Teller v Helbrans, 2019 WL 3779863 (E.D. N.Y., 2019)[Guatemala] [Federal & State Judicial Remedies] [Depositions]

In Teller v Helbrans, 2019 WL 3779863 (E.D. N.Y., 2019) the district court denied Respondent Sara Helbrans (“Helbrans”) motion for an order compelling Petitioner Aaron Teller (“Teller”) to appear for a deposition in this action brought under the Hague Convention.
  
Teller was a U.S. citizen who resided in Guatemala. Helbrans sought to depose Teller pursuant to the Walsh Act, 28 U.S.C. § 1783, which permits a court to exercise jurisdiction over a United States citizen, and to require him to appear in the United States to testify. Blackmer v. United States, 284 U.S. 421, 438 (1932). The Act authorizes the Court to issue a subpoena to: a national or resident of the United States who is in a foreign country ... if the court finds that particular testimony or the production of the document or other thing by him is necessary in the interest of justice, and, in other than a criminal action or proceeding, if the court finds, in addition, that it is not possible to obtain his testimony in admissible form without his personal appearance or to obtain the production of the document or other thing in any other manner. 28 U.S.C. § 1783(a). 

The Court pointed out that because a Hague Convention case is a civil proceeding, for the Court to issue a subpoena, Helbrans had to demonstrate that Teller’s testimony is (1) necessary in the interest of justice; and (2) that it is not possible to obtain his testimony in admissible form without his personal appearance.. “[W]hen considering the propriety of a subpoena under 28 U.S.C. § 1783, the court should consider factors such as the nature of the proceedings, the nature of the testimony or evidence sought, the convenience of the witness, the convenience of the parties, and other facts bearing upon the reasonableness of requiring a person abroad to appear as a witness.” Safar v. Costco Wholesale Corp., No. 15-CV-469, 2016 WL 1589600, at *2 (E.D. Va. Apr. 19, 2016). “The decision to issue a subpoena under this statute is left to the sound discretion of the court.” Balk v. N.Y. Inst. of Tech., 974 F. Supp. 2d 147, 155 (E.D.N.Y. 2013) .

As to whether Teller’s testimony was necessary, it was clear that without it, the Court could not properly adjudicate the merits of his petition. Teller brought the petition and was a party to the case, alleging that Helbrans kidnapped their six children in violation of his custody rights. Up to this point, despite Court inquires on the issue, there was no firm commitment that Teller will appear for trial testimony. 

Teller argued that a Walsh Act subpoena was invalid because the Hague Convention does not contemplate requiring parents to appear for deposition. The court observed that nothing in the Convention requires attendance at a deposition, but nothing prohibits a deposition or other customary discovery procedures from being used. And the taking of deposition testimony is a common occurrence in Hague Convention matters, because it assists the Court and both parties in clarifying facts and narrowing the issues for decision. See, e.g., Robert v. Tesson, 507 F.3d 981, 995 (6th Cir. 2007). Having presumably propounded his own discovery to Helbrans, pursuant to the schedule in the case, it was incongruous for Teller to object to the use of other discovery devices, like depositions. The first factor was therefore satisfied. 
The second factor—whether it is “possible to obtain [the citizen’s] testimony in admissible form without his personal appearance”—was no satisfied by Helbrans. Balk, 974 F. Supp. 2d at 155. “In assessing the second prong—whether there are potentially alternative methods to obtain testimony—courts analyze whether it is practical to obtain the information sought from the witness.” Teller indicated that he had offered to either sit for a deposition in Guatemala or appear for a deposition via video. Helbrans responded by stating that Teller’s presence was required under the Walsh Act. To obtain a Walsh Act subpoena, and command a citizen’s appearance in the United States, the movant must demonstrate that admissible testimony is otherwise not available, see Balk, 974 F. Supp. 2d at 156; the movant cannot rely on the compulsion of the subpoena—the requirement that the witness appear in the United States—to make that showing. Depositions may be taken remotely, and by video. See Fed. R. Civ. P. 30(b)(4). In some instances, that has been sufficient to deny a request for a Walsh Act subpoena. E.g., Ameris Bank v. Russack, No. 14-CV-2, 2015 WL 4770190, at *2 (S.D. Ga. Apr. 1, 2015), aff’d, 2015 WL 4760694 (Aug. 12, 2015).

The Court found that Helbrans had not made a showing why obtaining Teller’s deposition testimony remotely via video or in-person abroad was not practical or possible. As such, the motion was denied without prejudice to renewal.