Vol 19 (2022) - Issue 4

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In re Comair: Foreign Debtors Can Use Chapter 15 as a Tool for Discovery in the US

Synopsis
US Bankruptcy Code's chapter 15 allows a foreign representative to take discovery concerning the foreign debtor's assets, affairs, rights, obligations, or liabilities.
While the discovery mandate is broad, it is limited by the requirements that (i) such discovery must be necessary to effectuate the purpose of chapter 15 and to protect the assets of the debtor and the interests of the creditors and (ii) the interests of the creditors and other interested entities, including the debtor, must be sufficiently protected. The recent decision in In re Comair Ltd. (In Bus. Rescue) provides a helpful roadmap in balancing a discovery request against those requirements.