Opinion
Civil No. 07-1606 (ADC/BJM).
January 7, 2009
ORDER
Defendants Inyx, Inc., Victoria Benkovitch, Jack Kachkar, Colin Hunter, Rima Goldschmidt, Steven Handley, Jay Green, and Inyx, Inc. (collectively, "Inyx") move for an order in limine barring the use at trial of "deposition notes" concerning the deposition of Ole Eikeland in the Oslo District Court in Oslo, Norway (the "Norwegian court"). (Docket No. 316). Westernbank opposed (Docket No. 353), attaching a copy of the document at issue (the "written record") (Docket No. 353-2), and Inyx replied. (Docket No. 366).
On November 3, 2008, Westernbank deposed Eikeland as corporate representative of Pareto Securities, AS, a non-party to the case. The dispute here stems in part from the fact that the recording device used by the Norwegian court malfunctioned and the parties were unable to obtain a verbatim transcript of the deposition but instead received a written record prepared by the court. (Docket No. 352-2, p. 1). District Court Judge Ruth Anker Høyer stated that while she "regretted" this circumstance, "the written record fulfills the requirement of the Norwegian Disputes Act cf. § 27-6 cf. § 13-5 of the Disputes Act." (Id.). Inyx's characterization of the written record as "notes" whistles past the formality of a document that clearly appears to be an official court record of the Oslo District Court prepared by Judge Høyer. (Docket No. 353-2).
The Federal Rules specifically contemplate that different deposition procedures in foreign countries need not render such deposition testimony inadmissible. Rule 28 provides that "[e]vidence obtained in response to a letter of request need not be excluded merely because it is not a verbatim transcript, because the testimony was not taken under oath, or because of any similar departure from the requirements for depositions taken within the United States." Fed.R.Civ.P. 28(b)(4) (emphasis added).
Defendants assert that, notwithstanding the language of Rule 28, the written record constitutes hearsay within hearsay and should therefore be excluded. These concerns are premature, at best. First, Judge Høyer's written record of the deposition falls under the public records exception of the hearsay rule in Rule 803. Fed.R.Evid. 803(8) ("[r]ecords, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth . . . matters observed pursuant to a duty imposed by law as to which matters there was a duty to report" are excepted from the hearsay rule). Second, Mr. Eikeland's statements constitute "former testimony" and would therefore be excepted from the hearsay rule pursuant to Rule 804. Fed.R.Evid. 804(b)(1) ("[t]estimony given as a witness . . . in a deposition taken in compliance with law" is excluded from hearsay rule). However, unlike the Rule 803 public records exception, Mr. Eikeland's testimony would admissible under Rule 804(b)(1) only if he is unavailable to testify at trial (although, as a non-party witness located in a foreign country, it is likely that he would be "unavailable" for the purposes of Rule 804(a)).
The First Circuit has held that foreign deposition testimony is not inadmissible simply because it does "not comport in all respects with American practice," but rather, "`unless the manner of examination required by the law of the host nation is so incompatible with our fundamental principles of fairness or so prone to inaccuracy or bias as to render the testimony inherently unreliable, . . . a deposition taken . . . in accordance with the law of the host nation is taken `in compliance with law' for purposes of Rule 804(b)(1).'" United States v. McKeeve, 131 F.3d 1, 10 (1st Cir. 1997) (citing United States v. Salim, 855 F.2d 944, 953 (2d Cir. 1988)). In this spirit, courts have admitted foreign deposition testimony even in criminal cases where heightened constitutional concerns about the confrontation clause were implicated. McKeeve, 131 F.3d 1; Salim, 855 F.2d 944. InSalim, the court affirmed admission of testimony that was not given under oath, was made in response to written questions for both direct and cross examination, was translated between English, French, and Farsi, and was not transcribed verbatim in its entirety. 855 F.2d at 952-53. Here, while the testimony was not transcribed verbatim, the record reflects that the witness "was made aware of witness responsibilities, admonished, made affirmation, and testified," no objections were made concerning the judge's impartiality, the court read the written record at the end of the proceeding and the parties agreed to its accuracy, and the written record fulfilled the requirements of Norwegian law. (Docket No. 353-2, p. 1, 5, 21). Further, the court has reviewed the submitted written record and it appears to be sufficiently detailed and extensive so as to reflect a high degree of formality and professionalism, and in short, to assuage any potential concerns that the deposition was "incompatible with our fundamental principles of fairness or . . . prone to inaccuracy or bias." Salim, 855 F.2d at 953. In light of this precedent and the text of Rule 28, in this civil matter where the heightened standards of the confrontation clause are not at play and there is no suggestion that the testimony is "inherently unreliable," there is no reason to exclude the testimony at this point in the proceedings.
Moreover, in both of the referenced criminal cases in which foreign deposition testimony was admitted, the deponent was a "key witness" whose testimony was "central to the case." McKeeve, 131 F.3d at 7; Salim, 855 F.2d at 948. Here, Mr. Eikeland does not appear to the court to be a key witness, but rather his testimony, as proffered by Westernbank, "represents yet another confirmation and conclusive evidence" of just one of defendants' alleged "fraud and serial breaches" of the parties' agreement. (Docket No. 353, p. 2). His testimony, in fact, does not appear to concern the central facts at issue concerning Inyx's alleged breach of contract but instead centers on Inyx's alleged promises to "induce Westernbank to continue lending." (Id.).
Defendants' further arguments are unavailing. In particular, their citation to 28 U.S.C. § 753 is inapposite, as that code section is concerned with official court proceedings, not discovery matters.
Accordingly, Inyx's motion in limine is DENIED without prejudice to Inyx's right to move to exclude Mr. Eikeland's deposition testimony, pursuant to Federal Rule of Evidence 804(b), upon showing that he is available to testify at trial.