Opinion
HHDCV176073898S
04-04-2018
Faiz SIDDIQUI v. Erum Majid RANDHAWA
UNPUBLISHED OPINION
OPINION
CESAR A. NOBLE, J.
Before the court is the motion of the defendant, Erum Majid Randhawa, to nonsuit the plaintiff, Faiz Siddiqui, for failure to appear for a deposition. The order of the court issued below, which imposes a deadline by which the plaintiff must appear in Connecticut to be deposed, is informed by the following facts and procedural history.
The plaintiff, currently a resident of London, England, brought suit against the defendant by complaint dated December 8, 2016. The complaint, which was commenced and is pending in the judicial district of Hartford, alleges that the parties are Muslims of Pakistani descent and members of families who were previously friendly. The plaintiff alleges in his complaint claims of defamation, negligent and intentional infliction of emotional distress. The common factual predicate was an alleged attempt by the defendant to engage him in a social relationship in 2005 and 2006 at which time the plaintiff returned to England. The interaction between the parties is alleged to have involved the defendant alternatively expressing great interest in the plaintiff and sometimes rudely rebuffing him. Thereafter, the defendant is alleged to have made numerous malicious and negative comments about the plaintiff to his family, causing a rift between the families. The plaintiff alleges that in 2015 the defendant falsely stated to the West Hartford police that the plaintiff harassed her, causing a misdemeanor warrant to be issued for the plaintiff’s arrest. The warrant remains outstanding and the plaintiff complains that he cannot travel to the United States to complete a postgraduate degree without fear of arrest. Moreover, he has, as a consequence of the defendant’s falsehoods, experienced emotional distress, damage to reputation and a significant exacerbation of pre-existing major depressive disorder as well as chronic insomnia.
On July 21, 2017, the defendant moved to compel the plaintiff to appear in Connecticut to be deposed. The defendant complained that the plaintiff indicated that he would not voluntarily appear for deposition in Connecticut. In the estimation of the defendant, Practice Book § 13-29(b) obliges the plaintiff, who remains a resident of London, to appear for deposition in Connecticut. That section provides that a plaintiff who is not a resident of this state may be compelled by notice " to attend at the plaintiff’s expense an examination in the county of this state where the action is commenced or is pending or at any place within thirty miles of the plaintiff’s residence or within the county of his or her residence or in such other place as is fixed by order of the judicial authority." Practice Book § 13-29(b).
The plaintiff never sought the safe harbor afforded by a protective order pursuant to Practice Book § 13-5 but has simply declined to appear for a properly noticed deposition.
In response to the motion to compel, the plaintiff objected on August 3, 2017 on the grounds that while he was willing to be deposed by videoconference " he [did] not wish to travel to the United States to be arrested." Additionally, the plaintiff claimed he suffered a recent exacerbation of his mental condition such that he required a period of recuperation before he would be able to submit himself to even a videotaped deposition. Attached to the objection were the affidavit of the plaintiff averring that he was the subject of an arrest warrant issued by the West Hartford Police Department and a letter from Dr. Jonathan Beckett, a psychiatrist located in London, who had the plaintiff under his care since 2012. Dr. Beckett diagnosed the plaintiff with major depression, generalized anxiety disorder and primary insomnia disorder. Dr. Beckett noted that after a two-year period of sporadic contact with the plaintiff throughout 2015 and 2016 the plaintiff presented himself for evaluation on July 24, 2017. Dr. Beckett opined that the plaintiff was acutely anxious and preoccupied with various stressors in his life. These included the recent serious illness of his father, concern about the false allegations made by the defendant and fearfulness " of being summoned to Connecticut to give a deposition where he would face arrest and prosecution on an arrest warrant which he and his legal advisors both strongly believe to be false and frivolous." Dr. Beckett opined that the plaintiff was not " well enough to withstand the considerable adverse pressure of being arrested and prosecuted on an arrest warrant, in particular when he and his legal advisors strongly believe is false and without merit." A period of rest and recuperation was strongly advised by the doctor to last perhaps a period of three to four months.
The plaintiff filed a supplemental brief on September 7, 2017 which made the bald statement that because of the arrest warrant the plaintiff could not travel to the United States without a visa and because of the warrant he could not obtain a visa. No authority, whether statutory, regulatory or case law, was provided for this proposition.
The motion to compel was heard at short calendar on November 6, 2017, after which the court issued an order granting the motion and stated that it was " not persuaded that the plaintiff’s desire to avoid service of a proper and duly executed arrest warrant is a sufficient basis to afford him the convenience of not returning to the United States for his deposition. The affidavit of Dr. Beckett is stale and insufficiently specific as to the harm that might be visited upon the plaintiff were he to travel to the United States for deposition." Entry No. 124.86, November, 6, 2017.
On November 24, 2017, the plaintiff filed a motion to reargue the court’s order which included a new letter from Dr. Beckett, dated November 22, 2017. This letter reiterated his opinion that the plaintiff was experiencing stress not only as a result of the threat of arrest but his father’s illness and relative lack of contact with him and his family. Dr. Beckett indicated it was difficult to predict a timeframe within which the plaintiff’s mental state would have recovered sufficiently for him to give evidence at a deposition. He did clarify that " [a]t the very least, would predict that he would require a further two months of recuperation. This would also give Mr. Siddiqui’s legal advisors sufficient time to deal with the outstanding issue of the arrest warrant." The court denied the motion.
Thereafter on February 5, 2018, the defendant filed a motion for nonsuit and sanctions for the plaintiff’s failure to appear for a deposition scheduled for February 2, 2018. The plaintiff filed a brief in opposition on February 21, 2018. The " brief," which consisted of one sentence, served principally as the medium by which the plaintiff introduced to the court a letter from an immigration attorney, a Kelly Brackley, Esq., based in London. The plaintiff represented in his brief that Brackley’s letter attested " that it is impossible for the plaintiff to attend a deposition in the United States in this matter because of the existence of the warrant for his arrest sought by the defendant." To the contrary, the court’s review of the Brackely letter reveals that it merely provides that " any travel to the U.S. would not be permitted without a prior visa in place" and that such might take months to obtain. Apart from the inconsistency relative to the impossibility of entry to the United States, the plaintiff’s brief is notable for the complete lack of reference to legal citations for the proposition asserted. The court notes the presence of this infirmity in all prior memoranda, as well as a subsequent memorandum dated March 6, 2018, which assert the impossibility of entry into the United States.
Furthermore, the court declines to consider Brackley’s letter. Simply put, the author is an attorney who has not appeared in this matter.
The parties appeared on February 26, 2018 for argument on the defendant’s motion for nonsuit. The court raised, sua sponte, the issue of whether this court’s order on November 6, 2017 compelling the plaintiff to come to Connecticut for deposition was inconsistent with the Supreme Court’s decision in Pietraroia v. Northeast Utilities, 254 Conn. 60, 756 A.2d 845 (2000). In Pietraroia, the plaintiff filed a claim for workers’ compensation benefits claiming he contracted asbestosis arising out of and in the course of his employment with the defendant. The commissioner issued a ruling which compelled the plaintiff, who had since moved to Australia, to return to Connecticut for deposition, submission to an independent medical examination and to testify at the formal hearing. The Supreme Court reversed the ruling by the commissioner. In reaching this conclusion, the court gave weight to the opinions contained in a report from an Australian physician which concluded travel in an airplane involved serious risks to the plaintiff’s health including being " at high risk of developing respiratory problems when travelling in confined spaces such as aeroplanes, and when coming in contact with new viruses in the northern hemisphere." Id., 76. The Supreme Court’s decision involved a balancing of the defendant’s interests with the plaintiff’s interest " in presenting his claim in the only forum legally available to him without undue risks to his health." Id., 68. In addition to reiterating the policy preference for resolving a case on its merits, the court recognized the need to " exercise special vigilance to protect foreign litigants from the danger that unnecessary, or unduly burdensome, discovery may place them in a disadvantageous position. Judicial supervision of discovery should always seek to minimize its costs and inconvenience and to prevent improper uses of discovery requests." Id., 77, quoting Societe Nationale Industrielle Aerospatiale v. United States District Court for the Southern District of Iowa, 482 U.S. 522, 546, 107 S.Ct. 2542, 96 L.Ed.2d 461 (1987).
The parties requested the opportunity to brief the issue raised by the court and memoranda from both was received. The plaintiff argued in his memorandum, dated March 6, 2018, that " [t]he most salient fact relevant to her [the defendant’s] motion for a nonsuit because the plaintiff cannot attend his deposition within this state is not the state of the plaintiff’s health but the state of the arrest warrant which the defendant procured. It simply is a fact that the plaintiff cannot enter the United States with an outstanding arrest warrant ." (Emphasis added.) Entry No. 162. The defendant’s memorandum distinguished Pietraroia from the present case on the grounds that the potential injury to the deponent in the former is concrete and physical, while the plaintiff’s alleged illness is entirely subjective with no definitive injury or danger having been articulated.
Practice Book § 13-29, " Place of Deposition" is the starting point for the court’s analysis. That section provides in relevant part that " A plaintiff who is not a resident of this state may be compelled by notice under Section 13-27(a) to attend at the plaintiff’s expense an examination in the county of this state where the action is commenced or is pending or at any place within thirty miles of the plaintiff’s residence or within the county of his or her residence or in such other place as is fixed by order of the judicial authority." Practice Book § 13-29(b).
Although only one of several options codified in Practice Book § 13-29(b), the obligation of an out of state plaintiff to return to Connecticut for deposition is commonly considered the default. Absent mitigating factors the rationale is clear. " It seems only fair that a party who as a plaintiff takes advantage of our court system by initiating litigation in our state can be required under Practice Book Rule § 13-29(b) to be deposed in our state if he or she is an out-of-state resident." Miller v. Option One Mortgage, Superior Court, judicial district of New Haven, Docket No. 05-4006787-S (2006 WL 337224, *2) (January 26, 2006, Corradino, J.) ; Accord Estate of Gerasimenko v. Cape Wind Trading Co., 272 F.R.D. 385, 387 (S.D.N.Y. 2011) (" [A]s a general rule, a plaintiff, having selected the forum in which the suit is brought, will be required to make himself or herself available for examination there" ).
Clearly, the general rule is not absolute as demonstrated by the other three options contemplated by Practice Book § 13-29(b), including setting the location in " such other place as is fixed by order of the judicial authority." A court in the exercise of its discretion should accommodate special circumstances presented by out-of-state plaintiffs which include, but are not limited. to, the expense of travel, comparative financial resources of the parties, impediments to travel, physical and other health issues of the deponent, the amount in controversy, the utility of a delay of the deposition until shortly before trial and the availability of alternatives to an in-person deposition. Ultimately, the trial court should heed the admonition contained in Pietraroia to minimize the costs and inconvenience of discovery, especially where it may inequitably disadvantage a party. Pietraroia v. Northeast Utilities, supra, 254 Conn. 77.
The plaintiff’s position, however, presumes that the availability of a videotaped deposition, the expense of which he has agreed to assume, automatically dispenses with the need for an in-person deposition. The defendant demurs on the grounds that she requires the opportunity to observe the plaintiff in person in order to properly assess his credibility. Neither position is entirely persuasive.
It is true that videoconference depositions are " frequently a preferred solution to mitigate the burden of a deposition location inconvenient to one or both sides." Security & Exchange Commission v. Aly, 320 F.R.D. 116, 119 (S.D.N.Y. 2017). " Ample case law recognizes that a videoconference deposition can be an adequate substitute for an in-person deposition, particularly when significant expenses are at issue or when the deposition will cover a limited set of topics ." (Emphasis added.) United States v. One Gulfstream G-V Jet Aircraft Displaying Tail No. VPCES, 304 F.R.D. 10, 17-18 (D.D.C. 2014). Moreover, courts have not found compelling the need for in-person evaluation of a deponent’s demeanor when a videoconference deposition is available; See Connell v. City of New York, 230 F.Supp.2d 432, 437 (S.D.N.Y. 2002); and the scope of the deposition is not extensive. See Insurance Distributors International (Bermuda) Ltd. v. Edgewater Consulting Group, Ltd., No. A.-08-CA-767AWA, (2010 WL 567233, at *2) (W.D.Tex. February 10, 2010) (videoconference deposition appropriate given narrow focus of testimony and location of witnesses); Brasfield v. Source Broadband Services, LLC, 255 F.R.D. 447, 450 (W.D.Tenn. 2008) (videoconference appropriate where great distance involved and issues relatively simple and straightforward).
The time has not come, however, to declare that in-person depositions are outdated and of such little comparative value that a videoconference deposition is deemed preferable. There is an ineffable, yet real, value in confronting an opponent in person and observing demeanor in a setting more intimate than that found within the confines of a video screen. This is especially so when, as here, the issues of comparative credibility, emotional distress and damage to reputation are neither straight forward nor limited in scope.
Because an in-state, in-person deposition remains the preferred method of deposing the plaintiff, the question arises of which party bears the burden of persuasion that a videoconference deposition should be ordered. The court holds that an out of state plaintiff bears the burden of establishing good cause for avoiding a return to Connecticut for deposition. As previously noted (see footnote 1) the plaintiff never requested a protective order but simply announced his intention not to personally appear for a deposition appropriately noticed for the county in which the action is pending. Had the plaintiff sought a protective order pursuant to Practice Book § 13-5 he would have been successful in resisting a return to the United States for deposition only upon a showing of good cause. " Upon motion by a party from whom discovery is sought, and for good cause shown, the judicial authority may make any order which justice requires to protect a party from annoyance, embarrassment, oppression, or undue burden or expense ... (2) that the discovery be had only on specified terms and conditions, including a designation of the time or place." (Emphasis added.) Practice Book § 13-5(2). It follows that where a plaintiff is properly noticed to appear for deposition in conformance with § 13-29(b) in the county where the action was commenced or is pending it is the plaintiff who bears the burden of establishing why a different option, including a deposition by videoconference, is more appropriate. Accord Kean v. Board of Trustees of the Three Rivers Regional Library System, 321 F.R.D. 448, 453 (S.D.Ga. 2017); Webb v. Green Tree Servicing LLC, 283 F.R.D. 276, 279 (D.Md. 2012); Angamarca v. Da Ciro, Inc., 303 F.R.D. 445, 447 (S.D.N.Y. 2012); Caraway v. Chesapeake Expl. LLC, 269 F.R.D. 627 (E.D.Tex. 2010); Fenerjian v. Nong Shim Co., Ltd., No. 13CV04115WHODMR, (2016 WL 1019669, at *4) (N.D.Cal. March 15, 2016). " Ordinarily, [a] plaintiff will be required to make himself or herself available for examination in the district in which suit was brought. Since plaintiff has selected the forum, he or she will not be heard to complain about having to appear there for a deposition. But this is at best a general rule, and is not adhered to if plaintiff can show good cause for not being required to come to the district where the action is pending ." (Emphasis added.) 8A C. Allen Wright et al., Federal Practice & Procedure, § 2112 (3d Ed. 2005). The plaintiff in the present case has not established good cause.
As noted previously, the plaintiff has not provided the court with any authority for the assertion that he cannot enter the United States with an outstanding arrest warrant. Indeed, this proposition is contradicted by the Brackley letter which purports to advise not that entry is impossible but that a visa is required. The court is not persuaded by Dr. Beckett’s letters that the injury to the plaintiff’s emotional health from being deposed is serious. Rather, Dr. Beckett’s opinion seems to key on the adverse effect on the plaintiff’s emotional health flowing from the prospect of being arrested. The plaintiff’s early argument, that the risk of arrest was sufficient good cause to avoid returning to Connecticut for deposition, is not compelling. The court declines the opportunity to assist the plaintiff in evading arrest pursuant to a valid warrant.
What the plaintiff has not argued, nor asserted, was that the logistics and expense of travel to Connecticut are in any way, other than the undesirability of potential arrest, unduly burdensome. The plaintiff has also not demonstrated either any effort to comply with the court’s order by attempting to secure a visa or that such effort was unsuccessful.
For the foregoing reasons, the court orders that the plaintiff present himself in Hartford County, Connecticut for deposition within four weeks from the date of this order. The failure to do so will result in a nonsuit.