Judge: Mark H. Epstein, Case: 22SMCV01187, Date: 2022-12-23 Tentative Ruling

Case Number: 22SMCV01187    Hearing Date: December 23, 2022    Dept: R

The motion to compel is reluctantly DENIED.

Plaintiff subpoenaed the testimony Wheeler.  Wheeler did not appear for the deposition and this motion follows.  Wheeler makes three arguments in opposition to the motion.

The first is that service of the moving papers was untimely.  She argues that even though the parties agreed that electronic service before 5:30 on a business day would count as personal service, it does not bind her.  The court is not convinced.  Her counsel made the agreement.  While it is unclear whether the agreement was meant to apply to everyone counsel represented or only as to the actual parties to the lawsuit (and Wheeler is not herself a party), given the lack of prejudice the court would not deny the motion on that basis.  At most, it would continue the motion and allow Wheeler to file a new opposition if she really felt that the time squeeze was prejudicial.

The second argument, though, is valid.  The subpoena was served on Wheeler’s counsel, Mick (who is also defense counsel).  When Mick informed plaintiff’s counsel that he represented Wheeler, plaintiff’s counsel sent a message saying that counsel presumed that meant that Mick would accept service of process on her behalf and to let counsel know if the presumption was wrong.  Mick did not respond one way or the other, and plaintiff thereafter served Mick.  The court must agree that this is not enough.  A subpoena must be served personally absent agreement to the contrary.  Parties often authorize counsel to accept service on their behalf, and such authorization is binding.  However, the court has no evidence that Mick was in fact so authorized.  And Mick’s silence is no substitute.  Had Mick stated expressly that there was authority, that would be enough.  But silence is not consent.  Frankly, the court views this as a sharp practice.  Mick knew full well that plaintiff’s counsel would assume the authority—that was the email’s point.  If Mick lacked that authority, Mick should have said so expressly.  By leading opposing counsel to believe that authority existed when apparently it did not, Mick acted unprofessionally and, in the court’s view, unwisely and improperly, although not sanctionably.  That is especially so in that no effort was made to correct the misimpression until the opposition was filed.  Nonetheless, the lack of proper service requires that the motion be denied.

But lest there be any confusion later, had service been proper the motion would have been granted.  Wheeler contends that she has no relevant information concerning the case.  Maybe, maybe not.  But plaintiff certainly does not have to take defense counsel’s word for it.  And that is especially so given the fact that we now know that defense counsel is not above misleading the other side.  It is not beyond the Discovery Act to be sure and to get the information straight from the witness, especially where, as here, the witness signed the signed the agreement on the trust’s behalf.  Accordingly, the court would not expect Wheeler to fail to appear for her deposition when the next subpoena is issued.  Nor does the court expect to hear Wheeler complain about process servers showing up at her home or disturbing her, given the history of this case.

Of course, if questions are asked at the deposition and a privilege exists to refuse to answer them, the privilege may be asserted.  Nothing herein should be read as an implied ruling that any privilege has been waived.