TERESA J. JAMES, Magistrate Judge.
This is a denaturalization case brought by Plaintiff United States of America ("the Government") against naturalized citizen Defendant Afaq Malik ("Malik"). This matter is pending before the Court on Defendant Malik's Motion for Protective Order (ECF No. 39). Pursuant to Fed. R. Civ. P. 26(c) and 45(d)(3), Malik requests that the Court enter a protective order prohibiting the Government from deposing his 19-year-old daughter, Abrish Afaq ("Ms. Afaq") or, if the deposition is allowed, limiting the deposition to certain topics. For the reasons set forth below, Malik's motion is denied to the extent it seeks to prohibit Ms. Afaq's deposition in its entirety, but is granted in part to the extent it requests limitations on the deposition.
In this action, the Government seeks the revocation of Malik's United States citizenship based upon his allegedly having bigamous relationships that he concealed and lied about, and that disqualified him from lawfully becoming a United States citizen. Specifically, the Government contends Malik obtained lawful permanent resident status and eventually naturalized based on his claimed marriage to a United States citizen, Venita Ann McIntosh ("McIntosh"). That marriage, however, the Government claims was bigamous and invalid because Malik secretly remained married to his first wife, Kaneez Fatima ("Fatima"), a citizen and national of Pakistan. Therefore, according to the Government, Malik's claimed relationship with his United States citizen spouse did not lawfully confer any immigration status and Malik was not lawfully admitted for permanent residence or statutorily eligible to naturalize.
In addition, the Government alleges that Malik concealed the existence of his first wife, Fatima, and their two children, Ms. Afaq and her younger brother. The Government further contends that Malik willfully misrepresented these material facts during the legal permanent residency application process, and therefore Malik was not eligible for admission as a United States citizen. Finally, the Government alleges Malik lacked the required good moral character because he committed bigamy and practiced polygamy when he allegedly remarried his first wife while still married to his U.S.-citizen spouse.
The Government deposed Malik on March 22, 2016. A week later, on March 30, 2016, counsel for the Government provided Malik's counsel with a copy of the Government's proposed deposition subpoena for Malik's daughter, Ms. Afaq.
Under Federal Rule of Civil Procedure 26(c), "[t]he court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense."
Rule 26(c) grants a court "substantial latitude to fashion protective orders" upon weighing the competing needs and interests of parties affected by discovery.
As a preliminary matter, the Government does not dispute that Malik has standing to request a protective order precluding the Government from deposing his 19-year-old daughter, or requesting limitations on her deposition. In any event, Malik would have standing in this case because he has a personal right or privilege with respect to the subject matter sought by the deposition subpoena,
In his motion for protective order, Malik contends the Government should not be allowed to depose Ms. Afaq because (1) she has no information concerning the very limited subject matter of this lawsuit, and (2) the deposition would likely impose an undue burden and cause her embarrassment. Malik first argues that Ms. Afaq should not be deposed because she lacks knowledge of the events alleged in the complaint. Specifically, Malik contends the relevant events alleged in the Complaint occurred between 2000, when he entered the United States, and 2004, when he was interviewed on his application for U.S. citizenship. He argues that Ms. Afaq was only three years old when he came to the United States and married his second wife; she was only seven years old at the time of his naturalization interview, and she was living in Pakistan the entire time these events allegedly occurred. Malik asserts that Ms. Afaq confirmed in her Declaration that she is not aware why her father came to the United States, what he did in the United States when she was a child, or whether or why he applied for citizenship. Instead, Malik claims the only "fact" Ms. Afaq has information on is that her mother told her when she was 15 years old that her father had divorced her mother when Ms. Afaq was very young. But because of Ms. Afaq's sheltered upbringing in a Muslim family in Pakistan, she did not even know what "divorce" was. And she has never asked her parents any questions or learned anything more about this topic since then, because in her culture children do not talk about these things with their parents. Thus, Malik argues, Ms. Afaq literally has nothing to offer in a deposition.
Malik also argues that being deposed is likely to place an undue burden on Ms. Afaq and cause her embarrassment. She is a 19-year-old Muslim woman who lived in Pakistan until she came to the United States when she was 15 or 16.
In its response to Malik's motion for protective order, the Government argues that the nature of Malik's familial life, and when and if he married, divorced, and/or remarried are at the heart of these proceedings to revoke Malik's citizenship. One such asserted claim for revocation is based upon Malik's deposition testimony that he divorced Fatima in May 2000 and remarried her in July 2007, which was nearly four months before Malik divorced his U.S.-citizen wife McIntosh on November 19, 2007. The Government further argues that Malik has provided several conflicting statements, both oral and written, concerning his marital history.
The Government contends Ms. Afaq's broad statements in her Declaration that she has no information about these subjects are insufficient to preclude her deposition, citing Horsewood v. Kids "R" Us.
The record in this case is replete with issues and in some instances apparent inconsistencies concerning specifically when, whether, and to whom Malik has been married, divorced, and/or remarried. The Government provides the following example of one of these inconsistencies in its response:
Another apparent inconsistency is raised by the January 1, 2013 N-600 Application for Certificate of Citizenship ("N-600") that Ms. Afaq signed, but which Malik testified he filled out, indicating he had only been married "two" times. Given such apparent inconsistencies, the Government should be allowed to depose Ms. Afaq regarding her knowledge of when, whether, and to whom Malik has been married, divorced, and/or remarried. These issues are at the crux of this case.
Contrary to Malik's assertion, the relevant time period for purposes of discovery in this case is not limited to the period from 2000 to 2004, when Ms. Afaq was three to seven years old. The Government contends the statutory good moral character period applicable in this case includes the five years preceding Malik's naturalization on January 15, 2009. In addition, the recently filed First Amended Complaint asserts additional claims based upon Malik's alleged divorce from Fatima in May 2000 and remarriage to her in July 2007, prior to Malik's divorce from his U.S.-citizen wife McIntosh in November 2007.
Notwithstanding Ms. Afaq's professed lack of knowledge and information, the Government is entitled to test her knowledge and information concerning matters that may bear upon the alleged claims and defenses in this case.
To the contrary, the following statements in Ms. Afaq's Declaration suggest that she may have information relevant to this case: When Ms. Afaq was a child, Malik would call home to talk with her; when she was a little older, Malik came back to Pakistan several times for short visits; Ms. Afaq came to the United States when she was 15 or 16 years old and currently lives in her father's house;
Malik's arguments that Ms. Afaq should not be deposed either because of her young age at the limited times he claims relevant to this case or because she is only 19 now are not persuasive. As the Government correctly notes, Malik has not argued that Ms. Afaq is not competent to testify. There is nothing in this record suggesting that Ms. Afaq, who is now 19, is incompetent to testify. Malik's argument that Ms. Afaq, who is under twenty-one years of age, would be considered a "child" under the Immigration and Nationality Act
As noted previously, protective orders seeking to prohibit depositions altogether are generally not granted unless the information sought by the deposition has no possible relevance to the claims or defenses in the case. The Court finds in this case Malik has not met his burden to show good cause to preclude the Government from deposing Ms. Afaq. Rather, the Court will allow the Government to depose Ms. Afaq to ascertain whether, by observation or from information communicated to her by Malik, her mother, or others, Ms. Afaq has any knowledge or information that may be relevant to the issues in this case, namely specifically when, whether, and to whom Malik has been married, divorced, and/or remarried. Malik's request for a protective order that seeks to prohibit Ms. Afaq's deposition in its entirety is therefore denied.
Malik also argues that allowing Ms. Afaq to be deposed regarding her father's marital and sexual relations would place an undue burden upon her and cause her embarrassment because of her beliefs and culture. The Court is not insensitive to concerns expressed by Ms. Afaq in her Declaration about answering questions concerning her father's sexual relations. Pursuant to Rule 26(c)(1), the Court has discretion, upon a showing of good cause, to enter an order to protect Ms. Afaq from embarrassment or undue burden. The Court finds that entry of a protective order in this case for that purpose is warranted and the Court will do so, but only to the following limited extent:
Finally, Malik requests that the Government be ordered to pay his reasonable attorney's fees and expenses in defending Ms. Afaq's deposition. The Court denies the request. The Court is permitting the Government to depose Ms. Afaq and denying Malik's request for protective order, except to the extent of the few limitations placed on the deposition specifically set out herein. The Court thus finds no justification for requiring the Government to pay the attorney's fees and expenses of Malik's counsel in defending Ms. Afaq's deposition.
IT IS SO ORDERED.
