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.


Comments

Post a Comment

Popular posts from this blog

CAFC Decision in Double Invoicing Case

The Federal Circuit has issued a decision on the merits in United States v. Inn Foods, Inc.  There had been a previous decision on jurisdiction, which was followed by a trial at the Court of International Trade and then this appeal on the substance. The initial issue is whether Inn Foods' invoicing practice amounts to fraud.  Inn Foods had been receiving an invoice from growers in Mexico that had a relatively low sales prices on it.  Subsequent to entry, Inn Foods created a second invoice at something more similar to market value, retaining the original invoice number, and paid at that higher amount.   Superficially, this looks like a standard-issue double-invoicing scheme.  But, in the age of reconciliation, is it really more like a provisional pricing mechanism?  It might have been possible to make that argument had Inn Foods adjusted its entries accordingly.  It didn't and the loss of revenue was approximately $624,000.  Based on testimony and evidence indicating both knowl
Read more

Target on Finality

Image
In the last post , about the Federal Circuit’s very important decision on due process and allegations of evasion of antidumping duties, I made a snarky, offhand comment that the government believes “liquidation is magic.” That was in the context of the government arguing that Customs’ liquidation of entries mooted an appeal, thereby taking away the importer’s right to further judicial review. I said that knowing full well that I still needed to write this post summarizing Target Corp. v. United States in which Target made what I want to be a valid and righteous argument that Customs’ improper liquidation of entries at a favorable rate of antidumping duty prevents the Court of International Trade from ordering Customs to collect the legally applicable duties. But it turns out that while liquidation is an important legal step, in at least one unusual circumstance it is not sufficiently powerful to overcome the full force of an Article III court. Understanding this case requires a lot
Read more

CAFC: EAPA Process Really Does Violate Due Process

Image
Hot on the heels of my complaining about how the EAPA law and process is stacked against importers, the Court of Appeals for the Federal Circuit has issued an important decision that will have a major impact on how those cases work. If you are unfamiliar with evasion cases under the Enforce and Protect Act and how Customs and Border Protection handles them, go back and look at these two posts: Part 1 , Part 2. Royal Brush Manufacturing, Inc. v. United States , is the decision in an evasion case against Royal Brush involving pencils allegedly transshipped from China through the Philippines. Customs determined that there was evasion of an antidumping duty order based in part on evidence that was not disclosed to Royal. Specifically, Customs sent a representative to the facility in the Philippines to photograph the interior and provide a report. Customs refused to disclose all the photographs to Royal. Moreover, CBP's report concluded that the facility did not have sufficient capacit
Read more