The case of the day is Eikenberry v. Celesteel Ltd. (S.D.N.Y. 2013). Eikenberry sued Celsteel Ltd. and Samuel Chand Chib. The claim was that Ralph Esmerian and R. Esmerian Inc. gave Eikenberry a security interest in an emerald necklace, but that Esmerian then transferred the necklace to Chib to extinguish a debt to Celesteel. The claim was for enforcement of the security interest and for conversion. Chib was in London.
Eikenberry sought to take the deposition of Chib, but Chib argued against the deposition on the grounds that the court lacked personal jurisdiction, that New York was forum non conveniens, and that the notice of deposition was improper because Eikenberry should have proceeded under the Hague Evidence Convention. Chib argued that depositions are intrusive and that under Aerospatiale parties should be required to make first resort to the Convention when the discovery sought is a deposition rather than production of documents. But the judge held that the Aerospatiale factors did not weigh strongly one way or another; because Chib failed to identify any relevant difference between the law of England and the law of the US, there was no real comity issue presented. The judge also rejected the claim that Eikenberry was seeking abusive discovery: “The deposition of a defendant in his home city is hardly an abuse that creates an ‘additional cost of transportation of documents or witnesses’ or is ‘sought for the improper purpose of motivating settlement.’” And so the judge rejected Chib’s argument.
The judge commissioned “any notarizing officer of the United States of America in London” to take the deposition. This is a correct procedure under State Department regulations.
All in all, this is a solid and correct decision.