PLAINTIFF’S MOTION FOR PROTECTIVE ORDER AS TO THE DEPOSITION DEFENDANTS UNILATERALLY SET FOR 6:30 P.M. ON INSUFFICIENT NOTICE

8 Nov 2015

PLAINTIFF’S MOTION FOR PROTECTIVE ORDER AS TO THE DEPOSITION DEFENDANTS UNILATERALLY SET FOR 6:30 P.M. ON INSUFFICIENT NOTICE

Plaintiff, Richard Gilliand, by and through his undersigned counsel, files this Motion to Quash and/or for Protective Order with respect to a deposition noticed by Defendants on Friday, October 23, 2015 for Tuesday, October 27, 2015 at 6:30 p.m. Plaintiff also moves for attorney’s fees per Rule 30(g)(2) as to Defendants’ related deposition misconduct.

BACKGROUND FACTS

  1. On August 5, 2015, Plaintiff disclosed a witness named Emily Williams in his initial disclosures.  Plaintiff included Ms. Williams’ address and a general description of her anticipated testimony.
  2. On October 2, 2015, Defendants issued a subpoena for Ms. Williams for her personal appearance on October 19, 2015.  October 19th was a date mutually agreed upon by the undersigned and Defendants’ counsel.
  3. Prior to the date of the scheduled October 19th deposition, the undersigned inquired in writing of Defendants’ counsel as to whether he obtained service on Ms. Williams.  On October 16th, Defendants’ counsel emailed the undersigned misleadingly saying that “She has been served and the deposition should proceed as scheduled.”
  4. Ms. Williams did not appear for the deposition Defendant noticed for October 19th.  After the deposition, the undersigned asked for Defendants’ proof of service; only at that time did Defendants reveal that Ms. Williams actually had not been personally served.  Instead, a supposed Facebook friend of hers named Brandon Burt was served. See Exhibit A. Moreover, there was apparently no witness fee tendered to Ms. Williams’ in violation of Rule 45(b)(1).[1]
  5. On October 22, 2015, Defendants’ counsel inquired of the undersigned as to whether starting a second deposition of Emily Williams after 6 p.m. was acceptable.  On that same day, the undersigned objected to starting one that late at night stating that “I’ve never heard of anyone trying to set a deposition to begin after 6 p.m.  Are you saying that’s ok with you?” In response to that email, also on October 22, 2015, counsel for the Defendants stated in an email that “I will file something with the court tomorrow asking the court to sort this out.”
  6. Instead of filing “something” with the Court, on October 23rd at about 4 p.m. Defendants counsel surprisingly and unilaterally set Ms. Williams’ deposition for Tuesday October 27th to begin at 6:30 p.m. See Exhibit B. This notice was emailed to the undersigned but not mailed.[2]
  7. In Defendants’ email of October 23rd (the one that included the notice of deposition attached as Exhibit B), Defendants’ counsel stated that “the deposition [unilaterally set for October 27th] will proceed absent the issuance of a Protective Order.” In that email, Defendants’ counsel claimed that he hadn’t heard from the undersigned for the past “two days.”  However, the facts clearly demonstrate that the undersigned and Defendants’ counsel discussed the matter on the day prior (October 22nd) as discussed in paragraph 5 supra.[3] The undersigned fully expected Defendants’ counsel to file a motion as he indicated via email on October 22nd – not unilaterally set a late night deposition.

MEMORANDUM OF LAW

            Defendants’ attempt to unilaterally set a deposition to begin at 6:30 p.m. on Tuesday October 27th is patently unreasonable.  Additionally, because Defendants “failed to serve a subpoena on a nonparty deponent, who consequently did not attend,” Plaintiff is due expenses regarding the October 19th deposition it improperly set.

  1. THE OCTOBER 27th DEPOSITION IS PATENTLY UNREASONABLE

Clearly, unilaterally noticing a deposition on Friday to begin at 6:30 p.m. the following Tuesday is patently unreasonable.  See Tatum v. Clarke, Jr., Case No. 11-CV-1131 (E.D. Wisconsin, February 20, 2013) (granting a motion for protective order because the plaintiff “may not demand that depositions be conducted outside of regular business hours.”)[4]  The undersigned never did, and never would, agree to a deposition starting at 6:30 p.m. due to family obligations and concerns about possible witness exhaustion.  Given that each the deposition could last up to 7 hours, the deposition could theoretically last until 1:30 in the morning.[5] Ms. Williams is not the undersigned’s client and is not under the control of the undersigned; thus, the undersigned will not be appearing for the deposition as unilaterally set for October 27th at 6:30 p.m.

Moreover, providing at most 2 business days notice of a deposition is universally unreasonable.  For example, the Middle District’s Discovery Handbook at Page 6 cautions attorneys to provide “a minimum of fourteen days’ written notice to every other party and the deponent.” It also states that “giving substantially more than fourteen days notice is strongly encouraged.”  Id. Ms. Williams’ rights to having her deposition set with sufficient notice and in a reasonable manner is also at issue given that she (as an unrepresented party) may feel pressured to “agree” to such a procedure under a court process of which she is most unfamiliar.  Thus, Plaintiff respectfully requests that the deposition notice be quashed, for a protective order regarding the same, and/or if the Defendants continues to take such deposition that the same be unusable in these proceedings.

  1. THE OCTOBER 19th DEPOSITION WAS IMPROPERLY SET

Defendants’ conduct about scheduling Ms. Williams’ deposition on short notice and after normal business hours stems from the fact that it never actually served her for the October 19th date. Instead of telling the undersigned that Ms. Williams had not been personally served, Defendants’ counsel misrepresented that she had been.[6]

  1. Williams Was Never Served

Rule 30(g)(2) provides that “A party who, expecting a deposition to be taken, attends in person or by an attorney may recover reasonable expenses for attending, including attorney’s fees, if the noticing party failed to serve a subpoena on a nonparty deponent, who consequently did not attend.” Here, someone not apparently even related to Ms. Williams was served – someone named Brandon Burt. See Exhibit A. This fact was not made known to the undersigned until after the undersigned personally appeared for her deposition. Instead, Defendants’ counsel misrepresented in writing to the undersigned that Ms. Williams had been served.[7] Thus, an award of reasonable expenses is due Plaintiff per Rule 30(g)(2).

  1. No Witness Fees Were Apparently Tendered

Even if Defendants’ counsel for some reason believed that Ms. Williams had notice of her deposition, it apparently did not tender to her the required witness fees – something Defendants also neglected to inform the undersigned prior to October 19th. The attendance and mileage fees must be tendered at the time the subpoena is served. See CF & I Steel Corp. v. Mitsui & Co. (U.S.A.), 713 F.2d 494, 496 (9th Cir. 1983)). Failure to tender the requisite fees at the time of service invalidates the subpoena.  See In re Dennis, 330 F.3d 696, 704-705 (5th Cir. 2003)); See also Rule 45(b)(1) (“Serving a subpoena requires delivering a copy to the named person and, if the subpoena requires that person’s attendance, tendering the fees for 1 day’s attendance and the mileage allowed by law.”).[8] Thus, given Defendants’ failure to properly inform the undersigned that the witness was not properly served, the undersigned incurred attorneys’ fees that are recoverable per Rule 30(g)(2).

WHEREFORE, Plaintiff respectfully requests that the Defendants’ Notice of Deposition attached hereto as Exhibit B be quashed, for a protective order regarding the same, and (to the extent that this Motion cannot be heard prior to the Defendants’ unilaterally set deposition) that any testimony improperly solicited by sealed. Moreover, Plaintiff respectfully requests attorneys’ fees from the Defendants’ failure to properly subpoena Ms. Williams for October 19th.  Plaintiff also requests an award of fees and costs for having to make the instant Motion, including those available per Rule 30(g)(2), Rule 37(a)(5), Rule 26 and the Court’s inherent authority.

GOOD FAITH CONFERENCE

            Defendants noticed the deposition of October 27th at about 4 p.m. on Friday, October 23rd stating in that email that “the deposition will proceed absente the issuance of a Protective Order.” On October 22nd, after the undersigned’s email about setting a deposition to start so late in the evening, Defendants’ counsel stated it would be filing a motion, not unilaterally noticing a deposition. To give the Court any sort of chance to review this matter prior to October 27th, this Motion had to be prepared and filed over the weekend.  Thus, the undersigned has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action per counsels’ emails over the matter as discussed in this Motion and Defendants’ email at about 4 p.m. on October 23rd both enclosing the deposition notice and stating that only a Court Order would stop the unilaterally set deposition.  Thus, Defendants’ left the undersigned with no alternative than to seek Court intervention.

 

[1] This motion says that “apparently” the witness fees were not tendered because the undersigned asked Defendants’ counsel for a copy of the fee that was tendered and none was provided.  Specifically, part of that email from the undersigned on October 21st states in part that “I’d like to see that she was properly served as part of our good faith conference prior to you filing your motion.  Also, I’d like to see a copy of any documents/checks accompanying the service.”  In response, Defendants only provided the attached Exhibit B.

[2] The undersigned never consented to service of documents by email per Rule 5(b)(2)(E) in writing.  See id. (A paper is served under this rule by: “sending it by electronic means if the person consented in writing—in which event service is complete upon transmission, but is not effective if the serving party learns that it did not reach the person to be served.”).  Thus, the notice was technically never even served by Defendants because the face of the notice indicates it was not also mailed.

 

[3] The entire email from the undersigned states “I’ve never heard of anyone trying to set a deposition to begin after 6 p.m.  Are you saying that’s ok with you?” Defendants’ counsel even responded to this email stating in part that he intends to strike Ms. Williams as a witness. Thus, its hard to imagine why Defendants’ counsel believes the undersigned did not converse with him about this matter on October 22nd.

[4] Moreover, the notice of deposition was not even properly served as mentioned supra in Footnote 1.

 

[5]  Exhibit B states that “The oral examination shall continue from day to day until completed.”

[6] The majority of courts hold that personal service is required for Rule 45.  See In Re Matter Under Investigation by Grand Jury Number 1, Case No. 10-81252-MC-MARRA/JOHNSON. Dist. Court, SD Florida 2011 (“This Court agrees with the Magistrate Judge and the majority of courts that have addressed this issue in concluding that service under Rule 45(b)(1) must be personal to the named individual.” and citing Wright & Miller which states that the “longstanding interpretation of Rule 45 has been that personal service of subpoenas is required, ” based on the literal construction of the word “delivering” in the Rule.”)

 

[7] On October 19th, after the time the deposition was supposed to happen, the undersigned requested Defendants provide both the proof of service and “any documents/checks accompanying the service.” Defendants’ counsel only provided the subpoena attached Exhibit A.

 

[8] It is curious as to whether Defendants have ever advised Ms. Williams of her right to a witness fee.  The notice attached hereto as Exhibit B does not reflect any payments were tendered. Ms. Williams was not legally required to attend either the October 19th deposition (as it was never personally served) or the one set for October 27th (as it was never served).

Summary
PLAINTIFF’S MOTION FOR PROTECTIVE ORDER AS TO THE DEPOSITION DEFENDANTS UNILATERALLY SET FOR 6:30 P.M. ON INSUFFICIENT NOTICE
Article Name
PLAINTIFF’S MOTION FOR PROTECTIVE ORDER AS TO THE DEPOSITION DEFENDANTS UNILATERALLY SET FOR 6:30 P.M. ON INSUFFICIENT NOTICE
Description
Defendants’ attempt to unilaterally set a deposition to begin at 6:30 p.m. on Tuesday October 27th is patently unreasonable. Additionally, because Defendants “failed to serve a subpoena on a nonparty deponent, who consequently did not attend,” Plaintiff is due expenses regarding the October 19th deposition it improperly set.
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