Republic of Arg. v. NML Capital, Ltd.

Opinion

 [*136]  [**2253]   Justice Scalia delivered the opinion of the Court.

We must decide whether the Foreign Sovereign Immunities Act of 1976 (FSIA or Act), 28 U.S.C. §§ 1330, 1602 et seq., limits the scope of discovery available to a judgment creditor in a federal postjudgment execution proceeding against a foreign sovereign.

I. Background

In 2001, petitioner, Republic of Argentina, defaulted on its external debt. In 2005 and 2010, it restructured most of that debt by offering  [****4] creditors new securities (with less favorable terms) to swap out for the defaulted ones. Most bondholders went along. Respondent, NML Capital, Ltd. (NML), among others, did not.

NML brought 11 actions against Argentina in the Southern District of New York to collect on its debt, and prevailed in every one. ¹ It is owed around $2.5 billion, which Argentina  [*137]  has not paid. Having been unable to collect on its judgments from Argentina, NML has attempted to execute them against Argentina’s property. That postjudgment litigation “has involved lengthy attachment proceedings before the district court and multiple appeals.” EM Ltd. v. Republic of Argentina, 695 F. 3d 201, 203, and n. 2 (CA2 2012) (referring the reader to prior opinions “[f]or additional background on Argentina’s default and the resulting litigation”).

Since 2003, NML has pursued discovery of Argentina’s property. In 2010, “‘[i]n order to locate Argentina’s assets and accounts, learn how Argentina moves its assets through New York and around the world, and accurately identify the places and times when those assets might be subject to attachment and execution (whether under [United States law] or the law  [***239]  of foreign jurisdictions),’” id., at 203 (quoting NML brief), NML served subpoenas on two nonparty banks, Bank of America (BOA) and Banco de la Nacion Argentina (BNA), an Argentinian bank with a branch in New York City. For the most part, the two subpoenas target the same kinds of information: documents relating to accounts maintained by or on behalf of Argentina, documents identifying the opening and closing dates of Argentina’s accounts, current balances, transaction  [****6] histories, records of electronic fund transfers, debts owed by the bank to Argentina, transfers in and out of Argentina’s accounts, and information about transferors and transferees.

Argentina, joined by BOA, moved to quash the BOA subpoena. NML moved to compel compliance but, before the court ruled, agreed to narrow its subpoenas by excluding the names of some Argentine officials from the initial electronic-fund-transfer message search. NML also agreed to treat as confidential any documents that the banks so designated.

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