United States District Court, District of Columbia
MICHAEL HARVEY UNITED STATES MAGISTRATE JUDGE
case has been referred to the undersigned for the management
of discovery. Currently ripe for resolution are (1) Claimant
Pavel Lazarenko's (“Claimant”) motion for
expenses and attorney's fees totaling $39, 718 for
Plaintiff's Austrian Deposition [Dkt. 861]; and (2)
Plaintiff's cross motion for costs in the amount of $7,
324.99 for the deposition in Austria [Dkt.
893]. Upon consideration of the parties'
filings and the entire record herein, the Court will deny
both motions. The Court's rationale follows.
factual background concerning this in rem asset
forfeiture action has been set forth in multiple opinions by
District Judge Paul L. Friedman. See, e.g.,
United States v. All Assets Held at Bank Julius
Baer & Co., Ltd., 772 F.Supp.2d 191 (D.D.C. 2011).
This Court will not repeat that lengthy history here.
Instead, the facts pertinent to the adjudication of the
parties' cross motions are summarized below. While each
party provides its own rendition of the events leading up to
the instant motions, the underlying facts are, for the most
Plaintiff's Notice of Deposition
August 18, 2016, Plaintiff sought leave to shorten the period
of time prescribed by Local Rule 30.1 for providing
“reasonable notice” of a deposition to occur at
least fifty miles outside Washington, D.C. from two weeks to
eight days in order to depose Rafic Daou
(“Daou”), a Lebanese national, at the U.S.
Consulate in Vienna, Austria on August 26, 2016. See
Pl. Letter [Dkt. 762-1]; see also LCvR 30.1
(permitting a court to “enlarge or shorten” the
reasonable notice requirement “on application of a
party for good cause shown”). To show good cause for
its request, Plaintiff explained that: (1) Daou is a critical
third-party witness; (2) Daou first confirmed his
availability for the deposition on August 18, 2016, the day
that Plaintiff made its request; (3) Daou said that he was
unavailable on any other date in August and September; (4)
travelling to Vienna was more practical and safer than
travelling to Beirut, Lebanon, where Daou lived; and (5)
Claimant's counsel could participate in the deposition by
telephone if they could not travel on such short notice. Pl.
Letter [Dkt. 762-1] at 1-2. Claimant objected to
Plaintiff's request, arguing that travelling to Vienna on
eight days' notice was unduly burdensome and provided
insufficient time to prepare. See Cl. Aug. 19, 2016
Letter [Dkt. 766-2]. Additionally, Claimant asserted that
Plaintiff overstated the importance of Daou's testimony
and the urgency of taking Daou's deposition in August,
referencing a document that Claimant's counsel received
indicating that Daou “preferred to travel in
September[, ] though August 26, 2016 could work” for
his schedule. Id. at 1-2. According to Plaintiff,
however, Daou later changed his mind regarding his
availability, informing the government's counsel that he
would only appear for a deposition on August 26, 2016.
See Order [Dkt.765] at 2.
an August 19, 2016 telephone conference, the Court ruled in
Plaintiff's favor, and Claimant filed a letter brief
requesting reconsideration of that decision. See Cl.
Aug. 22, 2016 Letter [Dkt. 766-1] at 1. After reviewing
Claimant's letter brief and Plaintiff's response, the
Court issued an Order on August 22, 2016 affirming its
decision to grant Plaintiff's request and allow the
deposition to move forward in Vienna. See Order
[Dkt. 765] at 5. In its Order, the Court highlighted a number
of factors that weighed in favor of granting Plaintiff's
request, including: (1) Daou's apparent unwillingness to
sit for a deposition after August 26, 2016 based on the
representations of Plaintiff; (2) the Court's inability
to compel Daou, a foreign national, to attend a deposition
abroad; (3) the mutual hardship that both parties would
endure by having to prepare and travel for a deposition on
such short notice; (4) the importance of Daou's
testimony, according to Plaintiff; and (5) the option for
Claimant's counsel to attend the deposition remotely.
Id. at 4. The undersigned, however, recognized
Claimant's concerns and noted that,
if [Claimant's] counsel attends the deposition and it
does not go forward because the government fails to obtain
the necessary approval from the Austrian government to take
the deposition, the Court will be favorably disposed to
granting a request from [Claimant] for reimbursement of his
counsel's travel costs, his attorney's fees, and any
other costs associated with expedited translation of
Id. at 5.
Daou's First Deposition
to the Mutual Legal Assistance Treat (“MLAT”)
between the United States and Austria and consistent with the
long-standing practice between the Department of Justice and
its Austrian counterpart, the Austrian government verbally
informed Plaintiff that the government did not need to make a
formal MLAT request to depose Daou in Vienna. See
Cross. Mot. at 5. The government received written
confirmation of such two days prior to the deposition, on
August 24, 2016. Id. Accordingly, on August 26, 2016,
both parties and Daou appear for the deposition at the United
States Consulate in Vienna. Smith Decl. [Dkt. 861-4] at 7. At
the start of the deposition, counsel for Claimant placed on
the record his objection that Plaintiff's counsel had not
obtained proper authorization to take the deposition and that
it was thus illegal under Austrian law. Id. at 8-9.
Upon hearing this objection, Daou became concerned about
potentially violating Austrian law, and an off-the-record
discussion ensued. Id. at 2; see also Cross
Mot. at 5-6.
counsel's objection was based on prior communications
with an Austrian attorney who advised him that the deposition
of Daou violated Austrian law. See Cross Mot. at 5;
see also Cross Mot. Ex. 5 [Dkt. 895-3]; Smith Decl.
[Dkt. 861-4] at 2, 12-13. The night before the deposition,
the Austrian lawyer forwarded Claimant an email written in
German from Alexandra Fialla, who Claimant describes as a
“legal official” at the U.S. Consulate in Vienna,
stating when translated that the “interrogation”
could not take place on August 26, 2016 without the proper
“Austrian approval.” See Smith Decl.
[Dkt. 861-4] at 2, 12-13. Claimant's counsel objected to the
deposition based on this email. Id. at 2. When the
parties went off the record, Claimant showed Daou a copy of
the forwarded email and translated the relevant portions from
German to English using Google's translation tool.
Id. at 2. Claimant's counsel also claims that he
showed a copy of the email to Plaintiff's counsel at the
then asked whether the consulate employee who authored the
email could explain what she meant, and Claimant's
counsel claims that Plaintiff's counsel
“refused” to make her available. Id.
Instead, and in an effort to clarify any miscommunications,
Plaintiff's counsel showed Daou a letter from the
Austrian government purporting to establish that the United
States had received permission to proceed with the
deposition. See Id. at 2-3; see also
Transcript [Dkt. 907] at 8:20-9:23. The letter, however, was
written in German and pre-dates the email that Claimant's
counsel received from the consulate employee. Smith Decl.
[Dkt. 861-4] at 2-3. Claimant's counsel also contends
that Plaintiff did not permit them to view this letter at the
deposition. Id. at 3; see also Transcript
[Dkt. 907] at 9:12-23.
to FBI 302's documenting the off-the-record discussion,
Claimant's counsel repeated to Daou that Austria had not
authorized the deposition and that his participation in it
was illegal. See Cross Mot. Ex. 2 [Dkt. 895-1] at
1-2. The FBI reports also state that Claimant's counsel
cautioned Daou that he did not represent the Austrian
government and had no authority to prosecute Daou-statements
that the reports indicate Claimant's counsel refused to
make on the record-but that Daou nevertheless became
concerned that he was breaking the law. Id. at 2. To
be sure, Claimant's counsel contends that some of the
allegations in these reports are not accurate-including the
charges that Claimant's counsel would not state on the
record that he did not represent the Austrian government and
that he told Daou that ...