United States District Court, C.D. Illinois, Springfield Division
ORDER AND OPINION
TOM SCHANZLE-HASKINS, Magistrate Judge.
Before the Court is the Motion for Amended Scheduling Order (d/e 56) filed by Plaintiff United States of America (United States), Relator, against Defendants herein. Defendants have responded to the Plaintiff's motion (d/e 57).
Plaintiffs brought this action under the False Claims Act, 31 U.S.C. §3798, et seq. and the Illinois False Claims Act, 748 ILCS 175/1, et seq. The complaint also asserts claims under the common law theories of payment under mistake of fact and unjust enrichment. Plaintiffs allege that the Defendants fraudulently submitted claims in order to obtain from the Illinois Medicaid Program thousands of dollars for non-emergency medical transportation as a result of fraudulent representations. Defendants deny all allegations of submitting fraudulent claims.
Chicago Medi-Car Transit, Corp. was an Illinois corporation. The corporation was owned and operated by Defendant Bharat K. Lilwani (Lilwani). (Answer to Amended Complaint, d/e 17, par. 5) Lilwani was 100% owner of Chicago Medi-Car Transit, Corp. (d/e 35-1, pgs. 8-9)
The United States has attempted to schedule a deposition of Lilwani since September of 2014. Initially the parties discussed the possibility of arranging the deposition of Lilwani in Chicago, Illinois. Plaintiff contacted defense counsel and confirmed Plaintiff was willing to take the Defendant's deposition in Chicago and requested Defendant provide dates. (d/e 35, pg. 2) On October 3, 2014, Plaintiff sent a letter to defense counsel regarding the possible deposition dates. (d/e 35, pg. 2) Having received no response to the inquiries regarding the dates for taking the deposition, Plaintiff sent a deposition notice to depose Lilwani on October 28, 2014 and arranged for a court reporter on that date. On October 27, 2014, defense counsel contacted Plaintiffs' counsel and indicated Lilwani was in India visiting his sick mother and he had requested that Lilwani let him know when he had returned to the United States. (d/e 35, pg. 2)
In November of 2014, defense counsel advised counsel for the Plaintiffs that Lilwani had no immediate plans to return to the United States and asked if Lilwani could be deposed by telephonic device. The Plaintiffs declined the offer. (d/e 35, pg. 3)
Due to the inability to schedule Lilwani's deposition, the United States filed a Motion for Extension of Discovery or for Default Judgment (d/e 34) in order to attempt to schedule Lilwani's deposition. Due to the difficulty of arranging the deposition of Lilwani, the Plaintiff additionally filed a notice of the desire to file a 30(b)(6) deposition notice if Lilwani could identify a 30(b)(6) witness to testify (d/e 36). The United States indicates it was unable to depose a 30(b)(6) witness because defense counsel informed the Plaintiff that Lilwani is the only person who can provide information on behalf of the corporation in a deposition. (d/e 56, pg. 2-3)
Defendants filed a Response to Plaintiff's Motion for Extension of Discovery or Default Judgment and included a Counter-Motion for Leave to be Deposed by Remote Means (d/e 38). Attached to the Response was a sworn affidavit from Lilwani. Lilwani indicated his parents are in their 70's and had encountered health problems. Lilwani stated he was willing and able to be deposed in the litigation. He indicated, however, that the needs of his parents required that he remain in India for the foreseeable future. In the affidavit Lilwani represented as follows: "I will make all the necessary arrangements to conduct my deposition via video conference." He indicated he had contacted a notary public who agreed to be present and administer the oath.
In its ruling on United States' Motion for Extension of Discovery or Default Judgment (d/e 34), the Court granted the United States' motion for extension of time, but reserved ruling on the Motion for Default and Lilwani's Counter-Motion for Leave to be Deposed by Remote Means (d/e 38). In the Motion for Amended Scheduling Order (d/e 56) now before the Court, counsel for Plaintiff United States notes that discovery in the case closed on June 1, 2015. Plaintiff's counsel indicates in the pending Motion, that she had attempted to arrange a video deposition of the Defendant in various U.S. Embassies in India. The Motion states that Plaintiff's counsel attempted to arrange for the deposition in the United States Embassy in Mumbai, India (Mumbai), because Plaintiff's counsel believed it was the United States Embassy closest to the Defendant's location in India. The Motion indicates that on April 10, 2015, defense counsel informed counsel for the United States that Lilwani would present himself to an attorney's office or video conferencing facility the Plaintiff recommended, but refused to attend his deposition at a U.S. Embassy in India because there was not a compelling reason for him to travel to an embassy for his deposition. Lilwani's counsel provided counsel to the United States the name and address of the court reporter he wished to use.
Counsel for the United States then requested the name of the computer system the court reporter would use for the deposition, but defense counsel did not provide the information. The Motion before the Court relates that counsel for the United States continued to attempt arrangement for the deposition in the U.S. Embassy in Mumbai, while the Defendant chose a service for video connection in Ahmedabad, India. The United States indicates it has tested equipment at the United States Embassy in Mumbai and it would cost nothing to use the equipment in the Embassy, while a private company will charge to arrange the intercontinental electronic deposition. While the United States argues in its Motion that the United States Embassy provides the most timely and efficient way in which to take the Defendant's deposition, the prayer for relief requests only that the Court enter an order requiring Lilwani to appear and be deposed in his personal and corporate capacity and that a 30-day extension of fact discovery be granted.
In the February 24, 2015, Text Order of this Court granting a joint request for an extension of discovery deadlines, the Court noted "however, counsel should be advised that the Court is concerned about the age of this case and will not be inclined to grant further extensions". In the same Text Order the discovery deadline was also extended to the current discovery deadline of June 1, 2015.
Courts retain substantial discretion to designate the site of a deposition. Presumptions as to where the deposition should take place are merely decisional rules that facilitate the determination when other relevant factors do not favor one side or the other. In conjunction with these decisional rules, the Court may consider such factors as cost, convenience, and litigation efficiency in ...