[00:00:06] Speaker ?:
Thank you.

[00:00:56] Speaker 02:
You can be seated.

[00:00:59] Speaker 03:
Mr. Lafonde, we'll hear from you.

[00:01:04] Speaker 03:
We'll hear from you now.

[00:01:05] Speaker 03:
You're Mr. Lafonde?

[00:01:06] Speaker 03:
Yes.

[00:01:07] Speaker 03:
Okay, we'll hear from you now.

[00:01:15] Speaker 00:
Good morning, Your Honor.

[00:01:16] Speaker 00:
If it please the Court, I'm Matthew Lafonde.

[00:01:18] Speaker 00:
I'm the attorney in the underlying proceeding before the District Court.

[00:01:23] Speaker 00:
For over a quarter century, I've been involved in the District of Columbia justice systems, first as a member of the police department across the street, second with the Corporation Council's office.

[00:01:34] Speaker 00:
And for the last 16 years, as a private advocate in civil cases, I have always been instilled with the belief that despite the slings and arrows of civil litigation, that the folks that I worked with and opposed

[00:01:53] Speaker 00:
had shared a belief in rule of law and equitable justice, despite what they may have seen as skewed – what I saw as a skewed view of justice.

[00:02:10] Speaker 00:
The events over the last two years have shaken my opinion of that, and the spectacle of September 21st, 2017,

[00:02:21] Speaker 00:
were a horrific indication that we have strayed very far from my understanding of justice and the rule of law.

[00:02:30] Speaker 00:
What occurred on September 21st, 2017, was that first, my client, first client, Timothy Day, was dead.

[00:02:40] Speaker 00:
That was indisputable.

[00:02:42] Speaker 00:
Second, that his mother, the co-defendant in this case, was in bankruptcy, subject to rules, Section 362,

[00:02:51] Speaker 00:
automatic stay in bankruptcy.

[00:02:54] Speaker 00:
With the full knowledge of these circumstances, the magistrate judge proceeded with what I characterize as a court of general inquisition to bring me to the stand and invade my attorney, my client's confidences which were instilled in me

[00:03:20] Speaker 00:
and interfere with my ability to represent people who have lost the ability to speak.

[00:03:26] Speaker 02:
Let me ask you, Mr. LaFond, you're focusing on the personal jurisdiction objection.

[00:03:35] Speaker 02:
You argue that the failure to perfect service defeats personal jurisdiction.

[00:03:43] Speaker 02:
That is... But personal jurisdiction would seem to me to be unquestionably established by your being in the jurisdiction, practicing in the jurisdiction, having entered an appearance in this particular case.

[00:03:59] Speaker 02:
And so when we look at the personal jurisdiction analysis under Supreme Court's cases, this Court's cases, there is adequate

[00:04:08] Speaker 02:
contact with the jurisdiction to support personal jurisdiction.

[00:04:11] Speaker 00:
I don't think there's any Mulholland Trust minimum contacts analysis here.

[00:04:16] Speaker 00:
The question is, did – was my actions as an advocate make me a party which was amenable to the process

[00:04:33] Speaker 00:
of parties.

[00:04:35] Speaker 02:
But party status is not required in order to take a deposition of a witness for enforcement of a judgment.

[00:04:46] Speaker 00:
And rule, the civil rules 45B1 requires services subpoena, requires delivery to that named person.

[00:04:56] Speaker 00:
That is the very essence of what attaches the court's awesome power

[00:05:02] Speaker 00:
to command somebody to do something.

[00:05:05] Speaker 00:
And there's a very cut and dry issue of law, which we seem to be getting to very quickly here.

[00:05:12] Speaker 00:
Does my position as an advocate and not a party permit the court to simply bypass the plain language of Rule 45 requiring that I somehow now, rather than being a

[00:05:28] Speaker 00:
at arm's length from the dirty business of the proceeding itself, now become a participant when I am there as an advocate, part of the tripartite system in which there are an advocate for one side, an advocate for the other, and the judge calling the balls and strikes.

[00:05:51] Speaker 00:
This instance is very, very dangerous, and it has been repeatedly stated by

[00:05:58] Speaker 00:
across the country that this business of interfering with the representation by calling an attorney as a witness is so dangerous to this system because it does not allow that tripartite process to work.

[00:06:18] Speaker 00:
It has interfered with it.

[00:06:19] Speaker 00:
And this instance, this set of circumstances in this case,

[00:06:24] Speaker 02:
is a horrific example of why that should never happen.

[00:06:41] Speaker 02:
You object to the lack of a formal service of a subpoena on personal jurisdiction grounds.

[00:06:47] Speaker 02:
I'm trying to understand why that would defeat personal jurisdiction.

[00:06:53] Speaker 02:
And I gather that part of your answer is when a party is being called as a witness, no subpoena is necessary when a non-party

[00:07:03] Speaker 02:
is called a subpoena, is that necessary?

[00:07:05] Speaker 02:
Is that why you're talking about the dangers in your view of collapsing party versus council?

[00:07:12] Speaker 00:
Well, I bring that up because the danger is in blurring the distinction between the advocate and the party.

[00:07:19] Speaker 00:
And that's what I think that – I'm trying to be responsive to your question, Judge Pollard,

[00:07:28] Speaker 00:
why there has to be this distinction that I don't just show up in the court and my hands are suddenly dirty with the business of the person that I'm representing.

[00:07:39] Speaker 00:
And that is because I'm here playing a role in this court as part of our constitutional process that affords folks due process.

[00:07:49] Speaker 02:
And that means that... I'm sorry, can I ask you another question?

[00:07:52] Speaker 02:
Regarding the issue of the subpoena, in your reply brief, you

[00:07:58] Speaker 02:
seem to concede that you were trying to evade the service and in fact had a duty to do that in defending your clients.

[00:08:08] Speaker 00:
That's not what I said.

[00:08:09] Speaker 00:
What I said was is that there was some cat and mouse going on with regards to this process.

[00:08:16] Speaker 01:
What does that refer to?

[00:08:18] Speaker 00:
Well, that's referring to a response to responding to what the United States attorneys use those terms.

[00:08:26] Speaker 00:
And that does not say

[00:08:28] Speaker 00:
It's to put words in my mouth to say that I was evading service.

[00:08:32] Speaker 00:
No, what I was doing was holding the other side and the court to its burden because I had a supervening duty to my client to not be a party to an unlawful act of the court.

[00:08:49] Speaker 02:
What are you referring to when you say you were holding them to their burden?

[00:08:54] Speaker 00:
That is to say, following Rule 45,

[00:08:58] Speaker 00:
And if you don't have jurisdiction of the person, not Mulholland Trust, minimal contacts personal jurisdiction, I'm talking about of my body, then you don't get to do this thing.

[00:09:16] Speaker 00:
I have to defend my client's interests when they cannot defend themselves.

[00:09:21] Speaker 02:
And in your conduct, I'm just trying to understand the conduct you're referring to that

[00:09:27] Speaker 02:
you thought held them to their burden?

[00:09:30] Speaker 02:
Yes, you served me.

[00:09:33] Speaker 02:
By not showing up at home or turning away when they were waiting for you?

[00:09:37] Speaker 02:
There's no allegation of that.

[00:09:39] Speaker 00:
That's the problem.

[00:09:40] Speaker 00:
Oh, there is?

[00:09:41] Speaker 00:
The problem is there is no allegation of that.

[00:09:43] Speaker 00:
There is no allegation that I turned away.

[00:09:46] Speaker 00:
The allegation is that a SUV turned around in a cul-de-sac.

[00:09:51] Speaker 00:
The end of a road.

[00:09:52] Speaker 00:
There's no way out of it.

[00:09:55] Speaker 00:
If you continue down that road,

[00:09:57] Speaker 00:
You're in my driveway.

[00:09:58] Speaker 00:
So people are turning around in that cul-de-sac all the time.

[00:10:02] Speaker 02:
So you're denying to this court, you're denying to this court that that was you?

[00:10:07] Speaker 00:
I'm denying that there was ever an allegation it was me.

[00:10:10] Speaker 00:
There's no allegation in that report of attempted service that it was me.

[00:10:16] Speaker 00:
There's no description.

[00:10:17] Speaker 00:
There's no tag number.

[00:10:19] Speaker 00:
I don't know what they're referring to.

[00:10:22] Speaker 00:
And then the idea that

[00:10:24] Speaker 00:
people are not at home in June and July or August in the District of Columbia areas is, I found, just so extraordinary to state the obvious.

[00:10:38] Speaker 00:
So there's never been any allegation that I ran away from anyone.

[00:10:42] Speaker 00:
There's never been any allegation that I was driving some particular car.

[00:10:47] Speaker 00:
That doesn't exist, and that's where I hold the district.

[00:10:52] Speaker 00:
I hold the plaintiff to their burden to say, you need to at least state these allegations that I did something.

[00:11:00] Speaker 00:
And that doesn't exist in that affidavit of attempted service.

[00:11:06] Speaker 02:
There were allegations in the affidavit of attempted service that notes were left for you, that messages were left for you.

[00:11:13] Speaker 02:
There were allegations to that effect.

[00:11:15] Speaker 00:
Yes.

[00:11:15] Speaker 02:
And your response to that is never saw them, never.

[00:11:18] Speaker 00:
No, I didn't say that.

[00:11:19] Speaker 00:
And once again, with all due respect, you're putting words in my mouth.

[00:11:24] Speaker 02:
I'm trying to understand your position.

[00:11:25] Speaker 00:
And the position is I am not going to fall on my sword to make my life easier at the expense of my client.

[00:11:34] Speaker 00:
My duty is to my client.

[00:11:37] Speaker 00:
And that means that sometimes the attorney must suffer.

[00:11:40] Speaker 00:
Right now, I am dealing with two separate cases, one in the District Court of Appeals and one in the Superior Court, in which my client's former attorneys took the easy way out and provided the entire client file to the other side when it became convenient to do so, or tried to give it to the court, in my instance.

[00:12:03] Speaker 00:
And that was the easy way for them to get out of this mess

[00:12:10] Speaker 00:
that I'm in right now, but it was a violation of the fiduciary duty I held to my client to not disclose her confidences unless that threshold had been reached, that I was under process, and that I had been compelled to do something lawfully.

[00:12:31] Speaker 00:
Absent that, it was inappropriate for me to

[00:12:36] Speaker 00:
And it was inappropriate for me to go looking for somebody to serve me, to go concede something that wasn't alleged.

[00:12:46] Speaker 00:
That was very inappropriate.

[00:12:59] Speaker 04:
Good morning.

[00:13:00] Speaker 04:
May it please the Court, my name is Nick Coleman and I represent the United States in this matter.

[00:13:06] Speaker 04:
In brief, the District Court had certainly had personal jurisdiction over Appellant.

[00:13:15] Speaker 04:
by virtue of his presence before the court when the court both scheduled the deposition and then ordered him to testify.

[00:13:22] Speaker 04:
So although appellant here today.

[00:13:26] Speaker 03:
Can you spell that out a little bit more?

[00:13:29] Speaker 03:
The court orders an attorney

[00:13:32] Speaker 03:
to show up in court for a deposition of that person in their personal capacity.

[00:13:43] Speaker 03:
That suffices and obviates the need for subpoena under Rule 45?

[00:13:48] Speaker 04:
Well, a couple of points, Your Honor.

[00:13:50] Speaker 04:
So the certainly district title, as we understand from their allegations, that whether the subpoena could even be issued had been litigated at length.

[00:14:00] Speaker 04:
District Title was then ultimately won that argument, as we understand in the court, authorized the issuance of the subpoena.

[00:14:08] Speaker 04:
That was then served on, certainly on appellant as an attorney.

[00:14:16] Speaker 03:
Well, they attempted to serve it.

[00:14:17] Speaker 03:
They didn't succeed in serving it.

[00:14:19] Speaker 04:
Right.

[00:14:20] Speaker 04:
In terms, and they did attempt to serve it, and as Judge Pillard pointed out in her questioning, District Title did allege that it attempted personal service of the subpoena.

[00:14:30] Speaker 04:
on appellant on numerous occasions and it didn't work.

[00:14:35] Speaker 04:
They also attempted to contact him directly as the attorney for the other side to see if he would appear and he did not.

[00:14:41] Speaker 04:
So then they went to the court and asked for relief and the court ordered a hearing and during the hearing at which appellant was personally present, the court said that it would hold the deposition in court.

[00:14:56] Speaker 04:
and directed appellant to appear for that.

[00:15:01] Speaker 04:
That really fulfilled all of the requirements of subpoena.

[00:15:06] Speaker 03:
I'm trying to figure out what is the basis for the court having that power to do that.

[00:15:14] Speaker 03:
Do they have that power if you're an attorney, a member of

[00:15:16] Speaker 03:
the bar of the court, do you, by becoming a member of the bar of the court, lose the ability to assert personal jurisdiction against the spinoff?

[00:15:28] Speaker 04:
No, Your Honor.

[00:15:28] Speaker 04:
No, Your Honor.

[00:15:30] Speaker 04:
No attorney.

[00:15:30] Speaker 04:
But on the other hand, there isn't a special rule for attorneys that if they are present before a court and the court gives an order, that the attorney can simply refuse to abide by it.

[00:15:40] Speaker 03:
So I don't think that the... Well, no, but he said he was there under duress.

[00:15:43] Speaker 04:
Right.

[00:15:44] Speaker 04:
And again, it doesn't, whether you are subject to the personal jurisdiction of the court doesn't depend on how you got there.

[00:15:50] Speaker 04:
I mean, there are criminal defendants who have complained that they were brought improperly before the court.

[00:15:57] Speaker 03:
That was the Fourth Amendment.

[00:15:58] Speaker 03:
If you don't mind if you go, that was the Fourth Amendment case.

[00:16:00] Speaker 03:
That's not the personal jurisdiction case.

[00:16:02] Speaker 04:
Well, no.

[00:16:02] Speaker 04:
It does talk about personal jurisdiction, because again, the argument was that personal jurisdiction was improper.

[00:16:07] Speaker 03:
No, but the law recognizes that someone can appear specially just to object to jurisdiction.

[00:16:12] Speaker 03:
You don't dispute that.

[00:16:14] Speaker 04:
An attorney can certainly raise that, but in fact, as I understand it, and again, I'm not a civil attorney, Your Honor, but as I understand it, generally the rules now have abolished the distinction between special and general appearances.

[00:16:28] Speaker 04:
Now, a defendant, as I understand it, in a civil action can say, the court doesn't have personal jurisdiction over me because there are too few contacts here, this isn't the appropriate forum to sue me, et cetera, and can send an attorney or file

[00:16:44] Speaker 04:
papers raising that defense.

[00:16:48] Speaker 03:
Just to be clear, he wasn't appearing in a criminal case.

[00:16:50] Speaker 03:
He was appearing in a civil case.

[00:16:53] Speaker 03:
Correct.

[00:16:53] Speaker 03:
It didn't become a criminal case until the contempt order was issued.

[00:16:56] Speaker 03:
So I don't understand why we're talking about personal jurisdiction in criminal cases.

[00:17:00] Speaker 03:
I'd really like to know the government's theory

[00:17:03] Speaker 03:
for personal jurisdiction, what started as a civil matter.

[00:17:07] Speaker 04:
We think that a court has personal jurisdiction over a witness if the person is present before the court.

[00:17:13] Speaker 03:
That's all that's necessary.

[00:17:14] Speaker 03:
You have no jurisdiction over me?

[00:17:16] Speaker 03:
I'm here to assert a language.

[00:17:18] Speaker 04:
I'm not aware of any case that says that a person can do that.

[00:17:21] Speaker 02:
So in a sense, I think what's tough to pin down is maybe something that Mr. LeFenn hasn't really argued, which is

[00:17:30] Speaker 02:
not that personal jurisdiction is lacking because of the want of a perfected subpoena, but that there's no subpoena and therefore that he's not lawfully been hailed before the court.

[00:17:45] Speaker 02:
Now I recognize that's not the way he packaged the argument, but

[00:17:50] Speaker 02:
if you'll indulge me, if he had, what is it that the subpoena is supposed to accomplish other than be the mechanism for asserting personal jurisdiction and the mechanism for effectuating notice that might or might not be equally served by the court's order in Mr. LaFont's presence?

[00:18:21] Speaker 04:
We've pointed out, as the Supreme Court has recognized, the purpose of the subpoena, I mean, it's functional.

[00:18:26] Speaker 04:
It is to provide notice to a witness of the date and the case and where they're supposed to appear and when they're supposed to do so.

[00:18:41] Speaker 04:
Certainly, Magistrate Judge Robinson could have, in addition to saying, you're going to appear for this deposition on September the 21st,

[00:18:49] Speaker 04:
four days hence, or five days hence, whatever it was.

[00:18:53] Speaker 04:
And here also is a subpoena that does that.

[00:18:59] Speaker 04:
But that really isn't necessary when the person is actually in front of the court.

[00:19:03] Speaker 04:
Ordinarily, what the subpoena does is that the witness isn't normally before the court.

[00:19:07] Speaker 04:
The witness is somewhere else.

[00:19:09] Speaker 03:
So the subpoena's more than notice.

[00:19:10] Speaker 03:
The subpoena's more than notice.

[00:19:11] Speaker 03:
The subpoena gives the court legal authority over somebody.

[00:19:14] Speaker 04:
It is more of the notice.

[00:19:16] Speaker 04:
But since Helen was actually before Magistrate Judge Robinson, and he was certainly well aware of what the subject matter was going to be of this deposition that had been argued about at length,

[00:19:28] Speaker 04:
He was there.

[00:19:29] Speaker 03:
But he was there as counsel for the parties.

[00:19:31] Speaker 03:
He was not there as Mr. LaFont's witness.

[00:19:36] Speaker 04:
And again, there is no sort of immunity for an attorney to be a witness.

[00:19:43] Speaker 04:
And it's not clear to me what purpose would be served by essentially saying that while an attorney is present in the court, he's essentially immune from service of process.

[00:19:50] Speaker 04:
I'm not aware of any court that's so held.

[00:19:53] Speaker 04:
and certainly not where this court has so held.

[00:19:57] Speaker 03:
Is your view that he just couldn't have a personal jurisdiction, an objection, or if he had one, he couldn't have come to court that day.

[00:20:05] Speaker 03:
He had to mail in a brief raising the issue.

[00:20:07] Speaker 03:
How would one raise the issue?

[00:20:09] Speaker 04:
Well, I think it's interesting that he did bring his personal counsel with him to both the hearing at which the deposition was scheduled and ordered and then the other.

[00:20:18] Speaker 04:
So I mean, in theory, he could have said,

[00:20:20] Speaker 04:
I don't want to, I'm not going to show up.

[00:20:23] Speaker 03:
Now, whether... Well, that would have been a civil case for his clients.

[00:20:27] Speaker 03:
He couldn't do that.

[00:20:28] Speaker 03:
I mean, that's what I'm trying to figure out is this bind that he's in.

[00:20:32] Speaker 03:
He has to come because he's representing clients and it's a proceeding in a case for his clients, but couldn't he say that Mr. LaFond, personal witness, as to that,

[00:20:42] Speaker 03:
I'm not here in that capacity.

[00:20:43] Speaker 04:
I think part of the problem here, Your Honor, if I could take a step back, is I'm not aware of any court that has said that a witness sort of has a right to play the cat and mouse game.

[00:20:51] Speaker 04:
In other words, to sort of physically stay away from service of process.

[00:20:55] Speaker 03:
I mean, ultimately... When we talk about service of process, I'm talking about what it means when you show up in court as an attorney representing clients.

[00:21:01] Speaker 03:
Does that also mean that you're submitting to imagine the subpoena were in some totally other case?

[00:21:08] Speaker 03:
A third case altogether.

[00:21:09] Speaker 03:
Nothing to do with the case that he's there.

[00:21:12] Speaker 03:
Just by showing up in court one day, can the court go, oh, well, here you are?

[00:21:17] Speaker 04:
I think the answer is yes, you can be served.

[00:21:21] Speaker 04:
In other words, there's no immunity or magical formula that says an attorney, while they're present in the courts, can't be served as something.

[00:21:29] Speaker 04:
I mean, if I stepped out the court today, if someone had to subpoena for me, I could be served.

[00:21:34] Speaker 02:
And you could if you were, in fact, a California lawyer and you were here

[00:21:42] Speaker 02:
showing up in a case and you wanted to assert in response to that, a motion to quash that subpoena, that actually the judge in that other case had no personal jurisdiction over you because you lacked any contact with the forum that related to that dispute.

[00:21:59] Speaker 02:
You could still assert that in a motion to quash.

[00:22:02] Speaker 02:
Could you not?

[00:22:04] Speaker 02:
Or do you think Burnham gets rid of that?

[00:22:06] Speaker 04:
Unfortunately, I'm simply not familiar enough with the civil rules of either California or that to say one thing I think is that personal contacts really aren't, as I understand them, an issue when you're talking about the issuance of a subpoena certainly in

[00:22:22] Speaker 04:
I mean, I'm familiar with criminal cases, but as far as I can tell, the rule is the same in civil cases.

[00:22:27] Speaker 04:
You don't get to say, I have insufficient contacts with the form in which the lawsuit is taking place for me to be a witness.

[00:22:35] Speaker 04:
As I understand it, Rule 45 authorizes the issue of subpoena anywhere in the country.

[00:22:40] Speaker 04:
There's a hundred mile rule.

[00:22:42] Speaker 02:
Well, not so if you are a witness in a different jurisdiction and let's say I'm litigating a case in DC and you live in Indiana and I want you to be a witness, I actually can't subpoena you to come from Indiana to here.

[00:22:56] Speaker 02:
I have to go to Indiana.

[00:22:58] Speaker 04:
Right.

[00:22:58] Speaker 04:
There's a hundred mile rule as to where the deposition can take place, but you can't say that I have insufficient contacts with Washington, DC.

[00:23:07] Speaker 04:
and with the subject matter of this lawsuit for me to be a witness at all.

[00:23:13] Speaker 04:
In other words, because I live in Indiana, I don't have to testify in a Washington DC case.

[00:23:18] Speaker 04:
As I understand it, Rule 45 allows anyone to be a witness.

[00:23:24] Speaker 04:
And if service is perfected on that Indiana witness, they will have to appear for the deposition.

[00:23:29] Speaker 04:
Now, they may not have to appear in Washington DC, but they will have to appear in Indiana.

[00:23:33] Speaker 04:
As I understand it, Pellant, he's not arguing that I live too far away from Washington, D.C.

[00:23:38] Speaker 04:
I mean, he's a practicing attorney in Washington, D.C.

[00:23:41] Speaker 04:
He's not saying he lives too far from the place of the deposition.

[00:23:45] Speaker 04:
He's arguing, well, they essentially should have had to come find me somewhere else other than the courtroom in order for me to have to testify in this case.

[00:23:54] Speaker 02:
It's really a service objection, not a personal jurisdiction objection, and that's what I'm trying to explore, is what is the

[00:24:01] Speaker 02:
additional and distinct

[00:24:04] Speaker 02:
value or function of service of the subpoena that may have been defeated here, but maybe we don't have to resolve that because I don't think Mr. LaFont has actually made that argument.

[00:24:13] Speaker 04:
I don't think he has, and I don't think that certainly in the way that he has raised it, where he's raising a personal jurisdiction defense, that it can be argued that Magistrate Judge Robinson lacked jurisdiction over him because he was physically present.

[00:24:26] Speaker 04:
He was notified of when the deposition had to take place.

[00:24:30] Speaker 04:
He was ordered to appear.

[00:24:32] Speaker 04:
and then disobey the order to testify.

[00:24:36] Speaker 04:
If there are no further questions, we respectfully submit that the judgment of the district court should be affirmed.

[00:24:40] Speaker 03:
Thank you.

[00:24:45] Speaker 03:
Mr. LaFontaine didn't have any time left, did he?

[00:24:48] Speaker 03:
We'll give you two minutes.

[00:24:49] Speaker 03:
Oh, thank you.

[00:24:50] Speaker 00:
I appreciate the indulgence.

[00:24:52] Speaker 00:
There's absolutely a section of the District of Columbia Code which provides immunity for persons who are attending court in the District of Columbia.

[00:24:59] Speaker 00:
to not be subject to arrest or service of process.

[00:25:03] Speaker 00:
I'm desperately looking for that citation here, but it does appear in the District of Columbia Code.

[00:25:08] Speaker 00:
So the idea is if you are present in the courthouse, you cannot be served.

[00:25:13] Speaker 00:
And I have raised that on repeated occasions where people have ambushed clients of mine with service of process as they're attending court.

[00:25:21] Speaker 00:
That is absolutely illegal in District Columbia.

[00:25:25] Speaker 00:
completely incorrect about this, and I appreciate that Mr. Coleman is a criminal prosecutor and that he's not completely familiar with the minutiae of our civil process.

[00:25:36] Speaker 00:
And it is, as the panel has amply pointed out, a different animal to which he does note that there is a – abolish the distinction between general and special appearances.

[00:25:49] Speaker 00:
That is because if I come to court

[00:25:52] Speaker 00:
and challenge the court's authority to proceed, I have not waived that argument.

[00:25:59] Speaker 00:
It is a strange proposition, as I think you have noted, for me to send a messenger, my attorney, to come to court and say by broken telephone that I challenge the court's authority to proceed.

[00:26:14] Speaker 00:
No, I can appear personally

[00:26:16] Speaker 00:
And I can make that, either with the benefit of counsel or myself, challenge the court's authority.

[00:26:22] Speaker 00:
And we haven't even begun to touch on it.

[00:26:23] Speaker 03:
The difference here is you filed a protective order motion to protect, I think, Fifth Amendment attorney-client rights.

[00:26:29] Speaker 03:
But nowhere in that document did you assert an absence of personal jurisdiction.

[00:26:34] Speaker 03:
So you affirmatively sought relief from the court without seeking, without asserting a lack of personal jurisdiction.

[00:26:41] Speaker 03:
And then you showed up at the hearing slash deposition

[00:26:45] Speaker 03:
And you spent multiple times asserting right and trying to make a statement.

[00:26:50] Speaker 03:
It was only after some time had gone by and you hadn't been able to do what you wanted to do in the court that you then said you were there under duress.

[00:27:00] Speaker 03:
And so what I'm wondering is why that didn't waive personal jurisdiction, the protective order, and that belated assertion of the hearing.

[00:27:08] Speaker 00:
Well, you pointed it out yourself.

[00:27:10] Speaker 00:
You made this very clear that I'm in this position where I'm appearing as an advocate for my client.

[00:27:16] Speaker 00:
I am filing papers on behalf of my client.

[00:27:19] Speaker 00:
No, no, no.

[00:27:20] Speaker 03:
You're seeking a protective order against your own personal jurisdiction at that point.

[00:27:25] Speaker 03:
you were filing on your own behalf to assert your own privileges that you claimed from the deposition.

[00:27:31] Speaker 00:
I absolutely have the right to seek a protective order for a subpoena that hasn't been served yet.

[00:27:37] Speaker 03:
You very well may.

[00:27:38] Speaker 03:
The question here is not that you can't file it.

[00:27:41] Speaker 03:
The question is whether you needed to raise the absence of personal jurisdiction in that document or at the beginning of the hearing or both.

[00:27:47] Speaker 00:
Well, they hadn't even attempted service at that point, even by their own allegations.

[00:27:51] Speaker 00:
So to say that I can't

[00:27:55] Speaker 00:
preemptively seek a protective order for a subpoena that I know is coming without waiving the absolute hard and fast requirement of Rule 45 that that subpoena be filed, I know of no authority for that proposition.

[00:28:12] Speaker 00:
For these reasons and the reasons set forth in the brief, I respectfully request that the order of the district court be vacated and the fine be refunded to me.

[00:28:24] Speaker 03:
Thank you.

[00:28:25] Speaker 03:
Two cases submitted.