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United States v. One Gulfstream Gv Jet Aircraft Displaying Tail Number Vpces

United States District Court, District of Columbia

May 9, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
ONE GULFSTREAM G-V JET AIRCRAFT DISPLAYING TAIL NUMBER VPCES, ITS TOOLS AND APPURTENANCES, Defendant.

MEMORANDUM OPINION GRANTING CLAIMANT'S MOTION FOR A PROTECTIVE ORDER Re Document No. 42.

RUDOLPH CONTRERAS, District Judge.

I. INTRODUCTION AND FACTUAL BACKGROUND

The United States (the "Government") has brought a civil action in rem seeking the forfeiture of one Gulfstream G-V Aircraft Displaying Tail Number VPCES, its tools and appurtenances (the "Aircraft"). According to the Government, the Aircraft was purchased by Teodoro Nguema Obiang Mangue ("Nguema, " or "Claimant") - the Republic of Equatorial Guinea's Second Vice President and the son of President Teodoro Nguema Obiang Mbasogo - with funds derived from extortion, public corruption, embezzlement, and theft. First Am. Compl., June 17, 2013, ECF No. 24, at ΒΆΒΆ1-3, 19. Nguema submitted a Verified Claim for the Aircraft, and on March 4, 2014, the Court granted the Government's request for limited expedited discovery to ascertain Nguema's purported interest in the Aircraft, which would determine whether he has standing to contest the Government's forfeiture action. Verified Claim of Nguema, Dec. 1, 2011, ECF No. 5; Order, ECF No. 41.

As part of its expedited discovery, the Government noticed the deposition of Nguema on March 7, 2014, with the deposition scheduled to occur on April 23, 2014, in Washington, DC. Claimant's Mem. in Supp., Apr. 21, 2014, ECF No. 42, at 11-12. On April 21, 2014, Nguema filed a Motion for a Protective Order (the "Motion") seeking to prevent the deposition in Washington, DC and require the Government to notice the deposition through either written interrogatories, remotely by telephone or videoconference, or in person in Equatorial Guinea. Id. at 1. Nguema did not attend the deposition as scheduled on April 23, 2014.

Upon consideration of Nguema's arguments and the Government's opposition, the Court grants the Motion, and Nguema is not required to appear in Washington, DC for a deposition regarding the limited discovery topics at issue. The Court further concludes that the Government may notice the deposition of Nguema in Equatorial Guinea through written interrogatories, telephone, videoconference, or in person, with videoconference likely being the most efficient method for all parties.

II. ANALYSIS

A. Legal Standard

The Court has authority, for good cause, to "issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense" in responding to a discovery request. Fed.R.Civ.P. 26(c)(1). Among other things, Rule 26 permits the Court to "forbid[] the disclosure or discovery"; "specify[] terms, including time and place, for the disclosure or discovery"; and "prescrib[e] a discovery method other than the one selected by the party seeking discovery." Fed.R.Civ.P. 26(c)(1)(A-C). "[T]he party seeking a protective order [] bears the burden of proving its necessity" and "must articulate specific facts showing clearly defined and serious injury resulting from the discovery sought." Avirgan v. Hull, 118 F.R.D. 252, 254 (D.D.C. 1987) (internal citation and quotation omitted).

The general rule for the situs of a deposition is that the "party noticing the deposition usually has the right to choose the location." Buzzeo v. Bd. of Educ., Hempstead, 178 F.R.D. 390, 392 (E.D.N.Y. 1998) (citations omitted). There exists, however, a conflicting presumption that "in the absence of special circumstances, a party seeking discovery must go where the desired witnesses are normally located." Farquhar v. Shelden, 116 F.R.D. 70, 72 (E.D. Mich. 1987) (citation omitted); see also Estate of Gerasimenko v. Cape Wind Trading Co., 272 F.R.D. 385, 390 (S.D.N.Y. 2011) ("The usual rule... in federal litigation, is that in the absence of special circumstances, a party seeking discovery must go where the desired witnesses are normally located." (citation and quotation omitted; alteration in original)). At least one federal court also has suggested that "insofar as a foreign defendant may be more inconvenienced by having to travel to the United States than a defendant who merely resides in another state or in another judicial district, the presumption that the deposition should occur at a foreign defendant's place of residence may be even stronger." In re Outsidewall Tire Litig., 267 F.R.D. 466, 471 (E.D. Va. 2010).

Ultimately, when a dispute arises about the location of a deposition, the final determination is within the discretion of the Court. See Paleteria La Michoacana, Inc. v. Productos Lacteos Tocumbo S.A. de C.V., 292 F.R.D. 19, 22 (D.D.C. 2013) (citing Fin. Gen. Bankshares, Inc. v. Lance, 80 F.R.D. 22, 23 (D.D.C. 1978)). In addition, if a disagreement arises about the method by which a deposition is taken, Rule 30 states that a "court may on motion order [] that a deposition be taken by telephone or other remote means, " Fed R. Civ. P. 30(b)(4), or through written questions. Fed R. Civ. P. 30(c)(3). Rule 30 also includes the power to order a deposition by videoconference. See Shockey v. Huhtamaki, Inc., 280 F.R.D. 598, 601 (D. Kan. 2012) (construing Rule 30(b)(4) to include the power to order depositions by videoconference).

B. Whether Claimant Should Be Deposed In Washington, DC

The Government noticed Nguema's deposition in Washington, DC, rather than in his home country of Equatorial Guinea. Claimant's Mem. in Supp., ECF No. 42, at 11-12. Nguema refused to attend the deposition on the scheduled date of April 23, 2014, and he now seeks through the Motion protection against being required to attend a deposition in Washington, DC at a later date. Id. at 2 n.1. Nguema raises several arguments in favor of granting the Motion, including foreign sovereignty concerns, the limited scope of discovery involved, and the availability of alternative methods for deposing him in Equatorial Guinea. The Government rejects these arguments and raises its own reasons for why the Court should order Nguema to appear in Washington, DC for the deposition. After considering both parties' arguments and for the reasons discussed below, the Court finds that Nguema has met his burden of demonstrating good cause for the protective order. See Fed.R.Civ.P. 26(c)(1); Avirgan, 118 F.R.D. at 254.

1. Presumption Of Holding The Deposition At The Witness's Location

Nguema argues that there are no "special circumstances" to overcome the presumption of holding the deposition at his home location of Equatorial Guinea, rather than Washington, DC. Farquhar, 116 F.R.D. at 72. In particular, Nguema asserts that "the District holds no special or compelling factual significance justifying departure from the strong presumption that the deposition take place in E.G. [Equatorial Guinea], " and "[t]o the extent Claimant chose to file a claim, that choice was only out of necessity to prevent default judgment of forfeiture against his valuable property because of the government's choice to file an in rem forfeiture action in this District." Claimant's Mem. in Supp., ECF No. 42, at 19. In response, the Government argues that because Nguema purchased the Aircraft in the United States, filed his Verified Claim to participate in this forum, and has the burden of proof for establishing standing, he cannot now complain about attending a deposition in Washington, DC to adjudicate the claim. Pl.'s Mem. in Opp'n, ECF No. 43, at 14. The ...


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