2misrepresentation or omission. Nothing could be more central to Mr. Tourre’s defense of thesemost serious of charges.Due to the “somewhat cumbersome nature of the letters rogatory process,” whenissuing letters of request, the U.S. courts do not rule on overbreadth objections, leaving suchobjections to the foreign judicial authorities.
2005 WL 1214345, at *1 (granting amotion to issue letters rogatory to depose five witnesses, “leaving it to the good offices of theCanadian authorities and the good faith of the parties to determine the actual course of events.”);
see also Tulip Computers Int’l B.V. v. Dell Computer Corp.
, 254 F. Supp. 2d 469, 474-75 (D.Del. 2003) (granting motions to issue letters of request under the Hague Convention, noting thatthe document requests would “presumably be narrowed” by those authorities if they were overly broad under Dutch law).Mr. Tourre requests that the Court now issue his proposed letter of request, so thatthe process of transmitting it to the relevant German central authority can begin promptly.
B.The Court Should Order The SEC To Seek The Assistance Of BaFin In ObtainingDocuments From IKB
The SEC is also quite wrong that there is “no proper legal basis” for Mr. Tourre’srequest for an order requiring the SEC to seek documents from BaFin.
SEC Resp. at 3. Asshown in Mr. Tourre’s moving papers, the SEC has the legal and practical ability to obtain thedocuments under its MOUs, both of which expressly state that they may be used to obtainevidence for use in civil enforcement proceedings.
Memorandum of UnderstandingConcerning Consultation and Cooperation in the Administration and Enforcement of SecuritiesLaws, October 17, 1997, Section 5(1)(b) (Chepiga Decl., Ex. H); Multilateral Memorandum of Understanding Concerning Consultation and Cooperation and the Exchange of Information,International Organization of Securities Commissions, May 2002, Section 10(a)(ii) (ChepigaDecl., Ex. I) (together, the “MOUs”).
Nothing more is required under Rule 34.
Although the SEC represents that it has not so far used its MOUs to obtain evidence from IKB,
Tourre Mem. at 6, it has been able to obtain documents from IKB, albeit very limited, heavily-redacteddocuments, and to interview IKB witnesses, albeit without having those interviews transcribed in a form
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