Serving Deposition Subpoenas with Document Requests On Non-parties in Federal Court vs. California state court

Posted on November 15, 2012 by mary

In both California state court cases and federal cases, a non-party must be personally served with a subpoena to secure his or her attendance and production of documents at a deposition. In California state cases, you simply personally serve the non-party once with a deposition subpoena (Judicial Council Form SUBP-020 for testimony and production of documents) and serve a copy on all other parties.

In federal cases, however, taking the deposition of a non-party with production of documents is a two-step process.

First, notice of any commanded document production must be served on each party before the subpoena is served on the deponent (thus affording each party time to object to production). (FRCP 45(b)(1).) To afford adequate time for objection, notice must be given well in advance of the production date.

In Vondersaar v. Starbucks Corp.  WL 1915746, **2-3 (N.D. Cal. 2013), the District Court for the Central District of California found that a deposing party violated the plain language of Rule 45(b)(1) by failing to serve a notice of the subpoenas on defendant Starbucks prior to serving the subpoenas on the deponents. When such a violation occurs, “[c]ourts generally respond to Rule 45(b)(1) violations by striking the subpoenas, or allowing opposing counsel an opportunity to object.” (McCurdy v. Wedgewood Capital Mgmt. Co., Inc., CIV. A. 97–4304, 1998 WL 964185, at *7 (E.D. Pa. Nov. 16, 1998) (citations omitted).) However, the court in Vondersaar declined to quash the subpoena, finding that Starbucks had suffered no prejudice from the violation of Rule 45(b)(1) because: (1) it was served notice of the subpoenas only a few days after the service of the subpoenas on the third parties, (2) defendants still had ample time to object to the subpoena before the production date, and (3) the deponents had filed their own objection, so no harm occurred from the delay of the notice. (Vondersaar, supra, WL 1915746 at **2 -3.)

Thus, while FRCP 45(b)(1) requires that you serve a notice of deposition for attendance and production of documents on all parties before you serve the deposition subpoena on the deponent, a court is unlikely to quash the deposition subpoena unless the violation causes prejudice.

Common Mistakes Made By Pro Se Litigants In Appeals

Posted on October 15, 2012 by mary
  • Not understanding the difference between the Notice of Appeal and the opening appellate brief.
  • Not understanding the short deadline to file the Appellant’s Notice Designating the Record on Appeal once they file the Notice of Appeal.
  • Not understanding that critical mistakes made in the trial court, such as failing to object or make certain arguments, cannot be “undone” before the Court of Appeal.
  • Not paying for a court reporter at critical hearings and even at trial or arbitration.
  • But the most common mistake is not realizing how much representing themselves harmed their case and led to its dismissal at what was probably still the pleading stage of litigation.

By the time you’re at the appeal stage, it could be too late. While your case is still alive in the trial court, money is often well spent getting a lawyer’s help crafting your complaint or responding to a demurrer.

When is a “trial” not a trial? In a petition for writ of administrative mandamus.

Posted on September 15, 2012 by mary

When a Petitioner files a Petition for Writ of Administrative Mandamus or Mandate, the Superior Court schedules a trial setting conference and then a trial. However, the “trial” on a petition for writ of administrative mandate is not really a trial. There is no voir dire, jury, opening and closing arguments, examination of witnesses, or marking or introduction of exhibits. It’s really a hearing, similar to the hearing on an appeal before the Court of Appeal. The briefs, citing to the administrative record, are generally far more important than the “trial.” Everything you want the trial court to consider should be in the Administrative Record, which must be lodged at least five days before the “trial” (Cal. Rules of Court, Rule 3.1140), although Judges’ preferences vary as to when they want the administrative record lodged.  You can call the clerk to ascertain your Judge’s preference.

What’s a Docket Control Number?

Posted on August 15, 2012 by mary

Before I began working on a massive bankruptcy litigation in the Eastern District of California, I’d never heard of the term “Docket Control Number.” The Bankruptcy Court for the Eastern District of California appears to be the only federal court in California whose Local Rules mandate its use. See Local Rule 9014-1, subd. (c).

The Docket Control Number tells the Court, at a glance, which party has submitted a motion or related paper, and how many previous motions that party has submitted. It must be placed on the caption page of every motion and motion-related filing.

The DCN consists of three letters, which should be the attorney’s first, middle, and last initial or first three initials of the law firm’s name. The three initials are followed by a dash and the and the number that is one number higher than the number of motions previously filed by that attorney or law firm in a specific bankruptcy case or adversary action.

In practice, attorney Melody A. Duck’s first motion in the bankruptcy petition case would be: MAD-1. If Melody also represents a party in an adversary action, her first motion in the adversary action would also have a DCN of MAD-1. Her reply papers related to that first motion would still have a DCN of MAD-1. But her second motion would be designated with a DCN of MAD-2.

In the Court of Appeal: Motion to Augment or Request for Judicial Notice?

Posted on July 15, 2012 by mary

Both a motion to augment and request for judicial notice allow parties to add matter to the record on appeal. However, which one to use depends primarily on what matter you seek to add and whether it was presented to the superior court.

The most important distinction is that a request for judicial notice can be used to add material to the record on appeal that was never before the trial court, or of which the trial court refused to take judicial notice. (See, e.g., Haworth v. Superior Court (Ossakow) (2010) 50 Cal.4th 372, 379.) In practice, however, Courts of Appeal will generally not take judicial notice of matter that was not before the superior court absent “exceptional circumstances.” Nor will a Court of Appeal take judicial notice of a matter that is not relevant to a dispositive issue on appeal.

In contrast, a motion to augment can only be used to add material to the record on appeal that was previously presented to the superior court, such as exhibits admitted into evidence at trial or documents lodged with the court.

The following are examples of the types of matter that can be added to the record on appeal through judicial notice:

  • California decisional, constitutional and statutory law;
  • Regulations or legislative enactments issued by or under the authority of the United States or any public entity in the United States;
  • Official acts of federal and state legislative, executive and judicial departments;
  • Sister state decisional, constitutional and statutory law;
  • The superior court judgment;
  • A foreign country judgment;
  • Legislative materials;
  • Newspaper articles;
  • the existence of a factual finding in another proceeding but not of the truth of that finding.

Basically, a Court of Appeal can judicially notice any matter that the superior court could have. A request for judicial notice must be made by formal, noticed motion in the Court of Appeal and filed separately from briefs. It must also be accompanied by a proposed order (CRC 8.252(a)(1)) and a copy of the matter to be judicially noticed. (CRC 8.252(a)(2).)

Show Buttons
Hide Buttons