In article <dJadnayMp6BJHzjcRVn-qQ@adelphia.com>, El Cucui
<nowhere@nothing.com> wrote:
I need the deposition of a non-party witness for a current lawsuit. This
person has told my attorney that she does not want to be deposed and she has
been difficult to work with ever since. My attorney has called her several
times to set up a convenient time for the deposition but she doesn't return
his phone calls. Finally, we just set a date for her depostion. My attorney
has sent somebody out to her apartment to serve her with the supoena at
least two times but she hasn't been there.
She doesn't have to "be there" at the convenience of the "somebody"
that was sent.
The deposition is scheduled in
less than one week and she still has not been served.
This is your problem, certainly not hers.
My attorney finally
faxed the supoena to her home fax machine. He assures me that this is
adequete notification and that she better show up for her deposition OR
ELSE! Is he right?
You're naive. Fax servicing is not servicing. There is no proof
whatsoever that she ever saw it. It may have been not printed by the
fax machine, she may be on vacation in Europe, or she may simply not
have checked her machine. This is why service is done in person. Not in
notes slipped under the door, not in messages left on answering
machines, not in e-mail (except in a few jurisdictions which haven't
entered the 21st century and don't know about undeliverable e-mail,
spam filters, firewalls, etc.), and not in faxed messages which may
never be read.
Is faxing a copy of a supoena just as legally binding as
personal service? If so, why did my attorney serve all the other deponents
their supoena in person?
You've answered your own question. If fax service is just as good as
personal service, it would be the norm, not the rare and worthless
exception. Your attorney probably just wants to mark you as a "Done"
and collect his fee.
I'd say you're #@($ out of luck. You're nearly out of time and you've
got an attorney feeding you jive about how his fax was a good
substitute for actually delivering a subpoena in person.
--Tim May
