974 F. Supp. 2d 147
E.D.N.Y2013Background
- Plaintiff Dennis Balk, a U.S. faculty member at NYIT Bahrain, was accused in local press of posting a Danish cartoon of the Prophet Muhammad, and was subsequently removed from campus and terminated; Balk alleges NYIT and Infotec conspired to discriminate and force him out.
- Balk sued NYIT and Infotec asserting Title VII discrimination (race, religion, national origin), breach of contract, tortious interference, and conspiracy; Infotec defaulted.
- Dr. Mohammed Hussein, alleged President of Infotec and former NYIT Middle East executive, is central to Balk’s factual allegations (emails and directives blamed on Hussein), but resides in Egypt and previously declined to appear for deposition.
- Balk moved under the Walsh Act (28 U.S.C. § 1783) to compel Hussein, a U.S. citizen abroad, to appear for a deposition in New York; the motion was unopposed.
- The magistrate judge found Hussein’s testimony necessary in the interest of justice, that alternative means were impractical given the procedural posture and prior noncompliance, granted the Walsh Act subpoena, ordered Hague Convention service, set the deposition in New York (Plaintiff’s counsel’s office), and directed Plaintiff to submit an estimate of travel/witness costs within 10 days and to complete the deposition by Feb. 28, 2014.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a Walsh Act subpoena is warranted ("interest of justice") | Balk: Hussein is an undisputed key actor whose testimony is directly relevant to core claims and therefore necessary. | No opposition; NYIT limited Hussein’s NYIT title but did not contest his relevance as Infotec officer. | Granted — Hussein’s testimony is necessary in the interest of justice under § 1783. |
| Whether testimony can be obtained in admissible form without personal appearance | Balk: prior notices, emails, and voluntary requests failed; Infotec default and Hussein’s noncooperation make other methods impractical. | N/A (no substantive opposition). | Granted — court found it impractical to obtain testimony otherwise; personal appearance required. |
| Proper method of serving a Walsh Act subpoena on a U.S. citizen residing in Egypt | Balk: proposed substituted service via Infotec’s NY address and FedEx to Egypt. | NYIT/agents indicated limited authority to accept service; no opposing briefing. | Denied substituted service; directed compliance with Articles 5 and 6 of the Hague Service Convention. |
| Deposition location and bearing of travel costs | Balk: seeks deposition in New York; will cover travel costs as required by § 1783. | N/A. | Deposition ordered in New York (Plaintiff’s counsel’s office); Plaintiff must submit a supported estimate of travel/accommodation/witness fees; court limited expectation to coach-class travel. |
Key Cases Cited
- Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340 (broad discovery relevance under Rule 26)
- Maresco v. Evans Chem. Div. of W.R. Grace & Co., 964 F.2d 106 (scope of discovery is very broad)
- EM Ltd. v. Republic of Argentina, 695 F.3d 201 (district courts have broad latitude in discovery management)
- In re Agent Orange Prod. Liab. Litig., 517 F.3d 76 (discussing district court discretion over discovery)
- Estate of Ungar v. Palestinian Auth., 412 F. Supp. 2d 328 (Walsh Act subpoena factors; compelling reason analysis)
- Klesch & Co. Ltd. v. Liberty Media Corp., 217 F.R.D. 517 (discretion to issue Walsh Act subpoena)