer
records concerning the deposits into and withdrawals from the CMB and ICBC accounts.
ISSUE: Could the court issue subpoenas in order to obtain more information about the bank
accounts to help Tiffany identify the perpetrators of the counterfeit goods?
DECISION: No, the court will not issue the subpoenas. The Banks, through the MOJ, have
unquestionably produced relevant, responsive documents. Second, the scope of the Banks’
production has not been so narrow that resort to the Convention can fairly be described as futile.
The account holders’ identities and addresses have been identified as well as transaction histories.
Plaintiffs’ argument that additional documents concerning transfers into and out of the accounts
will lead to a fuller understanding of the trademark counterfeiting operation is extremely
speculative. Finally, the fact that the MOJ China takes a narrower view concerning the appropriate
scope of pretrial discovery does not render the Hague Convention process futile. The high cost of
discovery in federal litigation is well known, and the fact that another sovereign chooses to take a
more restrictive view of the appropriate scope of pretrial discovery is not unreasonable. In addition,
as noted above, China is not unique in reserving its right to limit production in response to a Hague
Convention request to documents that it considers to bear a direct and close connection with the
litigation; many other countries have made the same reservation.
1. What information was provided by the Chinese government?
2. What did Tiffany hope for?
3. Why will the court not issue subpoenas to the Chinese government?
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