I was reading Michael Lowry’s recent post in his great ABA Law Journal Top 100 Blog, “Compelling Discovery,” and the topic reminded me of a case that still, well, makes me laugh. Sometimes . . . sometimes I say, this job gives you a real LOL moment while simultaneously forcing you to get up to speed in an area that’s foreign to you. A pun I definitely intended as you’ll realize after reading this post. I was defending a general liability case where the plaintiff claimed that his fall off a three-story roof was caused by my client’s failure to run a safe workplace. While we had good defenses to liability – my client was not the general contractor and wasn’t cited by OSHA because the subcontractor was in control – our best “defense” was one I now call the “Donald Trump” defense.
Plaintiff was not one who would vote for Donald Trump in the coming election. After he settled his workers compensation claim, he took the cash and returned to his native country. Fine you say. His lawyer, however, later brought a lawsuit in the United States, but plaintiff’s anti-Trump status combined with his return to his home country meant he could not return to the United States for 10 years under 8 U.S.C. §1182(a)(9)(B)(II).
I know lawsuits can drag on . . . but for 10 years? Not this one. Before I discovered that the plaintiff wasn’t in these parts I reached out to my adversary to get some deposition dates. No response. Reach out again . . . nothing. Then, a response! “Our client is in Ecuador,” they say and “won’t be coming back to this country for a while. If you want to depose him you need to go to Ecuador.” Yea, right.
I knew from other cases and my own fairness compass that this had to be wrong. Had I discovered a “defense” that would prove stronger than any affirmative defense? Read the rules . . . read some cases . . . and move to compel or dismiss the suit. I didn’t end up having to file those motions because Plaintiff smartly moved for a protective order seeking an order that I either go to Ecuador or take his deposition via videotape. My point was this would be fruitless since he could never appear at trial, and his deposition could not be used in lieu of his live tesimony under Rule 32. Like pleading the fifth and staying silent (which I have discussed before here), you cannot bring suit in a jurisdiction and then not show up for a deposition. Opposing counsel made it interesting by claiming that that the local Senator was working on his client’s behalf to get him back to the country for his deposition. Let’s just say I didn’t wait long to assert my Donald Trump argument in opposition to the protective order. Though the judge ultimately punted the issue to the attorneys to work out (as often happens in discovery disputes), the case settled soon after for our very happy client.
