United States District Court, District of Columbia
D. BATES United States District Judge.
the court is plaintiff Konstantin Shvartser's  motion
to compel four individuals who are not party to this
litigation to produce documents and appear for depositions in
response to Rule 45 subpoenas. For the reasons explained
below, the Court will grant the motion with respect to three
of the third parties, and deny it with respect to the fourth.
is engaged in a legal dispute with his daughter, defendant
Evelina Lekser, over real property that they own in
Washington, D.C. Shvartser alleges that in 2015 Lekser
executed a fraudulent power of attorney in Shvartser's
name, which she then used to refinance the property. As
relevant here, Shvartser seeks discovery from four
individuals: Alan Herweck and Arthur Holmberg, both of whom
allegedly witnessed this power of attorney; Raoul Silver, the
notary public who notarized this power of attorney; and
William Holden III, who allegedly entered into a lease
agreement with Lekser regarding the property. Because the
Court only has Shvartser's account of the relevant facts,
as presented in this motion and his counsel's statements
during a hearing held on June 15, 2017, the analysis that
follows relies on those representations.
Rule of Civil Procedure 45 governs subpoenas for discovery in
civil matters, as well as motions to compel. A subpoena may
command a person to attend a deposition or produce documents,
with certain limitations. See Fed.R.Civ.P. 45(c).
The subject of the subpoena may object, which then requires
the party seeking the subpoena to move the court to compel
compliance. Fed.R.Civ.P. 45(d)(2)(B). The subject of the
subpoena may also file a motion to quash with the court.
Fed.R.Civ.P. 45(d)(3). The subject of the subpoena may not,
however, simply fail to respond.
October 20, 2016 Herweck was served with a subpoena to
produce documents. See Ex. A [ECF No. 66-3]. On
January 28, 2017 Herweck was served with a subpoena to attend
a deposition scheduled for February 22, 2017. See
Ex. B. To date, according to Shvartser, Herweck has not
responded to either subpoena and did not appear for his
Court will order Herweck to comply with the subpoena seeking
documents and to appear for a deposition by July 10, 2017, or
by a date otherwise agreed to by Shvartser and Herweck.
October 25, 2016 Arthur Holmberg was served with a subpoena
to produce documents. See Ex. C. He responded via
letter that he had no responsive documents to provide.
See Ex. D. On January 10, 2017 he was served with a
subpoena for a deposition to be held on February 3, 2017.
See Ex. E. He failed to appear for that deposition.
In a March 27, 2017, letter he agreed to be deposed and
suggested that he was available during the week of May 22.
See Ex. G. Shvartser then noticed a deposition for
May 24, 2017. See Ex. H. In the June 15 hearing,
Shvartser's counsel represented that the May 24
deposition also did not take place.
Court will order Holmberg to appear for a deposition by July
10, 2017, or by a date otherwise agreed to by Shvartser and
February 1, 2017, Silver was served with a subpoena to
produce documents and to appear at a deposition on February
16. See Ex. I. He did not respond to the request for
production nor did he appear at the deposition. On March 31,
2017, Silver's physician sent a letter to Shvartser
stating that Silver was required to avoid “stressful
situations” due to a medical condition. See
Ex. K. Shvartser responded via letter, advising Silver that
unless he objects or files a motion to quash in accordance
with Rule 45, ...