Balk v. New York Inst. of Tech., No. CV 11-509 (E.D.N.Y. Sept. 30, 2013) [click for opinion]

Plaintiff was a professor at the New York Institute of Technology campus in Bahrain.  He claimed to have been falsely accused of inappropriate behavior and wrongly terminated by Defendants, his joint employers.  Defendants, the Institute and Infotec Corporation, had a 10-year agreement under which Infotec would provide personnel and support services to the Institute's Bahrain facility.  Plaintiff alleged that the president of Infotec corresponded with and instructed Institute officials about the accusations against Plaintiff then banned Plaintiff from the Bahrain campus and effected his removal from the country.  Plaintiff asserted a breach of contract against the Institute and unlawful interference with contract against Infotec as well as claims against both Defendants for conspiracy to commit fraud and discrimination under Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e, et seq.).

Plaintiff filed a motion to compel the deposition testimony of the Infotec president, who resided in Egypt.  Plaintiff had originally issued notices of deposition to the Infotec president for a telephone conference call but the president failed to appear.  Plaintiff subsequently discovered affidavits in a prior New York state court proceeding in which the president had been identified as a dual citizen of Egypt and the United States.  Plaintiff thus filed a motion to compel the deposition of the president as a United States citizen residing abroad.  Defendants did not oppose the motion.

The district court observed that under the Walsh Act, 28 U.S.C. § 1783, a federal court may issue a subpoena to an American citizen residing a foreign country if two elements are met: (1) the testimony is in the “interest of justice”'; and (2) it is impossible to obtain admissible testimony through other means.  The court noted that even if both requirements are met, the subpoena to compel testimony still must comply with Federal Rule of Civil Procedure 4(f), which requires service of process to conform with international conventions. 

The court found that the president’s testimony was in the “interest of justice” because he was directly implicated in Plaintiff’s allegations and his testimony was relevant, necessary, and related to the key issues of the case.  The court further observed that it was appropriate to use its discretion to grant the subpoena because although Infotec was incorporated in the Republic of Cyprus and registered in Egypt, the president had previously been served in the United States in connection with prior state proceedings and Infotec maintained offices at the Institute campus in New York. 

The district court found that the second prong was satisfied because it was not practically possible to obtain the testimony of the Infotec president by other means.  The court reasoned that Infotec had defaulted on Plaintiff’s action several months earlier, had not obtained new counsel when its prior counsel withdrew, and its president had failed to attend the previously scheduled telephone deposition. 

With regard to service of process, the court observed that Infotec no longer had an agent or counsel located in New York who could accept service on behalf of Infotec or the company president.  Accordingly, the court required that service of process comply with the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commericial Matters and could not be completed by registered mail while the Infotec president was residing in Egypt.  Finally, the district court required the deposition to be conducted in New York and noted that under the Walsh Act the serving party was required to pay the witness’s necessary travel costs.