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A Quick One-Two Punch: Argentina Loses Discovery Case, Too

posted by Mark Weidemaier

In other news, the Supreme Court has also ruled against Argentina on the merits in its discovery dispute with NML. Refresher posts here and here. Quickly (because, despite what you may have heard, Greyhound buses are not ideal for blogging) the case involves whether NML can take broad discovery of Argentina's assets in an effort to locate assets that might not be protected by sovereign immunity. If it can find non-immune assets, NML can try to seize them to satisfy money judgments it holds against Argentina. (These judgments are independent of the injunction NML has also obtained.) The Supreme Court held that NML is entitled to the discovery. The 7:1 opinion is here. Scalia authored the majority, and Ginsburg dissented. Sotomayor took no part.

I'm not surprised by the result. As I noted in an earlier post (the first link above), the Foreign Sovereign Immunities Act doesn't give sovereigns any explicit protection from discovery. The Court assumed (without deciding) that a judgment holder could get this sort of discovery from a private defendant. On that assumption, there really isn't any statutory basis for treating a sovereign differently. So... a pair of very big wins for NML.


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