In White Rock Insurance (SAC) Ltd. v. China Construction Bank Corp., the New York State Supreme Court denied China Construction Bank Corp.’s motion for the court to execute CCBC's proposed Letter of Request under the Hague Convention to obtain CCBC's own documents from its offices in the People’s Republic of China (PRC).
The case relates to White Rock’s lawsuit against CCBC and two of its affiliate banks in which White Rock alleges that, through a dishonest employee, CCBC participated in the Vesttoo reinsurance letter of credit collateral fraud scheme.
CCBC, being a foreign headquartered bank which is a party to a New York state court case against it, cannot normally require resort to the Hague Convention to produce documents from its home country and New York discovery practice applies unless CCBC shows that it cannot comply without using the Hague Convention.
In its 3 February decision,[[1]] the New York State Supreme Court determined that CCBC did not meet its burden to demonstrate this and the Court referenced four different Chinese laws. The Court stated that:
“CCBC has not established that the PRC's Civil Procedure Law, Article 294, makes it impossible for CCBC to give evidence without PRC permission. … Likewise, CCBC has not established that the PRC's Data Security Law, Article 36, makes it impossible for CCBC to produce documents to [White Rock] because [White Rock] is not a justice or law enforcement institution.”
Based on the nature of White Rock’s information requests, the Court further found that the Personal Information Protection law does not make it impossible for CCBC to comply with its discovery obligations, nor do PRC banking regulations. “Indeed, CCBC’s willingness to produce, but only pursuant to the Hague Convention, undermines any assertion that compliance is impossible”, the Court stated.
