United States Court of International Trade

CIT Authorizes Deposition of Retired Customs Official Prior to Initiation of Suit

An importer, foreign seller and corporate official facing a $22.7 million penalty assessment from Customs and Border protect may take a deposition to preserve the testimony of a retired Customs official prior to the initiation of a suit to collect the penalty, the Court of International Trade recently held.

In re Ganz USA LLC v. United States, Slip Op. 16-105 (November 15, 2016), Senior Judge Jane A. Restani issued an opinion supporting her previous decision to allow the petitioners to depose a Customs official who had retired five years ago, but who was believed to have knowledge critical to the issues in the case. The petition was filed under Rule 27 of the Court’s rules, which permits depositions before the filing of suit to perpetuate testimony. Although the rule has been on the Court’s books since its founding in 1980, it has not been used until this year.

In granting the petition, Judge Restani held that the petitioners had met the requirements of Rule 27. The petitioners had a reasonable expectation of being sued for the penalty if the case is not settled administratively. The information sought to be preserved is reasonably known. And finally, there was a chance that, if the testimony could not be preserved, it could be lost, as the result of dimmed recollections or other events.