Depositions in the Time of COVID-19

Can the United States Government compel a witness to appear in person for a deposition in the midst of a pandemic? Not according to the U.S. Court of International Trade in the ongoing tussle known as United States v. Greenlight Organics. We have previously addressed aspects of this case here, here, here, and even here.

After the Government demanded a deposition to be held at the U.S. Custom House in San Francisco and following appropriate COVID protocols, the witnesses objected. The objection resulted in a motion for a protective order, which is the vehicle by which a Court is asked to limit discovery. The Government argued that an in-person deposition was necessary so that the witness could be shown documents. Apparently, the DOJ lawyers have not spent the past year sharing screens in Teams meetings. Citing CDC guidance and common sense, the court found that requiring witnesses to travel to San Francisco would risk the health of the witnesses in an era when videoconferencing has "become second nature in this Court over the past year . . . ." Thus, finding good cause, the Court granted the protective order.

Next, the Defendants made a motion to compel production of the loss of revenue and domestic value calculation for each entry the Government alleges was made fraudulently. This information appears to not exist because during the administrative process, the government relied on statistical sampling to calculate the loss of revenue rather than perform a line-by-line calculation. Given that parties cannot be compelled to produce information that does not exist, the Court denied the motion. However, the Court noted that if the case moves to a trial or dispositive motion, there is an open question of whether that data must be produced.

The next issue has to do with whether there are "instructive manuals" regarding the conduct of fraud investigations. The Defendants requested that the Government produce them. According to the Government, no such documents exist. That is odd, as the defense counsel asserts that it has received such manuals in prior litigation. Doubly odd is that the Defendants have not been able to produce examples showing that they do, in fact, exist. Given the Government's statement of non-existence (or at least no knowledge of the existence) and the lack of evidence of existence, the Court denied the motion.

Lastly, the Court refused to order the Government to sift through 3,100 pages of documents to find those related to the customs brokers. According to the Court, sifting through documents is the nature of litigation and the defense lawyers should get started.


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