     19-2213-cv
     Rodriguez v. Gusman
 1
 2                          UNITED STATES COURT OF APPEALS
 3                              FOR THE SECOND CIRCUIT
 4                                ____________________
 5
 6                                    August Term, 2020
 7
 8   (Argued: August 17, 2020                             Decided: August 31, 2020)
 9
10                                   Docket No. 19-2213-cv
11
12                                   ____________________
13
14   JOSE RODRIGUEZ,
15
16                              Plaintiff-Appellant,
17
18                        v.
19
20   DR. MIKAIL A. GUSMAN, MEDICAL DIRECTOR, EASTERN CORRECTIONAL
21   FACILITY, FKA DR. GUZMAN, FKA DR. GUSMAN, NANCY ANTHONY,
22   REGISTERED NURSE, EASTERN CORRECTIONAL FACILITY, FKA MS.
23   ANTHONY, DR. ANN ANDOLA, REGISTERED NURSE, EASTERN
24   CORRECTIONAL FACILITY, FKA MS. ANNDOLA, FKA DOCTOR
25   ANANDOLAS, JEFFREY MCKOY, DR. BIPIN BHAVSAR, EASTERN
26   CORRECTIONAL FACILITY, MEGAN MCGLYNN, ROGER TRAYNOR,
27   DAVID JACOBS, AMANDA DEMSHICK,
28
29                              Defendants-Appellees. 1
30
31                                   ____________________
32
33   Before: NEWMAN, POOLER, and HALL, Circuit Judges.

     1   The Clerk of Court is directed to amend the caption as above.
 1
 2         Jose Rodriguez appeals from the June 21, 2019 decision and order of the

 3   United States District Court for the Northern District of New York (Mae A.

 4   D’Agostino, J.) adopting the Magistrate Judge’s sua sponte order

 5   administratively closing Rodriguez’s civil rights suit against defendants and

 6   denying Rodriguez’s motion to reconsider. The district court concluded that,

 7   because Rodriguez had been deported to the Dominican Republic, Rodriguez

 8   would be unavailable in the United States for depositions, further medical

 9   examinations, and trial testimony, and the case should be closed. Our Circuit has

10   yet to address what standard guides administrative-closure decisions when a

11   plaintiff is unavailable. We hold that an administrative closure in such

12   circumstances is a last resort that is appropriate only when all other alternatives

13   are virtually impossible or so impractical as to significantly interfere with the

14   operations of the district court or impose an unreasonable burden on the party

15   opposing the plaintiff’s claim. On the present record, numerous alternatives to

16   the issues identified by the district court exist, and none appears to meet the

17   above-articulated standard. We accordingly vacate the district court’s order and

18   remand for further proceedings consistent with this opinion.


                                               2
 1         VACATED and REMANDED.

 2                                 ____________________

 3                            ROBERT J. O’LOUGHLIN, Paul, Weiss, Rifkind,
 4                            Wharton & Garrison LLP (Karen King, Ayelet M.
 5                            Evrony, Amanda B. Horowitz, on the brief), New York,
 6                            N.Y., for Plaintiff-Appellant Jose Rodriguez.
 7
 8                            FRANK BRADY, Assistant Solicitor General (Jeffrey W.
 9                            Lang, Deputy Solicitor General, on the brief), for Letitia
10                            James, Attorney General of the State of New York, New
11                            York, N.Y., for Defendant-Appellees.
12
13   POOLER, Circuit Judge:

14         Jose Rodriguez appeals from the June 21, 2019 decision and order of the

15   United States District Court for the Northern District of New York (Mae A.

16   D’Agostino, J.) adopting the Magistrate Judge’s sua sponte order

17   administratively closing Rodriguez’s civil rights suit against defendants 2 and



     2 The defendants in this case are Dr. Mikail A. Gusman, the Medical Director of
     New York’s Eastern Correctional Facility (“ECF”); Nancy Anthony, a registered
     nurse at ECF; Dr. Ann Andola, a doctor at ECF; Jeffrey McKoy, the Deputy
     Commissioner of Program Services at ECF; Dr. Bipin Bhavsar, a doctor at ECF;
     Megan McGlynn, a Department of Corrections and Community Supervision
     Inmate Classification Analyst; Roger Traynor, the Supervising Rehabilitation
     Coordinator at Franklin Correctional Facility; David Jacobs, a Rehabilitation
     Counselor at Franklin Correctional Facility; and Amanda Demshick, the
     Offender Rehabilitation Coordinator at the Shawangunk Correctional Facility
     (collectively, “Defendants”).
                                              3
 1   denying Rodriguez’s motion to reconsider. The district court concluded that,

 2   because Rodriguez had been deported to the Dominican Republic, Rodriguez

 3   would be unavailable in the United States for depositions, further medical

 4   examinations, and trial testimony, and the case should be closed. Our Circuit has

 5   yet to address what standard guides administrative-closure decisions when a

 6   plaintiff is unavailable. We hold that an administrative closure in such

 7   circumstances is a last resort that is appropriate only when other all alternatives

 8   are virtually impossible or so impractical as to significantly interfere with the

 9   operations of the district court or impose an unreasonable burden on the party

10   opposing the plaintiff’s claim. On the present record, numerous alternatives to

11   the issues identified by the district court exist, and none appears to meet the

12   above-articulated standard. We accordingly vacate the district court’s order and

13   remand for further proceedings consistent with this opinion.

14                                    BACKGROUND

15         Rodriguez is a former lawful permanent resident of the United States who

16   currently lives in the Dominican Republic. The present suit arises out of an

17   incident that occurred while Rodriguez was incarcerated at New York’s Eastern

18   Correctional Facility (“Eastern”). In 2011, Rodriguez began suffering from a
                                               4
 1   rapid heart rate and irregular breathing. On February 16, 2012, Rodriguez

 2   ultimately had a stroke, which left him partially paralyzed. He alleges that

 3   Defendants’ deliberate indifference to his medical needs while he was

 4   incarcerated at Eastern led to his stroke. As relevant here, Rodriguez alleges that

 5   Defendants failed to respond to his complaints about his symptoms over several

 6   months; did not consult his medical doctors or provide a Spanish interpreter; did

 7   not prescribe any medication; did not adequately monitor his condition; and

 8   minimized his complaints, such as when on one occasion, defendant Dr. Bipin

 9   Bhavsar merely instructed him to meditate.

10         On May 19, 2015, Rodriguez filed suit, proceeding as a pro se prisoner.

11   Initially, Rodriguez raised only an Eighth Amendment deliberate-indifference

12   claim. Acting sua sponte, the district court dismissed Rodriguez’s complaint with

13   prejudice as time barred. After appointing pro bono counsel, this Court vacated

14   and remanded, holding that the district court erred in failing to provide

15   Rodriguez an opportunity to amend. Rodriguez v. Griffin, 672 F. App’x 106 (2d

16   Cir. 2016).

17         Pro bono counsel continued to represent Rodriguez, and he subsequently

18   amended his complaint and added claims of First Amendment retaliation and
                                              5
 1   access to the courts. In the amended complaint, Rodriguez alleges that after he

 2   filed the above-mentioned appeal, he was, without justification, transferred to a

 3   remote prison near the Canadian border, which made it difficult for him to meet

 4   with counsel, and that he was subject to new limitations on the number and

 5   length of calls with counsel.

 6         On October 3, 2017, after discovery had begun and Rodriguez had been

 7   released from prison, Rodriguez was deported to the Dominican Republic.

 8   Rodriguez cannot return to the United States for twenty years absent special

 9   permission from the Attorney General. See 8 U.S.C. § 1326(a)(2). The case

10   continued to be actively litigated by pro bono counsel on Rodriguez’s behalf; for

11   instance, from January through November 2018, pro bono counsel deposed five

12   Defendants and one additional witness.

13         On October 15, 2018, during a telephonic discovery conference, the

14   Magistrate Judge sua sponte raised the issue of whether the case should be

15   administratively closed until Rodriguez returns to the United States. After the

16   parties briefed the issue, the Magistrate Judge administratively closed the case,

17   stating:



                                              6
 1                 The Court commends Plaintiff’s pro bono counsel for the
 2         excellent work they have done on Plaintiff’s behalf and their
 3         willingness to continue to represent Plaintiff in this action despite the
 4         substantial burden created by his deportation to the Dominican
 5         Republic. Nonetheless, considering the logistical difficulties and
 6         substantial cost of continuing with discovery; the logistical
 7         difficulties, required technological resources from the court, and
 8         prohibitive cost of trying the case without the Plaintiff in the
 9         courtroom; and the inefficient use of judicial resources in addressing
10         the difficulties and disputes between the parties that would no doubt
11         arise and require court intervention and resolution throughout the
12         litigation, including throughout the remaining discovery and at trial,
13         the Court concludes there is no further reason to maintain this action
14         on the open docket for statistical purposes and directs administrative
15         closure of the case.
16
17   App’x at 150-51. The text order noted that the case could be reopened for “good

18   cause shown,” which was defined as Rodriguez’s “reentry into the United States

19   and ability to complete prosecution of the case.”

20         Rodriguez then moved for reconsideration. The district court adopted the

21   Magistrate Judge’s report and recommendation. It explained that “[a] significant

22   body of jurisprudence—developed primarily in connection with lawsuits filed by

23   incarcerated persons—instructs federal district courts not to dismiss or

24   administratively close actions in which litigants are unable to appear without

25   first considering less drastic alternatives.” App’x at 213-14. The district court then

26   listed those alternatives, including making provisions so the prisoner can travel
                                               7
 1   and attend the trial in person; trying the case on depositions or affidavits, or with

 2   video; and trying the case without a jury at a location near where the prisoner is

 3   located. The district court found that “none of the alternatives are practical” and

 4   Rodriguez “will be unavailable to appear at trial,” App’x at 214, but failed to

 5   explain why the alternatives were unworkable.

 6         The district court noted that “discovery in this case has not yet concluded.”

 7   App’x at 214. While acknowledging that “there are mechanisms through which

 8   depositions can be taken remotely,” it focused on the fact that “the nature of

 9   Plaintiff’s allegations and alleged injuries will more than likely require additional

10   examinations of Plaintiff.” App’x at 215. It also decided that Defendants would

11   not have a reasonable opportunity to depose any physicians treating Rodriguez

12   in the Dominican Republic, but it did not explain why that was. Finally, the

13   district court found that the case “will likely require the retention of an expert

14   witness, who would necessarily be forced to conduct a physical examination of”

15   Rodriguez in the Dominican Republic. App’x at 215. While “not unsympathetic”

16   to Rodriguez, the district court concluded that it “would be unduly prejudicial

17   to Defendants and an inefficient use of judicial resources” to allow the case to

18   continue absent Rodriguez’s return. App’x at 215.
                                               8
 1         Rodriguez timely appealed.

 2                                       DISCUSSION

 3         This Court reviews a district court’s decision to administratively close a

 4   case under an abuse of discretion standard. Leftridge v. Conn. State Trooper Officer

 5   No. 1283, 640 F.3d 62, 67 (2d Cir. 2011). A district court abuses its discretion

 6   when it “bases its ruling on an erroneous view of the law or on a clearly

 7   erroneous assessment of the evidence, or if its decision—though not necessarily

 8   the product of a legal error or a clearly erroneous factual finding—cannot be

 9   located within the range of permissible decisions.” Id. (internal quotation marks,

10   brackets, and citations omitted).

11         I.       The Governing Legal Standard

12         The issue of what standard a court applies in deciding whether to

13   administratively close a case is an issue of first impression in our Circuit. The

14   Fourth Circuit has taken up this question, however, and its decision is

15   instructive.

16         In an analogous case involving an incarcerated litigant, the Fourth Circuit

17   explained that “the most drastic alternatives of dismissal for failure to prosecute

18   or indefinite stay should only be considered, if at all, as last resorts after all other
                                                9
 1   alternatives, starting with securing the prisoner’s presence, have been rejected.”

 2   Muhammad v. Warden, 849 F.2d 107, 112-13 (4th Cir. 1988). Thus, while “an

 3   incarcerated litigant’s right is necessarily qualified, . . . [that] does not mean that

 4   it can be arbitrarily denied by dismissal or indefinite stays; the law requires a

 5   reasoned consideration of the alternatives,” such as:

 6          making provisions for the prisoner to attend in person, either at his
 7          own expense, or at government expense, and in any case in
 8          government custody; trying the case without the prisoner’s presence
 9          in the courtroom, either on depositions or affidavits or with aid of
10          video; and even trying the case without a jury in the place of
11          incarceration.
12
13   Id. at 111-12.

14          We agree with the Fourth Circuit that administrative closure, as one of the

15   “most drastic alternatives” available to a district court, should be used sparingly

16   and only as a last resort. But we must still consider what that entails in practice.

17   Is administrative closure properly considered as a last resort when other

18   alternatives are infeasible, or only when other alternatives are actually

19   impossible?

20          We hold that other alternatives must be virtually impossible, or so

21   impractical as to significantly interfere with the operations of the district court or


                                                10
 1   impose an unreasonable burden on the party opposing the plaintiff’s claim, in

 2   order to justify an administrative closure. An administrative closure lasting

 3   years, decades even, makes finding witnesses and conducting discovery

 4   “difficult if not impossible.” See id. at 110. At bottom, an administrative closure

 5   effectively ends a case. Id. But this runs afoul of the fundamental principle set

 6   forth by Chief Justice Marshall, and echoed by courts ever since, that “where

 7   there is a legal right, there is also a legal remedy by suit or action at law,

 8   whenever that right is invaded.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163

 9   (1803) (internal quotation marks and citation omitted).

10         The importance of this principle is even greater in civil rights suits given

11   the weighty public interest in ensuring accountability for officials who violate the

12   Constitution. This interest exists regardless of whose rights are violated. But

13   when plaintiffs are unavailable due to incarceration or deportation, in particular,

14   administrative closure may insulate officials from liability for violating the rights

15   of prisoners or immigrants subject to removal. A strict standard is necessary to

16   ensure that these plaintiffs are not deeply prejudiced.

17         We are mindful, of course, of the well-settled principle that “a district

18   court possesses inherent authority to control the disposition of the causes on its
                                               11
 1   docket and has power to stay an action as an incident of that authority.” Range v.

 2   480-486 Broadway, LLC, 810 F.3d 108, 113 (2d Cir. 2015) (internal quotation marks

 3   and citation omitted). Our holding limits district courts’ ability to

 4   administratively close a case as a matter of convenience in light of the

 5   countervailing prejudice to plaintiffs, but it does not bar administrative closure

 6   when appropriate. If, for instance, there is only a slim likelihood that an

 7   alternative will be possible, a district court may nonetheless administratively

 8   close the case.

 9         Having determined that administrative closure is only appropriate as a

10   last resort when other alternatives are virtually impossible or so impractical as to

11   significantly interfere with the operations of the district court or impose an

12   unreasonable burden on the party opposing the plaintiff’s claim, we now turn to

13   the question of whether that standard is met in Rodriguez’s case based on the

14   present record.

15         II.    Application of this standard to Rodriguez’s case

16          Rodriguez argues that the alternatives listed in Muhammad are sufficient

17   here because Rodriguez and other witnesses can adequately testify or be deposed

18   by video, Defendants can obtain additional medical examinations through local
                                              12
 1   physicians in the Dominican Republic or by sending a physician there from the

 2   United States, and Rodriguez’s pro bono counsel can effectively prosecute the

 3   case in Rodriguez’s absence. In response, Defendants focus exclusively on their

 4   need to conduct additional medical examinations of Rodriguez, arguing that

 5   traveling to the Dominican Republic for examinations is cost-prohibitive and

 6   unduly burdensome.

 7           On the present record, we cannot agree with Defendants that the

 8   alternatives Rodriguez has proposed meet the standard articulated in this

 9   opinion. We thus vacate the district court’s order and remand for further

10   proceedings, including any additional development of the record.

11      A.      The Need for Rodriguez to Appear at Trial

12           The district court’s first basis for closing the case was Rodriguez’s

13   unavailability to appear at trial. The court summarily concluded that the

14   alternatives provided in Muhammad, 849 F.2d at 112-13, which include making

15   provisions for the litigant to travel and attend the trial in person, trying the case

16   without the litigant’s presence through affidavits or depositions, or trying the

17   case without a jury where the litigant is located, were not “practical” in

18   Rodriguez’s case. App’x at 214. We agree that providing for Rodriguez to travel
                                                13
 1   and moving the trial to the Dominican Republic may not be possible. But we

 2   cannot conclude that the use of video depositions or videoconference at trial is

 3   virtually impossible or so impractical as to significantly interfere with the

 4   operations of the district court or impose an unreasonable burden on Defendants

 5   in this case, and there is no other need for Rodriguez to appear.

 6         Under Federal Rule of Civil Procedure 43(a), “the judge has discretion to

 7   allow live testimony by video for good cause in compelling circumstances and

 8   with appropriate safeguards.” Thomas v. Anderson, 912 F.3d 971, 977 (7th Cir.

 9   2018) (internal quotation marks omitted). And circuit and lower courts alike have

10   found a witness’s immigration status to constitute good cause. See, e.g., El-Hadad

11   v. United Arab Emirates, 496 F.3d 658, 669 (D.C. Cir. 2007) (affirming the district

12   court’s decision to allow the witness to testify from Egypt by Internet video after

13   repeatedly being denied a visa to enter the United States); Lopez v. Miller, 915 F.

14   Supp. 2d 373, 396 n.9 (E.D.N.Y. 2013) (“Diaz was deported in 2003 to Santo

15   Domingo . . . and may not legally reenter the United States, thus easily satisfying

16   Rule 43(a)’s requirement.” (citations omitted)). There is no evidence in the record

17   to suggest that appropriate safeguards would be unavailable or that testimony

18   by video would be infeasible, let alone virtually impossible.
                                              14
 1         Nor are there any other reasons why Rodriguez’s physical presence at trial

 2   would be required. The district court cited to Del Rio v. Morgado, No. 10-cv-8955,

 3   2013 WL 5520218, at *3 (C.D. Cal. Oct. 3, 2013); Kuar v. Mawn, No. 08-cv-4401,

 4   2012 WL 3808620, at *9 (E.D.N.Y. Sept. 4, 2012); and Brown v. Wright, No. 05-cv-

 5   82, 2008 WL 346347, at *4 (N.D.N.Y. Feb. 6, 2008), for the proposition that

 6   “[c]ourts have regularly found that dismissal is appropriate in similar situations”

 7   when a litigant is unavailable at trial. App’x at 214, 215. But whether a litigant’s

 8   unavailability at trial is cause for administrative closure is a case-specific inquiry,

 9   and thus any reliance on these cases requires some discussion of their

10   applicability when compared to the facts in the present case.

11         A review of the facts in these cases indicates that they are distinct from the

12   one at hand. Del Rio, Kuar, and Brown all involved pro se plaintiffs whose cases

13   could not be prosecuted at trial without their physical presence. As such, the

14   district courts in these cases recognized that the obstacle posed by these

15   plaintiffs’ unavailability could have been overcome with the assistance of

16   counsel. See Del Rio, 2013 WL 5520218, at *3; Kuar, 2012 WL 3808620, at *1; Brown,

17   2008 WL 346347, at *4. By contrast, Rodriguez here has able and dedicated

18   counsel, who the Magistrate Judge commended for “the excellent work they
                                               15
 1   have done on Plaintiff’s behalf.” App’x at 150. At oral argument, Rodriguez’s

 2   counsel committed to continuing litigating on his behalf. Rodriguez’s absence at

 3   trial perhaps could have posed an insurmountable hurdle had he been

 4   prosecuting the action pro se. Because Rodriguez’s counsel will be presenting his

 5   claims, however, Rodriguez’s absence will be inconsequential.

 6           Because there is no support for the conclusion that the alternatives to

 7   Rodriguez’s appearance at trial are virtually impossible or so impractical as to

 8   significantly interfere with the operations of the district court or impose an

 9   unreasonable burden on Defendants, Rodriguez’s need to testify does not

10   provide sufficient grounds to justify the district court’s conclusion that the case

11   must be administratively closed.

12      B.      The Need for Additional Rule 35 Examinations

13           The district court also found that gathering additional medical evidence

14   while Rodriguez is located in the Dominican Republic would be too burdensome

15   for Defendants. We agree with the district court that “the nature of Plaintiff’s

16   allegations and alleged injuries will more than likely require additional

17   examinations of Plaintiff by medical professionals hired by one or both parties.”



                                               16
 1   App’x at 215. 3 But based on this record, we cannot say that allowing the case to

 2   continue without Rodriguez in the United States would unduly prejudice

 3   Defendants.

 4          Under Rule 35, “[u]sually [the] plaintiff will be required to come to the

 5   place where he or she filed suit for the examination, in the absence of facts

 6   showing substantial reasons for insisting upon examination at his or her

 7   residence.” 8B Charles Alan Wright, Arthur R. Miller & Richard L. Marcus,

 8   Federal Practice and Procedure § 2234 (3d ed. 2010); see also Williams v. Nguyen,

 9   No. 16-cv-13983, 2017 WL 1177914, at *2 (E.D. La. Mar. 30, 2017) (“However, the

10   usual case may give way where the plaintiff can demonstrate that the trip would

11   be injurious to his health, or that there is any other compelling reason for his

12   reluctance.” (internal quotation marks and citation omitted) (emphasis added)); cf.

13   Romano v. Levitt, No. 15-cv-518A, 2017 WL 2544076, at *2 n.1 (W.D.N.Y. May 5,

14   2017) (citing cases requiring a showing of inability to pay for travel expenses or

15   other “unreasonable hardship or exceptional circumstances sufficient to



     3To be clear, the district court has not yet issued an order for a physical
     examination, which “is not granted as of right.” 8B Charles Alan Wright, Arthur
     R. Miller & Richard L. Marcus, Federal Practice and Procedure § 2234.1 (3d ed.
     2010).
                                               17
 1   overcome plaintiff’s general obligation to travel at own expenses to examination

 2   by defense in district where plaintiff filed suit”).

 3         Rodriguez has established a compelling or substantial reason for his

 4   inability to appear in New York for an examination: he is legally barred from

 5   reentering the United States absent special permission from the Attorney

 6   General. See 8 U.S.C. § 1326(a)(2). Similar to medical conditions or financial

 7   hardship, Rodriguez’s immigration status impedes his ability to travel to the

 8   United States. Thus, Rodriguez has ample justification for a waiver of the general

 9   requirement of appearing in the venue of jurisdiction for an examination. Indeed,

10   district courts in our Circuit generally find that an individual’s immigration

11   status is “good cause” to waive the typical requirement that trial testimony be

12   provided in person. See, e.g., Lopez, 915 F. Supp. 2d at 396 n.9 (noting that a

13   witness’s deportation and inability to reenter under 8 U.S.C. § 1326(a) is good

14   cause “easily satisfying” Rule 43(a)’s requirement). We fail to see why this

15   reasoning should not apply here.

16          Defendants’ arguments to the contrary are unavailing. As Defendants

17   acknowledge, they have options in the event that Rodriguez needs to be

18   examined—such as sending a physician from the United States to the Dominican
                                               18
 1   Republic or hiring a local physician to examine Rodriguez. At oral argument,

 2   other options like using telemedicine or hiring a United States-based physician

 3   already planning travel to the Dominican Republic for unrelated reasons, such as

 4   vacationing, were discussed as well. Defendants argue in their briefing that

 5   sending a physician would be cost-prohibitive and that they should not be

 6   required to use a local physician who is unfamiliar to them. 4 But the record is

 7   devoid of any evidence to support the assertions made in the brief as to cost, and

 8   there is likewise no apparent reason why Defendants could not find and vet a

 9   local physician to conduct the examination or use the alternatives raised at oral

10   argument. On remand, the district court is directed to allow the parties to

11   develop the record on the possible alternatives to an in-person appearance before

12   reconsidering the issue.

13       C.   The Need for Additional Depositions




     4We note here as well that there is no absolute right for the moving party to
     choose the physician. 8B Charles Alan Wright, Arthur R. Miller & Richard L.
     Marcus, Federal Practice and Procedure § 2234.2 (3d ed. 2010). But we assume for
     purposes of addressing Defendants’ argument that they would be allowed to
     choose the physician.
                                             19
 1         The third basis the district court relied on in administratively closing

 2   Rodriguez’s case is the need for additional depositions. Although the district

 3   court stated “that there are mechanisms through which depositions can be taken

 4   remotely,” it found that “Defendants would not have a reasonable opportunity”

 5   to depose Rodriguez’s overseas physicians on ongoing treatments. App’x at 214-

 6   15.

 7         Many courts allow depositions by videoconference when the deposed

 8   individuals live abroad. See, e.g., United States v. One Gulfstream G-V Jet Aircraft

 9   Displaying Tail No. VPCES, 304 F.R.D. 10, 17-18 (D.D.C. 2014) (“Ample case law

10   recognizes that a videoconference deposition can be an adequate substitute for

11   an in-person deposition, particularly when significant expenses are at issue or

12   when the deposition will cover a limited set of topics.”). This is true even when

13   there have been “claims that the difficulty of ‘coordination of document review’

14   is one reason why a video deposition would be inappropriate” as “such issues

15   are regularly satisfied by exchanging the documents in advance.” U.S. Sec. &

16   Exchange Comm’n v. Aly, 320 F.R.D. 116, 119 (S.D.N.Y. 2017). Other courts permit

17   depositions to occur in a third, mutually accessible location distinct from the

18   forum district. See Republic of Turkey v. Christie’s, Inc., 326 F.R.D. 402, 406
                                                20
 1   (S.D.N.Y. 2018) (ordering depositions of witnesses for the Republic of Turkey

 2   take place in London). If necessary, a court may shift the costs so that they are

 3   borne by the moving party. See Packard v. City of New York, 326 F.R.D. 66, 68

 4   (S.D.N.Y. 2018).

 5         Nothing in the record suggests that one of the above-mentioned

 6   alternatives would be virtually impossible or so impractical as to significantly

 7   interfere with the operations of the district court or impose an unreasonable

 8   burden on Defendants in the circumstances of the present case. Absent such

 9   evidence, we must reject the district court’s conclusion that the need for

10   additional depositions justifies the administrative closure.

11                                     CONCLUSION

12         Based on the record before us, the district court exceeded the bounds of its

13   discretion in administratively closing this case, which should only be done as a

14   “last resort[].” Muhammad, 849 F.2d at 112-13. Numerous alternatives to the

15   issues identified by the district court exist, and on the present record, none seems

16   virtually impossible or so impractical as to significantly interfere with the

17   operations of the district court or impose an unreasonable burden on the party

18   opposing the plaintiff’s claim. We therefore vacate the district court’s order
                                              21
1   administratively closing Rodriguez’s case and remand for further proceedings,

2   including additional development of the record, consistent with this opinion. If

3   upon remand the district court once more administratively closes Rodriguez’s

4   case and this matter returns to this Court, in light of the history of this litigation

5   and the panel’s familiarity with the matter, we respectfully direct the Clerk of

6   this Court to return the matter to this panel for further review and adjudication.

7   Cf. United States v. Jacobson, 15 F.3d 19 (2d Cir. 1994).




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