United States of America v. Approximately $57,378 in United States Currency

Filing 41

ORDER by Magistrate Judge Bernard Zimmerman denying 34 Motion for Protective Order and granting government's motion to compel. (bzsec, COURT STAFF) (Filed on 10/27/2010)

United States of America v. Approximately $57,378 in United States Currency

Doc. 41

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. APPROXIMATELY $57,378 IN UNITED STATES CURRENCY, Defendant(s). UNITED STATES OF AMERICA, Plaintiff(s), ) ) ) ) ) ) ) ) ) ) ) ) UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

No. C08-5023 MMC (BZ) ORDER DENYING CLAIMANT'S MOTION FOR PROTECTIVE ORDER AND GRANTING GOVERNMENT'S MOTION TO COMPEL

Claimant Kap Suk Sims' son was arrested in the Northern District of California with $57,378. In a plea agreement with

the Government, he admitted that he intended to use the $57,378 to purchase marijuana and agreed to forfeit the money. Sims, who resides and works in the Northern District of Georgia, filed a claim of ownership in this Court to her son's forfeited money.1 As part of this civil proceeding, the

Government noticed Sims' deposition to take place in San Francisco, California.
1

Sims seeks a protective order so that

In a third-party claim of ownership proceeding, the burden is on Sims to establish by a preponderance of the evidence that she has a legitimate ownership interest in the $57,378. 21 U.S.C. § 853(n)(6). 1
Dockets.Justia.com

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she could either be deposed by telephone, by video conference, or in Atlanta, Georgia. Docket No. 34. The Government

opposes these requests and has moved to compel Sims' appearance in San Francisco. Docket No. 38. For the reasons

explained below, I order Sims to travel to San Francisco for her deposition. Subject to a protective order, party depositions may be noticed wherever the deposing party designates. U.S. v. Usually, a

$160,066.98, 202 F.R.D. 624, 627 (S.D. Cal. 2001).

party's deposition is taken in the district the deponent works or resides. Id. at 626 (citations omitted). I may grant a

protective order if there is good cause to limit discovery and protect a deponent from "annoyance, embarrassment, oppression, or undue burden or expense." Fed. R. Civ. P. 26(c)(1). The

issue is therefore whether it is unduly burdensome or expensive for her to travel to San Francisco. $160,066.98, 202 F.R.D. at 626. See U.S. v.

In evaluating this, I am free

to consider the convenience and relative hardships of both parties. Id. See also Hyde & Drath v. Baker, 24 F.3d 1162,

1166 (9th Cir. 1994) (courts have "wide discretion to establish" the deposition's location). Initially, I asked the Government to explain in its opposition why it could not depose Sims (1) by telephone or video conference, or (2) in Atlanta with the assistance of a Government attorney from the Northern District of Georgia. The Government asserts that each of the above options are not suitable for this deposition. Because of the circumstances in

this case, I agree and find that Sims must be deposed in 2

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person. A deposition by telephone or video conference would be prejudicial to the Government's case. This is primarily

because the Government will use Sims' deposition to examine her credibility.2 To do this, the Government needs an in-

person opportunity to observe Sims' demeanor, ask follow-up questions, and confront Sims with prior inconsistent statements she has made. See U.S. v. $160,066.98, 202 F.R.D.

at 630 (counsel would be "disadvantaged without the opportunity to see the witness and to evaluate the witness' demeanor, facial reactions and expressions") (internal citations and quotations omitted). The Government also

requires Sims to examine multiple exhibits, including tax returns and bank statements, during the deposition. this process is a particular concern because Sims is representing herself and her English is limited. Due to these Managing

reasons, an in-person deposition is necessary because a deposition by telephone would be meaningless and a deposition by video conference would be impracticable. It would also not be efficient to have a Government attorney from the Northern District of Georgia participate in the deposition of Sims in Atlanta.
2

This attorney would have

Sims' credibility is an issue in this case. In her son's criminal proceedings, he admitted under oath that the $57,378 was to be used for purchasing drugs. But in this ancillary forfeiture proceeding, Sims' son has recanted his admission and testified at his deposition that the money was his mother's. Both Sims and her son now claim that he traveled to California only to buy restaurant equipment on Craigslist for Sim's business. In September 2010, Sims' son was arrested in another matter. Similar to this case, he claimed that the $15,000 he had in his possession was given to him by his mother so he could purchase a car. 3

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to invest too much time to learn about the factual details of this case in order to conduct a meaningful deposition of Sims or assist in a video conference deposition. Rather than do

this, it would be more efficient for the Government's attorney from the Northern District of California to travel to Atlanta and conduct the deposition. The issue therefore becomes

whether it is appropriate to require Sims to travel to San Francisco or to have a Government attorney travel to Atlanta. In evaluating the factors for both sides, I find that it is more just to have Sims travel to San Francisco for the deposition. This is not the usual proceeding where it is

customary for individuals to be deposed in the district of their residence or work. Rather, Sims has purposefully

submitted to this Court's jurisdiction by filing her thirdparty ownership claim to money that has already been forfeited. In similar third-party forfeiture challenges,

other courts have required claimants to travel outside their home forum for depositions due to the nature of the claim. See U.S. v. $160,066.98, 202 F.R.D. at 627-29 (holding that the claimants inconvenience and expense associated with the prosecution of their claim in the Southern District of California were foreseeable and are not undue in comparison with the Government's burdens); U.S. v. Real Property Located at Layton, 2010 WL 3271959 (D. Utah 2010). Sims does not

provide any case authority that requires the Government to incur expenses in traveling to depose out-of-state claimants in civil forfeiture actions like this. Instead, she argues

the above cases are not analogous because unlike those 4

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claimants she did not earn money or conduct any business in the Northern District of California. this. I am not persuaded by

Sims claims that she gave $57,378 to her son for him to

travel to San Francisco and purchase restaurant equipment. Assuming this is true, Sims intended to conduct business in the Northern District of California. Moreover, it is Sims'

decision to continue the prosecution of her claim of ownership in this proceeding. It is also not unduly burdensome for Sims to travel to San Francisco and pay for her expenses. Sims traveled to San

Francisco on March 19, 2010 for a status conference in this matter. She did not indicate that she had any travel Sims also does not declare that she

anxieties at this time.3

is need of financial assistance or is unable to afford the expenses associated with this deposition. Since she claims

she had $57,378 available to invest in her business, she appears to have disposable income. See U.S. v. Real Property

Located at Layton, 2010 WL 3271959 at *3 (finding that the Government in a civil forfeiture proceeding should not pay claimant's deposition travel costs because he has failed to demonstrate undue burden or expense). Moreover, as explained

in the previous paragraph, I find that the Government should not be forced to incur significant expenses to depose a thirdparty claimant that has not persuaded me she has a meritorious claim in a civil forfeiture proceeding. For the foregoing reasons, IT IS ORDERED that Sims' Besides a self-serving declaration, Sims has not provided any evidence corroborating her anxieties about traveling to California. 5
3

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motion for a protective order is DENIED, and the Government's motion to compel is GRANTED. Sims must travel to San IT IS

Francisco for her deposition at her own expense.

FURTHER ORDERED that the parties shall meet and confer by November 2, 2010 to determine a suitable date for Sims' deposition. Dated: October 27, 2010 Bernard Zimmerman United States Magistrate Judge
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