UNITED STATES оf America, Plaintiff, v. ONE GULFSTREAM G-V JET AIRCRAFT DISPLAYING TAIL NUMBER VPCES, Its Tools and Appurtenances, Defendant.
Civil Action No.: 11-01874 (RC)
United States District Court, District of Columbia.
May 9, 2014
RUDOLPH CONTRERAS, United States District Judge
IV. CONCLUSION
For the reasons stated herein, Plаintiff‘s [75] Motion to Set Aside Order of Dismissal is GRANTED. This action is therefore REINSTATED. Furthermore, in light of the appearance of Plaintiff‘s counsel, the stay imposed by the Court‘s July 9, 2012 Minute Order is LIFTED. An appropriate order accompanies this Memorandum Opinion. The parties shall adhere to the schedule for further proceedings set out in this Order.
UNITED STATES of America, Plaintiff, v. ONE GULFSTREAM G-V JET AIRCRAFT DISPLAYING TAIL NUMBER VPCES, Its Tools and Appurtenances, Defendant.
Civil Action No.: 11-01874 (RC)
United States District Court, District of Columbia.
Signed May 9, 2014
RUDOLPH CONTRERAS, United States District Judge
Re Document No.: 42
Janet C. Hudson, Woo S. Lee, U.S. Department of Justice, Stephen A. Gibbons, United States Department of Justice, Washington, DC, for Plaintiff.
MEMORANDUM OPINION
GRANTING CLAIMANT‘S MOTION FOR A PROTECTIVE ORDER
I. INTRODUCTION AND FACTUAL BACKGROUND
The United States (the “Government“) has brought a civil action in rem seeking the forfeiture of one Gulfstream G-V Aircraft Displaying Tail Number VPCES, its tools and appurtenances (thе “Aircraft“). According to the Government, the Aircraft was purchased by Teodoro Nguema Obiang Mangue (“Nguema,” or “Claimant“)—the Republic of Equatorial Guinea‘s Second Vice President and the son of President Teodoro Nguema Obiang Mbasogo—with funds derived from extortion, public corruption, embezzlement, and theft. First Am. Compl., June 17, 2013, ECF No. 24, at ¶¶ 1-3, 19. Nguema submitted a Verified Claim for the Aircraft, and on March 4, 2014, the Court granted the Government‘s request for limited expedited discovery to ascertain Nguema‘s purported interest in the Aircraft, which would determine
As part of its expеdited discovery, the Government noticed the deposition of Nguema on March 7, 2014, with the deposition scheduled to occur on April 23, 2014, in Washington, DC. Claimant‘s Mem. in Supp., Apr. 21, 2014, ECF No. 42, at 11-12. On April 21, 2014, Nguema filed a Motion for a Protective Order (the “Motion“) seeking to prevent the deposition in Washington, DC and require the Government to notice the deposition through either written interrogatories, remotely by telephone or videoconference, or in person in Equatorial Guinea. Id. at 1. Nguema did not attend the deposition as scheduled on April 23, 2014.
Upon consideration of Nguema‘s arguments and the Government‘s opposition, the Court grants the Motion, and Nguema is not required tо appear in Washington, DC for a deposition regarding the limited discovery topics at issue. The Court further concludes that the Government may notice the deposition of Nguema in Equatorial Guinea through written interrogatories, telephone, videoconference, or in person, with videoconference likely being the most efficient method for all parties.
II. ANALYSIS
A. Legal Standard
The Court has authority, for good cause, to “issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense” in responding to a discovery request.
The general rule for the situs of a deposition is that the “party noticing the deposition usually has the right to choose the location.” Buzzeo v. Bd. of Educ., Hempstead, 178 F.R.D. 390, 392 (E.D.N.Y. 1998) (citations omitted). There exists, however, a conflicting presumption that “in the absence of special circumstances, a party seeking discovеry must go where the desired witnesses are normally located.” Farquhar v. Shelden, 116 F.R.D. 70, 72 (E.D. Mich. 1987) (citation omitted); see also Estate of Gerasimenko v. Cape Wind Trading Co., 272 F.R.D. 385, 390 (S.D.N.Y. 2011) (“The usual rule in federal litigation, is that in the absence of special circumstances, a party seeking discovery must go where the desired witnesses are normally located.” (citation and quotation omitted; alteration in original)). At least one federal court also has suggested that “insofar as a foreign defendant may be more inconvenienced by having to travel to the United States than a defendant who merely resides in another state or in another judicial district, the presumption that the deposition should occur at a foreign defendant‘s place of residence may be evеn stronger.” In re Outsidewall Tire Litig., 267 F.R.D. 466, 471 (E.D. Va. 2010).
Ultimately, when a dispute arises about the location of a deposition, the final determination is within the discretion of the Court. See Paleteria La Michoacana, Inc. v. Productos Lacteos Tocumbo S.A. de C.V., 292 F.R.D. 19, 22 (D.D.C. 2013) (citing Fin. Gen. Bankshares, Inc. v. Lance, 80 F.R.D. 22, 23 (D.D.C. 1978)). In addition, if a disagreement arises about the method by which a deposition is taken, Rule 30 states that a “court may on motion order [] that a deposition be taken by telephone or other remote means,”
The Government noticed Nguema‘s depоsition in Washington, DC, rather than in his home country of Equatorial Guinea. Claimant‘s Mem. in Supp., ECF No. 42, at 11-12. Nguema refused to attend the deposition on the scheduled date of April 23, 2014, and he now seeks through the Motion protection against being required to attend a deposition in Washington, DC at a later date. Id. at 2 n.1. Nguema raises several arguments in favor of granting the Motion, including foreign sovereignty concerns, the limited scope of discovery involved, and the availability of alternative methods for deposing him in Equatorial Guinea. The Government rejects these arguments and raises its own reasons for why the Court should order Nguema to appear in Washington, DC for the deposition. After considering both parties’ arguments and for the reasons discussed below, the Court finds that Nguema has met his burden of demonstrating good cause for the protective order. See
1. Presumption Of Holding The Deposition At The Witness‘s Location
Nguema argues that there are no “special circumstances” to overcome the presumption of holding the deposition at his home location of Equatorial Guinea, rather than Washington, DC. Farquhar, 116 F.R.D. at 72. In particular, Nguema asserts that “the District holds no special or compelling factual significance justifying departure from the strong presumption that the deposition take place in E.G. [Equatorial Guinea],” and “[t]o the extent Claimant chose to file a claim, that choice was only out of necessity to prevent default judgment of forfeiture against his valuable property because of the government‘s choice to file an in rem forfeiture action in this District.” Claimant‘s Mem. in Supp., ECF No. 42, at 19. In response, the Government argues that because Nguema purchased the Aircraft in the United States, filed his Verified Claim to 1 participate in this forum, and has the burden of proof for establishing standing, he cannot now complain about attending a deposition in Washington, DC to adjudicate the claim. Pl.‘s Mem. in Opp‘n, ECF No. 43, at 14. The Government also asserts that Washington, DC is a proper locatiоn for the deposition because Nguema‘s counsel is in the district, as are the Government‘s attorneys and other persons necessary for the deposition, such as a stenographer, videographer, and translator. Id. at 17-18.
In addition, the Government cites United States v. Kokko to support the proposition that “[a]bsent a showing of good cause under
Furthermore, the Government‘s argument that Nguema should appear in this forum because he filed a claim here directly conflicts with the presumption “that depositions of defendants and corporate officers will take place in the district where the deponent resides or has a principal place of business.” Trs. of the Lоcal 813 Ins. Trust Fund v. Indus. Recycling Sys., No. 12-CV-1522, 2013 WL 6178579, at *1 (E.D.N.Y. Nov. 25, 2013) (citation and quotation omitted). Indeed, because “defendants ... are not before the court by choice[,] courts have held that plaintiffs normally cannot complain if they are required to take discovery at great distances from the forum.” Farquhar, 116 F.R.D. at 72 (citing Work v. Bier, 107 F.R.D. 789, 792 (D.D.C. 1985)).
The Court recognizes that both parties face significant inconvenience and expense for conducting this deposition in person, no matter the location. The Court, however, is not persuaded that Nguema should be deposed in Washington, DC simply because he filed a claim for the Aircraft in the forum the Government selected, or because he hired Washington, DC counsel. Nonetheless, given the conflicting presumptions at issue, the Court must consider Nguema‘s additional arguments to determine whether he has demonstrated good cause for granting the Motion.
2. Principles Of Foreign Sovereignty
Nguema argues that foreign sovereignty principles caution a federal court against ordering another nation‘s sitting vice president to attend a deposition in the United States. Claimant‘s Mem. in Supp., ECF No. 42, at 16-17. In response, the Government asserts that the opposite is true: deposing Nguema in Washington, DC avoids the foreign sovereignty concern that may arise were the deposition to occur in Equatorial Guinea. Pl.‘s Mem. in Opp‘n, ECF No. 43, at 12. The basis for the Government‘s argument is the worry that when “a fеderal court compels discovery on foreign soil, foreign judicial sovereignty may be infringed.” In re Honda Am. Motor Co., Inc. Dealership Relations Litig., 168 F.R.D. 535, 538 (D. Md. 1996). The companion to this argument is that “when depositions of foreign nationals are taken on American or neutral soil, courts have concluded that comity concerns are not implicated.” Id.; see also Work v. Bier, 106 F.R.D. 45, 52 (D.D.C. 1985) (“[V]iolation of the other country‘s judicial sovereignty is avoided by ordering that the deposition take place outside the country.” (quoting Graco, Inc. v. Kremlin, Inc., 101 F.R.D. 503, 521 (N.D. Ill. 1984))).
First, the Government‘s foreign sovereignty justification is weakened considerably by the fact that Nguema, himself a high-ranking representative within the Equatorial Guinean government, has proposed holding the deposition on his own soil. Claimant‘s Mem. in Supp., ECF No. 42, at 12. Second, given Nguema‘s government position, the Court must be especially vigilant about protecting him from the risk of “annoyance, embarrassment, oppression, [] undue burden [and] expense” if he was ordered to attend a deposition in the United States.
The uniqueness of Nguema‘s top-level government position distinguishes this matter from most other discovery disputes involving foreign litigants, and “special protections” must be afforded to him. Alliance for Global Justice, 2005 WL 1799553, at *1. Accordingly, the Court is not persuaded that foreign sovereignty principles necessitate holding the deposition in Washington, DC; rather, any such concern is significantly outweighed by the imposition on Equatorial Guinea‘s sovereignty that might occur if a federal court were to order one of its high-ranking government officials to attend a deposition in the United States—particularly when acceptable alternatives for conducting the deposition exist, as is discussed in more detail below. As such, foreign sovereignty principles compel in favor of granting the Motion.
3. Need For Court Supervision
In further support of the Motion, Nguema argues that the Court‘s ability to supervise his deposition is the same in Equatorial Guinea as in Washington, DC, but even if that was not the case, the mere possibility of discovery disputes is insufficient to require a deposition in the forum district. Claimant‘s
The Court finds that the possibility of disputes arising during the deposition is inadequate to require Nguema to travel to Washington, DC for this proceeding. As the Southern District of New York has explained, “[T]hat discovery disputes may arise does not justify requiring depositions to be taken in the forum; such a conclusion would collapse the presumption in favor of deposing corporate defendants in their place of business and amounts to overprotection of a court‘s interest.” Snow Beсker Krauss P.C. v. Proyectos E Instalaciones De Desalacion, S.A., No. 92 CIV. 2644, 1992 WL 395598, at *3 (S.D.N.Y. Dec. 11, 1992). This Court is capable of handling discovery disputes—if they should arise at all—during or after the deposition, regardless of the deposition‘s location or method. Accordingly, “the Court will not anticipate disputes by requiring the parties to appear in the forum for [a] deposition.” Id.
4. Limited Scope Of Expedited Discovery: Claimant‘s Standing
Nguema next argues that he should not be put through the “enormous burden and inconvenience of traveling to the United States for the limited deposition on the narrow issue of standing,” particularly given the low burden of demonstrating standing at this stage. Claimant‘s Mem. in Supp., ECF No. 42, аt 27-29. The Government counters that determining Nguema‘s standing is not so straightforward following evidence that Nguema, through his company Ebony Shine International LTD, transferred ownership of the Aircraft to the government or presidency of Equatorial Guinea. Pl.‘s Mem. in Opp‘n, ECF No. 43, at 22. As such, the Government argues that the deposition will require multiple exhibits and follow-up questions, which make the standing issue more complicated than Nguema suggests. Id. at 22-23.
The Court granted the Government‘s request for limited expedited discovery on the sole issue of verifying Nguema‘s interest in the Aircraft, which dictates his standing to oppose the Government‘s forfeiture claim. Order, ECF No. 41. Although determining Nguema‘s interest in the Aircraft may have become more complicated than it should be, it remains a relatively narrow issue, and the limited scope of discovery at this time gestures against holding the deposition in Washington, DC. Ordering Nguema, a vice president of a foreign nation, to travel to Washington, DC for a limited scope of questioning would be expensive, inconvenient, and inefficient. See Koch v. Pechota, No. 10 CIV. 9152, 2012 WL 2402577, at *6 (S.D.N.Y. June 26, 2012) (“A motion ‘not to have a deposition at a particular site, or to compel deposition in a particular location, is considered by reviewing three factors of the cost, convenience, and litigation efficiency of the designated location.‘” (quoting Sloniger v. Deja, No. 09-CV-858S, 2010 WL 5343184, at *5 (W.D.N.Y. Dec. 20, 2010))). These costs are particularly acute when alternative means for conducting the deposition exist. Accordingly, the limited scope of discovery, in conjunction with Nguema‘s location in Equatorial Guinea, compels against holding the deposition in Washington, DC and in favor of granting the Motion.
5. Practicability Of Conducting The Deposition In Equatorial Guinea
Nguema argues that the Court should grant the Motion because legitimate alternatives exist for deposing him in Equatorial Guinea. Claimant‘s Mem. in Supp., ECF No. 42, at 23-24. The Government rejects the possibility of holding the deposition remotely or in person in Equatorial Guinea and instead argues that only a deposition in the United States is appropriate. Pl.‘s Mem. in
a. Intervention From Equatorial Guinea‘s Government
As an initial matter, the Government argues that Nguema should not be deposed in Equatorial Guinea because the government may not permit the deposition on its soil. Id. at 4, 17 n.8. In support, the Government cites a statement from the Equatorial Guinean government asserting that it will not comply with a judicial order to forfeit or seize the Aircraft. Id. at 13 (citing Decl. of Francisco Javier Ngomo Mbengono, ECF No. 12-3, at ¶ 8). The Government, however, has not provided specific facts showing that the Equatorial Guinean government actually intends to prevent this deposition from occurring there. Instead, Nguema informs the Court on multiple occasions through his Motion that he is ready, willing, and able to be deposed in Equatorial Guinea. Claimant‘s Mem. in Supp., ECF No. 42, at 12 n.2 (“Claimant would agree that a deposition in E.G. [Equatorial Guinea], whether through written questions, by remote means, or inperson, would be governed by the Federal Rules of Civil Procedure.“); id. at 19-20 (“[T]he government will get access to the same discovery from Claimant regardless of the locatiоn of the deposition, or if it is by remote means. Indeed, Claimant will be examined on the same documents, and is willing to agree that the same rules of procedure will govern the deposition regardless of location.“); id. at 25 (“[T]he deposition of Claimant, if any, should commence in E.G. [Equatorial Guinea] via telephonic or videoconference at the government‘s cost.“).
Given that Nguema, the Second Vice President of Equatorial Guinea, tells this Court that the deposition may occur in his country—whether written, remotely, or in person—the Court is not persuaded at this time by the Government‘s apprehension about the political infeasibility of conducting the depоsition there. If Nguema‘s position about being deposed in Equatorial Guinea changes, or if the Equatorial Guinean government intervenes to prevent the deposition, the Government is free to return to this Court for reconsideration at that time.2
b. Compliance With The Federal Rules Of Civil Procedure
The Government also expresses concern about conducting a deposition under the Federal Rules of Civil Procedure if Nguema is located in Equatorial Guinea, particularly whether the deposition would meet the requirements of
c. Methods For Conducting The Deposition In Equatorial Guinea
Nguema argues that he need not appear for a deposition in Washington, DC in large part because legitimate alternatives exist for depоsing him in Equatorial Guinea. These alternatives include deposing him through written questions, remotely by telephone or videoconference, or in person at his hometown of Malabo, Bioko, Equatorial Guinea. Claimant‘s Mem. in Supp., ECF No. 42, at 1. As was explained above, the Government maintains that deposing Nguema while he is in Equatorial Guinea is not a practical option for obtaining the necessary discovery. Pl.‘s Mem. in Opp‘n, ECF No. 43, at 20. The Court disagrees with the Government and finds that several reasonable alternatives exist.
i. Written Interrogatories Or Remote Deposition
The Government is entitled under the Federal Rules of Civil Procedure to conduct Nguema‘s deposition through written interrogatories or telephоnically, although these likely are not the most preferable methods available.4 See
Ample case law recognizes that a videoconference deposition can be an adequate substitute for an in-person deposition, particularly when significant expenses are at issue or when the deposition will cover a
The Government, however, cites United States v. Approximately $57,378 in United States Currency as support for its argument that only an in-person deposition is adequate. No. C08-5023, 2010 WL 4347889 (N.D. Cal. Oct. 27, 2010). In Approximately $57,378, the court denied a motion for a protective order and ordered the claimant to travel from Atlanta to San Francisco for an in-person deposition. Id. at *2. In doing so, the court rejected the claimant‘s argument for a videoconference deposition because “the Government needs an in-person opportunity to observe [the claimant‘s] demeanor, ask follow-up questions, and confront [her] with prior inconsistent statements she has made.” Id. at *1 (citation omitted). The court further explained that a videoсonference deposition was disfavored because “[t]he Government ... requires [the claimant] to examine multiple exhibits, including tax returns and bank statements, during the deposition.” Id.
The Court finds the circumstances here distinguishable from Approximately $57,378 and disagrees about the limitations of a videoconference deposition in this instance. First, and most importantly, Approximately $57,378 did not involve a foreign deponent, let alone one who is the sitting vice president of another country. See In re Outsidewall Tire Litig., 267 F.R.D. at 471 (“[I]nsofar as a foreign defendant may be more inconvenienced by having to travel to the United States than a defendant who merely resides in another state or in another judicial district, the presumption that the deposition should occur at a foreign defendant‘s place of residence may be even stronger.“); Alliance for Global Justice, 2005 WL 1799553, at *1 (“[C]ourts have offered special protections to high-ranking government officials.“).
Second, Nguema‘s deposition will cover only a limited set of topics, which, combined with the extensive travel and cost at issue, is exactly when videoconference depositions are most useful. See Ins. Distributors Int‘l (Bermuda) Ltd., 2010 WL 567233, at *2 (“The Court notes that, given the narrow focus of the testimony, and the location of the witnesses, it may be most efficient to arrange the deposition via a video conference.“).
Third, modern videoconference technology will allow the Government to observe Nguema and ask follow up quеstions as is necessary to obtain the relevant testimony. See WIHO, LLC v. Hubbauer, No. 12-CV-1386, 2013 WL 6044424, at *2 (D. Kan. Nov. 14, 2013) (“Conducting the depositions by videoconference addresses the concerns associated with telephonic depositions, such as depriving the opposing party of the opportunity for face-to-face confrontation or the opportunity to evaluate the deponent‘s nonverbal responses and demeanor.” (citation omitted)).
And fourth, the Court is not persuaded that the potential use of exhibits necessitates requiring Nguema to travel to the United
ii. In-Person Deposition
Lastly, if the Government still believes that these remote alternatives are inadequate, it is entitled to conduct an in-person deposition of Nguema in Equatorial Guinea. The Government offers several reasons for why only an in-person deposition in Washington, DC is sufficient, such as the need for an interpreter and the use of multiple exhibits, id. at 22, as well as concerns about the expense and safety of traveling with attorneys and support personnel to Equatorial Guinea. Id. at 16-18. Nonetheless, in the Motion Nguema proposes conducting an in-person deposition in his home country, and the Government may take him up on that offer if it so chooses.
In sum, the Court finds that satisfactory alternatives exist for deposing Nguema without requiring him tо travel to Washington, DC. The availability of these methods augments the risk of “annoyance, embarrassment, oppression, or undue burden or expense” if Nguema was ordered to appear unnecessarily in the United States for a deposition.
* * *
For the reasons discussed above, the Court finds that Nguema has met his burden of demonstrating good cause for a protective order. The Government, moreover, has not demonstrated special circumstances to overcome the presumption that a deposition should occur where the witness is located—in this instance, Equatorial Guinea. Accordingly, the Court grants the Motion, and Nguema is not required to аppear in Washington, DC for the deposition. The method of conducting the deposition in Equatorial Guinea remains within the Government‘s discretion. Nguema has indicated to this Court that he consents to these alternative methods, including videoconference, so long as he is not required to travel to Washington, DC. In granting the Motion, the Court expects Nguema will cooperate with whichever method the Government selects when the deposition is rescheduled.
III. CONCLUSION
For the foregoing reasons, Claimant‘s Motion is granted. An order consistent with this Memorandum Opinion is separately and contemporaneously issued.
RUDOLPH CONTRERAS
United States District Judge
CONSUMER FINANCIAL PROTECTION BUREAU, et al., Plaintiffs, v. OCWEN FINANCIAL CORPORATION, et al., Defendants.
Civil Action No. 13-2025 (RMC)
United States District Court, District of Columbia.
May 15, 2014