SHVARTSER v. LEKSER
MEMORANDUM OPINION granting in part and denying in part 66 plaintiff's motion to compel third parties. See text of Memorandum Opinion and accompanying Orders for details. Signed by Judge John D. Bates on 06/16/17. (lcjdb1)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Civil Action No. 16-1199 (JDB)
Before 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.
Shvartser 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.
Federal 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.
A. Alan Herweck
On 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 deposition.
The 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
B. Arthur Holmberg
On 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.
The Court will order Holmberg to appear for a deposition by July 10, 2017, or by a date
otherwise agreed to by Shvartser and Holmberg.
C. Raoul Silver
On 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, he must appear for a deposition and respond to the request for
production. See Ex. L. Shvartser has not had any further communication with Silver.
The Court will order Silver to comply with the subpoena requesting documents and to
appear for a deposition by July 10, 2017, or by a date otherwise agreed to by Shvartser and Silver.
If Silver believes that deposition presents an undue burden, or that he is entitled to relief from the
subpoena for any other legally cognizable reason, he may object or move to quash the subpoena
in accordance with Rule 45.
D. William Holden III
During the hearing held on June 15, Shvartser’s counsel represented to the Court that
Holden may not have been properly served. The Court will therefore deny the motion to compel
with respect to Holden.
The Court will grant the motion to compel with respect to Alan Herweck, Arthur Holmberg,
and Raoul Silver, and deny the motion to compel with respect to William Holden. Separate orders
will issue on this date.
JOHN D. BATES
United States District Judge
Dated: June 16, 2017
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