Wisconsin Province of Society of Jesus v. Cassem

          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

         Before 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.

         Upon 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 Chamber Practices.

         The 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.

         Factual background

         This 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].

         On July 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].

         In reply, counsel for Province re-noticed her deposition for August 23, 2019 and offered to reschedule if Attorney Sandra Gersten replied by August 9^th, three days later. [Dkt. 99-7]. She stated that she was unavailable on August 23^rd 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 14^th. [Dkt. 99-9]. On August 15^th, 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. [Dkt. 99-13].

         Discussion

         Attorney 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.

         a. The emergency nature of the filing

         Pursuant 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].

         b. The Deposition Subpoena

         To be 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 23^rdwhen 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 ...