947 F. Supp. 2d 108
D.D.C.2013Background
- Defendant Cooper moved to reconsider the December 28, 2012 order authorizing Rule 15 foreign depositions of Nababan and Sudjiarto.
- The government sought to depose Nababan and Sudjiarto in Indonesia regarding alleged fraud involving Cooper; witnesses allegedly unavailable.
- Initial order found testimony material and witnesses unavailable; allowed deposition under Rule 15(c)(3) permitting Cooper's participation.
- Indonesian authorities later approved procedures including oath, counsel examination, and live or videotaped testimony with participation rights for both sides.
- By May–June 2013, the parties discussed procedural refinements; court ultimately allowed the depositions to proceed and addressed discovery, travel, and scheduling.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are Nababan and Sudjiarto still unavailable to testify? | Cooper contends travel ban lifted; likely to testify. | Indonesian prosecutors would not permit travel; substantial likelihood they won't testify. | Yes; substantial likelihood they will not testify, so Rule 15 deposition permissible. |
| Do revised procedures satisfy Confrontation Clause rights? | Lack of oath and limited cross-examination violate confrontation. | Oath and cross-examination are provided; procedures adequate. | Yes; procedures now provide oath and meaningful cross-examination. |
| Is full pretrial discovery required before Rule 15 depositions? | All Brady, Giglio, and Jencks materials must be disclosed beforehand. | Jencks materials for deponents; broader pre-disclosure not required. | No; only Rule 15(e)(3) materials and already disclosed items are required. |
| Is a written deposition procedure agreement required? | Written agreement preferable to oral assurances. | Oral assurances acceptable; ongoing efforts to obtain written agreement. | Written agreement not required; assurances sufficient for proceeding. |
| Should the speedy-trial clock be tolled for preparation? | Continuance impacts speedy trial rights; avoid unnecessary tolling. | Complex case with large discovery; tolling warranted. | Ends-of-justice tolling approved; speedy-trial clock tolled to Jan 6, 2014. |
Key Cases Cited
- United States v. Drogoul, 1 F.3d 1546 (11th Cir. 1993) (unavailability can justify Rule 15 deposition; post-deposition admissibility preserved)
- United States v. Sines, 761 F.2d 1434 (9th Cir. 1985) (unavailability standard for Rule 15)
- United States v. Kelley, 36 F.3d 1118 (D.C. Cir. 1994) (materiality and unavailability prerequisites for Rule 15(a)(1))
- United States v. Casamento, 887 F.2d 1141 (2d Cir. 1989) (deposition procedures and cross-examination considerations)
- United States v. Salim, 855 F.2d 944 (2d Cir. 1988) (deposition examination standards; fairness in foreign depositions)
- United States v. Mejia, 448 F.3d 436 (D.C. Cir. 2006) (Jencks Act good-faith effort to obtain foreign statements)
- Paternina-Vergara, 749 F.2d 993 (2d Cir. 1984) (Jencks Act limits and good-faith efforts in foreign contexts)