United States District Court, S.D. Texas, Houston Division
MEMORANDUM & ORDER
Rosenthal Chief United States District Judge.
Duhaly moves to strike the deposition of Andrew Garcia,
alleging that Duhaly's lead counsel did not receive
adequate notice of Cincinnati Insurance's intent to
depose Garcia. (Docket Entry No. 32). Cincinnati Insurance
emailed and faxed the notice to Shawn Ozlat, Duhaly's
counsel of record, but did not also send it to David
Mestemaker, who filed a notice of appearance as Duhaly's
“lead counsel” the same day Cincinnati Insurance
sent the deposition notice. (Docket Entry No. 33 at 3, 5;
Docket Entry No. 16). Duhaly asserts that because the notice
was not sent to Mestemaker in addition to Ozlat, the court
should strike Garcia's deposition. (Docket Entry No. 32
at 1). Cincinnati Insurance responds that because Ozlat
received actual notice; Ozlat did not withdraw but remained
counsel of record in addition to Mestemaker appearing as
“lead counsel”; and Mestemaker knew of the
deposition notice and date in advance, the court should not
strike Garcia's deposition. (Docket Entry No. 33 at 4).
Rule of Civil Procedure 30(b)(1) requires “reasonable
written notice” to parties before a deposition.
Fed.R.Civ.P. 30(b)(1). Notice “must be served on the
opposing parties under Rule 5, which provides that
‘service on a party represented by an attorney is made
on the attorney unless the court orders service on the
party.'” Scottsdale Ins. Co. v. Educ. Mgmt.,
Inc., No. 04-1053, 2006 WL 2583324, at *2 (E.D. La. Aug.
31, 2006); see also Fed. R. Civ. P. 5(b)(1);
Chagas v. United States, 369 F.2d 643, 644 (5th Cir.
1966) (per curiam) (“The Courts have held that where a
Notice to Take Deposition is served upon the party's
attorney of record and no motion for relief is filed on
behalf of that party that it must be considered as if the
Court had directed the depositions to be taken.”).
5(b)(2)(E) allows for service of a notice electronically when
the person being served has consented to electronic service
in writing. Fed.R.Civ.P. 5(b)(2)(E). Consent to electronic
service under Rule 5(b)(2)(E) “must be expressly given,
in writing, and it cannot be implied.” Moore v.
Valero Ardmore Refinery, No. 3:14-MC-00103-M, 2015 WL
129985, at *2 (N.D. Tex. Jan. 9, 2015); see Fed. R.
Civ. P. 5, Advisory Committee notes to 2001 Amendments
(“The consent must be express, and cannot be implied
from conduct”); Standard Morgan Partners, Ltd. v.
Union Ins. Co., No. H-09-4145, 2011 WL 1806499, at *1
(S.D. Tex. May 11, 2011) (“[E]lectronic service is
permissible only when the person served has agreed to such
service in writing.”). Under Local Rule 83.3,
“all communications about an action” must
“be sent to the attorney-in-charge, ” but Rule
5(b) “does not require service on each of several
counsel appearing on behalf of a party.” Daniel
Int'l Corp. v. Fishback & Moore, Inc., 916 F.2d
1061, 1063 (5th Cir. 1990).
Rule 30(b)(1) does not define “reasonable written
notice, ” courts within the Fifth Circuit have held
that at least ten days is normally required. See, e.g.,
Keybank Nat'l Ass'n v. Perkins Rowe Assocs.,
LLC, No. 09-497-JJB-SCR, 2010 WL 1252328, at *3 (M.D.
La. Mar. 24, 2010) (notices “served on February 8 for
depositions to be taken on February 11-15” were not
reasonable notice); Tradewinds Envtl. Restoration, Inc.
v. St. Tammany Park, LLC, No. 06-00593, 2008 WL 449972,
at *2 (E.D. La. Feb 14, 2008) (the court previously held that
four business days is not “reasonable written
notice” (citing Auto Club Family Ins. v.
Provosty, No. 05-6482, 2006 WL 2568054, at *2 (E.D. La.
Sept. 5, 2006))); Cleveland v. Coldwell Banker Real
Estate Corp., No. 4:05CV10-M-A, 2008 WL 141195, at *1
(N.D. Miss. Jan 10, 2008) (“This court has routinely
held that ‘reasonable written notice' should be at
least 10 calendar days.”); see also Reedy v. CITGO
Petroleum Corp., No. CV H-10-2971, 2011 WL 13350687, at
*6 (S.D. Tex. Dec. 1, 2011) (15-day notice of the depositions
at issue was sufficient).
asserts that he did not receive “reasonable written
notice” of Cincinnati Insurance's intent to depose
Andrew Garcia because Cincinnati Insurance did not give
notice to David Mestemaker, Duhaly's then-lead counsel.
Duhaly has not cited a rule or case to support his assertion.
(Docket Entry No. 32). Rule 5(b) “does not require
service on each of several counsel appearing on behalf of a
party.” Daniel Int'l Corp., 916 F.2d at
1063; see also Cooper v. Lewis, 644 F.2d 1077, 1082
(5th Cir. 1981) (each party is considered to have notice of
all facts of which its attorney may be charged with notice).
record shows that Cincinnati Insurance sent the deposition
notice to Ozlat, who remained one of Duhaly's attorneys,
by email at 4:54 p.m. and fax at 4:49 p.m. on April 8, 2019.
(Docket Entry No. 33-1). Mestemaker filed his appearance as
“lead counsel” at 4:42 p.m. on April 8, 2019,
only 7 minutes before the defendants sent the deposition
notice to Ozlat, who was and is still a counsel of record for
Duhaly. (See Docket Entry Nos. 33-2, 33-3, 16).
Duhaly has conceded that even if Mestemaker did not receive a
copy of the notice, he knew of the deposition because he
tried to reschedule it before the scheduled date. (Docket
Entry No. 32 at 1). Cincinnati Insurance was not required to
send the notice to all the attorneys representing Duhaly.
Rushing v. Bd. of Supervisors of the Univ. of La.
Sys., 270 F.R.D. 259, 261 (M.D. La. 2010). “Any
lack of communication or coordination among counsel was for
them to resolve.” Id.
consented to electronic service by serving discovery
responses on Cincinnati Insurance by fax, which included a
signed certificate of service. (See Docket Entry
Nos. 33-2, 33-3, 33-6). Cincinnati Insurance's method of
notice was reasonable. Cincinnati Insurance sent the
deposition notice 58 days before the deposition date, which
amply meets the standard commonly used by Fifth Circuit
courts that notice be given “at least 10 calendar
days” before the deposition. Cleveland, 2008
WL 141195, at *1. Because Cincinnati Insurance gave
Duhaly's counsel “reasonable written notice”