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CourtAlert - Tip of the Week
Local Rule 30.1 Review (Southern District of New York)
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October 30, 2014
The occasion to have Southern District of New York Local Rule 30.1 be an issue
probably doesn’t surface to often, but we came across a decision from earlier
this year that we feel would be of interest. Aside from becoming a little more
familiar with Local Rule 30.1 we recommend you store this decision for future
use to possibly resolve a discovery request regarding a subpoena with the person
most knowledgeable residing outside the country. After reading this opinion you
might be of the same conclusion as we did that Judge Scheindlin worked this out
fairly for both sides. The non-party witness might not agree, but it was better
than a 12-hour flight for a one-day deposition. We would like to provide a quick
summary below, but when you have a chance please read the entire opinion.
Sheryl Wultz v. Bank of China
11cv1266
Judge Scheindlin
Bank Hapoalim a non-party Israeli bank was served with a subpoena pursuant to
Federal Rule of Civil Procedure 30(b)(6) seeking testimony on a variety of
topics.
Hapoalim filed a motion to quash or modify the subpoena arguing that the
subpoena violates Rule 45’s prohibition on compelling an individual to travel
more than 100 miles from where that person resides, is employed or regularly
transacts business in person in order to be deposed. Magistrate Gorenstein
issued a written decision in which he granted Hapoalim’s motion to quash.
During the time Rule 72(a) objections were pending the defendant revised the
subpoena, which lead to Judge Scheindlin finding the Rule 72 objections were no
longer proper and entertained the motion to quash.
Judge Scheindlin considered the following five factors that have been consistent
within the Courts of the Second Circuit when evaluating the propriety of an
order directing the production of documents or testimony that may be in
contravention of foreign law:
(1) the importance to the investigation or litigation of the documents or other
information requested;
(2) the degree of specificity of the request;
(3) whether the information originated in the United States
(4) the availability of alternative means of securing the information; and
(5) the extent to which noncompliance with the request would undermine important
interests of the United States, or compliance with the request would undermine
the important interests of the state where the information is located. Courts in
the Second Circuit also consider:
(6) the hardship of compliance on the party or witness from whom discovery is
sought; and
(7) the good faith of the party resisting discovery
Hapoalim is subject to this Court’s subpoena jurisdiction by virtue of having a
branch office in New York. Because Rule 45’s geographic restriction applies to
Rule 30(b)(6) testimony, the Court cannot compel anyone to travel from Jerusalem
to New York to testify at a deposition. The only issue in question is whether
requiring Hapoalim to comply with its affirmative duty to prepare a designee for
Rule 30(b)(6) testimony constitutes an undue burden in light of its assertion
that all of the individuals with relevant information or knowledge about the
Shurafa wire transfers reside or work in Jerusalem.
However, Hapoalim maintains that it is “simply not reasonable or practical” to
educate an employee in New York when the “knowledgeable employees are located in
Israel,” Hapoalim presents no compelling arguments or evidence as to why it
should not comply with this duty.
A person in New York can easily be educated by a person in Israel by telephone,
email or videoconference and relevant documents can easily be transmitted on a
single flash drive or CD-ROM. Further, in the age of videoconferencing, Hapoalim
can avoid the burden of educating a New York employee altogether by agreeing to
a deposition by video, to which BOC has consented.
For the foregoing reasons, Hapoalim's motion to quash or modify the subpoena is
denied. If the parties agree to conduct the deposition via video conference, BOC
shall "pay the expense (including a reasonable counsel fee) of the attendance of
one attorney" for Hapoalim "at the place where the deposition is to be taken.
This payment shall be made prior to the examination, pursuant to Local Civil
Rule 30.1.
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