Opinion

UNITED STATES BANKRUPTCY COURT

SOUTHERN DISTRICT OF NEW YORK

-----------------------------------------------------------X

In re: FOR PUBLICATION

B.C.I. FINANCES PTY LIMITED (In Chapter 15

Liquidation), et al.,

Case No. 17-11266 (SAB)

Debtor in Foreign Proceedings.1

(Jointly Administered)

-----------------------------------------------------------X

MEMORANDUM OPINION AND ORDER GRANTING THE MOTION TO

COMPEL AND DENYING THE MOTION FOR A PROTECTIVE ORDER

HONORABLE SHIREEN A. BARDAY

UNITED STATES BANKRUPTCY JUDGE

This Chapter 15 matter began almost a decade ago when the first foreign proceedings relating

the case were recognized and the Foreign Representative began to seek asset-tracing discovery from

three members of the Binetter family: Andrew Binetter, his wife (Samantha Kelliher), and his brother

(Michael Binetter)—collectively, the “Binetters.” The Binetter brothers had been part of a tax fraud

scheme that gave rise to substantial civil liability in Australia; in 2016, based on this conduct, an

Australian court issued a civil assessment of AU$100 million. Detailed information about the

Australian tax fraud scheme has been publicly available in the United States since at least May 9,

2017, when the Foreign Representative filed a copy of the decision from the Federal Court of

Australia on the docket in this Chapter 15 proceeding. But at no time—before or after May 9, 2017—

has anyone ever identified any nexus between the civil tax fraud in Australia and criminality in the

1 The Foreign Debtors in the underlying Chapter 15 cases are the following eleven entities (the last four digits of their

respective corporation identification numbers follow in parentheses): (i) B.C.I. Finances Pty Limited (8531); (ii)

Binqld Finances Pty Limited (3220); (iii) E.G.L. Development (Canberra) Pty Limited (7646); (iv) Ligon 268 Pty

Limited (4081) (collectively, (i)–(iv), the “Prior Foreign Debtors”); (v) Gerobin Finances Pty Ltd (6410); (vi) Erbin

Finances Pty Ltd (9800); (vii) Rawbin Finances Pty Ltd (6549); (viii) Marbin Finances Pty Ltd (2970); (ix) Erma

Nominees Pty Ltd (7040); (x) Ligon 158 Pty Ltd (4015); and (xi) ACN 078 881 035 Pty Limited (collectively, (v)–

(xi) (1035), the “New Foreign Debtors,” and, together with the Prior Foreign Debtors, the “Foreign Debtors”).

United States. Nevertheless, the Binetters have repeatedly sought to assert a Fifth Amendment “act

of production” privilege to avoid complying with subpoenas in the United States and to frustrate the

Foreign Representative’s ability to obtain discovery from third-parties, including a corporate entity

affiliated with the family (Nate’s Fine Foods LLC) and JPMorgan Chase Bank, N.A. (“JPMorgan”).

On February 26, 2026, six days after this matter was transferred to this Court, the issues

relating to Nate’s Fine Foods LLC (“Nate’s Fine Foods”) were resolved by transcript ruling, wherein,

relevant here, the Court concluded that the Binetters had improperly attempted to invoke the Fifth

Amendment on behalf of a corporate entity though the law clearly prohibited such; therefore, Nate’s

Fine Foods was ordered to comply with the subpoena it had received. Adv. No. 26-01004, ECF No.

8 (Transcript of Hearing), ECF No. 9 (Order). This Court now addresses the two remaining issues

of Fifth Amendment privilege: first, whether the Fifth Amendment “act of production” privilege may

be properly invoked by one of the Binetter brothers (Michael Binetter) to apply selective redactions

to the content of bank statements that he does not intend to withhold from production entirely but,

in fact, has already voluntarily produced (albeit with specific transactions redacted); and second,

whether Michael Binetter may invoke a Fifth Amendment privilege to prevent JPMorgan from

complying with a subpoena served on the bank by the Foreign Representative insofar as it seeks fully

unredacted copies of Michael Binetter’s bank statements known to exist as a result of the documents

produced by Michael Binetter. As set forth more fully below, because the Binetters’s proposed

application of the Fifth Amendment “act of production” privilege cannot be reconciled with the

doctrine’s scope, history, or fundamental purpose, the Binetters’s Motion for a Protective Order is

DENIED and the Foreign Representative’s Motion to Compel is GRANTED.

FACTUAL BACKGROUND2

The story of the Binetters in Australia begins in 1950, when Erwin and Emil Binetter first

arrived there. The two brothers went on to found and operate several businesses in Australia,

including the “nudie” juice empire. Nudie juice, which they founded in 2003, became very

successful; by some accounts, nudie juice produced over a million juices per month and therefore

was one of the most prominent juice brands on supermarket shelves in Australia. Andrew Binetter

became nudie’s Chief Operating Officer in October 2004 and was quickly promoted to be Chief

Executive Officer. ECF No. 2. In 2014, nudie juice was sold for roughly $80 million.

In 2006, the Australian Tax Office began an extensive audit that would last about three

years, and culminated in the Australian Tax Office’s conclusion that a complex group of businesses

affiliated with the Binetters, including nudie juice, had been engaged in a twenty-plus-year tax

evasion scheme, under which the Binetter entities entered into purported lending arrangements

with banks outside of Australia to report nonexistent interest expense on their Australian tax

returns in a fraudulent attempt to reduce their Australian tax obligations. The Commissioner of

Taxation’s audit resulted in findings of fraud or evasion, which enabled it to issue revised

assessments dating as far back as 1992, in the case of one of the foreign debtors: E.G.L.

Development (Canberra) Pty Limited (7646). All told, four of the Binetters’s businesses, which

were foreign debtors in the original Chapter 15 proceeding in this Court (the “Prior Foreign

Debtors”), were hit with the AU$100 million tax assessment for their role in the fraud. These and

2 A brief recitation of the facts drawn from the two prior decisions in this matter is included here for context only; the

Court’s adjudication of the motions before it is limited to the issues identified, and evidence submitted, by the parties

in connection with those motions. The first decision, In re B.C.I. Finances Pty Ltd., 583 B.R. 288 (Bankr. S.D.N.Y.

2018) granted the Prior Foreign Debtors’ petition for chapter 15 recognition. The second decision, Matter of B.C.I.

Finances Pty Ltd. (in Liquidation), 668 B.R. 51 (Bankr. S.D.N.Y. 2025), was issued after the New Foreign Debtors

became subject to these jointly administered proceedings and therefore addressed all Foreign Debtors.

the other findings were documented in some detail in a decision from the Federal Court of Australia

on November 18, 2016. See ECF No. 2 (the “2016 Australia Court Decision”).3

The Foreign Representative in this proceeding was then appointed as the liquidator of the

Prior Foreign Debtors and succeeded in obtaining an Australian civil judgment covering the

AU$100 million tax assessment and then some, based on breaches of statutory and fiduciary duties.

Despite the extensive findings as to the Binetters’s tax evasion scheme, lengthy judicial

proceedings in Australia, substantial related press coverage and the very sizeable civil judgment

that resulted, no Binetter or any of their many companies appears to have ever been criminally

prosecuted in Australia, let alone convicted of any crime, and no party has ever identified any prior

or current criminal investigation of the Binetters or any of their businesses in Australia. Or

anywhere else in the world.

The brothers (Michael and Andrew Binetter) moved to the United States in or around 2017.

Shortly thereafter, the Foreign Representative commenced this proceeding on May 9, 2017, to

obtain recognition of the Australian liquidation proceedings so that he could conduct an asset-

tracing exercise in the United States.

PROCEDURAL HISTORY OF THE UNITED STATES CASES

This case in bankruptcy court began on May 9, 2017, before the Honorable Sean H. Lane,

when the Foreign Representative filed a chapter 15 petition for recognition of a foreign proceeding

in Australia. ECF No. 1 (Petition). Recognition was contested—but granted—on April 24, 2018:

In re B.C.I. Finances Pty Ltd., 583 B.R. 288, 303 (Bankr. S.D.N.Y. 2018) (“BCI I”). Less than a

3 ECF numbers refer to documents filed in the main proceeding (Case No. 17-11266), which is the matter in which

this Memorandum Opinion is being issued. Where docketed documents from other proceedings, including adversary

proceedings, are referenced, the citation includes a reference to the specific proceeding number. As many of the

documents preceding this Memorandum Opinion were filed under seal, this Court has provided a descriptive

parenthetical to assist the reader in understanding the document’s relevance.

year later, the matter was resolved and ordered closed. See ECF No. 70.4 But almost as soon as

the case was closed, there was a new finding by the Australian Tax Office in 2020 that two new

Binetter entities—Erbin Finances Pty Ltd (9800) and Rawbin Finances Pty Ltd (collectively, the

“New Foreign Debtors”)—had participated in a separate yet similar tax evasion scheme, leading

to the appointment of liquidators in those and other related entities in Australia. Matter of B.C.I.

Finances Pty Ltd. (in Liquidation), 668 B.R. 51, 55 (Bankr. S.D.N.Y. 2025) (“BCI II”).

Accordingly, the Foreign Representative, now representing the estates of the New Foreign Debtors

as well as the Prior Foreign Debtors, commenced a chapter 15 proceeding on behalf of the New

Foreign Debtors and moved to reopen the chapter 15 case on behalf of the Prior Foreign Debtors.

ECF No. 71 (Motion to Reopen). The Honorable Sean H. Lane granted recognition of the

liquidation proceedings of the New Foreign Debtors, over objections, and the matter was reopened

on December 1, 2021. See ECF Nos. 82, 84, 89.

The Asset-Tracing Exercise

In connection with the new matter, the Foreign Representative filed a motion seeking

authorization to pursue discovery to trace the Binetters’s assets using the extraordinary authority

4 The Foreign Representative had sought to trace assets in the United States and to investigate potential claims

connected to the Australian tax evasion scheme. BCI I, 583 B.R. at 291. To carry out that goal, on June 20, 2018, the

Foreign Representative filed a motion seeking authority to conduct examinations and serve subpoenas pursuant to 11

U.S.C. §§ 105(a) and 1521(a) and Fed. R. Bankr. P. 2004. ECF No. 45 (Application for 2004 Examination). On July

12, 2018, the court granted the motion. ECF No. 53 (Order Authorizing Service of Subpoenas). In October 2018, the

Foreign Representative and the Binetters ultimately entered into a global settlement, resulting in an order closing the

Prior Foreign Debtors’ chapter 15 case. See ECF No. 70 (Order Closing Case).

conferred under Bankruptcy Rule 2004.5 On May 16, 2022, the Foreign Representative’s motion

was granted, and he was given authority by the Court to pursue the Rule 2004 discovery he sought

from the Binetters in connection with his asset-tracing exercise. See ECF No. 95 (the “Rule 2004

Order”). Among other things, pursuant to this authority, the Foreign Representative sought broad

categories of discovery, including documents and communications relating to the Foreign Debtors,

any bank account opened in the United States since 2015, any purchase of real property, any

purchase of an asset with a value greater than $10,000 since 2015, any direct or indirect interest in

certain entities, including but not limited to Nate’s Fine Foods, and copies of United States tax

returns for certain periods. See ECF No. 127, Exs. A, B, C (the “November 16 Subpoenas”).

Rule 2004 Enforcement

Not long after the Rule 2004 Order issued in May 2022, this matter was transferred to the

Honorable Philip J. Bentley. See ECF No. 96 (Notice of Reassignment on September 12, 2022).

Thereafter, the Honorable Philip J. Bentley was confronted with a variety of disputes relating to

the Rule 2004 Order, including those arising from the Binetters’s position that none of them were

required to produce any documents or provide any testimony at all in response to the Rule 2004

Order and November 16 Subpoenas. See, e.g., ECF No. 135 (Objection to Motion to Enforce the

Rule 2004 Order). In support of their position, the Binetters cited, among other things, their Fifth

Amendment right against self-incrimination, which they argued entitled them to withhold copies

of their bank statements and copies of certain documents filed with courts in Australia (the

5 Rule 2004’s wide latitude has been succinctly described as “very broad,” “unfettered,” and, most famously, akin to

a “fishing expedition.” In re Recoton Corp., 307 B.R. 751, 755 (Bankr. S.D.N.Y. 2004) (“very broad”); In re Enron

Corp., 281 B.R. 836, 840 (Bankr. S.D.N.Y. 2002) (“unfettered”); In re Drexel Burnham Lambert Group, Inc., 123

B.R. 702, 711 (Bankr. S.D.N.Y. 1991) (“fishing expedition”). This breadth applies both to the subject-matter of

interrogation and the identity of parties who may be compelled to provide discovery: “Because the purpose of the

Rule 2004 investigation is to aid in the discovery of assets, any third party who can be shown to have a relationship

with the debtor can be made subject to a Rule 2004 investigation.” In re Ionosphere Clubs, Inc., 156 B.R. 414, 432

(S.D.N.Y. 1993), aff’d, 17 F.3d 600 (2d Cir. 1994).

“Australian Court Documents”).6 After extensive briefing and a lengthy oral argument, three

orders were issued over objections on March 10, 2025:

(i) an order granting the Foreign Representative’s Motion to Enforce the 2004

Order (ECF No. 169, the “Rule 2004 Production Order”), which was

accompanied by a “Modified Bench Ruling” (ECF No. 168);

(ii) an “Order Regarding Fifth Amendment Privilege Production” (ECF No. 170,

the “Procedures Order”); and

(iii) a protective order, which provided for the tailored confidentiality of the

Binetters’s responses to the subpoenas issued by the Foreign Representative

(ECF No. 171, the “Protective Order”).

Together, these orders operated to create a two-track system to facilitate the Binetters’s compliance

with the Rule 2004 Order: “Track 1” required the Binetters to comply with the subpoenas served

on them except as to anything they might assert was shielded from production pursuant to their

Fifth Amendment rights. For those documents, “Track 2” (the Procedures Order) was the

mechanism to raise such issues.

Track 1: Subpoena Compliance and Document Production

On April 9, 2025, the day the Binetters’s obligations to comply and produce documents

came due under Track 1, the Binetters moved for an extension of time to respond to discovery

6 The “Australian Court Documents” consist of a series of documents submitted to the Australian courts, which fall

into four loose categories: (i) an April 10 Australian affidavit, (ii) Australian asset statements, (iii) transcripts of

Australian proceedings, and (iv) other affidavits submitted to courts separate and apart from the affidavit dated April

10. This Court has not reviewed any of these documents and so relies on the description of the categories of these

documents from the Binetters’s submission. The Binetters describe each of those categories of documents as follows:

the April 10 Australian affidavit is “an affidavit submitted by a third party in the Australian tax litigation, dated April

10, 2016, submitted to an Australian court. The affiant asserts claims of theft, fraud, and using false identities in

connection with financial transactions and loans involving the Binetter Parties” (the “April 10 Australian Affidavit”);

the Australian asset statements are “statements of assets of the various entities referenced in the underlying subpoenas,

from the Australian proceedings. [] These documents identify possible assets of Michael Binetter, the Binetters , and/or

the entities that are the subject of the Subpoena and Order, with a date range of 2015–2020” (the “Australian Asset

Statements”); the Australian transcripts are the “transcripts from Australian proceedings that allege impropriety of the

Binetter Parties, including Michael, and/or identify alleged transfers of funds or identification of assets” (the

“Australian Transcripts”); and the other Australian affidavits are those “affidavits from the Australian proceedings in

which similar allegations of financial impropriety are made” (the “Other Australian Affidavits,” together with the April

10 Australian Affidavit, the Australian Asset Statements, the Australian Transcripts, the “Australian Court

Documents”). See Mot. for a Protective Order at 22-24.

obligations. ECF No. 178 (Motion to Extend Time). The parties were subsequently able to reach

two separate consensual agreements: the first extending the time for Andrew Binetter and

Samantha Kelliher to comply, due to certain health issues, and the second for Michael Binetter to

comply. The Court so-ordered each stipulation accordingly. See ECF Nos. 188 (Michael Binetter

extension), 189 (Andrew Binetter and Samantha Kelliher extension).

On April 28, 2025, Michael Binetter produced a number of documents pursuant to the Rule

2004 Production Order. See ECF No. 239 (“Kopp Decl.”) ¶ 4. Among those documents were

hundreds of pages of copies of Michael Binetter’s bank statements for accounts held at JPMorgan.

Id. ¶¶ 4-5. While certain identifying information in those bank statements was unredacted,

including the name of the account holder and JPMorgan’s name as the holding bank, certain

specific transactions were redacted. Id., Ex B (Representative Sample of Michael Binetter’s

Produced Bank Statements). The cover letter explained that the documents were being produced

pursuant to Track 1; that is, “[p]ursuant to the Order Granting Foreign Representative’s Motion to

Enforce the Rule 2004 Order to Compel the Binetters to Produce Documents Responsive to Rule

2004 Subpoenas [Dkt. No. 169] and the Protective Order [Dkt. No. 171] both entered on March

10, 2025.” Id., Ex. A (Production Cover Letter). However, the cover letter also noted that “[a]ll

redactions have been made pursuant to the Binetter[s’s] invocation of the 5th Amendment Act of

Production Privilege, as set forth in the Binetter[s’s] Brief Pursuant to March 10, 2025 Order

Regarding Fifth Amendment Privilege Production as to Certain Records and Documents [Dkt. No.

180].” Id. As of the time of this document production, no order had ever issued requiring the

production of the bank statements specifically but, instead, the parties were in the process of raising

disputes over the scope of Fifth Amendment “act of production” privilege through the Track 2

process described below.

Track 2: The Procedures Order

For documents withheld from production under Track 1, based on a claimed Fifth

Amendment “act of production” privilege, the Procedures Order required the Binetters to submit

to the Court a brief “identifying the documents held in their personal capacity in connection with

which the Binetter[s] sought to invoke the act-of-production privilege, and as to each document,

to explain in general or circumstantial terms why production would be incriminating.” Procedures

Order ¶ 2. The brief was to be submitted by email, with counsel for the Foreign Representative

copied on the transmission. Id. Judge Bentley further directed that “sufficient information” be

included in the brief to “enable the Court to conduct a factual inquiry to determine the

incriminating potential of the documents sought and the act of production against the privilege

asserted, and to enable counsel for the Foreign Representative to make the same evaluation.”

Id. ¶ 3. Notably, the Procedures Order did not require the submission of copies of documents

themselves—doing so would not have made sense given that the Track 2 process was done on

notice to the Foreign Representative and the Binetters were claiming a Fifth Amendment privilege

for withholding a production of documents from the Foreign Representative. The Procedures

Order originally contemplated three briefs: the opening brief (ECF No. 180), the Foreign

Representative’s response in opposition (ECF No. 181), and the Binetters’s reply (ECF No. 186).7

This briefing was meant to encapsulate all outstanding Fifth Amendment disputes subject to the

Foreign Representative’s Motion to Enforce the 2004 Order that had been left undecided by the

resulting Rule 2004 Production Order.

Further Discovery: Michael Binetter’s Deposition & Third-Party Subpoenas

7 The Binetters also submitted a supplemental statement in support of their opening brief, which added additional

categories of documents over which they claimed a privilege assertion. ECF No. 197. The Foreign Representative

responded and opposed the validity of the privilege assertion. ECF No. 202.

As the document disputes proceeded, the parties agreed that Michael Binetter would submit

to a deposition on July 16, 2025. Ahead of that deposition, counsel for the Foreign Representative

requested by letter that the Court be available by telephone during the deposition in the event Fifth

Amendment disputes arose. ECF No. 194. Counsel for the Binetters objected, asserting that the

request was premature and that if Michael Binetter invoked his privilege, the Foreign

Representative should file a motion briefing the issues, consistent with the Track 2 in camera

briefing process then-underway. See ECF No. 196 (Letter Response). On July 14, 2025, the Court

entered a memorandum endorsed order, providing that in the event counsel were unable to resolve

disputes arising from the deposition, either party could request a conference accompanied by a

letter brief, to which the opposing party would have two business days to respond. See ECF No.

204. The deposition went forward on July 16, 2025.

During his deposition, Michael Binetter was shown copies of his bank statements, which

he had previously produced. No objection to the use of the bank statements was interposed. There

was also no attempt to “claw back” copies of the bank statements (nor has there ever been one),

such as one might do in the event of an inadvertent production of documents; however, Michael

Binetter did refuse to answer any questions about those bank statements during his deposition,

asserting Fifth Amendment privilege. Kopp Decl., Ex. C (Transcript).

Shortly after the deposition, on August 4, 2025, both parties filed letter briefs relating to

whether Michael Binetter had improperly attempted to invoke Fifth Amendment and whether his

repeated refusals to answer questions were substantially interfering with the discovery process.

See ECF Nos. 207, 208 (Letter Briefs to the Court). The Foreign Representative argued that

Michael Binetter’s numerous invocations of the Fifth Amendment during his deposition were

improper given, among other things, the absence of a reasonable risk of prosecution. ECF No.

208. The Binetters disagreed, contending that the questions posed by the Foreign Representative

sought to elicit incriminating responses from Michael Binetter because “any question that is either

a predicate to, leading up to, or involving a query concerning . . . assets presents an appropriate

circumstance” to assert a Fifth Amendment privilege. ECF No. 207. Thus, what became clear

was the Binetters’s position that all asset-tracing discovery would, in their view, implicate their

rights under the Fifth Amendment.

A week later, on August 11, 2025, the Foreign Representative issued a subpoena to

JPMorgan for unredacted copies of Michael Binetter’s bank statements. See Kopp Decl., Ex. D

(the “JPMorgan Subpoena”). Following receipt of notice of the JPMorgan Subpoena, the Binetters

filed another letter brief pursuant to the Procedures Order, requesting an emergency conference

and an immediate stay of discovery. ECF No. 209. Nevertheless, on August 27, 2025, the Court

issued a memorandum endorsed order directing the parties to submit a mutually acceptable form

of order temporarily barring disclosure of the subpoenaed JPMorgan documents to the Foreign

Representative. See ECF No. 210 (Memorandum Endorsed Order). That order culminated in an

August 28, 2025 order instructing JPMorgan to proceed to gather the records responsive to the

subpoena and await a further order of the Court concerning disclosure. See ECF No. 212.

Meanwhile, the Foreign Representative attempted to push forward with other third-party

discovery and, in September 2025, served a subpoena for documents directly on Nate’s Fine Foods

seeking eleven categories of information concerning relationships among Nate’s Fine Foods, the

Binetters, and the New Foreign Debtors. See Adv. No. 26-01004, ECF Nos. 1-2 (Motion to Quash

Subpoena). The Foreign Representative had identified significant relationships between the

Binetters and the prepared food company, Nate’s Fine Foods, based in Roseville, California: the

New Foreign Debtors had transferred funds to the majority owner of Nate’s Fine Foods, Andrew

Binetter was a director of the company, and Michael Binetter had served as the company general

counsel. See Adv. No. 26-01004, ECF No. 1.

The Binetters moved to quash the subpoena in the United States District Court for the

Northern District of California, and the Foreign Representative cross-moved to transfer the dispute

to this Court. See Adv. No. 26-01004, ECF Nos. 1, 2. On January 8, 2026, the Northern District

granted the motion to transfer, and on January 20, 2026, this Court opened a new adversary

proceeding in connection with the motion to quash. See Adv. No. 26-01004, ECF No. 1 (Transfer

Order). The matter was thereafter transferred to this Court along with the main case.

ISSUES TRANSFERRED TO THIS COURT

On February 20, 2026, the Chapter 15 case was transferred to this Court. See ECF No. 222

(Notice of Reassignment). Concurrently, the parties submitted status letters explaining the issues

outstanding as of the date of the transfer, which included three main categories of disputes:

• First, the adversary proceeding pertaining to the motion to quash the

subpoena served on Nate’s Fine Foods and transferred to this Court from

the United States District Court for the Northern District of California.

• Second, the parties described a “request” (without a motion) to stay or

resume written discovery from Andrew Binetter and his wife, Samantha

Kelliher, in light of certain medical issues that had arisen since the so-

ordered stipulation extending the couple’s time to comply with the Rule

2004 Production Order as to the subpoenas served on each of them.

• Third, the parties represented that Michael Binetter had invoked his

testimonial and documentary privileges under the Fifth Amendment and

identified a number of letters and briefs submitted in connection with that

assertion, though the full scope of that dispute was unclear to this Court

because, among other things, no motions regarding these issues had been

filed since the parties were relying on the Procedures Order and a number

of the documents cross-referenced in the letters and listed on the docket of

this case as “sealed” in fact were not actually filed under seal or obtainable

by this Court at that time.8

8 For this reason, the Court subsequently also directed the parties to submit copies of those documents previously

identified as having been filed “under seal” and, on March 25, 2026, the Court entered sealing orders with respect to

See ECF No. 219 (Foreign Representative Update Letter); see also ECF No. 221

(Bineters’s Update Letter).

Six days after this matter was transferred, the Court heard argument in the Adversary

Proceeding on the motion to quash the Nate’s Fine Foods subpoena, including whether the

Binetters could invoke their own Fifth Amendment rights to prevent Nate’s Fine Foods from

complying with the subpoena. Adv. No. 26-1004, ECF No. 8 (Transcript). On the record during

the hearing on February 26, 2026, the Court denied the motion to quash insofar as it sought to

quash the subpoena outright, including based upon the Binetters’s improper attempts to invoke the

Fifth Amendment to shield the corporate documents of the corporate entity (Nate’s Fine Foods)

from production, but granted leave to amend insofar as it sought to modify and narrow the

subpoena requests. See also Adv. No. 26-1004, ECF No. 9 (Order Denying Motion to Quash).

The Court then conducted a status conference in the main proceeding with the parties as to the

remaining two outstanding sets of items and instructed the parties to seek any outstanding relief

by motion rather than letters raising informal requests for relief. Adv. No. 26-1004, ECF No. 7.

Thereafter, the parties elected to proceed by motion and, on March 4, 2026, the parties

submitted a proposed Fifth Amendment briefing schedule providing that the Foreign

Representative’s Motion to Compel and the Binetter’s Motion for a Protective Order would be

filed simultaneously on March 23, 2026, that oppositions would likewise be filed simultaneously

on April 13, 2026, and that there would be no reply briefs. On March 5, 2026, the Court entered

a scheduling order approving that approach, and the parties then filed their motions according to

this schedule. As a result, there are now two motions for resolution: First, the Foreign

those documents and the motions sub judice, so copies of the documents previously presented to the Court have now

been filed under seal as their prior filings indicated despite the prior lack of compliance with sealing rules. See ECF

No. 229 (Order to Show Cause).

Representative’s Motion To Enforce The Rule 2004 Order And To Compel Discovery Over The

Binetter Parties’ Fifth Amendment Objections (ECF No. 238, the “Motion to Compel”), which

seeks an order (i) compelling the Binetters (Andrew Binetter, Michael Binetter, and Samantha

Kelliher) to respond to the Foreign Representative’s discovery requests over their Fifth

Amendment objections and (ii) directing third-party JPMorgan to comply with the Foreign

Representative’s August 11 subpoena.9 Second, the Motion for a Protective Order (ECF No. 236,

the “Motion for a Protective Order”) filed on behalf of the Binetters, which seeks an order shielding

the Binetters from having to produce certain documents (in full or in unredacted form) based upon

their invocation of the Fifth Amendment.10 However, at the hearing on May 1, 2026, the Binetters

clarified their position that the motions sub judice were only ripe as to Michael Binetter.

Accordingly, this decision addresses only the obligation to produce documents of: (i) JPMorgan

with regard to the bank statements sought through the JPMorgan Subpoena (based upon

information garnered from Michael Binetter’s prior document production), and (ii) Michael

Binetter himself with respect to unredacted copies of his bank statements as well as the Australian

Court Documents, the latter of which have not been produced in discovery.

9 The Binetters filed an objection to the Motion to Compel asserting, among other things, that the “act of production”

privilege shields them from the obligation to produce documents at all, and precludes the Foreign Representative from

seeking unredacted copies of Michael Binetter’s bank statements, including from third-party JPMorgan. See ECF No.

251 (the “Opposition to the Motion to Compel”).

10 The Foreign Representative filed an objection to the Motion for a Protective Order asserting, among other things,

that the Binetters lack a reasonable fear of prosecution and, even if they did, the Fifth Amendment does not apply

pursuant to the foregone conclusion doctrine. See ECF No. 253 (the “Protective Order Opposition”). Additionally,

separate and apart from their Motion for a Protective Order, the Binetters have filed one further motion that was not

the subject of the briefing approved by the Court: it was a motion to stay discovery for Andrew Binetter and Samantha

Kelliher due to health issues. ECF No. 232 (the “Motion to Stay”). There was initially an objection to the Court

hearing the Motion to Stay on notice to the Foreign Representative, but the Court overruled that objection and the

Foreign Representative filed its opposition to the Motion to Stay on April 15, 2026. The Court addressed and resolved

the Motion to Stay at the Hearing, granting a temporary stay of discovery obligations for Andrew Binetter and

Samantha Kelliher, and the Court subsequently entered an Order on May 4, 2026, formally resolving the Motion to

Stay. Accordingly, the Motion to Stay is not addressed further in this decision. ECF No. 268.

DISCUSSION

The Fifth Amendment provides that “[n]o person . . . shall be compelled in any criminal

case to be a witness against himself . . . .” U.S. Const. amend. V. This prohibition against self-

incrimination applies equally to testimony and to the production of documents, as the very “act of

production” may itself constitute compelled testimony in some circumstances. United States v.

Hubbell, 530 U.S. 27, 36 (2000). Even if the contents of documents are not privileged, the mere

act of producing may be privileged if producing the documents furnishes a “link in the chain of

evidence needed to prosecute” the witness. Hoffman v. United States, 341 U.S. 479, 486 (1951).

This extraordinary doctrine is what is known as the “act of production” privilege, and it applies

where production implicitly communicates testimonial assertions, including that (1) the

documents exist, (2) the documents are in the person’s possession or control, and (3) the documents

are authentic, whereby the act of producing them may provide a link in the chain of incrimination.

United States v. Fox, 721 F.2d 32, 36 (2d Cir. 1983). “Accordingly, the act of producing

documents” may be tantamount to “incriminating testimony if the existence or location of the

documents is unknown to the government, or the act of producing the documents implicitly

authenticates them, and in so doing, provides ‘a link in the chain of incrimination.’” In re Schick,

215 B.R. 4, 9 (Bankr. S.D.N.Y. 1997) (quoting United States v. Fox, 721 F.2d 32, 36 (2d Cir.

1983)). For example, where a party must make “extensive use of the contents of his own mind in

identifying” responsive documents, the “act of production” itself may be testimonial and therefore

contrary to law insofar as the party is effectively being compelled to serve as a witness against

himself. Hubbell, 530 U.S. at 43 (internal quotation marks omitted).

While the Fifth Amendment appears facially broad, it has eight important limits relevant

here. The first three concern who may properly invoke the privilege. It protects a person only—

not even an agent of that person—from being legally compelled to provide incriminating

testimonial information. Fisher v. United States, 425 U.S. 391, 397-98 (1976) (Fifth Amendment

privilege not violated by enforcement of documentary summons directed at attorneys even though

attorneys were agents of clients). Importantly, the “person” covered by the Fifth Amendment is

limited to natural persons; corporations or partnerships or other business entities have no such

immunity. Braswell v. United States, 487 U.S. 99, 104 (1988) (president of corporation could not

refuse to produce corporate books and records on behalf of the corporation based upon Fifth

Amendment objection). And the Fifth Amendment cannot be asserted derivatively, such as on

behalf of a third-party. Bellis v. United States, 417 U.S. 85, 88-90 (1974); In re Standard Financial

Management Corp., 77 B.R. 324, 327 (Bankr. D. Mass. 1987) (the “Fifth Amendment is a personal

right not to testify and does not stretch to documents or items in the hands of others”).

In addition to the above, the following limitations inform when the privilege can apply. It

applies only to compelled acts and not to voluntary statements. United States v. Butler, 211 F.3d

826, 830-33 (4th Cir. 2000) (noting that the prior testimony a debtor gave to meet the burden of

production in a contempt proceeding in bankruptcy court was admissible against him in a later

criminal proceeding, as not all forms of pressure constitute compulsion). United States v. Doe,

465 U.S. 605, 612 n.10 (1984) (“If the party asserting the Fifth Amendment privilege has

voluntarily compiled the document, no compulsion is present and the contents of the document are

not privileged.”). Even with respect to compelled acts, the Fifth Amendment does not apply where

“the existence and location” of the allegedly inculpatory documents or information “are a foregone

conclusion.” Fisher, 425 U.S. at 411. Additionally, the risk of self-incrimination must be related

to a domestic risk of prosecution; it does not apply to a risk of prosecution by a foreign government.

United States v. Balsys, 524 U.S. 666, 699-700 (1998). Moreover, the possibility of incrimination

must be a real and substantial danger—a remote or speculative possibility of incrimination is

insufficient to shield an individual from being compelled to provide information pursuant to a

lawful request to do so. Secs. and Exch. Comm’n v. Pence, 323 F.R.D. 179, 190 (S.D.N.Y. 2017)

(The Fifth Amendment “protects against real dangers, not remote and speculative possibilities.”

(internal quotation marks and citations omitted)). Crucially, the statute of limitations for charges

about which there assertedly is a real and substantial risk of prosecution must not have already

expired. Stogner v. California, 539 U.S. 607, 620 (2003) (noting that “the Fifth Amendment’s

privilege against self-incrimination does not apply after the relevant limitations period has

expired”). Finally, while there are two distinct motions before the Court, both turn on the same

analysis of constitutional rights against self-incrimination and, in both cases, Michael Binetter

cannot overcome the limitations of the Fifth Amendment itself.

JPMorgan Subpoena

With respect to the JPMorgan Subpoena, there are at least five independently dispositive

reasons compliance must be compelled over Michael Binetter’s assertions of Fifth Amendment

privilege. First, JPMorgan is not a natural person and therefore the Fifth Amendment has no direct

applicability to JPMorgan. See Fisher v. United States, 425 U.S. 391, 397 (1976) (Fifth

Amendment rights only apply to natural persons). Second, the Fifth Amendment privilege protects

only the person asserting it from compelled self-incrimination and, relevant here, Michael Binetter

(not JPMorgan) is the one attempting to invoke the privilege to prevent the bank from producing

copies of his bank statements.11 Michael Binetter’s “act of production” privilege is simply not

implicated by JPMorgan’s independent act of producing its own business records, records made

11 JPMorgan has not even attempted to assert privilege somehow applies to it and, indeed, could not do so on a

nonfrivolous basis, including because the bank is a corporate entity and not a natural person. Braswell v. United States,

487 U.S. 99, 108-09 (1988).

and kept by the bank in the ordinary course; and he has made no showing that his personal privilege

attaches to documents he did not create and over which he exercises no control. Third, even when

applied to the individual invoking it (again, not the case with the JPMorgan Subpoena), the Fifth

Amendment would not prohibit the production of documents that are already known to exist (under

the foregone conclusion doctrine). Fisher, 425 U.S. at 411. Here, Michael Binetter already

voluntarily produced copies of bank statements from JPMorgan, albeit with redactions—but it was

the unredacted portions of those documents that provided the Foreign Representative with enough

information to identify JPMorgan as the account holder. Kopp Decl. ¶¶ 4-5. Thus, it is a foregone

conclusion that JPMorgan possesses copies of the documents. Id.

Fourth, the Binetters were never directed to produce copies of their bank statements under

the Procedures Order (that is, Track 2). The voluntary production of those statements may have

been tactical as their counsel represented at the Hearing, but even so, their having voluntarily

produced the bank statements earlier overcomes any claim of privilege from production now, as

the documents’ existence and location became a foregone conclusion by virtue of that disclosure.

Benthos Master Fund, Ltd. v. Etra, 2023 WL 4350594, at *12 (S.D.N.Y. July 5, 2023) (reasoning

that the Fifth Amendment privilege did not apply to monthly bank statements where the asserting

party had already voluntarily produced monthly statements for the account in question). The Fifth

Amendment “act of production” privilege against self-incrimination is designed to protect a

witness from being compelled to concede the existence, custody, or authenticity of incriminating

documents—not to shield documents whose existence has already been revealed. See Fisher, 425

U.S. at 409-10. Where, as here, the existence and location of the bank statements was disclosed

voluntarily, permitting Michael Binetter to now invoke the privilege to resist production of copies

of those documents maintained by a third-party would not serve any purpose the Fifth Amendment

was designed to protect. Finally, Michael Binetter’s Fifth Amendment arguments with respect to

the JPMorgan Subpoena also fail for the same reasons (explained below) that require him to

personally produce unredacted bank statements and the Australian Court Documents.12

The November 16 Subpoena to Michael Binetter

Through the November 16 Subpoena, the Foreign Representative sought “[a]ll documents

and communications referring, relating to, or concerning any bank account that has been opened

or operated in the United States since 1 January 2015,” in addition to bank accounts opened by

certain entities, amongst other requests.13 The Rule 2004 Production Order then compelled

compliance with that subpoena, and in response to that order, Michael Binetter now asks this Court

to hold that he need not produce unredacted copies of his bank statements and need not produce

the Australian Court Documents in any form. See Mot. for a Protective Order at 25. In the first

instance, however, Michael Binetter’s assertion of the “act of production” privilege fails for the

gating reason that he has failed to establish that the production would cause a reasonable fear of

incrimination in the United States. See United States v. Balsys, 524 U.S. 666, 674 (1998); United

12 Independently, the Binetters’s Opposition to the Motion to Compel did not address the Motion to Compel insofar as

it seeks JPMorgan’s compliance with the JPMorgan Subpoena. See generally Opp’n to Mot. To Compel. Likewise,

the Binetters fail to mention JPMorgan at all in their Motion for a Protective Order. See generally Mot. for a Protective

Order. Having abandoned the issue, the Binetters are deemed to have waived any arguments they may otherwise have

had but, in any event, for the reasons already stated, any such attempts would have been meritless. See Tolbert v.

Queens Coll., 242 F.3d 58, 75 (2d Cir. 2001) (issues unaccompanied by some developed argument are deemed

waived).

13 Those entities included “Suzanne Binetter; B.C.I. Finances Pty Limited; Binqld Finances Pty Limited; E.G.L.

Development (Canberra) Pty Limited; Ligon 268 Pty Limited; the Bankstown Eye Trust; Erma Nominees Pty Ltd; the

Erwin Binetter Family Trust; Ligon 158 Pty Ltd; the Caringbah Investment Trust; Erbin Finances Pty Ltd; the Erbin

Investment Trust; Rawbin Finances Pty Ltd; the Rawbin Investment Trust; Marbin Finances Pty Ltd; the Marbin

Investment Trust; Gerobin Finances Pty Ltd; the Gerobin Investment Trust; Rawson Finances Pty Ltd; Advance

Finances Pty Ltd; Civic Finance Pty Ltd; Ligon 237 Pty Ltd; the AJB Family Trust; Jaab Pasta USA LLC; Nate’s

Fine Foods LLC; Wincia Investments LLC; the Azzurra Partnership; Shield Holdings Australia Pty Ltd; the Shield

Holdings Trust; Ponite Pty Ltd; Dunba Investments Pty Ltd; Dunmaf Investments Pty Ltd; any entity (whether a

corporation, partnership, trust or any other form of legal entity) in which [Michael Binetter] have, or have since 1

January 2015 had, a direct or indirect interest or of which [Michael Binetter] are, or have since 1 January 2015 been,

an officer; the persons listed in the schedule” attached to the November 16 Subpoenas. Mirrored subpoenas were also

served on Andrew Binetter and Samantha Kelliher.

States v. DeSalvo, 26 F.3d 1216, 1221 (2d Cir. 1994) (stating that the claimant must be “confronted

by substantial and real, and not merely trifling or imaginary, hazards of incrimination”) (citations

and internal quotations omitted). The gravamen of Michael Binetter’s argument is that the Foreign

Representative has repeatedly characterized the Binetters’s conduct in criminal terms, including

the assertion that: “the Binetter Parties perpetuated a tax avoidance scheme concerning their

Australian tax obligations and following certain loans achieved from Israeli banks in the 2012-

2013 time frame.” Mot. for a Protective Order at 1. Many of those characterizations were made

in the context of proceedings in the United States Bankruptcy Court. However, Michael Binetter

has not ever identified a crime in the United States that those allegations might support; has not

identified any criminal investigation into his activities in the United States; and has not identified

any precedent under which someone similarly situated was, in fact, prosecuted in the United States

for any crime (or, alternatively, successfully asserted a claim for “act of production” privilege).

The Fifth Amendment unquestionably requires more particularity than the blanket and generalized

invocation Michael Binetter has made in this case. See Camelot Grp., Ltd. v. W.A. Krueger Co.,

486 F. Supp. 1221, 1224 (S.D.N.Y. 1980) (providing that the mere assertion that a response would

be self-incriminating does not automatically validate a Fifth Amendment privilege claim; the

claimant is not exempt from answering on that declaration alone).

Even assuming the allegations made by the Foreign Representative could provide a

reasonable basis to fear prosecution, it is not clear how a tax avoidance scheme concerning

Australian taxes and banks outside the United States could result in criminal prosecution inside

the United States—and for the Fifth Amendment to apply, there must be a risk of prosecution in

the United States. See Balsys, 524 U.S. at 674. (A “witness [has] the right against compelled self-

incrimination when reasonably fearing prosecution by the government whose power the Clause

limits, but not otherwise.”) Indeed, there is not any evidence that a criminal prosecution has ever

been brought even in Australia against any of the Binetters or their companies, though that is the

very place where the alleged wrongdoing is said to have principally occurred and one would

therefore assume where the risk of prosecution would be most likely. When coupled with the

failure to identify a crime for which Michael Binetter might be inculpated in the United States, the

lack of an Australian prosecution (or any related investigation) compels the conclusion that the

fear of prosecution at issue here is remote and speculative, rather than real and substantial.

Moreover, on the issue of redactions specifically, Michael Binetter has not identified a

single case where selective redactions for Fifth Amendment “act of production” privilege were

deemed a permissible exercise of that privilege, which is, after all, a privilege circumscribing the

discoverability of documents in the first place. Indeed, it is hard to imagine under what

circumstances such a holding could have issued: under the “act of production” doctrine, a person

may invoke their Fifth Amendment right against self-incrimination to refuse compliance with a

subpoena wholesale—not because of what those documents contain specifically, but because the

mere act of producing them without regard to their particularized contents could be incriminating

and therefore in derogation of an individual’s Fifth Amendment right against self-incrimination.

See Benthos Master Fund, Ltd. v. Etra, 2023 WL 4350594, at *15 (S.D.N.Y. July 5, 2023) (denying

claim of “act of production” privilege where party had already voluntarily produced statements for

accounts in question). Although the bank statements produced in this matter included certain

redacted transactions, the other identifying information—including Michael Binetter’s identity as

the account holder—was left unredacted. Kopp Decl., Ex. B (Michael Binetter’s Bank

Statements). By producing the unredacted portions, the Binetters necessarily treated them as non-

privileged. See id. Because an “act of production” privilege inquiry is concentrated on whether

the subpoenaed party is being asked to communicate an incriminating fact, one that adds to the

chain of evidence by virtue of the document production itself, courts tend to focus on whether: (1)

the existence and location of the subpoenaed papers are unknown to the requesting party; and (2)

whether producing the documents could implicitly authenticate the documents. AAOT Foreign

Econ. Ass’n (VO) Technostroyexport v. Int’l Dev. and Trade Servs., Inc., 1999 WL 970402, at *6

(S.D.N.Y. 1999). Where, as here, the existence and location of the subpoenaed materials are

revealed and the subpoenaed party adds little to the requesting party’s information by conceding

that he in fact has the documents, then no constitutional rights are touched by enforcement of the

subpoena. “The question is not of testimony but of surrender.” Fisher v. United States, 425 U.S.

391, 411 (1976). That is so because at its origin, the “act of production” privilege is aimed at

protecting the responding party from having to disclose the “contents of his own mind” to comply

with the request. United States v. Hubbell, 530 U.S. 27, 43 (2000). It is “the extortion” of that

information from the respondent “that implicates the Self-Incrimination Clause.” Couch v. United

States, 409 U.S. 322, 328 (1973). If the responding party has already produced unredacted portions

of a document, it is not the “contents of his mind” he seeks to protect but rather the contents of a

page already known to exist by the requesting party. See Hubbell, 530 U.S. at 43. The “act of

production” privilege operates as an all-or-nothing shield against producing documents in the first

place, not as a scalpel to excise selective contents from documents otherwise deemed discoverable.

That is beyond the limits of the Fifth Amendment “act of production” privilege.

The Australian Court Documents present an even clearer case for rejection of the privilege

claim. They consist of the April 10 Australian Affidavit, the Australian Asset Statements, the

Australian Transcripts of Australian court proceedings, and the Other Australian Affidavits of

third-party witnesses to the Australian legal proceedings.14 While Michael Binetter need not reveal

the contents of the documents he seeks to protect, he must persuade the Court based on his general

descriptions of those documents that producing them implicates a reasonable fear of prosecution

in the United States. Hoffman v. United States, 341 U.S. 479, 486 (1951) (where there is no readily

apparent risk of prosecution but merely a theoretical one, the witness bears the burden of

establishing that he has “reasonable cause” that the information he would provide would fuel a

criminal prosecution in the United States). He has not done so here.

Michael Binetter contends that the April 10 Australian Affidavit, which was submitted by

a third party to an Australian court is “obviously privileged”; that the Australian Asset Statements

and Other Australian Affidavits “are privileged under the Foreign Representative’s theories of

financial impropriety”; and that the Australian Transcripts trigger the Fifth Amendment “insofar

as these claims may possibly be considered inculpatory.” Mot. for a Protective Order at 22-23.

These conclusory characterizations do not identify any specific reason for which Michael Binetter

faces a real and substantial risk of prosecution in the United States, point to any criminal

investigation, or cite any precedent in which a similarly situated person was prosecuted. That is

precisely the kind of blanket, generalized invocation the Fifth Amendment does not permit. See

Camelot Grp., Ltd. v. W.A. Krueger Co., 486 F. Supp. 1221, 1224 (S.D.N.Y. 1980).

In fact, the Australian Court Documents are even more attenuated from a reasonable fear

of United States prosecution than the bank statements, for several independent reasons. First,

some of the Australian Court Documents—including the April 10 Australian Affidavit—are more

than a decade old, which would appear to create a likelihood that any criminal acts described

therein beyond the reach of the applicable federal fraud statutes of limitations. See

14 See supra note 5 for a full list of the Australian Court Documents based on the parties’ submissions.

18 U.S.C. § 3282 (five-year general limitations period); 18 U.S.C. § 3293 (ten years for fraud

affecting financial institutions). Where the limitations period has expired, there can be no

reasonable fear of prosecution, and the Fifth Amendment privilege does not attach. Secs. and

Exch. Comm’n v. Pence, 323 F.R.D. 179, 190 (S.D.N.Y. 2017). Second, several of the

documents—including the third-party affidavits—were prepared by others (not any of the

Binetters) and submitted to Australian courts. Michael Binetter has not explained how producing

documents he did not author, submitted in foreign proceedings, would tend to incriminate him in

the United States. United States v. Nobles, 422 U.S. 225, 234 (1975) (noting that the privilege

does not generally apply to documents prepared by third parties).

Third, and perhaps most tellingly, the underlying conduct never appears to have given rise

to a criminal prosecution (or even an investigation) in Australia—the very jurisdiction where it

principally occurred and where prosecution would be most likely. If Australian authorities with

direct knowledge of these proceedings and their contents declined to prosecute, the notion that

production of these same documents in a United States bankruptcy proceeding would expose

Michael Binetter to criminal liability here is not a real and substantial fear but a speculative one.

Benthos Master Fund, Ltd., 2023 WL 4350594, at *7 (explaining that where incriminating facts

have already been freely provided, the Fifth Amendment privilege cannot be invoked to avoid

disclosing related details, the inquiry becomes whether the requested testimony would represent a

reasonable danger of further incrimination in light of all of the circumstances). Moreover, the

record already contains Australian court decisions, see, e.g., ECF Nos. 2, 143, 163, one of which

spans over 1,030 paragraphs and chronicles in extensive detail the very tax scheme that Michael

Binetter now claims he fears will expose him to prosecution in the United States. Those filings

have been a matter of public record in the United States for nearly a decade, and nothing has come

of it. The Australian Court Documents Michael Binetter seeks to shield from production make up

portions of the underlying evidentiary record on which those published decisions were based—the

same facts, the same transactions, the same alleged conduct, now dressed up as privileged. It is

difficult to understand how producing those underlying materials could meaningfully add to the

chain of incrimination when the conclusions drawn from them have been publicly available for

years without consequence. Fourth and finally, the Foreign Representative is already a participant

in the Australian proceedings and is therefore largely aware of these documents. It is difficult to

discern how compelling Michael Binetter to produce records the Foreign Representative already

knows exist could tip the needle toward any prospective prosecution in the United States. Fisher,

425 U.S. at 411. For all of the foregoing reasons, Michael Binetter has failed to sustain his burden

of establishing that the Fifth Amendment “act of production” privilege applies to unredacted copies

of his bank statements or to the Australian Court Documents and he must produce both.

CONCLUSION

For the reasons set forth above, the Motion to Compel is GRANTED as to Michael

Binetter and the Motion for a Protective Order is DENIED as to Michael Binetter. A separate

order consistent with this ruling is being issued concurrently herewith.

Date: May 26, 2026

New York, New York

/s/ Shireen A. Barday

HONORABLE SHIREEN A. BARDAY

UNITED STATES BANKRUPTCY JUDGE