Teller v Helbrans, 2019 WL 3975555 (E.D. N.Y. 2019)[Guatemala] [Federal & State Judicial Remedies] [Walsh Act] [Depositions] [live Trial Testimony]

In Teller v Helbrans, 2019 WL 3975555 (E.D. N.Y. 2019) in a prior decision dated August 12, 2019, the District Court ordered Respondent Sara Helbrans (“Respondent”) to explain whether there were alternative means to obtain Petitioner’s deposition testimony. See Teller v. Helbrans, No. 19-CV-3172, 2019 WL 3779863, at *2 (E.D.N.Y. Aug. 12, 2019). This information was necessary to determine whether to authorize a subpoena, pursuant to 28 U.S.C. § 1783, (Walsh Act) for Petitioner’s deposition.  The Court also required Petitioner Aaron Teller to state whether he would be appearing for trial to testify personally. Petitioner indicated that he would not be appearing to testify at trial personally. Petitioner’s refusal to appear for trial to testify in person left the Court no option other than to issue a Walsh Act subpoena requiring his attendance for trial and for a deposition.

The District Court observed that there is a strong preference for live testimony, long recognized by the courts, as it provides the trier of fact the opportunity to observe the demeanor of the witness.” United States v. Int’l Bus. Machines Corp., 90 F.R.D. 377, 381 (S.D.N.Y. 1981). It is highly unusual—perhaps unprecedented—for a petitioner not to appear at the hearing to testify in a Hague Convention matter. The only cases the Court was aware of were those where there are immigration barriers and/or the petitioner was a non-U.S. citizen. That was not an issue in this case: Petitioner was a U.S. citizen and subject to a Walsh Act subpoena.
  
Petitioner asked the Court to permit testimony via videoconference, but provided no reason why that was appropriate, why he refused to travel to the United States, or what circumstances or arrangements could be made to permit such testimony via video, particularly from Guatemala. There was no suggestion of cost, immigration, illness, infirmity, or other barriers to appearing in the United States. This absence of any good cause requires the request to appear via videoconference be denied. The Court held that even if such a proffer were made, the Court would exercise its discretion to require live in-person testimony at trial. 

The District Court noted that it had mentioned at previous hearings that conducting cross-examination at a trial via video of a party is near impossible, unless Petitioner is given full advance notice of all documents to be used during such an inquiry. That is highly unorthodox and threatens to prejudice Respondent. As a result, the Court ordered issuance of a Walsh Act subpoena commanding Petitioner’s testimony at trial. E.g., Matovski v. Matovski, No. 06-CV-4259, 2007 WL 1575253, at *3 (S.D.N.Y. May 31, 2007) (denying application for eight witnesses to testify remotely in Hague Convention trial, because they failed to establish necessary good cause; permitting petitioner, who had visa barriers, to appear via video); S.E.C. v. Tourre, No. 10-CV-3229, 2013 WL 3326867, at *2 (S.D.N.Y. June 26, 2013) (denying motion to quash Walsh Act subpoena for trial testimony); United States v. Jefferson, 594 F. Supp. 2d 655, 661 n.1 (E.D. Va. 2009) (“Because Jennifer Douglas Abubakar is an American citizen, she is subject to witness subpoena pursuant to 28 U.S.C. § 1783 even though she currently resides in a foreign country. Accordingly, an Order has entered directing issuance of a subpoena requiring her appearance as a witness at trial.”).

The Court indicated that it noted in its earlier decision, Teller, 2019 WL 3779863, at *2, that depositions in Hague Convention matters have become a norm, in light of the singular importance of the testimony of the parent. The Court, therefore, concluded that a Walsh Act subpoena for Petitioner’s deposition was in the interest of justice. All that remained for issuance of the Walsh Act subpoena was for Respondent to establish that there were no “alternative methods to obtain testimony. In determining whether there were such alternative methods, “courts analyze whether it is practical to obtain the information sought from the witness.” Balk v. N.Y. Inst. of Tech., 974 F. Supp. 2d 147, 156 (E.D.N.Y. 2013). “Subpoenas may be issued when it is impractical to obtain the information.... Impracticality occurs, for example, where resort to alternative methods is unlikely to produce the relevant evidence in time to meet impending discovery deadlines.” S.E.C. v. Sandifur, No. 05-CV-1631, 2006 WL 3692611, at *4 (W.D. Wash. Dec. 11, 2006).

Teller now offered to have his deposition taken in Guatemala. The Court noted that a deposition in Guatemala requires a foreign lawyer, and poses other practical problems, including the need to secure space at a United States consulate to conduct the deposition. Teller now indicated that he had located a lawyer in Guatemala who can assist Respondent in conducting a deposition, and lawyers from Respondent’s firm should travel to Guatemala to conduct the deposition. The Court held that this was both impractical and inappropriate in this case. First, the Court was already ordering Petitioner to appear for the trial in this matter. Any deposition would be scheduled around the date of the trial to avoid any inconvenience and need for Petitioner to appear twice. Second, as required by the Walsh Act, Respondent advanced necessary fees for travel for Petitioner’s deposition and trial testimony. To the extent that the advanced fees were insufficient, the Court would require Respondent to pay the necessary expenses and fees. This obviated any financial burden that could be imposed by a deposition.  Third, the need for multiple groups of lawyers to travel to Guatemala, the retention of local counsel, and research into Guatemalan law is obviated by having Petitioner—who must travel for trial—appear for deposition in the United States. (There were also now three sets of lawyers who represent the children in the case. Many of those counsel worked for legal aid organizations. These counsel would have a right to ask questions at a deposition, and whatever means Respondent’s pro bono counsel had to travel to Guatemala, the Court was doubtful other counsel also had such financial resources). The processes for a Guatemalan deposition take time and expense. Trial was scheduled to commence in little over one month and there were multiple motions pending. A deposition shortly in advance of the trial, in the United States, avoids those complications. See Fuentes-Rangel v. Woodman, No. 14-CV-5, 2014 WL 12656211, at *1 (N.D. Ga. May 6, 2014) The respective burdens on the parties and practicalities did not justify conducting Petitioner’s deposition abroad, and demonstrate that his deposition testimony was unavailable absent a Walsh Act subpoena.

There is a general presumption that a person be deposed near his place of work or home. But that presumption has no place when an American citizen, living abroad, is subpoenaed under the Walsh Act. See S.E.C. v. Banc de Binary, No. 13-CV-993, 2014 WL 1030862, at *9 (D. Nev. Mar. 14, 2014) And it is for that reason that expatriate witnesses have been ordered to the United States.

Teller objected that the subpoena required his attendance at a deposition more than 100 miles from his residence in Guatemala. The 100-mile bulge rule and its penumbras would be pertinent if this were a Rule 45 subpoena—see Fed. R. Civ. P. 45(c) (“Place of Compliance”)—but it is not. NML Capital Ltd. v. Republic of Argentina, No. 14-CV-492, 2014 WL 3898021, at *12 (D. Nev. Aug. 11, 2014). The geographical limitations in Rule 45 are not incorporated into the Walsh Act. The Act authorizes a Court to compel a U.S. citizen located abroad to appear for testimony; it follows that the testimony can be ordered to take place in the district where that Court sits.

Teller objected also on the grounds that the subpoena was not properly served. At this point, because the Court had not yet authorized a Walsh Act subpoena, the service objection was premature. Because the Court was now authorizing the Walsh Act subpoena, and to avoid any further delay, this resolved the question. The Walsh Act provides that a subpoena shall be served pursuant to the Federal Rules of Civil Procedure “relating to service of process on a person in a foreign country,” i.e., Rule 4(f). See 28 U.S.C. § 1783(b). The Court authorized the issuance of Walsh Act subpoenas, but they must be served upon Petitioner in Guatemala, consistent with Rule 4(f).