IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Judge William J. Martínez 

Criminal Case No. 11-cr-00376-WJM

UNITED STATES OF AMERICA,

Plaintiff,

vs.

1. EXECUTIVE RECYCLING, INC.,

2. BRANDON RICHTER, and

3. TOR OLSON,

Defendants.

 

ORDER

 

 

This matter is before the Court sua sponte. On December 9, 2011, Plaintiff

United States of America filed an Amended Motion for Deposition Pursuant to Fed. R.

Crim. P. 15, seeking to take the depositions of Gary Tam, Fung Wing Lau, Peter Lei,

and Edmond Fung in Hong Kong (“the Motion”). (ECF No. 37.) The same day, the

Court issued Orders granting the Motion as to each of the four depositions (“the

Orders”). (ECF No. 39-42.) On December 14, 2011, Defendant Tor Olson filed a

Response to the Motion, making clear that he opposed the relief sought in the Motion,

and asking the Court to modify or withdraw its Orders granting the Motion. (ECF No.

55.) After reviewing Defendant Olson’s Response, the Court has determined that it

prematurely granted the Motion. Therefore, the Court hereby VACATES the Orders.

The Court requests further briefing on the Motion. Specifically, Defendants

Executive Recycling, Inc. and Brandon Richter shall file a Response to the Motion on or

Case 1:11-cr-00376-WJM Document 57 Filed 12/15/11 USDC Colorado Page 1 of 3
2

before December 23, 2011. The Government shall file a Reply, replying to both

Responses, on or before January 3, 2012. 

The Court herein addresses several issues pertaining to the parties’ positions

regarding the depositions. First, the briefing on the Motion to date makes clear that the

parties have not completed meet-and-confer efforts on the issue. In fact, it appears that

an out-of-court resolution by the parties on this issue is possible. The Court strongly

encourages the parties to thoroughly explore potential out-of-court resolutions to this

issue. In the briefing requested herein by the Court, the Court directs the parties to

explain in detail the further meet-and-confer efforts they have engaged in, the issues on

which they have agreed, and the issues on which there is still disagreement (if any).

Second, the Court notes that the Government has not provided sufficiently

specific information regarding the potential unavailability of the four witnesses. For

example, the Government has not provided the Court with specific information regarding

when it submitted its requests to the Hong Kong Justice Department to take the

depositions, and what the Government’s understanding is regarding the potential time

frame for the processing of those requests. Also, the Government’s representation that

“Mr. Tam, Mr. Fung and Mr. Lau have stated they may be willing to travel to Colorado to

testify at trial in this case” does not sufficiently indicate these witnesses’ potential

unavailability. (ECF No. 37, at 2 ¶ 2 (emphasis added).) 

In accordance with the foregoing, it is ORDERED as follows:

1. This Court’s Orders authorizing the four depositions (ECF Nos. 39, 40, 41,

42) are VACATED;

Case 1:11-cr-00376-WJM Document 57 Filed 12/15/11 USDC Colorado Page 2 of 3
3

2. Defendants Executive Recycling, Inc. and Brandon Richter shall file a

Response to the Amended Motion to Take Deposition on or before

December 23, 2011; and 

3. Plaintiff United States of America shall file a Reply (to both Responses) on

or before January 3, 2012.

Dated this 15th day of December, 2011.

BY THE COURT:

_______________________

William J. Martínez 

United States District Judge

Case 1:11-cr-00376-WJM Document 57 Filed 12/15/11 USDC Colorado Page 3 of 3