AFL Telecommunications LLC v. SurplusEQ.com Incorporated et al

Filing 96

ORDER denying 77 Motion for issuance of commission for foreign depositions. Signed by Judge David G Campbell on 4/26/2012.(NVO)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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AFL Telecommunications LLC,
Plaintiff,

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No. CV11-01086-PHX-DGC
ORDER

v.
SurplusEQ.com Incorporated, Tech Sales
LLCV, Daniel Parsons,

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Defendants.

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Defendants have filed an application for issuance of a commission for depositions

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in a foreign country under Federal Rule of Civil Procedure 28(b)(2), requesting that the

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Court commission the consul or vice consul of the United States Embassy in Tokyo,

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Japan, to take the depositions of three witnesses.

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“Commission to Take Depositions in a Foreign Country” states that it is made “pursuant

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to Article 17 of the United States – Japan Consular Convention.” Doc. 77-2 at 1. It also

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states that the depositions are to commence on or about September 4, 2012 and terminate

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on or about September 6, 2012. Id. at 2.

Doc. 77.

Defendants’ attached

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Rule 28(b) provides four ways for a United States court to request depositions in a

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foreign country: “(1) pursuant to a treaty or convention; (2) pursuant to a letter of request;

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(3) on notice before a person authorized to administer oaths in the place where the

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examination is held; and (4) before a person commissioned by the court.” Mujica v.

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Occidental Petroleum Corp., 381 F.Supp. 2d 1134, 1151 (C.D. Cal. 2005); See Fed. R.

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Civ. P. 28(b).

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Where the court issues a commission, it must name or designate by title the person

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before whom the deposition will be taken. Fed. R. Civ. P. 28(b)(3). Typically, this is a

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consular officer, see William H. Baker, Obtaining Evidence: International Discovery

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Techniques–The Taking of Evidence Abroad for Use in American Courts, 688 PLI/Lit

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173, at *195 (2003), but “[a]ny United States notarizing officer may be . . . designated to

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execute a commission to take depositions,” 22 C.F.R. § 92.55(a). In countries where

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relevant treaties or laws do not permit the notarizing officer to take depositions, those in

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receipt of a commission must return it with explanations and instructions regarding

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alternate methods of securing the depositions.

Id. at § 92.55(c).

Ordinarily, the

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commission is also accompanied by detailed instructions for its execution. Id. at § 92.53.

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Defendants have styled their request as one for a commission under

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Rule 28(b)(1)(d), not as one pursuant to “an applicable treaty or convention” under

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Rule 28 (b)(1)(a). They have stated, however, that their request is made “pursuant to

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Article 17 of the United States – Japan Consular Convention.” Doc. 77-2 at 1. In the

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interest of following appropriate procedures and avoiding possible delay, the Court will

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require Defendants to submit a copy of the relevant provisions in the United States –

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Japan Consular Convention. See Federal Rule 28(b)(3) (“When a letter of request or any

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other device is used according to a treaty or convention, it must be captioned in the form

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prescribed by the treaty or convention.”).

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Defendants’ request also appears insufficiently detailed.

Defendants have

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included in their attached commission the relevant dates and times for the depositions and

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have listed the attorneys to be present, but the commission does not state that the consul

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or vice consul is to administer oaths or otherwise refer to his or her duties at the

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deposition under 22 C.F.R. § 92.56. In addition, Defendants have not specified whether

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they will require or retain translators. See, e.g., Beanal v. Freeport-McMoran, Inc., No.

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96-1474, 1996 WL 243533 (E.D. La. May 9, 1996) (requiring that defendants retain

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necessary interpreters from a list provided by the United States Embassy and

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commissioning the chosen interpreters to serve at deposition.). Nor have Defendants
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stated whether they or the consular officials will retain the stenographer to “cause the

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testimony of said witnesses to be reduced to writing.” Doc. 77-2 at 2.

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Finally, the application states that the depositions will occur on September 4-6,

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2012, well after the June 15, 2012 close of fact discovery set by this Court (Doc. 95) at

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the parties’ request (Doc. 76). The Court has stated that it will not extend this already-

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extended deadline. Doc. 95, ¶ 10. See Horvath v. Deutsche Luthansa, AG, No. Civ.

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3269(PKC), 2004 WL 241671, *4 (S.D. N.Y., Feb. 9, 2004) (noting that Rule 28 does not

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divest the court of its supervisory authority over the discovery process).

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The Court will deny Defendants’ application without prejudice to their re-filing of
an application that addresses these issues.
IT IS ORDERED that Defendants’ application for a commission for depositions
in a foreign country (Doc. 77) is denied without prejudice.
Dated this 26th day of April, 2012.

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