City of Almaty, Kazakhstan v. Sater

Background

The plaintiffs, City of Almaty, Kazakhstan and BTA Bank JSC, served a Federal Rule of Civil Procedure 45 subpoena on nonparty Philippe Glatz on December 12, 2022. Glatz is described as a citizen and resident of Switzerland. He was in New York to attend trial in a related action. The subpoena sought his deposition after the deadline for completing fact depositions had passed. Glatz moved to quash, meaning to cancel, the subpoena.

The opinion states that Glatz had already given two days of deposition testimony and testified at trial in the related action on topics relevant to this case. The plaintiffs had not sought permission to depose him after the deadline and had not raised the need for his deposition at the October 2022 case-management conference.

Rule 45 geographic limits

Rule 45 generally limits a deposition subpoena to a person who resides, works, or regularly conducts business in person within 100 miles of the deposition location. The rule also requires the issuing party to avoid imposing undue burden or expense. A court must quash or modify a subpoena that requires compliance beyond those geographic limits.

The plaintiffs argued that Glatz regularly conducted business in New York because he indirectly owned Triadou, a company that invested in New York property, engaged in New York financial transactions, and participated in other New York litigation. They also relied on Glatz’s testimony in the related case. The court rejected that reasoning, explaining that a company’s business activities do not necessarily establish that an individual associated with the company personally conducts business in New York. The court found no identified instances, apart from attending the related trial, when Glatz personally came to New York to transact business. It also concluded that testifying in another case did not constitute conducting personal business in New York.

The plaintiffs alternatively proposed taking Glatz’s testimony by video from Switzerland or having him travel to the United Kingdom or Belgium. The court stated that Switzerland prohibits in-person and remote depositions of Swiss citizens on Swiss soil without authorization, which the plaintiffs had not sought. It further held that a video deposition conducted from New York would remain subject to Rule 45’s geographic limits and that travel to another country would still exceed those limits and be expensive and burdensome.

Ruling

Katharine H. Parker, United States Magistrate Judge, granted Glatz’s motion to quash. The court relied both on the plaintiffs’ failure to seek the testimony before the discovery deadline and, more substantively, on the subpoena’s failure to comply with Rule 45’s geographic limits.

The plaintiffs also asked the court to rule that Glatz’s testimony from the related action was admissible in this case. The court did not make that evidentiary ruling. Because Triadou had agreed to allow the transcripts to be produced if Glatz was not required to testify again personally, the court directed Triadou to provide the plaintiffs with copies of the transcripts to the extent their counsel did not already have them. The plaintiffs’ counsel must provide those transcripts to the defendants under the protective order in this case. Any objections to using the transcripts at trial were left for later pretrial motions under Judge John G. Koeltl’s trial procedures.