Subpoena

[Ohiogal]

Can you help me identifying on where I said those statements?

You stated:

The alleged defamatory statements involve criticizing, by emails, the quality of the Plaintiff's company.
The lawsuit was filed almost two years ago still the Plaintiff failed to produce a "single document" (despite our repeated requests for production of documents) showing my brother's involvement.
It appears that the Plaintiff is simply harassing us so that we may volunterly withdraw the counter-case we filed.

In order for you to be included where YOU filed anything (with your brother making it a we) and for YOU to be making repeated requests, you would have to be a party. So if you are not involved, then "we" did not do anything and "our" is not proper either.

 

[tranquility]

I agree with Ohiogal, this thread is getting to silly season. The OP has misrepresented things, including the fact he was going to consult an attorney. One fact that stands out the OP will regret:

I have one more question: the subpoena instructed me to appear for audio deposition. However, in the motion for quash, I objected ANY audio deposition and accepted to provide written deposition only (that written deposition is also for relevant questions if any).

By not getting representation, it is increasingly becoming clear the OP is going to be in a very bad place very soon. One thing an attorney might have warned him of is that filing a motion to quash is not risk free. In a discovery dispute, the party who files frivolously (Like objection to audio depositions because...um...one would prefer a written one.) may very well get sanctions against him. One common one is the cost of the other party's attorney to challenge the motion. One does not just get to object to subpoenas, one must have REASONS to object. Not that you don't want to as few want to testify under subpoena, but legal deficiencies in the subpoena and information sought.

Since the OP seems to want to fight so hard to prevent from giving up information, I suspect he is going to perjure himself at some point. It is one thing to have to turn over tax returns for no reason, it is another for a person to not answer simple questions about if you collected rent or not. (Or, whatever the other side wants to prove.) Then, once a response is made to a material issue under oath, the OP will find there are many ways to prove things up differently.

 

[TigerD]

I submitted a motion to quash the subpoena under Fla. R. Civ. P. 1.280(c) on my own as I have no money to hire an attorney (a law student reviewed it for free, thanks to him!).

Am I the only one who finds this a bit concerning?

DC

 

[LdiJ]

Am I the only one who finds this a bit concerning?

DC

Universities often have free law clinics using law students. (professors supervising) I assumed it was something like that.

 

[Ohiogal]

Am I the only one who finds this a bit concerning?

DC

Nope. The law student was practicing law without a license and thus, if that is reported, can prevent said student from becoming a lawyer.

 

[quincy]

Universities often have free law clinics using law students. (professors supervising) I assumed it was something like that.

I was thinking along the same lines as LdiJ. If this was not the case, and the law student was not part of an attorney-supervised clinic, the student is apt to have a very short law school life.

I also mentally made note of the mentions of "counterclaim" and "we" and "our." I had the same doubts as those being expressed now by others. But there is a LOT said in this thread by ppr that is not making a whole lot of sense - starting with the attorney for the opposing party demanding the personal tax returns of a witness.

There is an obvious reluctance by ppr to reveal the facts of what he (or his brother) got involved in and, since this is a public forum, that reluctance to divulge too much can be smart. However, if ppr wants advice from any of us here that will benefit him in any way, he either needs to clear up a few of the mysteries his posts have raised or, better than that, he needs to consult personally with an attorney in his area. He needs to be open and honest about all facts - and he may not be able to do that on a public forum without some risk to his brother (or to himself).

ppr needs an attorney in his area to personally sort through all that has gone on in the last two years that led to the defamation lawsuit, and allow this attorney after the personal review to advise and direct him accordingly.

With all of that said, it is certainly not the first time on this forum that someone has tried to handle a legal matter (for himself or to help out someone else) without the benefit of an attorney who has personal access to all of the facts. And it is certainly not the first time someone on this forum has thoroughly made a mess of it all by doing so.

 

[ppr]

You stated:


In order for you to be included where YOU filed anything (with your brother making it a we) and for YOU to be making repeated requests, you would have to be a party. So if you are not involved, then "we" did not do anything and "our" is not proper either.

Thank you. Let me clarify and sorry for the confusion, if any: I am not a party in the lawsuit. My brother made repeated requests (through his attorney) but the other party did not produce any evidence against my brother.

I am Sorry for using "we" that I used for me and my brother together.

 

[quincy]

Thank you. Let me clarify and sorry for the confusion, if any: I am not a party in the lawsuit. My brother made repeated requests (through his attorney) but the other party did not produce any evidence against my brother.

I am Sorry for using "we" that I used for me and my brother together.

Thanks for clearing that up, ppr.

Again, it is important for you to now find an attorney in your area to guide you through the upcoming deposition. I agree with tranquility that you may have messed up your motion to quash the subpoena but it might not make a difference in the judge's ruling. I guess you will find out.

You might find legal assistance through a legal aid clinic in your area (law schools often operate good ones - and this is where LdiJ and I are hoping you located the law student ).

Good luck.

 

[ppr]

Thanks to each one of you for all your suggestions and feedback.

the party sent me a subpoena with some questions and instructed me to appear for audio deposition. However, in the motion for quash, I objected ANY audio deposition and accepted to provide written response only for some selected questions.

Still my question is: if there is no hearing happens (on my motion) before the deposition date set by the party in the subpoena, do I need to attend for the audio deposition?

 

[Ohiogal]

Thanks to each one of you for all your suggestions and feedback.

the party sent me a subpoena with some questions and instructed me to appear for audio deposition. However, in the motion for quash, I objected ANY audio deposition and accepted to provide written response only for some selected questions.

Still my question is: if there is no hearing happens (on my motion) before the deposition date set by the party in the subpoena, do I need to attend for the audio deposition?

Yes you need to attend.

 

[quincy]

Thanks to each one of you for all your suggestions and feedback.

the party sent me a subpoena with some questions and instructed me to appear for audio deposition. However, in the motion for quash, I objected ANY audio deposition and accepted to provide written response only for some selected questions.

Still my question is: if there is no hearing happens (on my motion) before the deposition date set by the party in the subpoena, do I need to attend for the audio deposition?

ppr, I can understand your objection to the production of tax returns but what reason in your motion to quash did you give for objecting to an audio deposition?

 

[tranquility]

Yes you need to attend.

Are you sure? In CA, if an objection is made to a third party subpoena, the deponent is not required to show up until the court orders it.

Edit:

RULE 1.410 SUBPOENA
(a) Subpoena Generally. Subpoenas for testimony before the court, subpoenas for production of tangible evidence, and subpoenas for taking depositions may be issued by the clerk of court or by any attorney of record in an action.

(b) Subpoena for Testimony Before the Court.

(1) Every subpoena for testimony before the court shall be issued by an attorney of record in an action or by the clerk under the seal of the court and shall state the name of the court and the title of the action and shall command each person to whom it is directed to attend and give testimony at a time and place specified in it.

(2) On oral request of an attorney or party and without praecipe, the clerk shall issue a subpoena for testimony before the court or a subpoena for the production of documentary evidence before the court or a subpoena for the production of documentary evidence before the court signed and sealed but otherwise in blank, both as to the title of the action and the name of the person to whom it is directed, and the subpoena shall be filled in before service by the attorney or party.

(c) For Production of Documentary Evidence. A subpoena may also command the person to whom it is directed to produce the books, papers, documents, or tangible things designated therein, but the court, upon motion made promptly and in any event at or before the time specified in the subpoena for compliance therewith, may (1) quash or modify the subpoena if it is unreasonable and oppressive, or (2) condition denial of the motion upon the advancement by the person in whose behalf the subpoena is issued of the reasonable cost of producing the books, papers, documents, or tangible things. A party seeking a production of evidence at trial which would be subject to a subpoena may compel such production by serving a notice to produce such evidence on an adverse party as provided in rule 1.080 (b). Such notice shall have the same effect and be subject to the same limitations as a subpoena served on the party.

(d) Service. A subpoena may be served by any person authorized by law to serve process or by any other person who is not a party and who is not less than 18 years of age. Service of a subpoena upon a person named therein shall be made as provided by law. Proof of such service shall be made by affidavit of the person making service if not served by an officer authorized by law to do so.

(e) Subpoena for Taking Depositions.

(1) Filing a notice to take a deposition as provided in rule 1.310(b) or 1.320(a) with a certificate of service on it showing service on all parties to the action constitutes an authorization for the issuance of subpoenas for the persons named or described in the notice by the clerk of the court in which the action is pending or by an attorney of record in the action. The subpoena may command the person to whom it is directed to produce designated books, papers, documents, or tangible things that constitute or contain evidence relating to any of the matters within the scope of the examination permitted by rule 1.280(b), but in that event the subpoena will be subject to the provisions of rule 1.280(c) and subdivision (c) of this rule. Within 10 days after its service, or on or before the time specified in the subpoena for compliance if the time is less than 10 days after service, the person to whom the subpoena is directed may serve written objection to inspection or copying of any of the designated materials. If objection is made, the party serving the subpoena shall not be entitled to inspect and copy the materials except pursuant to an order of the court from which the subpoena was issued. If objection has been made, the party serving the subpoena may move for an order at any time before or during the taking of the deposition upon notice to the deponent.

(2) A person may be required to attend an examination only in the county wherein the person resides or is employed or transacts business in person or at such other convenient place as may be fixed by an order of court.

(f) Contempt. Failure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the court from which the subpoena issued.

(g) Depositions Before Commissioners Appointed in This State by Courts of Other States; Subpoena Powers; etc. When any person authorized by the laws of Florida to administer oaths is appointed by a court of record of any other state, jurisdiction, or government as commissioner to take the testimony of any named witness within this state, that witness may be compelled to attend and testify before that commissioner by witness subpoena issued by the clerk of any circuit court at the instance of that commissioner or by other process or proceedings in the same manner as if that commissioner had been appointed by a court of this state; provided that no document or paper writing shall be compulsorily annexed as an exhibit to such deposition or otherwise permanently removed from the possession of the witness producing it, but in lieu thereof a photostatic copy may be annexed to and transmitted with such executed commission to the court of issuance.

(h) Subpoena of Minor. Any minor subpoenad for testimony shall have teh right to be accompanied by a parent or guardian at all times during the taking of testimony notwithstanding the invocation of the rule of sequestration of section 90.616, Florida Statues, except upon a showing that the presence of a parent or guardian is likely to have a material, negative impact on the credibility or accuracy of the minor's testimony, or that the interests of the parent or guardian are in actual or potential conflict with the interests of the minor.

Hmm...it seems only the physical production is protected by the Rules.

 

[quincy]

Are you sure? In CA, if an objection is made to a third party subpoena, the deponent is not required to show up until the court orders it.

Edit:
Hmm...it seems only the physical production is protected by the Rules.

You can check out California's Civil Discovery Act, Sections 2016-2036 - specifically §2025.330.

The deposition can be audio or video recorded if the party noticing the deposition has indicated this fact (at least 3 days before the deposition date). If notified, this is not an objectionable matter. If not notified of the intent to audio or video record the deposition, then all parties must agree to the recording. There is an "or" and not an "and."*

It appears as if ppr was notified of the audio taping so there is a good chance his motion to quash the audio taping will be denied. Whether the production of tax returns will be also denied is a question mark but, as long as the motion is pending, ppr does not have to turn over the documents requested that are subject to the motion to quash. He does, however, have to appear for the deposition as Ohiogal noted.


*At least, this is my understanding of California's rules - they are much different from Michigan's so I could be wrong.

Edit to add a link to the Discovery Act: http://codes.lp.findlaw.com/cacode/CCP/3/4/4

 

[tranquility]

You can check out California's Civil Discovery Act, Sections 2016-2036 - specifically §2025.330.

The deposition can be audio or video recorded if the party noticing the deposition has indicated this fact (at least 3 days before the deposition date). If notified, this is not an objectionable matter. If not notified of the intent to audio or video record the deposition, then all parties must agree to the recording. There is an "or" and not an "and."

It appears as if ppr was notified of the audio taping so his motion to quash the audio taping should be denied. Whether the production of tax returns will be also denied is a question mark but, as long as the motion is pending, ppr does not have to turn over the documents requested that are subject to the motion to quash. He does, however, have to appear for the deposition as Ohiogal noted.

At least, this is my understanding of California's rules - they are much different from Michigan's so I could be wrong.

Without getting too far afield, I agree the objection to the form of deposition of a timely served subpoena is not going to be valid in CA. The difficulty in CA subpoenas is that they can simply be issued by an attorney or pro per (After being given one by the clerk in some cases.) and sanctions would not result if a timely filed objection is made until the court orders it. (While understanding a subpoena is a "court" order.) But, again, that is CA. When the subpoena is to a third party for consumer-type information, the third party cannot comply if there is an objection (At least to have the protection of production under court order.) until the court orders it. I don't know if any of what is being sought here would implicate such restrictions even if they were in CA.

Of course, the OP isn't. I'm sorry to have brought up the distraction before looking up FL law. (That's what happens when old guys go by what they remember rather than what they know.)

 

[quincy]

Without getting too far afield, I agree the objection to the form of deposition of a timely served subpoena is not going to be valid in CA. The difficulty in CA subpoenas is that they can simply be issued by an attorney or pro per (After being given one by the clerk in some cases.) and sanctions would not result if a timely filed objection is made until the court orders it. (While understanding a subpoena is a "court" order.) But, again, that is CA. When the subpoena is to a third party for consumer-type information, the third party cannot comply if there is an objection (At least to have the protection of production under court order.) until the court orders it. I don't know if any of what is being sought here would implicate such restrictions even if they were in CA.

Of course, the OP isn't. I'm sorry to have brought up the distraction before looking up FL law. (That's what happens when old guys go by what they remember rather than what they know.)

Oh. I think you did, in fact, sufficiently distract me. I forgot that ppr is from Florida and not California. Florida's rules are easier to digest.

Here is a link to an easy to read and understand handbook from the U.S. District Court, Middle District of Florida, on civil discovery practice (2001):
https://www.flmd.uscourts.gov/forms/Civil/Discovery_Practice_Manual.pdf