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FILED: NEW YORK COUNTY CLERK 05/10/2024 02:39 PM INDEX NO. 651657/2022
NYSCEF DOC. NO. 209 RECEIVED NYSCEF: 05/10/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK: COMMERCIAL DIVISION
EMPLOYEES RETIREMENT SYSTEM FOR THE
CITY OF PROVIDENCE, derivatively as a
shareholder of CREDIT SUISSE GROUP AG on Index No. 651657/2022
behalf of CREDIT SUISSE GROUP AG,
Plaintiff, Hon. Andrea Masley
v. Part 48
URS ROHNER, et al.,
Motion Sequence No. 10
Defendants,
- and -
CREDIT SUISSE GROUP AG,
Nominal Defendant.
PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF UNOPPOSED
APPLICATION FOR ISSUANCE OF LETTERS OF REQUEST FOR DISCOVERY
PURSUANT TO THE HAGUE EVIDENCE CONVENTION
BERNSTEIN LITOWITZ BERGER
& GROSSMANN LLP
Jeroen van Kwawegen
Jeremy P. Robinson
Edward G. Timlin
Maria Nudelman
Eric J. Riedel
Stephen C. Boscolo
1251 Avenue of the Americas
New York, New York 10020
(212) 554-1400
Counsel for Plaintiff
Dated: May 10, 2024
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TABLE OF CONTENTS
PRELIMINARY STATEMENT .................................................................................................... 2
RELEVANT BACKGROUND ...................................................................................................... 5
ARGUMENT .................................................................................................................................. 6
1. The Letters of Request Comply With The Hague Convention ............................... 7
2. The Requested Evidence Is Well Within The Scope of Permissible
Discovery Under The New York CPLR ................................................................. 7
A. The Documents Requested Are Highly Relevant ....................................... 8
B. The Testimony Requested Is Highly Relevant ........................................... 9
3. UBS And The Swiss Defendants Insist That International Process Is
Necessary To Obtain The Testimony And Documents Requested In The
Letters Of Request ................................................................................................ 10
CONCLUSION ............................................................................................................................. 11
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TABLE OF AUTHORITIES
Page(s)
CASES
BAII Banking Corp. v. Northville Indus. Corp.,
204 A.D.2d 223 (1st Dep’t 1994) ..............................................................................................6
Crouch v Liberty Pride Corp.,
No. CV 15-974, 2016 WL 4718431 (E.D.N.Y. Sept. 9, 2016)..................................................7
Pricewaterhousecoopers LLP vs. Powell De Lara, Jorge Esteban,
No. 655561/2018, (N.Y. Sup. Ct. Feb. 25, 2022) ....................................................................11
Punwaney v. Punwaney,
No. 153223/2014, 2016 WL 3455937, (N.Y. Sup. Ct. June 24, 2016)....................................10
Weeden, Amber vs. Lukezic, James,
No. 151221/2020, (N.Y. Sup. Ct. Mar. 1, 2022) .....................................................................11
OTHER AUTHORITIES
CPLR § 3101(a) ...........................................................................................................................7, 8
CPLR § 3108..................................................................................................................................10
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Employees Retirement System for The City of Providence (“Plaintiff”) respectfully
submits this Memorandum of Law in support of its application for an order issuing Letters of
Request pursuant to the Hague Convention on the Taking of Evidence Abroad in Civil and
Commercial Matters (“Hague Evidence Convention”) to allow Plaintiff to obtain key discovery
located in Switzerland.1 In particular, Plaintiff respectfully seeks the production of highly
relevant evidence, including documents from UBS Group AG, which absorbed nominal
defendant Credit Suisse Group AG (“Credit Suisse” or “CS”) by way of a merger under the
Swiss Merger Act (together, the “Company” or the “Bank”),2 and testimony from the named
Defendants and former Credit Suisse directors and officers whose conduct is central to this
Action and who currently reside in Switzerland—i.e., Defendants Urs Rohner, Christian
Gellerstad, and Thomas Gottstein (collectively, the “Swiss Defendants”).
While most named defendants in this Action have agreed to voluntarily sit for their
depositions in London, New York or via remote means—including named defendants located in
Switzerland—the Swiss Defendants have declined to so volunteer and, instead, have insisted on
this Court issuing letters of request to Swiss courts in order to take their depositions in
1
By seeking discovery through the accompanying Letters of Request and international process,
Plaintiff does not waive nor concede any rights or arguments, including with respect to personal
jurisdiction, and, instead, Plaintiff expressly preserves all rights and arguments.
2
As of June 12, 2023, the merger between UBS Group AG (“UBS”) and Credit Suisse Group
AG closed with UBS taking over all assets and liabilities of Credit Suisse in accordance with the
Swiss Merger Act.
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Switzerland.3 Plaintiff has met and conferred with Defendants and Defendants do not oppose the
issuance of the requested letters of request.4
PRELIMINARY STATEMENT
This application seeks the issuance of letters of request (the “Letters of Request”) to
secure the production of key documents and testimony that are located in Switzerland and that
are crucial to the prosecution and resolution of the claims and defenses in dispute in the Action.
As alleged in the Complaint (NYSCEF No. 2), the Action arises out of Defendants’ risk
management failures, which caused billions of dollars of damages to Credit Suisse following a
string of high-profile hedge fund defaults in 2020 and 2021, including the 2020 default of
Malachite Capital Management (“Malachite”) and the 2021 defaults of Archegos Capital
Management (“Archegos”) and Greensill Capital (“Greensill”). The problems resulting from
Defendants’ risk management failures were so widespread that the Company was forced to shut
down its entire New York-based Prime Services business in 2022. This drastic action occurred
after Credit Suisse had been generating hundreds of millions of dollars in revenue from its Prime
Services business—and caused thousands of New Yorkers to lose their jobs as well as significant
additional monetary and reputational harm to the Company. Defendants’ risk management
failures also caused Paul Weiss—the prominent New York law firm hired by Credit Suisse’s
Special Committee to investigate the Archegos default—to conclude that there were “significant
3
Urs Rohner was chairman of the CS Board from 2011 to 2021. Christian Gellerstad was a
member of the CS Board from 2019 through the merger. Thomas Gottstein was the CEO of CS
and a member of the CS Executive Board.
4
Defendants have reserved the right to oppose the Requests to UBS in Switzerland on non-
procedural grounds, including, for example, that the Requests are overly broad, unduly
burdensome, or inconsistent with U.S., Swiss, or any other laws or regulations.
2
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deficiencies in [Credit Suisse’s] risk culture,” including “a lackadaisical attitude towards risk and
risk discipline.”
The Swiss Defendants (together with the other Defendants) had an affirmative duty under
Swiss law to adopt and oversee an internal control system to manage the risks faced by the Bank.
They were required to, inter alia, (i) establish the Bank’s institution-wide risk management
framework; (ii) establish and monitor a reasonable risk management function at Credit Suisse;
and (iii) manage overall risks. As detailed in the Complaint, Defendants breached their risk
management obligations by failing to establish and oversee a reasonable risk management
infrastructure at Credit Suisse. As such, the heart of this case concerns what the Swiss
Defendants (and the other Defendants) did or did not do to establish and oversee reasonable risk
management processes at the Bank; what they knew about the Company’s risk management
flaws and when; and whether and how the Swiss Defendants (and the other Defendants)
responded to “red flags” of unreasonable risk management processes. The evidence sought in
the accompanying Letters of Request is highly relevant to these core issues and will be crucial to
resolving the Parties’ dispute.
Many of the key documents relevant to this Action are readily available in New York—
and Defendants have been producing those documents over the past year in connection with
ongoing discovery. Indeed, to date, Defendants have produced 1,079,464 pages of documents
located in New York, London or otherwise accessible without requiring letters of request.
Further, the Parties recently reached an agreement concerning the voluntary production of agreed
Credit Suisse Board Materials. Nevertheless, a small number of crucial and highly relevant
documents are located in Switzerland and three named Defendants reside in Switzerland who
refuse to voluntarily provide deposition testimony without requiring the issuance of letters of
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request. As such, Plaintiff seeks discovery through the letters of request process to obtain
evidence in Switzerland.
Because Defendants have agreed to voluntarily produce the Credit Suisse Board
Materials, the remaining categories of documents located in Switzerland are the emails and
communications between the Board Members regarding risk management and controls, the
investigative report regarding the Greensill default (the “Greensill Report”), and the documents
underlying the Greensill Report. By virtue of their positions as directors of Credit Suisse, the
Swiss Defendants were centrally involved in overseeing the allegedly deficient risk management
processes at the Bank. Their communications and testimony will show whether and how the
Bank’s risk management policies and procedures were established and overseen, what they knew
about the risk management and oversight failures at issue, and why the Company’s Board of
Directors failed to take action to manage risks before it was too late, which caused the Bank to
suffer billions in damages.
In sum, each of UBS and the three Defendants at issue has highly relevant knowledge and
information available only in Switzerland that will be critical to determining the events
underlying this action and, ultimately, to resolving the Parties’ dispute over Defendants’ alleged
risk management failures. Their testimony and documents are vital to assessing whether the
Swiss Defendants (and other Defendants) should be held liable for billions of dollars of damages.
Plaintiffs respectfully submits that the Court should exercise its authority to issue Letters of
Request pursuant to CPLR 3108 and in accordance with the Hague Evidence Convention. The
Parties have met and conferred, and Defendants do not object to the requested relief.
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RELEVANT BACKGROUND
This Action commenced April 26, 2022 with the filing of the Complaint (NYSCEF No.
2). The gravamen of the Complaint is that Defendants breached their fiduciary duties under
Swiss law by failing to establish and oversee a reasonable risk management regime at the
Company. Following full briefing and oral argument on Defendants’ motion to dismiss on
grounds of forum non conveniens and particularity, the Court rejected Defendants’ motion and
sustained the Complaint in its entirety by an order entered on January 30, 2023 (NYSCEF No.
48). In February 2023, Plaintiff served document requests and interrogatories on Defendants.
On March 17, 2023, Defendants served their responses. Since then, the Parties have been
involved in extensive negotiations regarding the scope of discovery and Defendants’ production
of documents. To date, Defendants have produced over 1 million pages of documents, which
Plaintiff and its counsel have been reviewing and analyzing, including in preparation for
depositions. Plaintiff has taken 8 depositions with 19 scheduled or in the process of being
scheduled over the upcoming months.
The facts revealed so far have powerfully confirmed Plaintiff’s allegations concerning
Defendants’ risk management failures. For example, as Paul Weiss concluded in its
investigative report dated July 29, 2021 (the “PW Report”), Credit Suisse’s New York-based
Prime Services business suffered from “a fundamental failure of management and controls” and
“significant deficiencies in [its] risk culture,” including “a lackadaisical attitude towards risk and
risk discipline.”5 Further, the facts show that by Spring 2020—nearly a year before the
Archegos and Greensill meltdowns—Defendants knew from an internal audit review that, among
5
See July 29, 2021 Credit Suisse Group Special Committee of the Board of Directors Report on
Archegos Capital Management, NYSCEF No. 71 at 1-2.
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other things, “CS’s risk monitoring was inadequate,” its risk margining was “insufficient” and
the Bank failed to “sufficiently consider ‘early warnings of potential distress,’ including ‘[risk]
limit breaches.’”6 But Defendants failed when reasonable prudence called for immediate action,
causing the Bank to suffer billions of dollars of losses when Archegos and Greensill predictably
defaulted in March 2021.
Through the course of discovery negotiations, the Parties have made progress in reaching
agreement regarding the remaining categories of critical documents including the Board meeting
minutes and materials. Defendants, however, have made clear that key documents, including
communications between some of the Defendants, are located only in Switzerland and require
international process to be produced in connection with this case. As described in the Parties’
April 5, 2024 email to the Court, Defendants have reviewed drafts of the proposed Letters of
Request and provided comments and edits on the drafts, which Plaintiff incorporated in the final
versions. As such, Plaintiff’s request to this Court for the issuance of the Letters of Request is
unopposed.
ARGUMENT
As discussed, UBS and the three Defendants will not voluntarily produce the discovery at
issue and, instead, they insist that this Honorable Court issue the proposed Letters of Request to
the Swiss courts to provide the requested discovery. Once issued, the Letters of Request will be
sent to the “competent authority in another contracting state for the purpose of obtaining
evidence.” Hague Evidence Convention, 23 U.S.T. 2555; see also BAII Banking Corp. v.
Northville Indus. Corp., 204 A.D.2d 223 (1st Dep’t 1994) (reversing denial of motion for order
issuing letters rogatory and a commission for obtaining documents and testimony from French
6
Id. at 90.
6
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non-party pursuant to Hague Evidence Convention). A Letter of Request is properly granted
where it (i) complies with the requirements of the Hague Evidence Convention and (ii) is within
the scope of permissible discovery. See, e.g., Crouch v Liberty Pride Corp., No. CV 15-974,
2016 WL 4718431, at *2 (E.D.N.Y. Sept. 9, 2016). These criteria are readily satisfied here, as
set forth below. Notably, Defendants do not oppose this Court’s issuance of the proposed Letters
of Request.
1. The Letters of Request Comply With The Hague Convention
The Letters of Request (Robinson Aff. Exs. 1-4) submitted herewith comply with the
requirements of the Hague Evidence Convention. They specify the relevant authority requested
to execute the Letters of Request in Switzerland; the names and addresses of the parties to the
proceedings and their representatives (to the extent that the latter are known to Plaintiff); the
nature of the proceedings for which the evidence is sought; and they detail the evidence to be
obtained. Hague Evidence Convention, 23 U.S.T. 2555. The form used in drafting the Letters of
Request was directly obtained from the official website for the Hague Conference on Private
International Law for the Hague Evidence Convention which provides a link to the
“Recommended Model Form.”7 The Recommended Model Form is based on the requirements
set forth in Article 3 of the Hague Evidence Convention.
2. The Requested Evidence Is Well Within The Scope of Permissible Discovery
Under The New York CPLR
The requested evidence is also squarely within the scope of permissible discovery in this
Action. Here, discovery is governed by New York procedural law. Under CPLR § 3101(a),
7
Recommended Model Form, Convention of 18 March 1970 on the Taking of Evidence Abroad
in Civil or Commercial Matters, HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW,
https://www.hcch.net/en/publications-and-studies/details4/?pid=6557&dtid=65 (last visited June
18, 2023).
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Plaintiff is entitled to full “disclosure of all matter material and necessary in the prosecution of
an action.” CPLR § 3101(a). The Letters of Request are narrowly tailored to yield evidence that
is highly relevant to the claims and defenses in this Action, which concerns Defendants’ liability
for breaching their duties under Swiss law by failing to establish and oversee reasonable risk
management processes at the Bank.
A. The Documents Requested Are Highly Relevant
The Letters of Request set out in detail the specific documents requested, which are all
highly relevant to this Action, and provide brief summaries explaining why the documents are
relevant. For example, Plaintiff requests the emails and communications between the Credit
Suisse Board Directors regarding specific relevant topics, narrowed by search terms and relevant
time period. Robinson Aff. Ex. 1 (Letter of Request for UBS Group AG), NYSCEF No. 205 at
pg. 10-12. The Letters of Request make explicit that the materials sought relate directly to the
risk management failures at issue in the Action. For example, Plaintiff’s request directed to the
Company seeking communications amongst the Directors requests a narrow range of materials
limited to:
“(i) risk management and controls concerning Credit Suisse's investment bank's
Equities and Prime Services businesses; (ii) revenue, budget, and cost cutting
concerning the investment bank's Equities and Prime Services businesses; (iii) the
shut down of Prime Services; (iv) Credit Suisse's provision of services to hedge
funds or the collapse of any hedge fund, including Malachite, Greensill or
Archegos; or (v) business in New York.”
Id. at pg. 10-11.
As noted, the Letters of Request also provide a summary of the reasons why the
documents should be produced. For example, the request concerning communications among
the Directors states that these documents will inter alia “provide important evidence concerning
the actions or inaction of—as well as the knowledge of—the Defendants in fulfilling or failing to
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fulfill their risk management and oversight obligations under Swiss law, which is a central
dispute in the New York Action.” See id. at pg. 11-12.
In sum, the Letters of Request seek the production of specific, highly relevant documents
that are narrowly tailored to the issues in dispute in this Action and that are plainly within the
scope of discovery in this Action.
B. The Testimony Requested Is Highly Relevant
Likewise, the Letters of Request seek highly relevant testimony from the Swiss
Defendants that is within the scope of permissible discovery. For example, the Letters of
Request set forth both the topics of the testimony sought, as well as the actual questions to be
posed to the witness—all of which are highly relevant to the risk failures at issue, the hedge fund
failures that brought those failures to light, the damages that resulted, and the facts concerning
personal jurisdiction. For example, Plaintiff asks the Swiss Defendants to testify about risk
management oversight at Credit Suisse, the Prime Services business, the delegation of risk
management duties, the failure of Malachite, Greensill, and Archegos, and personal jurisdiction.
See, e.g., Robinson Aff. Ex. 2 (Letter of Request for Urs Rohner), NYSCEF No. 206 at pg. 10-
19. The testimony regarding these topics will provide directly relevant evidence concerning the
“Swiss Defendants’ and the Credit Suisse Board of Directors’ efforts, if any, to fulfill their
obligations under Swiss law to establish and oversee reasonable risk management processes and
procedures,” their “awareness of the serious deficiencies in Credit Suisse's risk management
processes” and their “knowledge of the red flags regarding unreasonable risk management
processes presented by the Malachite, Greensill and Archegos default.” Id. at 10.
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3. UBS And The Swiss Defendants Insist That International Process Is Necessary
To Obtain The Testimony And Documents Requested In The Letters Of Request
CPLR § 3108 states that, “a commission or letters rogatory may be issued where
necessary or convenient for the taking of a deposition outside of the state.” Here, UBS and the
Swiss Defendants have taken the position that the requested evidence is only available in
Switzerland and, as such, the proposed Letters of Request are necessary for the discovery to be
produced. Punwaney v. Punwaney, No. 153223/2014, 2016 WL 3455937, at *2 (N.Y. Sup. Ct.
June 24, 2016) (internal citation omitted). Indeed, according to Defendants’ Swiss law expert,
“[i]n Switzerland, the discovery and gathering of evidence for litigation abroad is considered a
governmental act that requires authorization by the appropriate authorities. Violation of this rule
represents a criminal offense, potentially even multiple criminal offenses. Gathering or
discovering evidence for proceedings in a foreign state without appropriate authorization is a
violation of article 271 CC.”8
Relatedly, Defendants’ Swiss law expert also stated, “requesting witnesses domiciled in
Switzerland to travel to the United States for deposition or trial under threat of sanctions for
noncompliance would constitute an unlawful act [under Swiss law]. Even in case a witness
domiciled in Switzerland were to travel to the United States for depositions voluntarily, a
violation of [Swiss law] could be considered… To comply with the [ ] legal restrictions, the
parties would need to take evidence in Switzerland by way of international legal assistance,
specifically based on the Hague Convention of March 18, 1970 on the Taking of Evidence
Abroad in Civil or Commercial Matters.”9
8
Affirmation of Professor Samuel Baumgartner, NYSCEF No. 26, pg. 9.
9
Affirmation of Professor Pascal Grolimund, NYSCEF No. 23, pg. 7-8.
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As to both the requested testimony and documents, Defendants have declined to produce
them without requiring international process. Importantly, as noted above, UBS and the Swiss
Defendants do not oppose the issuance of the proposed Letters of Request.10 This Court and the
Commercial Division have granted other requests for letters rogatory when the requirements
have been met, as they are here. See, e.g., Order, Pricewaterhousecoopers LLP vs. Powell De
Lara, Jorge Esteban, No. 655561/2018, NYSCEF No. 48 (02/25/2022) (granting order for
Request for Service Abroad of Judicial and ExtraJudicial Documents Pursuant to the Inter-
American Convention); Decision and Order on Motion, Weeden, Amber vs. Lukezic, James, No.
151221/2020, NYSCEF No. 134 (03/1/2022) (granting order for letters of request for
international judicial assistance, to obtain discovery located in Switzerland).
* * *
In sum, the documents and testimony sought by Plaintiff in the Letters of Request are
central to this dispute, critical to adjudicating Defendants’ liability, located in Switzerland, and
UBS and Defendants insist that they can only be obtained from Switzerland through the Hague
Evidence Convention Letters of Request process. Plaintiff respectfully submits that its
unopposed application for issuance of the Letters of Request should be granted.
CONCLUSION
For the reasons set forth above, Plaintiff respectfully requests that this application be
granted and that the accompanying Letters of Request be issued to obtain the production of
testimony and documents located in Switzerland.
10
See, however, fn. 4, above.
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Dated: New York, New York
May 10, 2024
Respectfully submitted,
/s/ Jeremy P. Robinson
Jeroen van Kwawegen
Jeremy P. Robinson
Edward G. Timlin
Maria Nudelman
Eric J. Riedel
Stephen C. Boscolo
BERNSTEIN LITOWITZ BERGER
& GROSSMANN LLP
1251 Avenue of the Americas
New York, NY 10020
(212) 554-1400
Counsel for Plaintiff Employees Retirement
System for the City of Providence
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22 NYCRR 202.8-b CERTIFICATION
The undersigned certifies that the Memorandum of Law in Support of Application for
Issuance of Letters of Request for Discovery Pursuant to the Hague Evidence Convention, dated
May 10, 2024 contains 3197 words (excluding the caption, tables, and signature block) as
calculated by the word count of the word-processing system used to prepare the document.
/s/ Jeremy P. Robinson
Jeremy P. Robinson
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Preview
FILED: NEW YORK COUNTY CLERK 05/10/2024 02:39 PM INDEX NO. 651657/2022 NYSCEF DOC. NO. 209 RECEIVED NYSCEF: 05/10/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: COMMERCIAL DIVISION EMPLOYEES RETIREMENT SYSTEM FOR THE CITY OF PROVIDENCE, derivatively as a shareholder of CREDIT SUISSE GROUP AG on Index No. 651657/2022 behalf of CREDIT SUISSE GROUP AG, Plaintiff, Hon. Andrea Masley v. Part 48 URS ROHNER, et al., Motion Sequence No. 10 Defendants, - and - CREDIT SUISSE GROUP AG, Nominal Defendant. PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF UNOPPOSED APPLICATION FOR ISSUANCE OF LETTERS OF REQUEST FOR DISCOVERY PURSUANT TO THE HAGUE EVIDENCE CONVENTION BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP Jeroen van Kwawegen Jeremy P. Robinson Edward G. Timlin Maria Nudelman Eric J. Riedel Stephen C. Boscolo 1251 Avenue of the Americas New York, New York 10020 (212) 554-1400 Counsel for Plaintiff Dated: May 10, 2024 1 of 16 FILED: NEW YORK COUNTY CLERK 05/10/2024 02:39 PM INDEX NO. 651657/2022 NYSCEF DOC. NO. 209 RECEIVED NYSCEF: 05/10/2024 TABLE OF CONTENTS PRELIMINARY STATEMENT .................................................................................................... 2 RELEVANT BACKGROUND ...................................................................................................... 5 ARGUMENT .................................................................................................................................. 6 1. The Letters of Request Comply With The Hague Convention ............................... 7 2. The Requested Evidence Is Well Within The Scope of Permissible Discovery Under The New York CPLR ................................................................. 7 A. The Documents Requested Are Highly Relevant ....................................... 8 B. The Testimony Requested Is Highly Relevant ........................................... 9 3. UBS And The Swiss Defendants Insist That International Process Is Necessary To Obtain The Testimony And Documents Requested In The Letters Of Request ................................................................................................ 10 CONCLUSION ............................................................................................................................. 11 i 2 of 16 FILED: NEW YORK COUNTY CLERK 05/10/2024 02:39 PM INDEX NO. 651657/2022 NYSCEF DOC. NO. 209 RECEIVED NYSCEF: 05/10/2024 TABLE OF AUTHORITIES Page(s) CASES BAII Banking Corp. v. Northville Indus. Corp., 204 A.D.2d 223 (1st Dep’t 1994) ..............................................................................................6 Crouch v Liberty Pride Corp., No. CV 15-974, 2016 WL 4718431 (E.D.N.Y. Sept. 9, 2016)..................................................7 Pricewaterhousecoopers LLP vs. Powell De Lara, Jorge Esteban, No. 655561/2018, (N.Y. Sup. Ct. Feb. 25, 2022) ....................................................................11 Punwaney v. Punwaney, No. 153223/2014, 2016 WL 3455937, (N.Y. Sup. Ct. June 24, 2016)....................................10 Weeden, Amber vs. Lukezic, James, No. 151221/2020, (N.Y. Sup. Ct. Mar. 1, 2022) .....................................................................11 OTHER AUTHORITIES CPLR § 3101(a) ...........................................................................................................................7, 8 CPLR § 3108..................................................................................................................................10 ii 3 of 16 FILED: NEW YORK COUNTY CLERK 05/10/2024 02:39 PM INDEX NO. 651657/2022 NYSCEF DOC. NO. 209 RECEIVED NYSCEF: 05/10/2024 Employees Retirement System for The City of Providence (“Plaintiff”) respectfully submits this Memorandum of Law in support of its application for an order issuing Letters of Request pursuant to the Hague Convention on the Taking of Evidence Abroad in Civil and Commercial Matters (“Hague Evidence Convention”) to allow Plaintiff to obtain key discovery located in Switzerland.1 In particular, Plaintiff respectfully seeks the production of highly relevant evidence, including documents from UBS Group AG, which absorbed nominal defendant Credit Suisse Group AG (“Credit Suisse” or “CS”) by way of a merger under the Swiss Merger Act (together, the “Company” or the “Bank”),2 and testimony from the named Defendants and former Credit Suisse directors and officers whose conduct is central to this Action and who currently reside in Switzerland—i.e., Defendants Urs Rohner, Christian Gellerstad, and Thomas Gottstein (collectively, the “Swiss Defendants”). While most named defendants in this Action have agreed to voluntarily sit for their depositions in London, New York or via remote means—including named defendants located in Switzerland—the Swiss Defendants have declined to so volunteer and, instead, have insisted on this Court issuing letters of request to Swiss courts in order to take their depositions in 1 By seeking discovery through the accompanying Letters of Request and international process, Plaintiff does not waive nor concede any rights or arguments, including with respect to personal jurisdiction, and, instead, Plaintiff expressly preserves all rights and arguments. 2 As of June 12, 2023, the merger between UBS Group AG (“UBS”) and Credit Suisse Group AG closed with UBS taking over all assets and liabilities of Credit Suisse in accordance with the Swiss Merger Act. 1 4 of 16 FILED: NEW YORK COUNTY CLERK 05/10/2024 02:39 PM INDEX NO. 651657/2022 NYSCEF DOC. NO. 209 RECEIVED NYSCEF: 05/10/2024 Switzerland.3 Plaintiff has met and conferred with Defendants and Defendants do not oppose the issuance of the requested letters of request.4 PRELIMINARY STATEMENT This application seeks the issuance of letters of request (the “Letters of Request”) to secure the production of key documents and testimony that are located in Switzerland and that are crucial to the prosecution and resolution of the claims and defenses in dispute in the Action. As alleged in the Complaint (NYSCEF No. 2), the Action arises out of Defendants’ risk management failures, which caused billions of dollars of damages to Credit Suisse following a string of high-profile hedge fund defaults in 2020 and 2021, including the 2020 default of Malachite Capital Management (“Malachite”) and the 2021 defaults of Archegos Capital Management (“Archegos”) and Greensill Capital (“Greensill”). The problems resulting from Defendants’ risk management failures were so widespread that the Company was forced to shut down its entire New York-based Prime Services business in 2022. This drastic action occurred after Credit Suisse had been generating hundreds of millions of dollars in revenue from its Prime Services business—and caused thousands of New Yorkers to lose their jobs as well as significant additional monetary and reputational harm to the Company. Defendants’ risk management failures also caused Paul Weiss—the prominent New York law firm hired by Credit Suisse’s Special Committee to investigate the Archegos default—to conclude that there were “significant 3 Urs Rohner was chairman of the CS Board from 2011 to 2021. Christian Gellerstad was a member of the CS Board from 2019 through the merger. Thomas Gottstein was the CEO of CS and a member of the CS Executive Board. 4 Defendants have reserved the right to oppose the Requests to UBS in Switzerland on non- procedural grounds, including, for example, that the Requests are overly broad, unduly burdensome, or inconsistent with U.S., Swiss, or any other laws or regulations. 2 5 of 16 FILED: NEW YORK COUNTY CLERK 05/10/2024 02:39 PM INDEX NO. 651657/2022 NYSCEF DOC. NO. 209 RECEIVED NYSCEF: 05/10/2024 deficiencies in [Credit Suisse’s] risk culture,” including “a lackadaisical attitude towards risk and risk discipline.” The Swiss Defendants (together with the other Defendants) had an affirmative duty under Swiss law to adopt and oversee an internal control system to manage the risks faced by the Bank. They were required to, inter alia, (i) establish the Bank’s institution-wide risk management framework; (ii) establish and monitor a reasonable risk management function at Credit Suisse; and (iii) manage overall risks. As detailed in the Complaint, Defendants breached their risk management obligations by failing to establish and oversee a reasonable risk management infrastructure at Credit Suisse. As such, the heart of this case concerns what the Swiss Defendants (and the other Defendants) did or did not do to establish and oversee reasonable risk management processes at the Bank; what they knew about the Company’s risk management flaws and when; and whether and how the Swiss Defendants (and the other Defendants) responded to “red flags” of unreasonable risk management processes. The evidence sought in the accompanying Letters of Request is highly relevant to these core issues and will be crucial to resolving the Parties’ dispute. Many of the key documents relevant to this Action are readily available in New York— and Defendants have been producing those documents over the past year in connection with ongoing discovery. Indeed, to date, Defendants have produced 1,079,464 pages of documents located in New York, London or otherwise accessible without requiring letters of request. Further, the Parties recently reached an agreement concerning the voluntary production of agreed Credit Suisse Board Materials. Nevertheless, a small number of crucial and highly relevant documents are located in Switzerland and three named Defendants reside in Switzerland who refuse to voluntarily provide deposition testimony without requiring the issuance of letters of 3 6 of 16 FILED: NEW YORK COUNTY CLERK 05/10/2024 02:39 PM INDEX NO. 651657/2022 NYSCEF DOC. NO. 209 RECEIVED NYSCEF: 05/10/2024 request. As such, Plaintiff seeks discovery through the letters of request process to obtain evidence in Switzerland. Because Defendants have agreed to voluntarily produce the Credit Suisse Board Materials, the remaining categories of documents located in Switzerland are the emails and communications between the Board Members regarding risk management and controls, the investigative report regarding the Greensill default (the “Greensill Report”), and the documents underlying the Greensill Report. By virtue of their positions as directors of Credit Suisse, the Swiss Defendants were centrally involved in overseeing the allegedly deficient risk management processes at the Bank. Their communications and testimony will show whether and how the Bank’s risk management policies and procedures were established and overseen, what they knew about the risk management and oversight failures at issue, and why the Company’s Board of Directors failed to take action to manage risks before it was too late, which caused the Bank to suffer billions in damages. In sum, each of UBS and the three Defendants at issue has highly relevant knowledge and information available only in Switzerland that will be critical to determining the events underlying this action and, ultimately, to resolving the Parties’ dispute over Defendants’ alleged risk management failures. Their testimony and documents are vital to assessing whether the Swiss Defendants (and other Defendants) should be held liable for billions of dollars of damages. Plaintiffs respectfully submits that the Court should exercise its authority to issue Letters of Request pursuant to CPLR 3108 and in accordance with the Hague Evidence Convention. The Parties have met and conferred, and Defendants do not object to the requested relief. 4 7 of 16 FILED: NEW YORK COUNTY CLERK 05/10/2024 02:39 PM INDEX NO. 651657/2022 NYSCEF DOC. NO. 209 RECEIVED NYSCEF: 05/10/2024 RELEVANT BACKGROUND This Action commenced April 26, 2022 with the filing of the Complaint (NYSCEF No. 2). The gravamen of the Complaint is that Defendants breached their fiduciary duties under Swiss law by failing to establish and oversee a reasonable risk management regime at the Company. Following full briefing and oral argument on Defendants’ motion to dismiss on grounds of forum non conveniens and particularity, the Court rejected Defendants’ motion and sustained the Complaint in its entirety by an order entered on January 30, 2023 (NYSCEF No. 48). In February 2023, Plaintiff served document requests and interrogatories on Defendants. On March 17, 2023, Defendants served their responses. Since then, the Parties have been involved in extensive negotiations regarding the scope of discovery and Defendants’ production of documents. To date, Defendants have produced over 1 million pages of documents, which Plaintiff and its counsel have been reviewing and analyzing, including in preparation for depositions. Plaintiff has taken 8 depositions with 19 scheduled or in the process of being scheduled over the upcoming months. The facts revealed so far have powerfully confirmed Plaintiff’s allegations concerning Defendants’ risk management failures. For example, as Paul Weiss concluded in its investigative report dated July 29, 2021 (the “PW Report”), Credit Suisse’s New York-based Prime Services business suffered from “a fundamental failure of management and controls” and “significant deficiencies in [its] risk culture,” including “a lackadaisical attitude towards risk and risk discipline.”5 Further, the facts show that by Spring 2020—nearly a year before the Archegos and Greensill meltdowns—Defendants knew from an internal audit review that, among 5 See July 29, 2021 Credit Suisse Group Special Committee of the Board of Directors Report on Archegos Capital Management, NYSCEF No. 71 at 1-2. 5 8 of 16 FILED: NEW YORK COUNTY CLERK 05/10/2024 02:39 PM INDEX NO. 651657/2022 NYSCEF DOC. NO. 209 RECEIVED NYSCEF: 05/10/2024 other things, “CS’s risk monitoring was inadequate,” its risk margining was “insufficient” and the Bank failed to “sufficiently consider ‘early warnings of potential distress,’ including ‘[risk] limit breaches.’”6 But Defendants failed when reasonable prudence called for immediate action, causing the Bank to suffer billions of dollars of losses when Archegos and Greensill predictably defaulted in March 2021. Through the course of discovery negotiations, the Parties have made progress in reaching agreement regarding the remaining categories of critical documents including the Board meeting minutes and materials. Defendants, however, have made clear that key documents, including communications between some of the Defendants, are located only in Switzerland and require international process to be produced in connection with this case. As described in the Parties’ April 5, 2024 email to the Court, Defendants have reviewed drafts of the proposed Letters of Request and provided comments and edits on the drafts, which Plaintiff incorporated in the final versions. As such, Plaintiff’s request to this Court for the issuance of the Letters of Request is unopposed. ARGUMENT As discussed, UBS and the three Defendants will not voluntarily produce the discovery at issue and, instead, they insist that this Honorable Court issue the proposed Letters of Request to the Swiss courts to provide the requested discovery. Once issued, the Letters of Request will be sent to the “competent authority in another contracting state for the purpose of obtaining evidence.” Hague Evidence Convention, 23 U.S.T. 2555; see also BAII Banking Corp. v. Northville Indus. Corp., 204 A.D.2d 223 (1st Dep’t 1994) (reversing denial of motion for order issuing letters rogatory and a commission for obtaining documents and testimony from French 6 Id. at 90. 6 9 of 16 FILED: NEW YORK COUNTY CLERK 05/10/2024 02:39 PM INDEX NO. 651657/2022 NYSCEF DOC. NO. 209 RECEIVED NYSCEF: 05/10/2024 non-party pursuant to Hague Evidence Convention). A Letter of Request is properly granted where it (i) complies with the requirements of the Hague Evidence Convention and (ii) is within the scope of permissible discovery. See, e.g., Crouch v Liberty Pride Corp., No. CV 15-974, 2016 WL 4718431, at *2 (E.D.N.Y. Sept. 9, 2016). These criteria are readily satisfied here, as set forth below. Notably, Defendants do not oppose this Court’s issuance of the proposed Letters of Request. 1. The Letters of Request Comply With The Hague Convention The Letters of Request (Robinson Aff. Exs. 1-4) submitted herewith comply with the requirements of the Hague Evidence Convention. They specify the relevant authority requested to execute the Letters of Request in Switzerland; the names and addresses of the parties to the proceedings and their representatives (to the extent that the latter are known to Plaintiff); the nature of the proceedings for which the evidence is sought; and they detail the evidence to be obtained. Hague Evidence Convention, 23 U.S.T. 2555. The form used in drafting the Letters of Request was directly obtained from the official website for the Hague Conference on Private International Law for the Hague Evidence Convention which provides a link to the “Recommended Model Form.”7 The Recommended Model Form is based on the requirements set forth in Article 3 of the Hague Evidence Convention. 2. The Requested Evidence Is Well Within The Scope of Permissible Discovery Under The New York CPLR The requested evidence is also squarely within the scope of permissible discovery in this Action. Here, discovery is governed by New York procedural law. Under CPLR § 3101(a), 7 Recommended Model Form, Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters, HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW, https://www.hcch.net/en/publications-and-studies/details4/?pid=6557&dtid=65 (last visited June 18, 2023). 7 10 of 16 FILED: NEW YORK COUNTY CLERK 05/10/2024 02:39 PM INDEX NO. 651657/2022 NYSCEF DOC. NO. 209 RECEIVED NYSCEF: 05/10/2024 Plaintiff is entitled to full “disclosure of all matter material and necessary in the prosecution of an action.” CPLR § 3101(a). The Letters of Request are narrowly tailored to yield evidence that is highly relevant to the claims and defenses in this Action, which concerns Defendants’ liability for breaching their duties under Swiss law by failing to establish and oversee reasonable risk management processes at the Bank. A. The Documents Requested Are Highly Relevant The Letters of Request set out in detail the specific documents requested, which are all highly relevant to this Action, and provide brief summaries explaining why the documents are relevant. For example, Plaintiff requests the emails and communications between the Credit Suisse Board Directors regarding specific relevant topics, narrowed by search terms and relevant time period. Robinson Aff. Ex. 1 (Letter of Request for UBS Group AG), NYSCEF No. 205 at pg. 10-12. The Letters of Request make explicit that the materials sought relate directly to the risk management failures at issue in the Action. For example, Plaintiff’s request directed to the Company seeking communications amongst the Directors requests a narrow range of materials limited to: “(i) risk management and controls concerning Credit Suisse's investment bank's Equities and Prime Services businesses; (ii) revenue, budget, and cost cutting concerning the investment bank's Equities and Prime Services businesses; (iii) the shut down of Prime Services; (iv) Credit Suisse's provision of services to hedge funds or the collapse of any hedge fund, including Malachite, Greensill or Archegos; or (v) business in New York.” Id. at pg. 10-11. As noted, the Letters of Request also provide a summary of the reasons why the documents should be produced. For example, the request concerning communications among the Directors states that these documents will inter alia “provide important evidence concerning the actions or inaction of—as well as the knowledge of—the Defendants in fulfilling or failing to 8 11 of 16 FILED: NEW YORK COUNTY CLERK 05/10/2024 02:39 PM INDEX NO. 651657/2022 NYSCEF DOC. NO. 209 RECEIVED NYSCEF: 05/10/2024 fulfill their risk management and oversight obligations under Swiss law, which is a central dispute in the New York Action.” See id. at pg. 11-12. In sum, the Letters of Request seek the production of specific, highly relevant documents that are narrowly tailored to the issues in dispute in this Action and that are plainly within the scope of discovery in this Action. B. The Testimony Requested Is Highly Relevant Likewise, the Letters of Request seek highly relevant testimony from the Swiss Defendants that is within the scope of permissible discovery. For example, the Letters of Request set forth both the topics of the testimony sought, as well as the actual questions to be posed to the witness—all of which are highly relevant to the risk failures at issue, the hedge fund failures that brought those failures to light, the damages that resulted, and the facts concerning personal jurisdiction. For example, Plaintiff asks the Swiss Defendants to testify about risk management oversight at Credit Suisse, the Prime Services business, the delegation of risk management duties, the failure of Malachite, Greensill, and Archegos, and personal jurisdiction. See, e.g., Robinson Aff. Ex. 2 (Letter of Request for Urs Rohner), NYSCEF No. 206 at pg. 10- 19. The testimony regarding these topics will provide directly relevant evidence concerning the “Swiss Defendants’ and the Credit Suisse Board of Directors’ efforts, if any, to fulfill their obligations under Swiss law to establish and oversee reasonable risk management processes and procedures,” their “awareness of the serious deficiencies in Credit Suisse's risk management processes” and their “knowledge of the red flags regarding unreasonable risk management processes presented by the Malachite, Greensill and Archegos default.” Id. at 10. 9 12 of 16 FILED: NEW YORK COUNTY CLERK 05/10/2024 02:39 PM INDEX NO. 651657/2022 NYSCEF DOC. NO. 209 RECEIVED NYSCEF: 05/10/2024 3. UBS And The Swiss Defendants Insist That International Process Is Necessary To Obtain The Testimony And Documents Requested In The Letters Of Request CPLR § 3108 states that, “a commission or letters rogatory may be issued where necessary or convenient for the taking of a deposition outside of the state.” Here, UBS and the Swiss Defendants have taken the position that the requested evidence is only available in Switzerland and, as such, the proposed Letters of Request are necessary for the discovery to be produced. Punwaney v. Punwaney, No. 153223/2014, 2016 WL 3455937, at *2 (N.Y. Sup. Ct. June 24, 2016) (internal citation omitted). Indeed, according to Defendants’ Swiss law expert, “[i]n Switzerland, the discovery and gathering of evidence for litigation abroad is considered a governmental act that requires authorization by the appropriate authorities. Violation of this rule represents a criminal offense, potentially even multiple criminal offenses. Gathering or discovering evidence for proceedings in a foreign state without appropriate authorization is a violation of article 271 CC.”8 Relatedly, Defendants’ Swiss law expert also stated, “requesting witnesses domiciled in Switzerland to travel to the United States for deposition or trial under threat of sanctions for noncompliance would constitute an unlawful act [under Swiss law]. Even in case a witness domiciled in Switzerland were to travel to the United States for depositions voluntarily, a violation of [Swiss law] could be considered… To comply with the [ ] legal restrictions, the parties would need to take evidence in Switzerland by way of international legal assistance, specifically based on the Hague Convention of March 18, 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters.”9 8 Affirmation of Professor Samuel Baumgartner, NYSCEF No. 26, pg. 9. 9 Affirmation of Professor Pascal Grolimund, NYSCEF No. 23, pg. 7-8. 10 13 of 16 FILED: NEW YORK COUNTY CLERK 05/10/2024 02:39 PM INDEX NO. 651657/2022 NYSCEF DOC. NO. 209 RECEIVED NYSCEF: 05/10/2024 As to both the requested testimony and documents, Defendants have declined to produce them without requiring international process. Importantly, as noted above, UBS and the Swiss Defendants do not oppose the issuance of the proposed Letters of Request.10 This Court and the Commercial Division have granted other requests for letters rogatory when the requirements have been met, as they are here. See, e.g., Order, Pricewaterhousecoopers LLP vs. Powell De Lara, Jorge Esteban, No. 655561/2018, NYSCEF No. 48 (02/25/2022) (granting order for Request for Service Abroad of Judicial and ExtraJudicial Documents Pursuant to the Inter- American Convention); Decision and Order on Motion, Weeden, Amber vs. Lukezic, James, No. 151221/2020, NYSCEF No. 134 (03/1/2022) (granting order for letters of request for international judicial assistance, to obtain discovery located in Switzerland). * * * In sum, the documents and testimony sought by Plaintiff in the Letters of Request are central to this dispute, critical to adjudicating Defendants’ liability, located in Switzerland, and UBS and Defendants insist that they can only be obtained from Switzerland through the Hague Evidence Convention Letters of Request process. Plaintiff respectfully submits that its unopposed application for issuance of the Letters of Request should be granted. CONCLUSION For the reasons set forth above, Plaintiff respectfully requests that this application be granted and that the accompanying Letters of Request be issued to obtain the production of testimony and documents located in Switzerland. 10 See, however, fn. 4, above. 11 14 of 16 FILED: NEW YORK COUNTY CLERK 05/10/2024 02:39 PM INDEX NO. 651657/2022 NYSCEF DOC. NO. 209 RECEIVED NYSCEF: 05/10/2024 Dated: New York, New York May 10, 2024 Respectfully submitted, /s/ Jeremy P. Robinson Jeroen van Kwawegen Jeremy P. Robinson Edward G. Timlin Maria Nudelman Eric J. Riedel Stephen C. Boscolo BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP 1251 Avenue of the Americas New York, NY 10020 (212) 554-1400 Counsel for Plaintiff Employees Retirement System for the City of Providence 12 15 of 16 FILED: NEW YORK COUNTY CLERK 05/10/2024 02:39 PM INDEX NO. 651657/2022 NYSCEF DOC. NO. 209 RECEIVED NYSCEF: 05/10/2024 22 NYCRR 202.8-b CERTIFICATION The undersigned certifies that the Memorandum of Law in Support of Application for Issuance of Letters of Request for Discovery Pursuant to the Hague Evidence Convention, dated May 10, 2024 contains 3197 words (excluding the caption, tables, and signature block) as calculated by the word count of the word-processing system used to prepare the document. /s/ Jeremy P. Robinson Jeremy P. Robinson 13 16 of 16