In Probulk Carriers Limited v. Marvel International Management and Transportation, Judge Lewis A. Kaplan of the United States District Court Southern District of New York recently reminded us of the flexibility of subpoenas to both compel a party to produce documents and to appear for a deposition – a powerful tool routinely used by litigators in the United States. In Probulk Carriers, the District Court ordered a foreign filmmaker to comply with two subpoenas that he had been served with while he was visiting the United States to attend a film festival.
This tale began with a London arbitration panel finding that Marvel, a Turkish company, breached its charter party with Probulk, a Liberian-based vessel operator. The panel awarded Probulk $12,800,000 in principal plus interest and costs. Probulk moved before the Southern District of New York to confirm and enforce the award. The Southern District of New York defaulted Marvel for failure to appear in the confirmation proceeding and confirmed the award as enforceable.
However, Probulk was unable to locate any assets of Marvel within the Southern District. With no assets against which to enforce the award, Probulk’s success in the arbitration was merely hollow victory.
Subsequently, Probulk learned that the son of Marvel’s owner was a filmmaker and would be in the United States to attend the premiere of one of his movies at a film festival in Boston. The son was known to have participated in his father’s business, Marvel, and appeared to have relevant knowledge. Probulk also suspected that the father was diverting Marvel’s funds into his son’s movie project in order to shield Marvel from the judgment. Accordingly, Probulk served the filmmaker with two subpoenas while he was on the “red carpet” in the United States. One subpoena compelled him to appear for a deposition. The other subpoena required the production of documents related to Marvel’s financials. The filmmaker moved to quash the two subpoenas on the basis that: (1) the Federal Rules of Civil Procedure do not allow for the service of subpoenas on foreign non-party witnesses, (2) the subpoenas are “a transparent attempt to circumvent The Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters”, and (3) enforcement of the subpoenas would be unduly burdensome because he is a non-party “living halfway across the world” and is being called upon to provide evidence for “litigation arising out of transactions that have no connection to the United States.”
Judge Kaplan disagreed. The Federal Rules, the Judge said, do not distinguish between witnesses who are citizens or residents of the United States and witnesses who are not. The Rules provide only that a subpoena may be served at any place within the United States. The Hague Convention, Judge Kaplan continued, is not exclusive and does not prevent Probulk from obtaining evidence by other means. The District Court further noted that: “[the filmmaker’s] claims of undue burden are entirely conclusory. Certainly the obligation for sitting for a deposition is not, in and of itself, burdensome. And [the filmmaker] has given no reason to think that the search for responsive documents would take an inordinate amount of time or require the expenditure of substantial sums.”
Ultimately, the Judge found that Plaintiff presented sufficient evidence to support its argument that the filmmaker had firsthand knowledge of the information and documents relevant to the enforcement of the arbitration award, and ordered the filmmaker to comply with the subpoenas – both for documents and the deposition.
As to the deposition request, in particular, Judge Kaplan noted that the filmmaker should not be subjected to “unreasonable travel burdens.” That being said, the District Court also noted that the Rules permit a court to modify a subpoena that requires a person to comply beyond the geographical limits of the court. Accordingly, the District Court modified the subpoena to allow the deposition to be conducted at a time and place amenable to the parties or, if no such agreement could be made, then in Turkey – the filmmaker’s home country.
In the end, a subpoena can be a powerful tool to seek information from a non-party, who has relevant knowledge and is properly served, even when that non-party normally resides outside the jurisdiction of a US court. This can lead to horror story or fairy tale endings, depending on which side of isle you sit.