United States District Court, D. Connecticut
MEMORANDUM OF DECISION ON WITNESS SANDRA
GERSTEN'S EMERGENCY MOTION FOR A PROTECTIVE ORDER TO
MODIFY SUBPOENA AND TO QUASH
VANESSA L. BRYANT, UNITED STATES DISTRICT JUDGE
the Court is an emergency motion filed by Witness Sandra
Gersten (“Attorney Sandra Gersten”) [Dkt. 94] for
a Protective Order and to Modify a Subpoena and to Quash a
third-party subpoena pursuant to Local Rule 7 and
Fed.R.Civ.P. 45. Attorney Sandra Gersten's deposition is
currently scheduled for August 23, 2019. The Motion was
DENIED without prejudice to refiling because the initial
motion did not contain a copy of the contested subpoena. The
Plaintiff, Wisconsin Province of the Society of Jesus
(“Province”), filed an opposition memorandum in
anticipation of refiling. [Dkt. 98]. Attorney Sandra
Gersten's motion was refiled with the challenged subpoena
on August 21, 2019.
review of the contested subpoena and the parties'
briefing, Attorney Gersten's Motion to Quash or Modify
the Deposition Subpoena is DENIED. The deposition shall
proceed on August 23, 2019. The Court will permit objections
to questions calling for disclosure of privileged material
and will rule on any objection raised in accordance with the
applicable Federal Rules of Civil Procedure, Local Rules, and
Court GRANTS in PART the Motion to Modify the Subpoena solely
as to Document Requests Nos. 33 and 35 to permit a properly
raised objection within seven (7) days. As to Document
Requests Nos. 1-32 and 34, the Motion is DENIED. The witness
is ordered to respond within seven (7) days.
matter involves a dispute over entitlement to two retirement
accounts held by the late Rev. Edwin H. “Ned”
Cassem. In the remaining claims, the Province asserts that a
subsequent beneficiary designation naming Audrey Cassem and
Thomas F. Owens, II is invalid because Fr. Cassem lacked
capacity and/or it was obtained by undue influence. [Dkt. 44,
Amended Complaint]; see also [Dkt. 74, Order
Dismissing Counts 1 and 4]. Third party witness Attorney
Gersten was Fr. Cassem's estate planning attorney.
See [Dkt. 54]. Attorney Peter S. Gersten, represents
Defendants Audrey V. Cassem and Thomas Owens, II. [Dkt. 12,
13, respectively]. In her motion to quash, Attorney Sandra
Gersten asserts that she is also Audrey Cassem's attorney
but did not file an appearance because she knew that she
would be a witness. [Dkt. 99 at 4].
24, 2019, Province personally served Attorney Gersten with a
deposition subpoena on July 24, 2019. [Dkt. 99-1]. The
deposition was first scheduled to occur in Hartford,
Connecticut on August 9, 2019. [Dkt. 98-1]. Province also
served Attorney Gersten with a second subpoena to produce
documents on July 26, 2019, which was returnable August 7,
2019. [Dkt. 98-2]. Attorney Peter Gersten contacted counsel
for Province on July 29, 2019 stating that Attorney Sandra
Gersten was recovering from surgery and requested available
dates for a two (2) to three (3) week postponement [Dkt.
99-3]. The next day, counsel for Province asked whether
Attorney Peter Gersten represented Attorney Sandra Gersten.
[Dkt. 99-4]. Eight days later, Attorney Peter Gersten
clarified that he did not represent Attorney Sandra Gersten.
[Dkt. 99-5]. That day, Attorney Sandra Gersten stated that
she was unavailable for her August 9th deposition and
requested counsel's availability between August 23 and
September 13, 2019. She also stated that she was deciding
whether to retain counsel. [Dkt. 99-6].
reply, counsel for Province re-noticed her deposition for
August 23, 2019 and offered to reschedule if Attorney Sandra
Gersten replied by August 9th, three days later.
[Dkt. 99-7]. She stated that she was unavailable on August
23rd but did not provide alternate dates in August
when requested. [Dkt. 99-8]. Province's counsel replied
that they would proceed with her deposition as scheduled
unless she provided her availability by August
14th. [Dkt. 99-9]. On August 15th,
Attorney Joseph Hourihan emailed Province's counsel
advising that he represents Attorney Sandra Gersten and
suggested deposition dates in September. [Dkt. 99-10].
Province's counsel objected to rescheduling the
deposition for September but offered to reschedule later in
August. [Dkt. 99-12]. Attorney Hourihan replied by email that
he was unavailable because of pending trials, that he would
be filing a Motion for Protective Order, and that counsel
should consider demands to reply by certain dates as denied.
Sandra Gersten raises two objections to the subpoena. [Dkt.
99] First, she challenges the timing of the deposition
because recently retained counsel needs additional time to
prepare. Second, she argues that the only two remaining areas
of discovery documents sought cover purportedly privileged
communications between Attorney Sandra Gersten and other
attorneys regarding Audrey Cassem and the subject of the
lawsuit. The Province argues that the motion is untimely,
that further delay is unwarranted, and the informational
sought is not privileged.
The emergency nature of the filing
to Local Rule 7(a)(6), “a party may request expedited
consideration by the Court of a motion by designating the
motion as one seeking “emergency” relief and
demonstrating good cause in the motion.” The Court
finds that the emergency nature of the motion dubious.
Attorney Sandra Gersten was on notice of her deposition on
July 24, 2019 and had adequate time to prepare and retain
counsel. This matter has been pending since September 1, 2017
and the discovery deadline is November 1, 2019. [Dkt. 83].
Moreover, Attorney Sandra Gersten has been aware of this case
for several months and expected to be called as a witness.
See [Dkt. 54]; [Dkt. 99 at 4].
The Deposition Subpoena
timely, an objection to a subpoena for a third party's
deposition must be made prior to the return date of the
subpoena. See Estate of Ungar v. PalestinianAuth.,451 F.Supp.2d 607, 610 (S.D.N.Y. 2006). Here,
the original return date for the deposition subpoena was
August 9, 2019 but it was extended until August
23rdwhen the deposition was re-noticed. See
U.S. ex rel. Pogue v. Diabetes Treatment Centers of Am.,
Inc.,238 F.Supp.2d 270, 278 (D.D.C. 2002)(“it is
reasonable to assume that the motion to quash should be
brought before the noticed date of the scheduled
deposition”)(internal citation omitted). Given the
extension, the return date for the ...