United States District Court, E.D. Michigan, Northern Division
OPINION AND ORDER GRANTING IN PART PLAINTIFF'S
MOTION TO COMPEL RESPONSES TO POST-JUDGMENT DISCOVERY,
SETTING DEADLINE AND GRANTING MOTION FOR LEAVE TO FILE
L. LUDINGTON United States District Judge.
March 7, 2013, Plaintiff Hemlock Semiconductor Corporation
(“Hemlock”) filed suit against Defendant
SolarWorld Industries Sachsen GmbH
(“Solarworld”). ECF No. 1. The dispute between
the parties arises from a series of large-scale contracts for
industrial-grade polycrystalline silicon from Hemlock to
SolarWorld. On March 16, 2016, Hemlock filed a motion for
summary judgment. ECF No. 91. On July 13, 2016, the Court
granted summary judgment for Hemlock. ECF No. 120. The Court
entered final judgment for Hemlock in the amount of $793,
467, 822.91. ECF No. 123. On August 9, 2016, Hemlock filed a
motion requesting that it be awarded $2, 867, 892.47 in
attorney's fees and $757, 451.38 in costs and expenses,
for a total of $3, 625, 343.85. ECF No. 124. On November 2,
2016, the Court awarded Hemlock attorney fees in the amount
of $2, 815, 212.22 and costs in the amount of $757, 451.38,
for a total of $3, 572, 663.60. ECF No. 136.
October 3, 2016, Hemlock filed a motion to compel responses
to post-judgment discovery requests. ECF No. 132. In the
motion, Hemlock argues that SolarWorld has refused to fully
respond to Hemlock's post-judgment discovery requests. In
response, SolarWorld argues that discovery regarding
SolarWorld's German assets is irrelevant because
SolarWorld believes that European Union and German antitrust
law will bar enforcement of the judgment in Germany.
SolarWorld also argues that Hemlock's discovery requests
are unduly burdensome in scope and detail. For the reasons
stated below, Hemlock's motion will be granted in part.
underlying facts of the dispute are summarized in the
Court's order granting summary judgment, ECF No. 120, and
order granting Hemlock's motion for attorney fees and
costs in part, ECF No. 136. The facts outlined in those
orders will be adopted as if fully restated herein. Because
relevant to the motion to compel, the post-judgment
developments in this suit will also be outlined.
summary judgment was granted for Hemlock, SolarWorld filed an
appeal. However, SolarWorld has not sought a stay of
execution of the judgment. See Coll Decl. at ¶
2, ECF No. 132, Ex. 1. On August 22, 2016, Hemlock served
discovery requests on SolarWorld for the purpose of
identifying assets that may be available to satisfy the
judgment. Interrogatories, ECF No. 132, Ex. 2; Document
Requests, ECF No. 132, Ex. 3. SolarWorld requested a ninety
day extension of time to respond to the discovery requests.
Elliot Letter, ECF No. 132, Ex. 7. Although Hemlock was
unwilling to agree to a ninety day extension, Hemlock agreed
to accept a “reasonable extension.” Ansbro
Letter, ECF No. 132, Ex. 8. On September 26, 2016, SolarWorld
served Hemlock with its objections and responses to the
discovery requests. Obj. Interrogatories, ECF No. 132, Ex. 9;
Obj. Document Requests, ECF No. 132, Ex. 10. In those
responses, SolarWorld refused to disclose information about
SolarWorld's assets located outside of the United States,
arguing that EU and German law rendered the underlying
judgment unenforceable in Germany. SolarWorld also challenged
the scope of the discovery. The parties unsuccessfully
attempted to resolve the dispute over the discovery requests.
On October 3, 2016, Hemlock filed a motion to compel more
detailed responses to its discovery requests. ECF No. 132.
to Federal Rule of Civil Procedure 69(a)(2), a judgment
creditor “may obtain discovery from any
person-including the judgment debtor-as provided in these
rules or by the procedure of the state where the court is
located.” The rules governing post-judgment discovery
are “quite permissive.” Republic of Argentina
v. NML Capital, Ltd., 134 S.Ct. 2250, 2254 (2014).
“The general rule in the federal system is that,
subject to the district court's discretion,
‘[p]arties may obtain discovery regarding any
nonprivileged matter that is relevant to any party's
claim or defense.'” Id. (quoting Fed. R.
Civ. Pro. 26(b)(1)). Importantly, “‘the
presumption should be in favor of full discovery of any
matters arguably related to the [creditor's] efforts to
trace [the debtor's] assets and otherwise to enforce the
judgment.'” Ordos City Hawtai Autobody Co., Ltd
v. Dimond Rigging Co., LLC, No. 13-14909, 2016 WL
5219537, at *1 (E.D. Mich. Sept. 22, 2016) (quoting
Credit Lyonnais, S.A. v. SGC Int'l, Inc., 160
F.3d 428, 430-31 (8th Cir. 1998)).
its broad scope, post-judgment discovery is not limitless.
Rather, post-judgment discovery is “constrained
principally in that it must be calculated to assist in
collecting on a judgment.” EM Ltd. v. Republic of
Argentina, 695 F.3d 201, 207 (2d Cir. 2012),
aff'd sub nom. NML Capital, Ltd., 134 S.Ct. 2250.
See also E.I. DuPont de Nemours & Co. v. Kolon
Indus., Inc., 286 F.R.D. 288, 292 (E.D. Va. 2012)
(“[A]sset discovery should be tailored to the specific
purpose of enabling a judgment creditor to discover assets
upon which it can seek to execute a judgment and . . . not
devolve into a fishing expedition for irrelevant or
cumulative information.”). Judgment creditors may
“seek disclosure related to assets held outside the
jurisdiction of the court where the discovery request is
made.” EM Ltd., 695 F.3d at 207 (citing
First City, Texas Houston, N.A. v. Rafidain Bank,
281 F.3d 48, 54 (2d Cir. 2002)). Importantly, “the
district court's power to order discovery to enforce its
judgment does not derive from its ultimate ability to attach
the property in question but from its power to conduct
supplementary proceedings, involving persons indisputably
within its jurisdiction, to enforce valid judgments.”
Id. at 208.
initial matter, SolarWorld has filed a motion for leave to
file a surreply further opposing Hemlock's motion to
compel responses. ECF No. 137. SolarWorld has attached the
surreply as an exhibit to the motion. In the interest of
allowing both parties to thoroughly brief the issues before
the Court, SolarWorld's motion will be granted and the
surreply will be accepted as filed.
argues, first, that Hemlock's discovery requests, as
least as they relate to SolarWorld's foreign assets, are
not “reasonably calculated to lead to the discovery of
attachable property” because supply agreements are
unenforceable under EU and German antitrust law. SolarWorld
attempted to raise this argument as an affirmative defense
earlier in the litigation. See Answer at 11, ECF No.
14. The Court struck that affirmative defense after extensive
briefing of SolarWorld's defense and the controlling
precedent. Order Granting in Part Mot. Strike, ECF No. 66.
The Court explained:
Deutsche Solar does not claim that the market transactions
contemplated under the agreements are inherently illegal
under EU antitrust law. Instead, Deutsche Solar claims that
the agreements are illegal under EU antitrust law if
Hemlock's market conduct transgresses certain EU-defined
market conditions. As a result, it requests discovery on that
point. . . .
The Supreme Court has determined that in such circumstances,
the possibility of illegality, when that illegality resides
in a violation of antitrust laws, cannot sustain an
affirmative defense of illegality. Deutsche Solar's
defense will be stricken.
Id. at 18-19.
immediately filed a motion for reconsideration of the
Court's order striking the affirmative defense. Mot.
Reconsideration, ECF No. 67. In the order denying that motion
for reconsideration, the Court clarified its rationale for
striking the affirmative defense:
[T]he Court did not hold and does not now hold that the
Agreements do not violate EU antitrust law. What the Court
held in its May 7, 2015 Opinion and what it reaffirms now is:
even assuming the combination of the provisions violates EU
antitrust law, an affirmative defense ...