United States District Court, S.D. Florida
ORDER ON PLAINTIFF'S MOTION TO TAKE A TELEPHONIC
G. TORRES UNITED STATES MAGISTRATE JUDGE
matter is before the Court on an emergency motion by the
Center for Individual Rights (“Plaintiff”)
against Irina Chevaldina (“Defendant” or
“Chevaldina”). [D.E. 169]. Chevaldina responded
to Plaintiff's motion on May 21, 2018 [D.E. 189] to which
Plaintiff replied on May 22, 2018. [D.E. 190]. Therefore,
Chevaldina's motion is now ripe for disposition. After
careful consideration of the motion, response, reply,
relevant authority, and for the reasons discussed below,
Plaintiff's motion is GRANTED.
an action for breach of contract. The complaint - filed on
March 11, 2016 [D.E. 1] - alleges that Plaintiff successfully
represented Defendant pro bono in an appeal before
the 11th Circuit in Katz v. Google, Appeal No.
14-14525, in which the Eleventh Circuit affirmed summary
judgment in favor of Defendant in a copy infringement
action. See Katz v. Google, Inc., 802
F.3d 1178 (11th Cir. 2015), aff'g, Katz v.
Chevaldina, 12-cv-22211, 2014 WL 5385690 (S.D. Fla.
Sept. 5, 2014). Plaintiff alleges that Defendant had few
financial obligations under the retainer agreement in that
case and that Plaintiff paid the out of pocket expenses of
the suit. Plaintiff contends that it only asked Defendant for
(1) reasonable attorney fees and expenses as permitted under
law, and (2) that Defendant provide Plaintiff with any fees
or expenses that were attributable to Plaintiff's
expenditures and/or the work of its attorneys. If Defendant
decided to settle the case, Plaintiff alleges that Defendant
was also obligated to provide Plaintiff with a reasonable
amount in attorney's fees and expenses.
December 2015 - while being represented by another attorney -
Defendant settled all the remaining claims in the
Katz case. In the settlement, Plaintiff claims that
Defendant obtained only $10, 000 in attorney fees for the
work of Plaintiff's attorneys as well as both taxable and
non-taxable costs. Shortly thereafter, Plaintiff sought to
challenge the fee award in the Eleventh Circuit, but
Defendant allegedly instructed Plaintiff to withdraw its
motion and Plaintiff reluctantly complied. Therefore,
Plaintiff suggests that Defendant did not obtain a reasonable
amount in attorney fees for the work of Plaintiff's
attorneys and that Defendant breached the retainer agreement.
In exchange for the low sum of $10, 000 in attorney fees,
Plaintiff alleges that Defendant agreed with Katz to drop a
substantial claim against Defendant in excess of $100, 000.
Because Plaintiff alleges that it has been deprived of a
reasonable attorney fee award, Plaintiff seeks judgment
against Defendant in an amount of no less than $105, 000 -
including reasonable costs and expenses in accordance with 28
U.S.C. § 1920.
motion seeks leave to take a telephonic deposition of Adam
Schacter (“Mr. Schacter”). [D.E. 169]. Mr.
Schacter is a partner at GSG, the law firm that represented
Chevaldina in a state court action against Raanan Katz and
various relatives alleging defamation and other related
torts. Plaintiff claims that it served a notice to take the
deposition of Mr. Schacter on May 23, 2018 because of the
Court's looming discovery deadline. Chevaldina allegedly
told Plaintiff that she could not be in attendance for the
deposition, but did not provide a reason for her
avoid any additional motion practice, Plaintiff offered to
(1) stipulate that Chevaldina could appear by telephone, or
(2) to reschedule the deposition to any other date in which
GSG was available provided that Chevaldina would stipulate to
a telephonic deposition. Neither proposal resolved the
underlying dispute. Plaintiff explains that the deposition of
Mr. Schacter would be fairly short and that the deponent is a
non-party based in Miami whose deposition must be taken
within the subpoena powers of the Court. Plaintiff therefore
argues that its attorney - who resides in Washington D.C. -
would be burdened by a requirement to fly to Miami for a
short deposition. Because Chevaldina and GSG have been unable
to find an alternative date and Chevaldina refuses to
stipulate to a telephonic deposition, Plaintiff concludes
that its motion must be granted.
makes several arguments in response. First, Chevaldina claims
that Plaintiff's motion violates Local Rule 26(1)(h),
which purportedly requires a reasonable noticing of taking a
deposition. Chevaldina alleges that Plaintiff only gave the
deponent thirteen days' notice - as opposed to fourteen
days as required. Second, Chevaldina argues that
Plaintiff's subpoena to Mr. Schacter is defective because
it fails to comply with Rule 45(a)(1)(B), which requires that
a subpoena state the method for recording the testimony.
Third, Chevaldina claims that Plaintiff did not confer with
her about the time she would have for cross-examination. And
fourth, Chevaldina contends that she is not a native speaker
and that she will be prejudiced if she participates in a
telephonic deposition where she does not understand legal
terms. Therefore, Chevaldina concludes that it is essential
that she be personally present for the deposition of Mr.
Rule of Civil Procedure 30(b)(4) permits a court to
order, upon motion, that a deposition be taken by telephone
or other remote means. The deposition must be conducted
before an officer authorized to administer oaths either by
federal law or by the law in the place of examination.
See Fed. R. Civ. P. 28(a)(1); Fed. R.
Civ. P. 30(b)(5). The deposition may also be recorded by
audio, audio-visual, or stenographic means as stated by the
party who notices the deposition. See Fed. R.
Civ. P. 30(b)(3).
Plaintiff's motion is well taken because all of
Chevaldina's arguments in response are without merit.
First, Chevaldina claims that the deposition failed to give
the required amount of time under the Local Rules. But,
Plaintiff served the notice on May 9, 2018 with a scheduled
deposition to occur on May 23, 2018. The time between the
service date and the time of the deposition is fourteen days.
It appears that Chevaldina miscalculated the amount of time
in her response. Therefore, her first argument is misplaced.
second argument is equally unpersuasive because it interprets
Rule 45 as requiring that a subpoena state the method for
recording a deponent's testimony. In other words,
Chevaldina appears to believe that Rule 45 requires that a
subpoena specifically state that a deposition will be
telephonic. But, Chevaldina fails to cite a single case that
supports this position. In any event, Chevaldina's
response misses the mark because (1) she failed to attach the
relevant subpoenas as support for her argument, and (2) we
can find no authority that a subpoena must state that a
deposition will be telephonic.
Chevaldina's remaining arguments, they are also without
merit because Plaintiff served its notice on May 9, 2018 -
meaning that Chevaldina had ample time to prepare for the
upcoming deposition and acclimate herself with the legal
terms that may arise during Mr. Schacter's testimony.
Moreover, Chevaldina's complaint - that she will be
disadvantaged with a telephonic deposition - rings hollow
because Plaintiff's motion does not require her to appear
by phone. If Chevaldina was unable to make travel
arrangements when she learned of the notice of deposition,
she should have moved under Rule 26(c) regardless of how the
deposition would have been administered. Accordingly, all of
Chevaldina's arguments are without merit and therefore
Plaintiff's motion to take the deposition of Mr. Schacter