In re Turquoise Hill Res. Ltd. Securities Litigation
| Decision Date | 02 September 2022 |
| Docket Number | 1:20-cv-08585-LJL |
| Parties | IN RE TURQUOISE HILL RESOURCES LTD. SECURITIES LITIGATION Total Equivalent Kilometres Lateral Development (kilometres) Mass Excavation ('000 metres3) Total Lateral Development (kilometres) Mass Excavation ('000 metres1) |
| Court | U.S. District Court — Southern District of New York |
Salvatore J. Graziano BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP Salvatore Graziano Mark Lebovitch Michael Blatchley Jai Chandrasekhar Salvatore J. Graziano BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP Salvatore Graziano Mark Lebovitch Michael Blatchley Jai Chandrasekhar
REQUEST FOR INTERNATIONAL JUDICIAL ASSISTANCE PURSUANT TO THE HAGUE CONVENTION OF 18 MARCH 1970 ON THE TAKING OF EVIDENCE ABROAD IN CIVIL OR COMMERCIAL MATTERS
The United States District Court for the Southern District of New York (“Southern District”) presents its compliments to the appropriate judicial authority of the United Kingdom for assistance in obtaining evidence to be used at trial in the above-captioned civil proceeding before this Court. This request is made pursuant to Chapter I of the Hague Convention of 18 March 1970 on the Taking of Evidence in Civil or Commercial Matters (“Hague Convention”). The Southern District is a court of law and equity and has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331 and 15 U.S.C §§ 15(a) and 26.
The Southern District has determined that it would further the interests of justice and that justice cannot be completely done between the parties without documents in the possession of Dr. Maurice Duffy and the testimony, under oath, of Dr Duffy, who resides within your jurisdiction. This is an action alleging violation of United States securities laws. Dr. Duffy is a former Rio Tinto contractor and is a significant witness in support of Plaintiffs' allegation that Defendants violated securities laws by failing to timely disclose alleged schedule delays and cost overruns at the Oyu Tolgoi mine. The evidence sought by Applicants is necessary for the just and proper disposal of the proceedings and is for use in the trial of this action.
Dr. Duffy's testimony is not available from any source within the jurisdiction of the Southern District, and cannot be obtained by any means other than pursuant to an order of an appropriate judicial authority of the United Kingdom, compelling the witness to appear for examination. Dr. Duffy, a non-party to this action, resides at 1 Warkworth Terrace, North Shields, Tynemouth, NE30 4ES, United Kingdom.
This request is made with the understanding that, and on the basis that any order made pursuant to this request: (1) will not require Dr. Duffy to commit any offense; (2) will not require Dr. Duffy to undergo a broader form of inquiry than he would have if the litigation were conducted in the United Kingdom; and (3) will not violate the laws of civil procedure of any United Kingdom court.
The Southern District, therefore, and in conformity with Article 3 of the Hague Convention, respectfully requests that you, in furtherance of justice by proper and usual process of your court, cause Dr. Duffy to produce the documents listed in Exhibit 1 and to appear before an official examiner authorized to administer oaths, and to take testimony, at a precise time to be fixed between counsel for the Applicant and the witness or (if applicable) the appointed Examiner under 34.15, and answer on his oath or affirmation questions and cross-questions, and that you will direct his deposition to be transcribed and recorded by video, and the transcript and video be sent to counsel for the parties in the action, who so request a copy. The Southern District stands ready to provide similar judicial assistance to judicial authorities in the United Kingdom when required.
This Court has reviewed each of the document requests and deposition topics attached to this letter of request in light of the allegations in the Second Amended Complaint, dated September 21, 2021 (“Complaint”), Plaintiffs' claims that this Court sustained in its decision on Defendants' motions to dismiss the Complaint, and Defendants' Answer to the Complaint. This Court has determined that each of the document requests and deposition topics seeks evidence that is relevant to Plaintiffs' claims and Defendants' defenses for use at the trial of this action.
Specifically, the Document Requests are relevant to the following Complaint paragraphs: No. 1: ¶¶ 133-38; No. 2: ¶ 287; No. 3: ¶ 288; No. 4: ¶¶ 10-12, 132-36; No. 5: ¶¶ 138, 287; No. 6: ¶ 24; No. 7: ¶288; No. 9: ¶¶25, 287-88; No. 10: ¶¶10-12, 133-40, 287-88.
The deposition topics are relevant to the following Complaint paragraphs: No. 1: ¶¶ 25, 277-78, 288; No. 2: ¶¶ 10-12, 132-38, 287; No. 3: ¶¶ 10-12, 132-38, 287; No. 4: ¶¶ 10-12, 25, 132-38, 277-78, 288; No. 5: ¶¶ 10-12, 25, 132-38, 277-78, 288; No. 6: ¶¶ 10-12, 25, 133-38, 276, 287; No. 7: ¶¶ 25, 132-38, 277-78; No. 8: ¶288.
The requesting authority would greatly appreciate a response to the Request for Assistance within 21 days or as soon thereafter as is practicable.
7.
The Plaintiffs in this case allege that Defendants Rio Tinto PLC, Rio Tinto Limited, Jean-Sébastien Jacques, and Arnaud Soirat (“Defendants”) violated United States Securities laws by failing to timely disclose schedule delays and budget overruns that occurred at the Oyu Tolgoi mine (“Oyu Tolgoi”). Plaintiffs and the other members of the proposed Class are investors in Turquoise Hill Resources Ltd. (“Turquoise Hill”), which was a publicly traded issuer whose sole business and asset was its ownership interest in the Oyu Tolgoi mine. During the Class Period (July 17, 2018, through July 31, 2019), Turquoise Hill owned 66% of the Oyu Tolgoi mine, which was operated by Rio Tinto. (The Mongolian Government owned 34% of the mine.) As described below, Plaintiffs allege that they and the other Class members were harmed when the truth concerning the schedule delays and budget overruns at Oyu Tolgoi caused massive declines in the price of Turquoise Hill securities. A copy of Plaintiffs' Complaint is attached as Exhibit 3 hereto. The nature of the action is summarized at Complaint ¶¶ 1-27. Plaintiffs seek damages and other relief for injury caused by Defendants' alleged wrongdoing. Id. 182.
Plaintiffs allege that Defendants made a series of misrepresentations to conceal massive cost overruns and delays concerning the most critical aspect of the development of the Oyu Tolgoi underground mine in Mongolia. Complaint ¶ 3. The Oyu Tolgoi mine, which is jointly owned by Defendant Rio Tinto and the Government of Mongolia, and operated by Rio Tinto, is expected to be one of the largest copper mines in the world. Id.
Throughout the Class Period, the senior executives of Rio Tinto assured investors that progress on that development was at the time “on plan and on budget” and that the deadline for achieving sustainable first production when the mine would begin generating cash flows- remained intact. Id. ¶ 4. Plaintiffs allege that in reality, from before the start of the Class Period and at the time of Defendants' statements, the underground expansion project was many months behind schedule and hundreds of millions of dollars over budget. Id.
For example, Plaintiffs allege that by no later than 2017, Rio Tinto senior executives recognized that the underground expansion...
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