UNITED STATES OF AMERICA v. All Funds on Deposit at Old Mutual of Bermuda, Ltd. Contract Number CX4011696 in Bermuda
Filing
43
OPINION AND ORDER denying Motion for Leave to Take Deposition by Remote Electronic Means re 33 Motion; denying 34 Motion.(Signed by Magistrate Judge B. Janice Ellington) Parties notified.(amireles, 2)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
UNITED STATES OF AMERICA
VS.
ALL FUNDS ON DEPOSIT AT OLD
MUTUAL OF BERMUDA LTD.
CONTRACT NUMBER CX4011696 IN
BERMUDA
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§ CIVIL ACTION NO. 2:13-CV-294
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OPINION AND ORDER DENYING MOTION FOR LEAVE TO TAKE
DEPOSITION BY REMOTE ELECTRONIC MEANS
Pending are Claimants Jorge Juan Torres Lopez and Maria Carlota Llaguno de
Torres’s motions for leave to take depositions by remote electronic means to which
Plaintiff, the United States of America, (the Government) responded (D.E. 33-35). For
the reasons set forth below, the motions are denied.
BACKGROUND
The Government filed a verified complaint for civil forfeiture in rem against all
funds on deposit at Old Mutual of Bermuda, Ltd., Contract Number CX4011696 (the
“Defendant Property”). Claimants assert that they own the Defendant Property and argue
that the Government is without authority to take it.
Plaintiff has served both Claimants with notice to take their depositions on
Thursday, May 15, 2014 at the United States Attorney’s Office in Corpus Christi (D.E.
33-1 and 34-1). Both Claimants are citizens and residents of Saltillo, Mexico. Mr.
Torres is under indictment in the Southern District of Texas, Corpus Christi division, in
Cause No. 13-CR-1075, for alleged violations related to the facts underlying forfeiture
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complaint. He has not made an appearance in the criminal action. He asserts that the
Government will not agree to a bond if he appears in the United States.
Mr. Torres asserts that he can and is willing to give a deposition under oath
without invoking his Fifth Amendment right against self-incrimination and that he is
attempting to obtain documents to show that the funds did not come from an illicit
source. However, because he is facing arrest with no guarantee that he will be able to
post bond, he asks that the deposition be conducted via video conference from Mexico,
pursuant to Fed. R. Civ. P. 30(b)(4), so that he does not have to travel to the United
States.
In addition, Mr. Torres asserts that all the relevant documents will be in Mexico
and that if the parties determine that additional documents are needed, it will be easier to
obtain them if all the parties are in Mexico. Mr. Torres also asserts that it will be less
expensive to have the depositions conducted in Mexico.
Mrs. Torres, who is not under indictment for any crime, had her Visa seized when
she tried to enter the United States on November 21, 2013. However, the Government
asserts that it is working with the Department of Homeland Security to allow Mrs. Torres
to enter the United States for purposes of this litigation (D.E. 35 at 10). The Government
further alleges that it has sought the date and place of entry for Mrs. Torres from her
counsel to facilitate entry into the United States but has received no response from
counsel. Mrs. Torres argues that allowing her deposition to be taken by video conference
will make presentation of documents easier and will cost less than having to travel to
Corpus Christi.
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APPLICABLE LAW
Federal Rule of Civil Procedure 30(b)(4) provides that parties may stipulate, or a
court may order, that a deposition be taken by telephone or other remote means. The
party seeking to take depositions by video conference must establish a legitimate reason
for its motion. Brown v. Carr, 253 F.R.D. 410, 412 (S.D. Tex. 2008). A party opposing
such a deposition must establish good cause as to why it should not be conducted in such
a manner. Id.
Claimant Torres argues that he will be arrested and held without bond if he crosses
into the United States for the deposition. Courts have rejected this argument in similar
circumstances. Collazos v. United States, 368 F.3d 190, 194-195 (2nd Cir. 2004); United
States v. One Parcel of Real Estate at 7707 S.W. 74th Lane, Miami, 868 F.2d 1214, 1216
(11th Cir 1989); United States v. All Monies, Negotiable Instruments and Funds in
Account Number ALE 238254 F.Z., No. 4:93CV336, 1996 WL 807890 (E.D. Tex.
1996)(if a fugitive desires to protect interest in forfeiture proceeding he can return to
United States and give up fugitive status). Petitioner’s fear of arrest is not a legitimate
reason for holding a remote deposition.
Claimants also argue that documents will be easier to obtain if the parties are in
Mexico. The depositions were noticed on April 4, 2014 and the parties have had six
weeks to obtain the necessary documents. There is no reason to believe that if they have
been unable to obtain the documents in that time frame that they will be able to obtain
them during the deposition. If additional documents are identified as being necessary
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during the deposition, Claimants’ counsel can provide them to the Government after the
deposition.
Claimants further argue that it will be less expensive to hold the depositions by
video conference, but provide no evidence to support this assertion. While they will not
incur travel costs, the costs for an interpreter, stenographer and videographer would
presumably be the same. Travel costs generally are not considered an undue burden or
expense. United States v. Real Property Located at Layton, Utah 84040, 269 F.R.D. 658,
660 (D. Utah 2010).
In addition, Plaintiff argues that deposition by remote video conference raises the
possibility of creating a murky record, potential technical difficulties, obstruction, further
delay and more discovery disputes. Claimants have provided no assurance that they have
access to video conference equipment or that they can provide a well-qualified
interpreter. Nor have Claimants addressed the issue of the Court’s ability to resolve
disputes should they arise during the deposition.
Claimants also assert, without reference to authority, that the Government selected
the venue in which to bring this action and is obligated to accommodate the litigants.
However, courts have held that the opposite is true. See United States v. Approximately
$57,378 in U.S. Currency, No. C08-5023 MMC (BZ), 2010 WL 4347889 (N.D. Cal.
2010)(Georgia resident who gave her son money to purchase restaurant equipment in
California intended to conduct business there and it was reasonable for her to be deposed
there); Real Property Located at Layton, Utah, 269 F.R.D. at 660 (it is reasonably
foreseeable that person conducting business in district would need to return to district to
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participate in forfeiture in rem action) and United States v. $160,066.98 From Bank of
America, 202 F.R.D. 624, 627 (S.D. Cal. 2001)(claimants selected venue for business
transaction giving rise to forfeiture action and their return to the district for deposition, on
balance, is more reasonable, safer, less costly and more efficient than conducting
depositions in Pakistan).
CONCLUSION
For the reasons set out above, Claimants’ motions to hold depositions by video
conference (D.E. 33, 34) are DENIED.
ORDERED this 13th day of May, 2014.
___________________________________
B. JANICE ELLINGTON
UNITED STATES MAGISTRATE JUDGE
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