*1 On November 9, 2015, defendant HSBC filed a letter requesting that the Court compel plaintiff Royal Park to search for and produce relevant documents held by its assignors of the trusts at issue in this case.[1] Royal Park submitted a response letter on November 12, 2015, and a conference discussing this issue was held on November 16, 2015. Supplemental letters were filed by both parties on November 25, 2015, and Royal Park filed an additional letter on December 2, 2015.

Royal Park's interest in the trusts originates, at least in part, from several entities of Fortis Bank acquired by BNP Paribas in 2008.[2] BNP Paribas is now one of Royal Park's three shareholders, owning approximately 11% of Royal Park's outstanding shares.[3] In sum, BNP Paribas acquired certain assignors of the trusts at issue before the start of this litigation and maintains some relationship with, and interest in, Royal Park.

Based on this history, HSBC asserts that non-party BNP Paribas may possess documents relevant to HSBC's failure-to-mitigate defense, including documents regarding “assignor knowledge about the securities, and actions that the assignors could have been [sic] taken regarding these securities.”[4] As such, HSBC argues that Royal Park should be compelled to produce relevant documents held by BNP Paribas.

In support of its position, HSBC relies primarily on JPMorgan Chase v. Winnick, in which the district court ordered the plaintiff to produce documents held by its assignors and noted that “if plaintiff and the assignees failed to obtain rights to insist on cooperation from their assignors in providing such discovery, and cannot persuade the [assignors] to cooperate now, that is their problem, not defendants’.”[5] In doing so, the Winnick court observed that “it is both logically inconsistent and unfair to allow the right to sue to be transferred to assignees ... free of the obligations that go with litigating a claim.”[6] HSBC also cites to other district court cases within and outside this Circuit in support of its position that a plaintiff can be required to produce documents held by its assignors.[7]

*2 Royal Park responds that Winnick and the other cases cited by HSBC are non-binding and distinguishable, and that it should not be ordered to produce documents held by BNP Paribas because it lacks the practical ability to comply with such an order. Royal Park further explains that BNP Paribas has refused to cooperate with its discovery requests to date (including in-person requests), but that Royal Park continues to forward these requests to BNP Paribas. Additionally, Royal Park notes that it possesses some documents created at Fortis, and will produce all responsive documents from these archives.

Although Winnick and other district court cases cited by HSBC constitute non-binding authority and do not present identical facts to those at issue here, they provide useful guidance. As in Winnick, there is a continuing (albeit potentially more limited) relationship between assignee Royal Park and assignor BNP Paribas, such that allowing plaintiff to avoid its full discovery obligations presents a risk of unfairness to the defendant.[8]

Further, practical concerns weigh in favor of placing the discovery obligation with respect to these documents on Royal Park, and doing so is consistent with Rule 34 of the Federal Rules of Civil Procedure. Several cases have compelled production of assignors’ documents where, as here, the assignee and assignor maintain a relationship.[9] That BNP Paribas – one of Royal Park's three shareholders – has thus far refused to comply with Royal Park's informal requests for assistance does not prove that Royal Park has no practical ability to provide BNP Paribas documents.[10] Additionally, HSBC may face practical and/or legal difficulties in attempting to obtain documents directly from BNP Paribas, a foreign bank (either via subpoena or other means). Accordingly, if anyone can and should secure production of relevant documents held by BNP Paribas, it is Royal Park.[11]

For the foregoing reasons, HSBC's request is GRANTED. Royal Park is ordered to search for and produce relevant documents held by BNP Paribas. This ruling does not, however, extend to any assignors other than BNP Paribas.

SO ORDERED: