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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

CCB LLC, et al.,

Plaintiffs,

v. Case No. 3:10cv228/LAC/EMT

BANKTRUST, 

Defendant.

_______________________________/

O R D E R

This cause is before the court upon an “Objection and Motion by Non-Party [David E.

Fleisher] to Quash or Modify Subpoena Seeking Deposition and Production of Documents” (Doc.

34). In the motion non-party Fleisher (hereafter “Fleisher”) seeks an order quashing a subpoena

issued by Plaintiff CCB LLC, which was served upon Fleisher on September 30, 2010, and which

requires Fleisher to appear for a deposition and produce certain documents at a stated location on

October 11, 2010, at 9:30 a.m. (see Doc. 34 & Ex. A).1

The court notes that Fleisher’s motion to quash (Doc. 34) was filed on October 11, 2010, at

9:03 a.m., a mere twenty-seven minutes before the time Fleisher was required to appear for his

deposition and produce documents. Initially, such a small amount of time is clearly insufficient for

any court to issue a meaningful and timely order, especially considering that it provides no time for

the filing of a response to the motion by the party issuing the subpoena. Moreover, with regard to

the subpoena at issue here, there was absolutely no time to take any action on Fleisher’s motion, as

the United States Courthouse for the Northern District of Florida was closed in observance of the

Columbus Day Holiday on October 11, 2010, the day Plaintiff’s motion was filed. Thus, for all

intents and purposes, Fleisher’s motion was not filed until the day after he was scheduled to appear

for deposition (that is, on October 12, 2010, the first day of business following the federal holiday,

and the day on which the instant motion was brought to the attention of the undersigned).

1

 The subpoena reflects that Fleisher’s address is in Destin, Florida and that the deposition was scheduled to

take place in Fort Walton Beach, Florida (see Doc. 34, Ex. A).
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Fleisher’s motion, therefore, is due to be denied as untimely. See, e.g., U.S. v. Portland

Cement Co. of Utah, 338 F.2d 798, 803 (10th Cir. 1964) (protective orders must be obtained prior

to taking of depositions); United States v. Int’l Business Machines Corp., 70 F.R.D. 700, 701

(S.D.N.Y. 1976) (same); Mitsui & Co. v. Puerto Rico Water Resource Authority, 93 F.R.D. 62, 67

(D.P.R. 1981) (failure to timely move for protective order precludes objection later); see also Truxes

v. Rolan Elec. Corp., 314 F. Supp. 752, 759 (D.P.R. 1970); Wong Ho v. Dulles, 261 F.2d 456, 460

(9th Cir. 1958); Marriott Homes, Inc. v. Hanson, 50 F.R.D. 396, 400 (W.D. Mo. 1970); 8A C.

Wright & A. Miller, Federal Practice, § 2035 (2010).2

Accordingly, it is ORDERED:

The “Objection and Motion by Non-Party to Quash or Modify Subpoena Seeking Deposition

and Production of Documents” (Doc. 34) is DENIED as untimely. 

DONE AND ORDERED this 14th day of October 2010.

/s/ Elizabeth M. Timothy 

ELIZABETH M. TIMOTHY

UNITED STATES MAGISTRATE JUDGE

2

 In some circumstances failure to attend a deposition may be excused, even in the absence of a motion for a

protective order. See, e.g., International Business Machines Corp., 79 F.R.D. at 414 (timeliness rule may not apply if

there has been no opportunity to file a motion for protective order) (citing 8 C. Wright & A. Miller, Federal Practice and

Procedure, § 2035). Courts have also found “substantial justification” for nonattendance on the basis of the deponent’s

serious illness, Hyde & Drath v. Baker, 24 F.3d 1162, 1171–72 (9th Cir. 1994), and inconvenience and expense of

traveling, Speidel v. Bryan, 164 F.R.D. 241, 244 (D. Or. 1996). On the other hand, courts have rejected excuses such

as withdrawal of local counsel, Lew v. Kona Hospital, 754 F.2d 1420, 1426– 27 (9th Cir. 1985), a deponent’s discharge

of counsel, East Boston Ecumenical Community v. Mastrorillo, 133 F.R.D. 2, 3–4 (D. Mass. 1990), and inadvertence,

T.B.I. Industrial Corp. v. Emery Worldwide, 900 F. Supp. 687, 694 (S.D.N.Y. 1995).

The court finds no circumstances here that would excuse the late filing of Fleisher’s motion. As previously

noted, Fleisher was served with the subpoena approximately eleven days before the scheduled date of the deposition and

thus had an opportunity to timely file a motion to quash; he has not asserted that he was ill or otherwise unable to attend

the deposition (rather, his objections are based on claims that Plaintiff’s subpoena failed to provide a reasonable time

to comply with that part of the subpoena commanding the production of documents, called for the production of

“privileged or other protected matter,” or otherwise subjected Fleisher to undue burden (see Doc. 34 at 2)); and Fleisher’s

deposition was scheduled in a neighboring town, so it would not have been inconvenient or expensive to attend the

deposition. While the court appreciates Fleisher’s efforts to resolve the disputed matters with Plaintiff prior to filing the

instant motion (see, e.g., Doc. 34, Exs.), Fleisher was nevertheless obligated to bring the dispute before the court in a

timely matter. 

Case No.: 3:10cv228/LAC/EMT