## Facts

- Kensington International Ltd., a judgment creditor, sought to enforce an approximately $56–57 million English judgment against the Republic of Congo in federal court.
- In post-judgment discovery aimed at locating Congolese assets, Kensington noticed the New York deposition of Méedard Mbemba, a nonparty with business dealings involving the Congo.
- Mbemba was unrepresented and initially agreed to appear for the deposition.
- Cleary, Gottlieb, Steen & Hamilton LLP represented the Congo but did not represent Mbemba.
- A Cleary lawyer, Jean-Pierre Vignaud, contacted Mbemba shortly before the deposition; Mbemba later described the contact as pressure not to attend and as involving nonspecific threats tied to his appearance.
- After those communications, Mbemba told Cleary he would not attend and asked Cleary to notify Kensington’s counsel.
- Cleary partner Boaz Morag emailed Kensington’s counsel that Mbemba would not attend because he wanted to consult counsel and was “open to rescheduling.”
- The record later showed Mbemba had not indicated he was willing to reschedule; the “open to rescheduling” statement was inaccurate.
- Kensington contacted Mbemba directly; Mbemba decided to appear and did appear for the deposition.
- Vignaud acknowledged his purpose in contacting Mbemba was to protect the Congo’s interests rather than to advise Mbemba as a client.
- Kensington moved for sanctions against Cleary based on witness interference and the misleading communication to opposing counsel.

## Issues

1. Whether defense counsel’s contacts with an unrepresented nonparty witness, aimed at discouraging attendance at a duly noticed deposition, constituted sanctionable interference with discovery.
2. Whether counsel’s inaccurate email describing the witness as “open to rescheduling” constituted a material misrepresentation warranting sanctions.
3. What sanctions were appropriate given the nature of the conduct and its effect on the discovery process.

## Decision

- The court granted the sanctions motion in substantial part.
- The court found Cleary’s conduct improper and sanctionable, including efforts to deter a nonparty witness from attending a properly noticed deposition.
- The court found Morag’s statement that Mbemba was “open to rescheduling” was a material misrepresentation not supported by what Mbemba had conveyed.
- The court imposed sanctions designed to address and deter discovery obstruction, while considering that Mbemba ultimately appeared and testified.

## Legal Principles

- Federal courts may sanction litigants or counsel for bad-faith conduct that obstructs discovery, including through the court’s inherent authority.
- Counsel may not interfere with a duly noticed deposition by pressuring or attempting to dissuade an unrepresented nonparty witness from appearing for reasons serving the client’s interests.
- Lawyers must not make materially false statements to opposing counsel in litigation communications, including misstatements about a key witness’s availability or intentions.
- Sanctions may be warranted even if the obstructive effort does not ultimately prevent testimony, where the conduct threatens the integrity of the discovery process.

## Conclusion

The court concluded that defense counsel crossed the line from permissible advocacy by attempting to deter an unrepresented nonparty from attending a noticed deposition and by misrepresenting the witness’s position to opposing counsel, and it imposed sanctions to vindicate the discovery process and deter similar conduct.


Kensington Int’l Ltd. v. Republic of Congo, No. 03 Civ. 4578(LAP), 2007 WL 2456993 (S.D.N.Y. Aug. 24, 2007)