United States District Court, D. Nevada
FERENBACH, UNITED STATES MAGISTRATE JUDGE
Office of Dan M. Winder P.C.'s Motion to Quash (ECF No.
275); Plaintiff's Motion for Sanctions (ECF No. 279); and
Plaintiff's Motion for Withdrawal/Substitution of Counsel
(ECF No. 282).
this Court is The Law Office of Dan M. Winder P.C.'s
(former attorney of record for the Defendant and current
interested party) Motion to Quash (ECF No. 275),
Plaintiff's Motion for Sanctions (ECF No. 279), and
Motion to Substitute Counsel (ECF No. 282). For the reasons
stated below, Winder's motion to quash is denied, the
Court orders Winder to serve a copy of the requested
discovery upon Christopher Rose (attorney of record for the
Plaintiff) by close of business today, Plaintiff's Motion
for Sanctions is granted in part and denied in part, and
Plaintiff's motion to substitute counsel is granted.
Alutiiq filed a lawsuit against OIC Marianas Insurance
Company on July 19, 2010. (ECF No. 1). Plaintiff secured a
favorable judgment on January 14, 2016. (ECF No. 217).
Plaintiff asserts that, following the court's judgment,
it has struggled to collect from the Defendants. (ECF No.
259). Plaintiff filed a motion to compel compliance with a
subpoena for ten categories of documents. (Id.). The
Court ordered that Plaintiff send the Law Office of Dan M.
Winder (“Winder”) a list of search terms, and
that Winder then submit electronic searchable versions of the
documents requested by Plaintiff within forty-five days. (ECF
allegedly submitted the search terms to Winder's office
on December 22, 2017. (ECF No. 277 at 11). Plaintiff claims
that it sent Winder's office a letter by U.S. mail, and
an email addressed to
email@example.com. (Id.). On
February 5, 2018, Plaintiff sent a second email alerting
Winder that this was his last day to comply with the
discovery subpoena. (Id. at 10). Plaintiff sent this
second email to firstname.lastname@example.org.
(Id.). Later on February 5, 2018, Winder replied to
Plaintiff's second email. Winder stated that this was the
first notice his office had received of the search list.
(Id. at 9-10). Winder claimed that the email address
used in Plaintiff's first email was not an email address
that either he or anyone in his office used. Winder then
requested an additional two weeks to produce the discovery.
On February 6, 2018 Plaintiff replied that he did not believe
Winder's claim that February 5 was the first time
Winder's office had received notice of the search term
list. (Id. at 9). Plaintiff agreed to grant Winder a
one-week extension to produce the discovery. (Id.).
February 13, 2018, Winder filed a motion to quash service of
the first email and requested the Court grant it forty-five
days from the reception of the second email to produce the
discovery. (ECF No. 275). On February 14, 2018, Plaintiff
filed a Motion to sanction Winder for its conduct during this
discovery process. (ECF No. 279). On March 2, 2018,
Plaintiff's counsel (Mark Rosencrantz) also filed a
motion to Substitute Counsel for his client (ECF No. 282).
The Court held a hearing on these three motions on March 15,
2018. At the hearing, Winder stated that he had mailed the
discovery to Mr. Rosencrantz's (attorney of record for
Plaintiff) office on or about March 12, 2018. Rosencrantz
stated that he has not yet received the mailed discovery.
Winder's Motion to Quash Should be Denied
argues that he never received Plaintiff's letter
containing the search terms via U.S. mail. (ECF No. 275 at
1). Winder further claims that Plaintiff sent the December
22nd email to an invalid email address. While Winder
acknowledges that the email address in question is attached
to his office, he claims that it is neither used nor
monitored by anyone in his office. (ECF No. 280 at 2). Winder
asserts that he does not know where Plaintiff got this email
address from, and posits that Plaintiff must have assumed it
was a proper email address based on other email addresses in
use by Winder's firm. (Id.). Winder argues that
since the first email was sent to an incorrect email address,
he did not receive notice of the search terms until Plaintiff
sent him the second email on February 5, 2017. (ECF No. 275
at 1). He asserts that since he received notice of the list
of search terms so late, he did not have time to produce the
discovery requested within the one-week time allotment
Plaintiff granted him.
claims that he did send the letter containing the search
terms to Winder's office through U.S. mail. (ECF No. 276
at 2-4). Plaintiff also asserts that he used the email
address in question because he had used it to successfully
contact Winder's firm over a dozen times during the
course of this litigation. (Id.). Plaintiff argues
that Winder received the list of search terms and that Winder
was merely attempting to delay the proceedings.
(Id.). Plaintiff highlights previous instances where
either Winder's firm or other defense counsel has delayed
Court proceedings during the course of this litigation.
court may quash service when service is insufficient.
S.J. v. Issaquah Sch. Dist. No. 411, 470 F.3d 1288,
1293 (9th Cir. 2006). Service may be made by either mailing
the subpoena through U.S. mail or by electronic means.
Fed.R.Civ.P. 5(b). When a subpoena is served by electronic
means, service is “not effective if the serving party
learns that it did not reach the person to be served.”
Fed.R.Civ.P. 5(b)(2)(E). The court construes the provisions
outlining service liberally. Crane v. Battelle, 127
F.R.D 174, 177 (S.D. Cal. 1989).
properly served the list of search terms on Winder. It is
unclear whether Plaintiff mailed the letter to Winder through
U.S. mail. While Plaintiff claims as much, the only evidence
he submits is a declaration. (ECF No. 277 at 2). Since Winder
alleges the opposite (ECF No. 275), whether or not the letter
was mailed is essentially a credibility determination.
Court declines to rule on whether Plaintiff sent the list of
search terms through U.S. mail because Plaintiff served the
list on Winder through email. Both parties agree that the
email was sent to an existing email address that was
connected to Winder's firm. (ECF No. 276; ECF No. 280 at
2). Winder seems to be arguing that he could not produce the
requested discovery because the list of search terms never
reached him. By Winder's own admission this is not true.
The search terms did reach him when Plaintiff sent them to
his email that is connected to his law
firm. That Winder lacks the diligence to check this in box
does not change the fact that it is a ...