The case of the day is Sanchez v. Metro Builders Corp. (N.Y. Sup. Ct. 2012). Juan Sanchez was injured when working on a construction site in Poughkeepsie, New York. He testified that he had no memory of the circumstances of the accident. His uncle, Franklin Lituma, was an eyewitness to the accident and his testimony was therefore important to Sanchez. But he now resided in Ecuador and could not, according to Sanchez’s lawyer, obtain a visa to enter the United States to testify on his nephew’s behalf. Sanchez therefore sought a commission to take Lituma’s deposition de bene esse in Ecuador.
The judge rejected the defendant’s argument that the only way to take a deposition in Ecuador was via a letter rogatory. That seems right as a matter of New York law, though the judge didn’t really justify his implicit conclusion that the law of Ecuador permits depositions without a letter rogatory. In any case, the dispositive issue was the failure of Sanchez’s lawyer to provide any evidence to support his assertion that Lituma now resided abroad or that Lituma could not obtain a visa. Presumably the court wanted an affidavit from Lituma on those points.
That’s the case: now a little frolic and detour. Is there not a catch-22 here? Suppose Sanchez could produce Lituma’s affidavit. Is it any good to him, if the whole premise of the affidavit is that Lituma cannot come to New York to testify? I have in mind cases such as House of Clean v. St. Paul Fire & Marine Cas. Ins. Co. (D. Mass. 2011), which point out that an affidavit of a deceased affidant is worthless in summary judgment proceedings because it is hearsay. If Lituma couldn’t come to court to testify, isn’t there a similar problem?