Center for Individual Rights v. Chevaldina

Filing 191

ORDER granting 169 Plaintiff's Motion to take a Telephonic Deposition. Signed by Magistrate Judge Edwin G. Torres on 5/22/2018. (js02)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 16-20905-Civ-KING/TORRES
CENTER FOR INDIVIDUAL RIGHTS,
Plaintiff,
v.
IRINA CHEVALDINA,
Defendant.
______________________________________/
ORDER ON PLAINTIFF’S MOTION
TO TAKE A TELEPHONIC DEPOSITION
This matter is before the Court on an emergency1 motion by the Center for
Individual

Rights

(“Plaintiff”)

against

Irina

Chevaldina

(“Defendant”

or

“Chevaldina”). [D.E. 169]. Chevaldina responded to Plaintiff’s motion on May 21,
2018 [D.E. 189] to which Plaintiff replied on May 22, 2018. [D.E. 190]. Therefore,
Chevaldina’s motion is now ripe for disposition. After careful consideration of the
motion, response, reply, relevant authority, and for the reasons discussed below,
Plaintiff’s motion is GRANTED.
I.

BACKGROUND

This is an action for breach of contract. The complaint – filed on March 11,
2016 [D.E. 1] – alleges that Plaintiff successfully represented Defendant pro bono in
We struck the emergency designation on May 11, 2018 because Plaintiff’s
motion was not an unexpected and dangerous situation that called for immediate
action. However, we ordered Chevaldina to file a response within ten days from the
date Plaintiff’s motion was filed. [D.E. 171].
1

1

an appeal before the 11th Circuit in Katz v. Google, Appeal No. 14-14525, in which
the Eleventh Circuit affirmed summary judgment in favor of Defendant in a copy
infringement action.2 See Katz v. Google, Inc., 802 F.3d 1178 (11th Cir. 2015), aff’g,
Katz v. Chevaldina, 12-cv-22211, 2014 WL 5385690 (S.D. Fla. Sept. 5, 2014).
Plaintiff alleges that Defendant had few financial obligations under the retainer
agreement in that case and that Plaintiff paid the out of pocket expenses of the suit.
Plaintiff contends that it only asked Defendant for (1) reasonable attorney fees and
expenses as permitted under law, and (2) that Defendant provide Plaintiff with any
fees or expenses that were attributable to Plaintiff’s expenditures and/or the work of
its attorneys.

If Defendant decided to settle the case, Plaintiff alleges that

Defendant was also obligated to provide Plaintiff with a reasonable amount in
attorney’s fees and expenses.
In December 2015 – while being represented by another attorney –
Defendant settled all the remaining claims in the Katz case. In the settlement,
Plaintiff claims that Defendant obtained only $10,000 in attorney fees for the work
of Plaintiff’s attorneys as well as both taxable and non-taxable costs.

Shortly

thereafter, Plaintiff sought to challenge the fee award in the Eleventh Circuit, but
Defendant allegedly instructed Plaintiff to withdraw its motion and Plaintiff
reluctantly complied. Therefore, Plaintiff suggests that Defendant did not obtain a
reasonable amount in attorney fees for the work of Plaintiff’s attorneys and that
Defendant breached the retainer agreement.

In exchange for the low sum of

Plaintiff is a public interest law firm organized under the laws of the District
of Columbia.
2

2

$10,000 in attorney fees, Plaintiff alleges that Defendant agreed with Katz to drop a
substantial claim against Defendant in excess of $100,000.

Because Plaintiff

alleges that it has been deprived of a reasonable attorney fee award, Plaintiff seeks
judgment against Defendant in an amount of no less than $105,000 – including
reasonable costs and expenses in accordance with 28 U.S.C. § 1920.
II.

ANALYSIS

Plaintiff’s motion seeks leave to take a telephonic deposition of Adam
Schacter (“Mr. Schacter”). [D.E. 169]. Mr. Schacter is a partner at GSG, the law
firm that represented Chevaldina in a state court action against Raanan Katz and
various relatives alleging defamation and other related torts. Plaintiff claims that
it served a notice to take the deposition of Mr. Schacter on May 23, 2018 because of
the Court’s looming discovery deadline. Chevaldina allegedly told Plaintiff that she
could not be in attendance for the deposition, but did not provide a reason for her
unavailability.
To avoid any additional motion practice, Plaintiff offered to (1) stipulate that
Chevaldina could appear by telephone, or (2) to reschedule the deposition to any
other date in which GSG was available provided that Chevaldina would stipulate to
a telephonic deposition. Neither proposal resolved the underlying dispute. Plaintiff
explains that the deposition of Mr. Schacter would be fairly short and that the
deponent is a non-party based in Miami whose deposition must be taken within the
subpoena powers of the Court.

Plaintiff therefore argues that its attorney – who

resides in Washington D.C. – would be burdened by a requirement to fly to Miami

3

for a short deposition. Because Chevaldina and GSG have been unable to find an
alternative date and Chevaldina refuses to stipulate to a telephonic deposition,
Plaintiff concludes that its motion must be granted.
Chevaldina makes several arguments in response. First, Chevaldina claims
that Plaintiff’s motion violates Local Rule 26(1)(h), which purportedly requires a
reasonable noticing of taking a deposition. Chevaldina alleges that Plaintiff only
gave the deponent thirteen days’ notice – as opposed to fourteen days as required.
Second, Chevaldina argues that Plaintiff’s subpoena to Mr. Schacter is defective
because it fails to comply with Rule 45(a)(1)(B), which requires that a subpoena
state the method for recording the testimony.

Third, Chevaldina claims that

Plaintiff did not confer with her about the time she would have for crossexamination.

And fourth, Chevaldina contends that she is not a native speaker

and that she will be prejudiced if she participates in a telephonic deposition where
she does not understand legal terms. Therefore, Chevaldina concludes that it is
essential that she be personally present for the deposition of Mr. Schacter.
Federal Rule of Civil Procedure 30(b)(4) permits a court to order, upon
motion, that a deposition be taken by telephone or other remote means.
The deposition must be conducted before an officer authorized to administer oaths
either by federal law or by the law in the place of examination. See Fed. R. Civ. P.
28(a)(1); Fed. R. Civ. P. 30(b)(5). The deposition may also be recorded by audio,
audio-visual, or stenographic means as stated by the party who notices
the deposition. See Fed. R. Civ. P. 30(b)(3).

4

Here, Plaintiff’s motion is well taken because all of Chevaldina’s arguments
in response are without merit. First, Chevaldina claims that the deposition failed
to give the required amount of time under the Local Rules. But, Plaintiff served the
notice on May 9, 2018 with a scheduled deposition to occur on May 23, 2018. The
time between the service date and the time of the deposition is fourteen days. It
appears that Chevaldina miscalculated the amount of time in her response.
Therefore, her first argument is misplaced.
Chevaldina’s second argument is equally unpersuasive because it interprets
Rule 45 as requiring that a subpoena state the method for recording a deponent’s
testimony. In other words, Chevaldina appears to believe that Rule 45 requires
that a subpoena specifically state that a deposition will be telephonic.

But,

Chevaldina fails to cite a single case that supports this position. In any event,
Chevaldina’s response misses the mark because (1) she failed to attach the relevant
subpoenas as support for her argument, and (2) we can find no authority that a
subpoena must state that a deposition will be telephonic.
As for Chevaldina’s remaining arguments, they are also without merit
because Plaintiff served its notice on May 9, 2018 – meaning that Chevaldina had
ample time to prepare for the upcoming deposition and acclimate herself with the
legal terms that may arise during Mr. Schacter’s testimony.

Moreover,

Chevaldina’s complaint – that she will be disadvantaged with a telephonic
deposition – rings hollow because Plaintiff’s motion does not require her to appear
by phone.

If Chevaldina was unable to make travel arrangements when she

5

learned of the notice of deposition, she should have moved under Rule 26(c)
regardless of how the deposition would have been administered. Accordingly, all of
Chevaldina’s arguments are without merit and therefore Plaintiff’s motion to take
the deposition of Mr. Schacter is GRANTED.
III.

CONCLUSION

For the foregoing reasons, it is hereby ORDERED AND ADJUDGED that
Plaintiff’s motion for a telephonic deposition is GRANTED.

[D.E. 169].

The

noticed deposition of Mr. Schacter shall occur as scheduled on May 23, 2018.
DONE AND ORDERED in Chambers at Miami, Florida, this 22nd day of
May, 2018.
/s/ Edwin G. Torres
EDWIN G. TORRES
United States Magistrate Judge

6