320 F.R.D. 116
S.D.N.Y.2017Background
- Defendant Nauman A. Aly, a Pakistani citizen residing in Karachi, is charged by the SEC with securities fraud in filings under the Securities Act and Exchange Act. The SEC filed suit and obtained a temporary restraining order freezing Aly’s U.S. brokerage account.
- Aly states under penalty of perjury that he is effectively penniless (about $1,000 in assets, ~$500 liquid) and has an expired passport and no U.S. visa.
- The SEC noticed Aly’s deposition for January 9, 2017 in New York. Aly said he cannot afford to travel to New York, requested the deposition in Karachi (in person or by videoconference), and requested an English/Urdu interpreter.
- The U.S. State Department has warned against all non-essential travel to Pakistan; the SEC’s counsel reported limited Consulate hotel availability.
- The parties dispute whether the deposition should occur in New York, in Karachi, or be conducted remotely; Aly moved for a protective order requiring the deposition in Karachi or by videoconference. The court ordered the deposition by videoconference within 21 days.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper location for deposition | SEC noticed deposition in New York; plaintiffs generally choose forum | Aly cannot afford to travel, lacks passport/visa, resides in Karachi | Court rejected New York; ordered deposition by videoconference in Karachi |
| Presumption that deposition occur where defendant resides | SEC implicitly invokes forum choice to justify NY location | Aly argues presumption applies (he resides in Karachi) and travel is burdensome | Court declined to apply the presumption fully because SEC was constrained to sue in U.S.; considered convenience and safety instead |
| Safety of travel for SEC counsel to Pakistan | SEC did not concede safety risk; contended travel possible | Aly pointed to State Department travel warning against Pakistan and safety risks | Court found travel by SEC counsel to Karachi posed significant, unjustified safety risk |
| Technical/logistical feasibility of videoconference | SEC asserted unreliability of Pakistan videoconferencing, document coordination, and time-zone burdens that impede credibility assessment | Aly and record showed ability to receive documents electronically; Consulate facilities used for video depositions; time-zone scheduling solutions exist | Court found videoconference feasible, rejected credibility and technical concerns, and ordered video deposition |
Key Cases Cited
- Buzzeo v. Bd. of Educ., 178 F.R.D. 390 (E.D.N.Y. 1998) (party noticing deposition usually chooses location)
- Estate of Gerasimenko v. Cape Wind Trading Co., 272 F.R.D. 385 (S.D.N.Y. 2011) (presumption deposition held where defendant resides)
- United States v. $160,066.98 from Bank of Am., 202 F.R.D. 624 (S.D. Cal. 2001) (State Department travel warning to Pakistan supports refusing to require government travel for deposition)
- Mill-Run Tours, Inc. v. Khashoggi, 124 F.R.D. 547 (S.D.N.Y. 1989) (forum choice presumption weaker when plaintiff was constrained to sue in forum)
- United States v. One Gulfstream G-V Jet Aircraft, 304 F.R.D. 10 (D.D.C. 2014) (videoconference deposition adequate substitute when expenses or limited topics at issue)
- Connell v. City of New York, 230 F. Supp. 2d 432 (S.D.N.Y. 2002) (documents should be pre-marked and sent in advance to reduce identification difficulties at depositions)
- United States v. Khan, 794 F.3d 1288 (11th Cir. 2015) (discussion of videoconference reliability in Pakistan context)
- Shockey v. Huhtamaki, Inc., 280 F.R.D. 598 (D. Kan. 2012) (courts encourage videoconference depositions to minimize travel costs)