The URL can be used to link to this page

Home My WebLink About04-15-11 ~C~ C'~ ,-- 4 ;~~ Jeffrey R. Boswell, Esquire y r._... ~.,~ .. ~~ ---- ':~ Supreme Court I.D. #25444 ,_ _ ~_~ -= `'~' _~~~ `-` BOSWELL, TINTNER & PICCOLA ' ~ ~~` `-' 315 North Front Street ~~ ~~~ Harrisburg, Pennsylvania 17101 . , _.: , Phone: (717) 236-9377 ~ ~~~"~ ~:_~ Fax: (717) 236-9316 ' ~ Email: jboswell(a~btpalaw.com IN RE: IN THE COURT OF COMMON PLEAS ESTATE OF ROBERT M. MOMMA OF CUMBERLAND COUNTY, PENNSYLVANIA ORPHAN'S COURT DIVISION NO.: 21-86-398 Motion to Stay and Quash Subpoena EMERGENCY MOTION FOR PROTECTIVE ORDER TO STAY/PROHIBIT DEPOSITION OF COUNSEL and MOTION TO QUASH SUBPOENA DUCES TECUM AND NOW comes Jeffrey R. Boswell, Esquire, and BOSWELL, TINTNER & PICCOLA, and hereby files the instant Motion to Stay/Prohibit Deposition and Motion to Quash-the Subpoena Duces Tecum served upon undersigned counsel, and in support thereof states as follows: 1. Undersigned counsel has received a "Notice of Deposition Duces Tecum" (hereinafter, the "Notice") issued by Robert M. Mumma, II ("Mr. Mumma"), a pro se individual. The Notice uses the above-captioned Estate, is dated March 21, 2011 and a true and correct copy thereof is attached hereto as Exhibit "A." 2. The Notice contains a request to depose undersigned counsel, of Boswell, Tintner & Piccola, on April 19, 2011 at 10:00 a.m. at the "offices" of Robert M. Mumma, II at 840 Market Street, Suite 33333, Lemoyne, PA 17043. The Notice also contains a Subpoena Duces Tecum, demanding production of "minute books, stock books, shareholder books and lists for Union Quarries, Inc." 3. The Notice and attendant Subpoena Duces Tecum, as stated, is unenforceable, as it does not specify in what capacity Mr. Mumma seeks to depose undersigned counsel. 4. The Subpoena Duces Tecum included in the Notice is further faulty as it was not authorized or approved by any judicial body. Mr. Mumma, a pro se individual, should not be permitted to obtain enforcement of the Notice and Subpoena: The power to issue subpoenas has not been unilaterally vested in attorneys in the Commonwealth of Pennsylvania, let alone pro se individuals. See Cohen v. Pe/agatti, 493 A.2d 767, 770 (Pa.Super. 1985). 5. The Notice and its attendant Subpoena Duces Tecum should be quashed as invalid and unenforceable, as Mr. Mumma failed to obtain the requisite judicial authorization or approval. 2 6. Second, the Subpoena Duces Tecum included in the Notice was directed to counsel and his law firm, who represent Union Quarries, Inc. It is counsel whom Mr. Mumma seeks to depose. 7. Undersigned counsel has been an attorney for Union Quarries, Inc. for over twenty (20) years and has acted as its counsel in corporate, real estate and litigation matters. 8. Undersigned counsel should not be subject to deposition in this matter as the information he possess in regard to Union Quarries, Inc. is strictly protected by the attorney-client privilege [see 42 Pa.C.S.A. §5928) and may be additionally protected under the work product doctrine [see, for example, United States v. Nobles, 422 U.S. 225, 95 S.Ct. 2160 (1975)]. The information/material sought by the Notice and Subpoena Duces Tecum may also be otherwise barred from disclosure under the Rules of Professional Conduct. 9. Union Quarries, Inc. has not waived or otherwise forfeited its protections under the attorney-client privilege. Further, neither Union Quarries, Inc. nor undersigned counsel, has waived protections applicable to information protected under the work product doctrine. 10. The Notice and its attendant Subpoena Duces Tecum should be quashed as it poses a likelihood of impermissibly infringing upon protections inherent in the attorney- client privilege and work product doctrine. 3 11. Third, neither undersigned counsel, nor Union Quarries, Inc. should be made subject to a discovery request that creates unreasonable annoyance, embarrassment, oppression, burden or expense; such requests violate Rule 4012 of the Pennsylvania Rules of Civil Procedure. 12. The Notice and its attendant Subpoena Duces Tecum should be quashed as its effect is to create the sort of harm prohibited under Rule 4012. 13. Fourth, the Notice contains a demand that undersigned counsel "bring with him to the deposition the following documents: Minute books, stock books, shareholder books and lists for Union Quarries, Inc." (hereinafter, the "Duces Tecum Material"). 14. Mr. Mumma is a contingent beneficiary under the above-captioned Estate. He is not a shareholder of Union Quarries, Inc.; on the contrary, Mr. Mumma is a direct business competitor with Union Quarries, Inc. 15. Mr. Mumma appears to seek production, in the form of the Duces Tecum Material, that includes confidential business information belonging to Union Quarries, Inc. The divulging of such information would serve to place Union Quarries, Inc. at an unfair competitive disadvantage and, similarly, could provide Mr. Mumma an unfair competitive advantage over Union Quarries, Inc. 16. Further, the Duces Tecum Material includes information further protected as trade secrets and/or requests production of proprietary and confidential information, including corporate books and "lists." 4 17. Mr. Mumma is in noway entitled to the privileged, confidential and protected Duces Tecum Material. See, for example, 15 Pa.C.S. § 1508 (permitting such inspection by a corporate shareholder only and only under certain circumstances). 18. The Notice and its attendant Subpoena Duces Tecum should be quashed as it seeks production of information to which Mr. Mumma is not entitled and which is otherwise protected as proprietary and confidential. 19. Fifth, even if the information/material requested was not confidential, privileged and protected, the directives in the Notice and Subpoena duces Tecum are overly broad, beyond the scope permissible in Rules 4003.1 through 4003.6, and any attempt to comply therewith would cause unreasonable annoyance, embarrassment, oppression, burden or expense to the deponent and/or Union Quarries, Inc. in violation of the Pennsylvania Rules of Civil Procedure. See Pa.R.Civ.P. 4011. 20. Mr. Mumma has not provided the Court or undersigned counsel the good faith grounds which purportedly justify the production of the Duces Tecum Material under the Pennsylvania Rules of Discovery or how same is relevant or material to any matter pending before the Court. Mere citation to the Rules is insufficient to obtain such discovery, particularly considering Mr. Mumma seeks to depose Union Quarries, Inc.'s counsel and the information he seeks be produced is privileged and confidential. 5 21. The Notice and its attendant Subpoena Duces Tecum should be quashed as it seeks production of information in bad faith, which would cause unreasonable annoyance, and/or is beyond the scope of proper discovery in Pennsylvania. See Cohen v. Pelagatti, supra: The object of a subpoena duces tecum, however, is the production of evidence to be used before the court. It is not the object of the subpoena duces tecum to require the production of books and papers merely for the party's inspection, and the subpoena is not to be used as a bill of discovery or for a mere "fishing expedition." 493 A.2d at 770; see also Commonwealth v. Cook, 865 A.2d 869, 877 (Pa.Super. 2004). 22. In light of all of the circumstances known to undersigned counsel, including the underlying Notice filed by Mr. Mumma and his pro se status, counsel can safely presume Mr. Mumma does not concur in the instant requests, as is requested to be provided under Local Rule 208.2(d). 23. Irreparable harm and injustice may occur if the instant Motion is not granted, undersigned counsel's deposition is not prohibited, and Mr. Mumma is given unrestricted access to the Duces Tecum Material. 24. This potential harm outweighs any potential materiality or probative value such information may have in any mater pending before the Court. See Stenger v. Lehigh Valley Hosp., 563 A.2d 531, 535-536 (Pa.Super. 1989) (quoting Rasmussen v. South Florida Blood Service, 500 So.2d 533, 537-538 (Fla. 1987)) (suggesting such an analysis may be appropriate in cases where confidential information is sought). 6 25. For the reasons set forth herein, Mr. Mumma's Notice and its attendant Subpoena Duces Tecum should be quashed and the deposition of undersi ned counsel g be precluded. 26. Undersigned counsel is aware that Local Rule 208.3(x) requires a statement as to whether or not a judge has ruled upon "any other issue in the same or [a] related matter." Undersigned counsel is aware that rulings have been made by multiple jud es in g this or related matters involving Mr. Mumma; however, undersigned counsel is not aware of any such previous rulings specifically involving Union Quarries, Inc. WHEREFORE, Jeffrey R. Boswell, Esquire and Boswell, Tintner & Piccola respectfully request that this Honorable Court Stay and/or Prohibit the Deposition of undersigned counsel and Quash the Notice and attendant Subpoena Duces Tecum and order any other relief that the Court deems appropriate and just, including but not limited to, attorney's fees. Respectfully Submitted, Date: ~~~~1 ~~' 1~ - Jeffrey R. o ell, Esquire Supreme Court I.D. #25444 BOSWELL, TINTNER & PICCOLA 315 North Front Street Harrisburg, Pennsylvania 17101 IN RE: ESTATE OF ~ IN THE COURT OF COMMON PLEAS ROBERT M. MUMMA, CUMBERLAND COUNTY, PENNSY OF Deceased ~ L~ ANIA ORPHAN'S COURT DIVISION NO. 21-86-398 NOTICE OF DEPOSITION DUCES TECUM TO: Jeffrey R. Boswell, Esquire Boswell, Tintner & Piccola 3 '1 J North Front Street Harrisburg, PA 17101 Pursuant to the Pennsylvania Rules of Civil Procedure and the Pennsylvania O hans' rp C'ourt Rules, PLEASE TAKE NOTICE that the undersigned will take the de osition of Jef p frey R. Boswell, Esquire on Tuesday, April 19th, 2011 beginning at 10:00 a.m. The de ositio p n will take place at the offices of Robert M. Mumma, II, 840 Market Street, Suite 33333 Lemo yn e, Pennsylvania, 17043, before a Court Reporter duly authorized by law to administer o aths. The deposition will continue from day to day until completed. In accordance with Rules 234.1 et seq. of the Pennsylvania Rules of Civil Procedure Rule 3.6 of the Pennsylvania Orphans' Court Rules, and other •- Y ~ and applicable rules, the Deponent shall bring with him to the deposition the following documents: 1. Minute books, stock books, shareholder books and lists for Union Quarries Inc. Dated: March 21, 2011 obert M. Mumma, II 840 Market Street -Suite 33333 Lemoyne, Pennsylvania 17043 (717) 612 - 9720 PROSE TRUE AND CORRECT EXHIBIT COPY OF ORIGINAL. ~ ..,_. Yf~s~~~ ~, ~~ ~ ~. ~ CERTIFICATE OF SERVICE I, Robert M. Mumma, II, pro se, do hereby certify that I caused a copy of the foregoing Notice of Deposition to be served this date by U.S. Mail, first class, postage prepaid, addressed to: Brady Green, Esquire Morgan, Lewis & Bockius, LLP 1701 Market Street Philadelphia, PA 19103-2921 Ivy ~'. Otto, III, Esquire Martson Law Offices 10 East High Street Carlisle, PA 1701.3 Barbara Mann Mumma 541 Bridgeview Dr. Lemoyne, PA 17043 Linda Mumma Roth c/o Carter Ellis 203 Friars Court Mechanicsburg, PA 17050 Joseph D. Buckley, Esquire Court-Appointed Auditor 1237 Holly Pike Carlisle, PA 17013 Jeffrey R. Boswell, Esquire Boswell, Tintner & Piccola 315 North Front Street Harrisburg, PA 17101 DATE: March 21, 2011 BY: ob .Mumma, II ~~ 840 Market St. -Ste. 33333 Lemoyne, PA 17043 717-612-9720 PROSE CERTIFICATE OF SERVICE I do hereby certify that I have served a true and correct copy of the foregoing Emergency Motion for Protective Order to Stay/Prohibit Deposition of Counsel and Motion to Quash Subpoena Duces Tecum by United States Mail, first class, postage prepaid on the below-date: Robert M. Mumma, II, pro se 840 Market Street -Suite 33333 Lemoyne, PA 17043 By: Date: `'f~ t 5~~ 1~ Jeffrey .Boswell, Esquire