Opinion
Criminal Case No. 11-cr-00376-WJM
12-15-2011
UNITED STATES OF AMERICA, Plaintiff, v. 1. EXECUTIVE RECYCLING, INC., 2. BRANDON RICHTER, and 3. TOR OLSON, Defendants.
Judge William J. Martínez
ORDER
This matter is before the Court sua sponte. On December 9, 2011, Plaintiff United States of America filed an Amended Motion for Deposition Pursuant to Fed. R. Crim. P. 15, seeking to take the depositions of Gary Tam, Fung Wing Lau, Peter Lei, and Edmond Fung in Hong Kong ("the Motion"). (ECF No. 37.) The same day, the Court issued Orders granting the Motion as to each of the four depositions ("the Orders"). (ECF No. 39-42.) On December 14, 2011, Defendant Tor Olson filed a Response to the Motion, making clear that he opposed the relief sought in the Motion, and asking the Court to modify or withdraw its Orders granting the Motion. (ECF No. 55.) After reviewing Defendant Olson's Response, the Court has determined that it prematurely granted the Motion. Therefore, the Court hereby VACATES the Orders.
The Court requests further briefing on the Motion. Specifically, Defendants Executive Recycling, Inc. and Brandon Richter shall file a Response to the Motion on or before December 23, 2011. The Government shall file a Reply, replying to both Responses, on or before January 3, 2012.
The Court herein addresses several issues pertaining to the parties' positions regarding the depositions. First, the briefing on the Motion to date makes clear that the parties have not completed meet-and-confer efforts on the issue. In fact, it appears that an out-of-court resolution by the parties on this issue is possible. The Court strongly encourages the parties to thoroughly explore potential out-of-court resolutions to this issue. In the briefing requested herein by the Court, the Court directs the parties to explain in detail the further meet-and-confer efforts they have engaged in, the issues on which they have agreed, and the issues on which there is still disagreement (if any).
Second, the Court notes that the Government has not provided sufficiently specific information regarding the potential unavailability of the four witnesses. For example, the Government has not provided the Court with specific information regarding when it submitted its requests to the Hong Kong Justice Department to take the depositions, and what the Government's understanding is regarding the potential time frame for the processing of those requests. Also, the Government's representation that "Mr. Tam, Mr. Fung and Mr. Lau have stated they may be willing to travel to Colorado to testify at trial in this case" does not sufficiently indicate these witnesses' potential unavailability. (ECF No. 37, at 2 ¶ 2 (emphasis added).)
In accordance with the foregoing, it is ORDERED as follows:
1. This Court's Orders authorizing the four depositions (ECF Nos. 39, 40, 41, 42) are VACATED;
2. Defendants Executive Recycling, Inc. and Brandon Richter shall file a Response to the Amended Motion to Take Deposition on or before December 23, 2011; and
3. Plaintiff United States of America shall file a Reply (to both Responses) on or before January 3, 2012.
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William J. Martínez
United States District Judge