EFTA00589581.pdf

TO: MARTY WEINBERG FROM: KIM HOMAN RE: EPSTEIN/DEPOSITION SUBPOENA DATE: APRIL 8, 2016 Under Fed. R. Civ. P. 45(c)(1)(A), a subpoena may compel a person to appear for a deposition only "within 100 miles of where the person resides, is employed, or regularly transacts business in person." A district court may quash or modify a subpoena that "requires a person to comply beyond the geographical limits specified in Rule 45(c)." Rule 45(d)(3)(A)(ii). Unfortunately, there is no easy answer to the question of how to determine where a person resides for purposes of Rule 45 or what "transacts business" means. I note at the outset that courts have generally placed the burden on the person moving to quash the subpoena to demonstrate that he falls outside the 100-mile limit. See, e.g., In re Application of Yukos Hydrocarbons Investments Ltd., 2009 WL 5216951 at *4 (N.D.N.Y. Dec. 30, 2009); RIMSTAT, Ltd. v. Hilliard, 207 B.R. 964, 969 (D.D.C. 1997); Regents of Univ. of California v. Kohne, 166 F.R.D. 463, 465 (S.D. Cal. 1996). I. RESIDENCE. I have only found one case which addresses the question of what "reside" means for purposes of Rule 45. In Yukos Hydrocarbons, the court first noted that "Rule 45(c)(3)(A)(ii) does not shed light on the intended meaning of the term "resides", and . . .there is a lack of authority providing any useful guidance." 2009 WL 5216951 at *5. The meaning of the term, the court continued, varies according to the context. Id. The court looked to New York law, which distinguishes residence from domicile, with the latter requiring "[e]stablishment of .. . a physical presence in the State and an intention to make the State a permanent home." Id., quoting Antone v. General Motors Corp., 64 N.Y.2d 20, 28 (1984). Under New York law, therefore, residence means something less than a permanent home. According to Yukos Hydrocarbons, "[t]he test for determining `residence' often employed by New York courts . . . turns on `whether [the individual] has a significant connection with some locality in the State as a result of living there for EFTA00589581 some length of time during the course of the year."' Id ., quoting Antone, 64 N.Y.2d at 30. That being the case, the court continued, one court held that a temporary residence frequented by a litigant for business purposes on only occasional overnight visits throughout the year did not qualify as a residence. See Hammerman v. Louis Watch Co., 7 A.D.2d 817 (3d Dep't 1958). Similarly, another court found the fact that a woman had visited a locale and rented a room, voicing an intent to remain, was insufficient to show that she had established a residence in New York, separate from her home in another location. See Siegfried v. Siegfried, 92 A.D.2d 916 (2d Dep't 1983) ("Although a person may have more than one residence for venue purposes, `to consider a place as such he [or she] must stay there for some time and have the bona fide intent to retain the place as a residence for some length of time and with some degree of permanency.' ") (internal citations omitted). Id. The court went on to hold that an individual who owned property in New York, and was registered to vote there, but had lived and worked in Russia for ten years and had only been in New York for a few months before returning to live and work in Russia did not reside in New York for purposes of Rule 45. It is my understanding that JE's primary and permanent residence is in the Virgin Islands but that he regularly spends time living in a home over which he has dominion and control in New York and that he has sufficient contacts in New York that he is required to register as a sex offender in that state. Under these circumstances, I think it likely that, under the analysis of Yukos Hydrocarbons at least, a court could find that JE was a resident of New York for Rule 45 purposes. II. REGULARLY TRANSACTING BUSINESS IN PERSON. The case law has predominantly focused on the meaning of "regularly" rather than what it means to "transact business." Such cases have by and large required more than minimal contacts within the 100-mile limit. See, e.g., Perez v. Progenies Pharm., Inc., 2015 WL 4111551 at *2 (S.D.N.Y June 24, 2015)(occasional meetings did not suffice); M'Baye v. New Jersey Sports Prod., Inc., 246 F.R.D. 205, 207 (S.D.N.Y. 2007)(14-18 visits in two years did not suffice); Bostian v. Suhor Industries, Inc.,2007 WL 3005177,at *1 (N.D.Okla.2007) (twice a year not sufficient); In re Application for Order EFTA00589582 Quashing Deposition Subpoenas, No. M8-85, 2002 WL 1870084, at *3 (S.D.N.Y. Aug. 14, 2002)(four times in five years not sufficient); Regents of the University of California v. Kohne, 166 F.R.D. 463, 465 (S.D.Ca1.1996) (ten times in seven years did not suffice); Halliburton Energy Services, Inc. v. M-I, LLC, No. 06-53, 2006 WL 2663948, at *2 (S.D.Tex.2006) (business trips to Houston four times a year, staying approximately ten days each trip, for a period of ten years "clearly place[s a person] in the category of regularly transacting business in person"). I have not found any cases that discuss what it means to "transact business" for purposes of Rule 45. In other contexts, the term has been defined to mean "the practical everyday business or commercial concept of doing or carrying on business of any substantial character." C C P. Corp. v. Wynn Oil Co., 354 F. Supp. 1275, 1278 (N.D. Ill. 1973). It is my understanding that JE frequently has business meetings in New York. The frequency of those meetings will determine whether the court would find that he "regularly" conducts business. An open question is whether an argument can be made, remembering that JE would have the burden of proof, that those meetings did not constitute transacting business. 3 EFTA00589583