Karnataka High Court

Mr David Viggiano vs Marriott International Inc on 16 December, 2021

Bench: Krishna S.Dixit

                           1

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 16TH DAY OF DECEMBER, 2021

                       BEFORE

        THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT

                 C.M.P.NO.281 OF 2021

BETWEEN:

1. MR DAVID VIGGIANO,
   AGED ABOAUT 54 YEARS ,
   S/O MR JOSEPH MICHAEL VIGGIANO,
   R/O NO.130, WEATHERBURNE DRIVE,
   ROSWELL, GEORGIA - 30076,
   UNITED STATES OF AMERICA,

2. MR BRENT LONG
   AGED ABOUT 45 YEARS
   S/O MR MARK LONG
   R/O NO.62, CAMDEN CIRCLE,
   NEWNAN, GEORGIA - 30265,
   UNITED STATES OF AMERICA.

  BOTH THE PETITIONERS ARE
  REPRESENTED BY THEIR UNAUTHORIZED/
  CONSTITUTED ATTORNEY
  MR ZAKIR A A KALAMI
  AGED ABOUT 37 YEARS,
  S/O MR GA KALAMI,
  R/O NO.11/2, BENSON TOWN
  BANGALORE - 560046.
                                        ...PETITIONERS
(BY SRI. SHUJATH AHMED, ADVOCATE)

AND:

1. MARRIOTT INTERNATIONAL INC
   HAVING ITS ADDRESS AT
   10400 FERNWOOD ROAD BETHESDA,
   MD 20817
   UNITED STATES AMERICA
                              2

2. STARWOOD HOTELS AND RESORTS WORLDWIDE, LLC
   HAVING ITS ADDRESS AT 10400 FERNWOOD ROAD
   DEPARTMENT 955.23 BETHESDA, MD 20817
   UNITED STATES OF AMERICA

3. ACCENTURE LLP
   HAVING ITS ADDRESS AT 161
   NORTH CLARK STREET
   CHICAGO IL 60601
   UNITED STATES OF AMERICA.
                                            ...RESPONDENTS
(BY SRI. RAMYA KATTI, ADVOCATE FOR
SRI. NAMRATA KOLAR, ADVOCATE FOR R3;
SERVICE OF NOTICE TO R1 & R2 IS
HELD SUFFICIENT)

      THIS CIVIL MISCELLANEOUS PETITION IS FILED UNDER
SECTION 78 R/W ORDER XXVI RULE 19 AND 20 R/W SECTION
151 OF CPC FOR APPOINTMENT OF COMMISSIONER PURSUANT
TO A LETTER OF REQUEST, PRAYING THIS HONBLE COURT TO
(I) THIS HON'BLE COURT MAY BE PLEASED TO APPOINT A
COMISSIONER, FOR OBTAINING THE RECORDING THE ORAL
EVIDENCE / TESTIMONY FROM THE INDIVIDUALS (MR. MRIDUL
BANERJEE AND MR. PRAMOD ACHARY) NAME IN THE LETTERS
OF REQUEST DATED JULY 1, 2021 ISSUED BY THE UNITED
STATES DISTRICT COURT, MARYLAND DISTRICT, SOUTHERN
DIVISION IN IN RE MARRIOTT INTERNATIONAL INC., CUSTOMER
DATA SECURITY BREACH LITIG., NO. 19-MD-2879 (D.MD.)

     THIS PETITION COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:-

                           ORDER

This Civil Miscellaneous Petition presented by US

nationals who happen to be the plaintiffs in an ongoing Class

Action Law Suit (In re Marriott International Inc., Customer

Data Security Breach Litig., No.19-md-2879 (D.Md.) pending in

the United States District Court, Maryland District, Southern

Division; Respondents No. 1 & 2 happen to be the companies

incorporated under the laws of the State of Delaware and the

State of Maryland, USA respectively; Respondent No.3 is a

'Limited Liability Partnership' incorporated under the laws of

the State of Illinois, USA.

2. Petitioners in their Law Suit have alleged that these

respondents inter alia failed to secure the sensitive data of the

consumers and arguably the same being in breach of law and

contract, they have sought for the award of damages and

injunctive reliefs. The US Courts had issued two Letters of

Request both dated July 1, 2021 for a direction to Mr.Mrudul

Banerjee and Mr.Pramod Achary, the employees of 3rd

respondent-Partnership Firm, residing in India to appear

before an Official Examiner/Commissioner to be appointed by

this Court for deposing as witnesses. These LORs broadly

suggest the matter in relation to which the oral evidence of

these two persons needs to be recorded.

3. A Co-ordinate Bench of this Court vide Order dated

01.09.2021 at paragraph 10 had issued the following

directions:

"10. For the aforesaid reasons, the following directions are issued:

(i) Captain Aravind Sharma is hereby appointed as a One Man Commission to give effect to the Letter of Request dated 01.07.2021, issued by the United States District Court for the District of Maryland, Southern Division, in the subject case;

(ii) The Commission shall have all powers and authority that avail to ordinary Civil Courts in the State of Karnataka, India, under the provisions of Code of Civil Procedure, 1908 and any cognate statute, for the purpose of subpoena and for summoning any documents/records;

(iii) The Commission shall permit the representatives of the parties to the Case - Customer Data Security Breach Litig., No.19- md- 2879 (D. Md.) or their counsel to be present or participate in person or through video conferencing, in it's proceedings for the collection & copying of evidence and for conducting the questioning of the witnesses;

(iv) The Commissioner after the execution of Commission shall return all the record together with the evidence taken, to this Court for forwarding it to the Central Government for onward transmission to the foreign court concerned in terms of Rule 22 of Order XXVI of the Code in the manner set out in the Letter of Request of the said foreign court;

(v) It is open to the Commissioner, parties and witnesses concerned, to seek any further direction/clarification, at the hands of this Court should the need therefore arise, for effectuating the subject Letter of Request; and,

(vi) The petitioner is directed to mail forthwith a copy of this judgment to all the parties to the

proceedings in Case - Consumer Data Security Breath Litig., No.19-md- 2879 (D. Md.), to the United States District Court for the District of Maryland, Southern Division and to Captain Aravind Sharma; it shall also send by speed post a copy to the Ministry of Foreign Affairs, Government of India, New Delhi, for its cognition & record.

(vii) The parties are directed to communicate this order to Captain Aravind Sharma, learned advocate, forthwith.

(viii) The parties shall maintain confidentiality of the evidence that is taken by the Commissioner now appointed."

4. Learned counsel for the petitioners has filed a

MEMO dated 09.12.2021 which reads as under:

"The undersigned counsel for the Petitioners submits that Capt. Arvind Sharma, Advocate, was appointed as the 'One-Man Commission', vide Order dated 01.09.2021 passed by this Hon'ble Court. Consequently, the One-Man Commission has issued a Final Report, dated 07.12.2021 in the present case, which has been placed before this Hon'ble Court. Further, the annexures to the Final Report have also been produced along with a sealed envelope for the kind perusal of this Hon'ble Court".

Learned counsel appearing for the petitioners submits that

the One-Man Commission Report along with all

accompaniments need to be forwarded to the Central

Government for onward submission to the US Court and

thereby accomplish the LORs. There is no objection to this

proposal from the other side. There is no legal or factual

impediment for acceding to the request made on behalf of the

petitioners; the provisions of Order XXVI Rule 22 of the Code

of Civil Procedure, 1908, which has the following text

supports the case of petitioners:

"The provisions of rules 6, 15, ]sub-rule (1) of rule 16A, 17, 18 and 18B of this Order in os far as they are applicable shall apply to the issue, execution and return of such commissions, and when any such commission has been duly executed it shall be returned, together with the evidence taken under it, to the High Court, which shall forward it to the Central Government, along with the letter of request for transmission to the foreign court.]"

5. Lastly, there is one more thing to be stated: there

is some delay brooked in accomplishing the Commission inter

alia owing to the difficulties generated by Covid-19 Pandemic

that hampered the judicial process and the work of

Commission, as well. Therefore, delay in executing the task

by the Commission is condoned and the delay attributable to

the judicial process is regretted.

In the above circumstances, this petition is disposed off

directing the Registry of this Court to forward the One-Man

Commission Report along with all its accompaniments to the

Ministry of External Affairs, Government of India, New Delhi,

for onward submission in accordance with the applicable