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United States v. Real Property Located at 700 N. 14Th Street

United States District Court, Seventh Circuit

October 11, 2013

UNITED STATES OF AMERICA, Plaintiff,
v.
REAL PROPERTY LOCATED AT 700 N. 14TH STREET, SPRINGFIELD, ILLINOIS, WITH ALL APPURTENANCES AND IMPROVEMENTS THEREON, Defendant.

OPINION

BYRON G. CUDMORE, Magistrate Judge.

This matter comes before the Court on claimant Thalia Wilson's Motion to Conduct a Deposition by Remote Means or Written Questions Pursuant to Federal Rules of Civil Procedure Rule 30(b)(4); and/or to Issue a Protective Order Against Plaintiff Pursuant to Fed.R.Civ.P. Rule 26(c) (d/e 34) (Motion 34); and Wilson's Motion to Alter or Amend Judgment Denying Defendant/Claimant's Motion for Appointment of Counsel Pursuant to Fed.R.Civ.P. Rule 59(e) (d/e 35) (Motion 35). For the reasons set forth below, the Motions are DENIED.

STATEMENT OF FACTS

On February 16, 2012, the Government commenced this in rem action pursuant to 21 U.S.C. § 881(a)(6) and 18 U.S.C. § 981(a)(1)(A) for the forfeiture of the real property located at 700 N. 14 Street, Springfield, Illinois (Defendant Real Property) alleging that the Defendant Real Property was used in connection with a drug trafficking crime in violation of Title II of the Controlled Substances Act, 21 U.S.C. § 801 et seq. Verified Complaint for Forfeiture (d/e 1), ¶ 1. On April 4, 2012, Thalia Wilson filed a claim. Verified Claim (d/e 9). Wilson claimed to own the Defendant Real Property.

Fact discovery closed on February 28, 2013. Scheduling Order entered August 9, 2012 (d/e 14), ¶ 4. On March 22, 2013, Wilson moved to reopen fact discovery because she needed more time to depose witnesses. Motion to Re-Discovery (d/e 22), ¶ 2. The Government had no objection. Id., ¶ 3. The Court allowed the request and extended discovery to June 1, 2013. Text Order entered March 26, 2013. On March 28, 2013, the Court allowed Wilson's counsel to withdraw from the case. Text Order entered March 28, 2013. Wilson has thereafter participated in this case pro se. On June 28, 2013, the Court again extended the discovery deadline to October 1, 2013. Text Order entered June 28, 2013.

On July 9, 2013, counsel for the Government sent a letter to Wilson informing her that he intended to take her deposition in Springfield, Illinois. He suggested possible dates of August 27, 28, and 29, and September 10 and 11, 2013. Motion 34, Collective Exhibit A, Letter dated July 9, 2013. On July 29, 2013, counsel for the Government sent a second letter to Wilson stating that she had not responded to the July 9, 2013, letter. Motion 34, Collective Exhibit A, Letter dated July 29, 2013.

On August 23, 2013, Wilson filed a Motion to Appoint Counsel (d/e 33) (Motion 33). The Court denied Motion 33 on August 26, 2013.

Text Order entered August 26, 2013.

On September 4, 2013, counsel for the Government sent a letter to Wilson informing her that he set her deposition for September 11, 2013, in Springfield, Illinois, since she did not respond to the July 9 or July 29 letters. Motion 34, Exhibit B, Letter dated September 4, 2013. In response, Wilson filed Motion 34 on September 10, 2013, and Motion 35 on September 13, 2013.

ANALYSIS

Motion 34

Wilson asks the Court to direct the Government to take her deposition telephonically or by written questions. She states that she lives in Mobile, Alabama, and is the sole care giver for her ailing mother. She argues that requiring her to travel to Springfield for a deposition would work an undue hardship on her. The Government objects and argues that it needs an in-person deposition of Wilson to complete discovery effectively.

A party, such as the Government, may generally obtain discovery in any manner allowed by the Federal Rules. Therefore, the Government may discover information from Wilson by deposition. Fed.R.Civ.P. 30. Wilson has made herself a party to this action by filing a claim. See United States v. $100, 000.00 in U.S. Currency, 2008 WL 5076176, at *2 (D. Nev. November 24, 2008). The location of the deposition of a party to an action is generally left to the party noticing the deposition. The district where the action is pending is generally a proper location for a deposition of a party. See United States v. Rock Springs Vista Development , 185 F.R.D. 603, 604 (D. Nev. 1999).

The Court has discretion to order a deposition by telephone or written questions when an in-person deposition would work an undue hardship on the deponent. The use of telephonic depositions or depositions on written questions, however, is not recommended for obtaining controversial testimony. Rock Springs Vista Development , 185 F.R.D. at 604. The ownership of the Defendant Real Property is the critical issue raised by Wilson's claim; thus, her testimony will likely be controversial in this case. See McGinley v. Barratta, 2006 WL 2346301, at *2 (E.D. Pa. August 11, 2006). A telephonic deposition is not as effective is such cases because the examiner cannot observe the demeanor of the deponent over the telephone and so may not be able to ask follow up questions that will secure the needed discovery. The examiner also cannot know whether anyone is listening in or helping the witness. See Rock Springs Vista Development , 185 F.R.D. at 604. The ...


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