CHARIESE SHELLEY v. ZURICH AMERICAN INSURANCE COMPANY NATIONAL CARRIERS INC SHELBY RAY TUNE GEICO INSURANCE COMPANY AND LATASHA CARTER (2025)

In this case, defendant, Zurich American Insurance Company (“Zurich”), seeks to obtain extensive discovery from Vanessa Motta (“Ms. Motta”). Ms. Motta, an attorney, is not a party to the underlying lawsuit nor is she counsel of record for any party to the action. In this complex and convoluted discovery contest, Ms. Motta appeals the district court's July 2, 2024 judgment, which denied Ms. Motta's Motion to Vacate the district court's earlier April 18, 2024 judgment, pursuant to which the district court granted Zurich's Motion to Compel Ms. Motta to submit to a deposition upon written questions. The Motion to Vacate the April 18, 2024 Judgment is based on Ms. Motta's assertion that she was not served with either the Motion to Compel or the Rule to Show Cause setting the hearing date. Ms. Motta contends that the lack, or insufficiency, of service renders the district court's April 18, 2024 judgment on the Motion to Compel an absolute nullity. We agree.

Ms. Motta further contends that she cannot be compelled to submit to a deposition, whether by written questions or upon oral examination, unless and until the district court conducts a hearing pursuant to La. C.E. art. 508, which she contends is mandatory. We also agree with this position.

Accordingly, for the reasons set forth below, we grant Ms. Motta's appeal, reverse the denial of her Motion to Vacate the April 18, 2024 judgment and remand the matter to the district court for further proceedings consistent with this judgment.

INITIAL UNDERLYING FACTS AND PROCEDURAL HISTORY

The underlying lawsuit herein arises out of a motor vehicle accident that occurred when a vehicle being driven by Latasha Carter (“Ms. Carter”), and in which the plaintiff, Cherise Shelley (“Ms. Shelley”), was a passenger, collided with a tractor trailer truck owned by defendant, National Carriers, Inc. (“National”). Defendant, Shelby Ray Tune (“Mr. Tune”), was driving the tractor trailer insured by defendant, Zurich.

Both Ms. Carter and Ms. Shelley claimed to have sustained physical injuries as a result of the accident. Ms. Carter retained Ms. Motta to represent her in conjunction with the accident. Ms. Shelley consulted Ms. Motta regarding representation but did not retain her.

Ms. Motta filed a lawsuit on behalf of Ms. Carter, in the First Parish Court for Jefferson Parish, against the Defendants seeking damages of less than $20,000.00. After Defendants answered Ms. Carter's suit, Ms. Motta withdrew as counsel for Ms. Carter. Other counsel filed suit on behalf of Ms. Shelley. In addition to Zurich, Ms. Shelley's suit also names as defendants National, Mr. Tune, Ms. Carter -- Ms. Motta's then-client -- and Ms. Carter's insurer as defendants.

During the discovery process Zurich took various procedural steps seeking to achieve the deposition of Ms. Motta. At every turn, Ms. Motta opposed Zurich's efforts to depose her, relying primarily upon La. C.E. art. 508 and provisions of the Code of Civil Procedure relating to service of nonparties for appearance at depositions.

PRELIMINARY DISCUSSION OF RELEVANT CODAL ARTICLES

In order to place the detailed facts and procedural history in context we will first highlight the Louisiana evidentiary and procedural articles which lie at the heart of this matter. Louisiana Code of Evidence Article 508 sets forth the procedure that must be followed in order to obtain discovery from an attorney. It states, in pertinent part:

A. General rule. Neither a subpoena nor a court order shall be issued to a lawyer or his representative to appear or testify in any civil or juvenile proceeding, including pretrial discovery, or in an administrative investigation or hearing, where the purpose of the subpoena or order is to ask the lawyer or his representative to reveal information about a client or former client obtained in the course of representing the client unless, after a contradictory hearing, it has been determined that the information sought is not protected from disclosure by any applicable privilege or work product rule; and all of the following:

(1)The information sought is essential to the successful completion of an ongoing investigation, is essential to the case of the party seeking the information, and is not merely peripheral, cumulative, or speculative.

(2) The purpose of seeking the information is not to harass the attorney or his client.

(3) With respect to a subpoena, the subpoena lists the information sought with particularity, is reasonably limited as to subject matter and period of time, and gives timely notice.

(4) There is no practicable alternative means of obtaining the information.

B. Waiver. Failure to object timely to non-compliance with the terms of this Article constitutes a waiver of the procedural protections of this Article, but does not constitute a waiver of any privilege.

C. Binding effect of determination; notice to client. The determination that a lawyer-client privilege is not applicable to the testimony shall not bind the client or former client unless the client or former client was given notice of the time, place, and substance of the hearing and had an opportunity fully to participate in that hearing.

D. Scope. Nothing in this Article is intended to affect the provisions of Code of Civil Procedure Articles 863 and 1452(B).

Ms. Motta has maintained throughout this controversy that Zurich may not depose her or otherwise obtain discovery from her unless and until ordered to do so by the district court after a contradictory hearing, wherein it is determined that the requirements of Article 508(A) are met.

Ms. Motta has also challenged the sufficiency of service. The manner in which service of process must be made differs depending upon whether the person to be served is a party or a nonparty. Louisiana Code of Civil Procedure article 1231 provides that service of a citation or other process may be either personal or domiciliary.¹ Article 1235 provides that service may be made on a person's representative, including her attorney or the attorney's secretary, at the attorney's office. Article 1291 provides that “[e]xcept as otherwise provided by law, service shall be made by the sheriff of the parish where service is to be made or of the parish where the action is pending. When service is made, the sheriff “shall endorse on a copy of the citation or other process the date, place, and method of service and sufficient other data to show compliance with law” and “shall return the copy promptly after service to the clerk of court who issued it.” La. C.C.P. art. 1292(A). Where service is not made within ten days after receipt by the sheriff or after the sheriff certifies that he is unable to make service, a party may ask the court to permit the party to appoint a person over the age of majority, residing in the state, who is not a party, and whom the court deems qualified to perform the duties required, to make service of process in the same manner as is required of sheriffs. La. C.C.P. art. 1293(A). Article 1312 provides, however, that with certain exceptions, “every pleading subsequent to the original petition shall be served on the adverse party as provided in Article 1313 or 1314, whichever is applicable.

Article 1313 provides, in pertinent part:

A. Except as otherwise provided by law, every pleading subsequent to the original petition, and every pleading which under an express provision of law may be served as provided in this Article, may be served either by the sheriff or by:

(1)Mailing a copy thereof to the counsel of record, or if there is no counsel of record, to the adverse party at his last known address, this service being complete upon mailing.

(2)Delivering a copy thereof to the counsel of record, or if there is no counsel of record, to the adverse party.

(3)Delivering a copy thereof to the clerk of court, if there is no counsel of record and the address of the adverse party is not known.

(4) Transmitting a copy by electronic means to counsel of record, or if there is no counsel of record, to the adverse party, at the number or addresses expressly designated in a pleading or other writing for receipt of electronic service. Service by electronic means is complete upon transmission but is not effective and shall not be certified if the serving party learns the transmission did not reach the party to be served.

B. When service is made by mail, delivery, or electronic means, the party or counsel making the service shall file in the record a certificate of the manner in which service was made.

C. Notwithstanding paragraph A of this Article, if a pleading or order sets a court date, the service shall be made by registered or certified mail or as provided in Article 1314, by actual delivery by a commercial courier, or by emailing the document to the email address designated by counsel or the party. Service by electronic means is complete upon transmission, provided that the sender receives an electronic confirmation of delivery.

The Editor's Notes to Article 1313 state that “[t]his article allows all pleadings subsequent to the petition to be served by mail, fax, or electronic means ‘except as otherwise provided by law.’ Some exceptions to the rule are: ․ presumably subpoenas, C.C.P. art. 1355 (and C.C.P. arts. 1231-36); rules to show cause, see C.C.P. art. 2594 and C.C.P. art. 1313(C) ․.”

Article 1314 provides, in pertinent part:

A. A pleading which is required to be served, but which may not be served under Article 1313, shall be served by the sheriff by either of the following:

(1) Service on the adverse party in any manner permitted under Articles 1231 through 1266.

(2) (a) Personal service on the counsel of record of the adverse party or delivery of a copy of the pleading to the clerk of court, if there is no counsel of record and the address of the adverse party is not known.

Louisiana Code of Civil Procedure article 852 defines “pleadings” in civil actions as “petitions, exceptions, written motions, and answers.” Subpoenas to compel witnesses to appear at trial or depositions and subpoenas duces tecum are not “pleadings.” See Bourgeois v. Bourgeois, 13-0038 (La. App. 1 Cir. 9/13/13), 135 So.3d 1, 7, writ not considered, 13-2439 (La. 1/27/14), 130 So.3d 954.

Articles 1437 and 1448(A) provide that, after the commencement of the action, any party may take the testimony of any person, including a party, by deposition upon oral examination (Art. 1437) or by deposition upon written questions (Art. 1448(A)). These articles further provide that “the attendance of witnesses may be compelled by the use of subpoena as for witnesses in trials.”

Article 1355 provides:

A. Except as provided in Paragraph B of this Article, a subpoena shall be served and a return thereon made in the same manner and with the same effect as a service of and return on a citation. When a party is summoned as a witness, service of the subpoena may be made by personal service on the witness’ attorney of record.

B. Except as otherwise provided by law, when the sheriff has not made service of a subpoena within five days after its receipt or when a return has been made certifying that the sheriff has been unable to make service, any person over the age of majority, not a party, and residing within the state may make service of the subpoena in the same manner as is required by the sheriff. Proof of service by a private person shall be made by filing with the clerk of the court by which the subpoena is issued a notarized return showing the title of the action and the name of the court issuing it, the date and manner of service, and the name of the person served, signed by the person who made the service.

“Proof of service of a notice to take a deposition ․ constitutes sufficient authorization of issuance by the clerk or judge of the district court wherein the action is pending of subpoenas and subpoenas duces tecum.” La. C.C.P. art. 1356(A). Subpoenas․compelling the appearance of a witness who is not a party shall be served within a reasonable period of time before the time specified for the deposition.” La. C.C.P. art. 1356(B). “A person who, without reasonable excuse, fails to obey a subpoena may be adjudged in contempt of the court which issued the subpoena. The court may also order a recalcitrant witness to be attached and brought to court forthwith on a designated day.” La. C.C.P. art. 1357.

DETAILED PROCEDURAL HISTORY

The Deposition Notices and Motions to Quash

On June 1, 2022, Zurich issued a Notice of Deposition and Subpoena (collectively, the “First Notice”) to Ms. Motta. The First Notice stated the “[i]nformation to be discussed in the deposition includes communications between [a phone number], on information and belief, belonging to [two nonparties] and ․ Ms. Motta's number, on April 26, 2018, including but not limited to the person operating [phone number] at the time and the reason for the communication.” The return of service filed into the record shows that the First Notice was served on a secretary at Ms. Motta's law firm on June 22, 2022.

Ms. Motta responded by filing a Motion to Quash the First Notice and requesting sanctions (the “First Motion to Quash”). Ms. Motta contended therein that Zurich had not followed La. C.E. art. 508 in setting the deposition and serving the subpoena on her. She asserted that the procedures established in Article 508 are mandatory and require a hearing prior to the issuance of any discovery to attorneys relative to their clients or former clients. Ms. Motta also claimed service was insufficient because, as a nonparty, personal service on her was required by La. C.C.P. arts 1231 - 1235 and this Court's holding in Jefferson Community Health Care Center, Inc. v. Roby, 15-198 (La. App. 5 Cir. 11/19/15), 180 So.3d 585 (service of preliminary default and rule to show cause for confirmation of default, on the secretary of an attorney who is not counsel of record for a party, at the attorney's law office, was improper; personal or domiciliary service was required). Zurich responded by withdrawing the subpoena.

Zurich then filed a second Notice of Deposition (the “Second Notice”) directed to Ms. Motta and requested personal service on Ms. Motta at her residence. A subpoena was issued to Ms. Motta in conjunction with the Second Notice. The return of service filed into the record reflects that domiciliary service of the Second Notice was made at Ms. Motta's residence on her father.

Ms. Motta then filed a second Motion to Quash Notice of Deposition and Request for Sanctions (the “Second Motion to Quash”), making the same Article 508 arguments and further arguing that service on her father was insufficient because he was not domiciled at her residence. According to Ms. Motta, her father has been domiciled in Florida since the 1970s.

Before the court entered an order setting the Second Motion to Quash for hearing, Zurich filed a Motion to Appoint a Private Process Server to serve the Second Notice on Ms. Motta. The court granted this motion two days before the scheduled hearing on Ms. Motta's Second Motion to Quash. There is no evidence in the record of this appeal that service of the Second Notice was ever made on Ms. Motta through the private process server. Zurich opposed the Second Motion to Quash and separately filed a Motion and Order for Hearing to Issue Subpoena (the “Motion for Hearing”), which was set for hearing approximately a month after the scheduled hearing on Ms. Motta's Second Motion to Quash.

In its First and Second Notices, Zurich's request to depose Ms. Motta was limited to communications between phones allegedly used by or registered to Ms. Motta and two other nonparties. The inquiries were also limited to a single date – April 26, 2018. However, in its briefing on its Motion for Hearing, Zurich expanded the scope of its desired inquiries of Ms. Motta to include communications between phones allegedly used by or registered to Ms. Motta, the individuals named in the First and Second Notices, and Ms. Shelley, and communications by any of them on phones allegedly used by, or registered to, Cornelieus Garrison,² Shedrick Warren ³ and Ms. Carter. In its briefing, Zurich acknowledged that Ms. Shelley had been in contact with Ms. Motta regarding possible representation, and that Mr. Garrison had been a client of Ms. Motta's in conjunction with a separate October 2015 personal injury action. Additionally, as stated above, Ms. Motta had originally represented Ms. Carter in her suit against Defendants arising from the same accident at issue in this litigation, and Ms. Carter was named as a defendant in this case.

The Hearing on Ms. Motta's Second Motion to Quash

The district court heard Ms. Motta's Second Motion to Quash on January 12, 2023. During the hearing, Zurich requested the district court to consider that hearing as constituting a La. C.E. article 508 hearing. While the district court did not explicitly respond to Zurich's request, it found that Article 508 applies to Ms. Motta. The court commented that, although any communications between Ms. Motta and potential, past, or present clients seeking legal advice was protected from disclosure, some of the information sought to be discovered by Zurich from Ms. Motta, such as dates, times and clients’ identities, would not be subject to the attorney-client privilege and could be tangentially relevant.

The district court ultimately granted Ms. Motta's Second Motion to Quash, although the court neither specifically found service of process to be insufficient, nor that a separate Article 508 hearing was required. At the conclusion of that hearing the district court declined to order Ms. Motta to submit to an oral deposition, but suggested that counsel for Zurich send written questions to Ms. Motta and obtain as much information as possible in that manner in order to determine whether a deposition was necessary or appropriate.

No written judgment of the district court's January 12, 2023 ruling appears in the record of this appeal. The Minute Entry of the January 12, 2023 hearing states that the district court granted the Second Motion to Quash and denied Ms. Motta's request for sanctions. It does not mention the court's “suggestion” that Zurich submit written questions to Ms. Motta. There is no judgment or order appearing in the record before us that grants Zurich permission to submit interrogatories to Ms. Motta or to conduct a deposition of Ms. Motta on written questions. Ms. Motta did not agree at the January 12, 2023 hearing to accept service of a deposition on written questions, to waive service of process of any deposition on written questions, or to waive a La. C.E. art. 508 hearing, and Zurich does not contend that she did.

Following the January 12, 2023 hearing, counsel for Zurich withdrew its Motion and Order for Hearing to Issue Subpoena on the grounds that it was moot.

Notice of Deposition upon Written Questions

On December 23, 2023, some eleven months after the hearing on the Second Motion to Quash, counsel for Zurich served Ms. Motta with a Notice of Deposition Upon Written Questions and a Deposition Upon Written Questions (the “Notice and Deposition”), setting the deposition for February 5, 2024.

The Deposition contained multiple questions seeking the substance of any communications between Ms. Motta and Ms. Shelley, the two nonparties named in the First and Second Notices, and Cornelieus Garrison, on the date of the accident and the two days following. The Deposition also sought the substance of communications Ms. Motta may have had with Duane Shelley (“Mr. Shelley”), on the same dates.

Zurich sought to have Ms. Motta state whether she has ever represented 157 other individuals and, if so, the circumstances of the representation, their phone numbers and a call log of any calls between any of them and Ms. Motta. The Deposition also asked Ms. Motta to identify everyone with whom she or her office communicated on the date of the accident and the two days immediately following the accident. At the time Zurich put these questions to Ms. Motta, the district court had not conducted a hearing to determine compliance with Article 508.

Zurich did not request the issuance of a subpoena to compel Ms. Motta's appearance at the Deposition. The Notice and Deposition were served on Ms. Motta by David Day, a private individual.

Ms. Motta's Response to the Deposition upon Written Questions and Zurich's Motion to Compel

Ms. Motta objected, in writing, to the Notice and Deposition and to each question therein (the “Objections”) on numerous grounds, including that: (i) the questions sought information that was protected from disclosure by the attorney-client privilege and/or the work-product privilege; (ii) the questions sought information that is not relevant to the subject matter of the pending lawsuit; (iii) the questions were overly broad and unduly burdensome; (iv) the questions sought information that is readily available from other sources; and (v) the questions were vexatious, repetitive and imposed an undue burden on Ms. Motta. When Ms. Motta emailed her Objections to counsel for Zurich, an email exchange occurred between them wherein Ms. Motta objected to the procedure and to the taking of the deposition, which Ms. Motta asserted had been denied by the district court. Ultimately, Ms. Motta informed counsel for Zurich that she would not appear for the Deposition on February 5, 2024.

Counsel for Zurich then attempted to have a Rule 10.1 conference on February 8, 2024, after which he sent an email to Ms. Motta confirming that she would “not appear for the deposition upon written questions on the basis of the process, including rule 10.1, is meant to apply to parties. Clearly, you are not a party to this matter nor do you represent any party to this matter.” Ms. Motta responded that: “it is not valid or procedurally correct to give a non party (sic) discovery questions.⁴

Thereafter, Zurich filed a Motion to Compel Ms. Motta to appear for the Deposition, or alternatively, to compel her to appear for an oral deposition (which had previously been denied by the district court). As evidence that Ms. Motta had been properly served with the Notice and Deposition, Zurich attached to its Memorandum in Support of its Motion to Compel (the “Memorandum in Support”), the Notice and Deposition and an affidavit of service of the documents by Mr. Day. Zurich also attached email communications between its counsel and Ms. Motta as evidence that Ms. Motta had refused to participate in the scheduled Deposition, other than to object to it.

On or about March 6, 2024, counsel for Zurich mailed the Motion to Compel to Ms. Motta via certified mail. Some ten days later, counsel for Zurich requested service of the order setting the hearing date on the Motion to Compel to be made by the sheriff. The record does not contain any return showing that Ms. Motta was served by the sheriff.

Only counsel for Zurich appeared at the hearing on the Motion to Compel. At the hearing, counsel introduced an electronic delivery confirmation from the U.S. Postal Service (the “USPS”) which stated: “Your item was delivered in or at the mailbox at 12:20 p.m. on March 7, 2024, in New Orleans, LA 70124.” Counsel for Zurich represented that this electronic delivery confirmation proved that the Motion to Compel and the Rule setting the hearing date had been delivered to Ms. Motta's mailbox at her residence. The district court then granted the Motion to Compel and entered judgment ordering Ms. Motta to respond in full to the Deposition within twenty days of April 18, 2024.

Motion to Vacate Judgment

On April 28, 2024, Ms. Motta filed a Motion to Vacate the April 18, 2024 Judgment (the “Motion to Vacate”). Therein, Ms. Motta alleged that she had not been properly served with the Motion to Compel and that, therefore, the April 18, 2024 judgment was an absolute nullity under La. C.C.P. art. 2002(A)(2). Ms. Motta argued, as she does here, that service via certified mail is insufficient to properly serve her, a nonparty in this action, and that, even if it were, she did not receive actual service. Zurich responded, as it does here, that service of the Motion to Compel by mail was sufficient under La. C.C.P. arts. 1313 and/or 1314 and that an electronic delivery receipt from the USPS is sufficient proof of service.

A hearing on Ms. Motta's Motion to Vacate the April 18, 2024 Judgment was held on June 24, 2024. Following the hearing, the district court ruled that service of the Motion to Compel and Rule to Show Cause by mail was sufficient, and denied Ms. Motta's Motion to Vacate. Judgment denying the Motion to Vacate was entered on July 2, 2024.

Petition for Appeal

On August 7, 2024, Ms. Motta filed a Second Petition for Appeal and Second Motion for Setting of Return Day ⁵ seeking a devolutive appeal. Her petition was granted by the district court on August 8, 2024. This appeal timely follows.

DISCUSSION

Ms. Motta raises two issues on appeal. The first is whether the district court erred in finding that she “was provided proper service of the Defendant's Motion to Compel.”⁶ The second is “[w]hether the Trial Court erred in compelling [her] to answer Defendant's (sic) Interrogatories without conducting a mandatory La. Code of Evidence art. 508 hearing on all four of the factors of Article 508 being met before Defendants issued any discovery.” A discussion of the issues presented by Ms. Motta follows.

1. Insufficiency of Service/Nullity of Judgment

‘ “Procedural due process requires an opportunity to be heard, in addition to notice of the pendency of an action, and in conjunction therewith, adequate notice of the hearing is fundamental.’ ” Magnon v. Miller, 06-321 (La. App. 3 Cir. 9/27/06), 939 So.3d 658, 660, quoting Lassdare v. St. Dept. of Health & Hosp's, Office of Public Health, 00-306 (La. App. 1 Cir. 3/28/01), 808 So.2d 513, 516. “The essential requirements of due process are notice and an opportunity to respond.” Williams v. Board of Supervisors, La. Cmty & Tech. Coll. Sys., 18-554 (La. App. 3 Cir. 5/15/19), 272 So.3d 84, 89.

Relying on La. C.C.P. art. 1313, Zurich claims that service of the Motion to Compel on Ms. Motta was sufficient because it was mailed to her via certified mail through the USPS, which issued an electronic delivery receipt showing that items were left at or in the mailbox at her address on March 7, 2024.

Article 1313 provides:

A. Except as otherwise provided by law, every pleading subsequent to the original petition, and every pleading which under an express provision of law may be served as provided in this Article, may be served either by the sheriff or by:

(1) Mailing a copy thereof to the counsel of record, or if there is no counsel of record, to the adverse party at his last known address, this service being complete upon mailing.

***

C. Notwithstanding Paragraph A of this Article, if a pleading or order sets a court date, then service shall be made by registered or certified mail ․. (Emphasis added).

In Sternberg v. Sternberg, 97-101 (La. App. 5 Cir. 5/28/97), 695 So.2d 1068, we were called upon to determine the sufficiency of service on a nonparty witness whom a party sought to depose in a custody action. There, following the Sternbergs’ divorce, Ms. Sternberg remarried Mr. Williams and he became the stepfather of the Sternberg children. During the pendency of custody proceedings between the Sternbergs, Mr. Sternberg sent notices of deposition to Mr. Williams, a nonparty.⁷ Mr. Williams failed to appear and counsel for Mr. Sternberg filed a motion to compel, asserting that Mr. Williams had failed to appear for two depositions that had been noticed by Mr. Sternberg. There was no return of service in the record for either deposition. Nevertheless, the district court entered an order compelling Mr. Williams to appear for a deposition on October 18, 1995. The record indicated that the order was served on “B. Wolff,” who was alleged to be the attorney of record for Mr. Williams. 695 So.2d at 1070.

Mr. Williams did not appear at the deposition and Mr. Sternberg's counsel filed a second motion to compel. The court again ordered Mr. Williams to appear for a deposition and ordered his arrest to compel his attendance. Id. After Mr. Williams was arrested while taking his stepchildren trick-or-treating, he filed a motion to quash the subpoenas, notices of depositions, and orders compelling him to appear, and sought sanctions against Mr. Sternberg and his counsel. Id. The district court awarded sanctions against Mr. Sternberg's counsel and he appealed. Id.

To determine whether the district court had abused its discretion in awarding sanctions against Mr. Sternberg's counsel, we were first required to determine whether counsel's attempts to compel Mr. Williams’ deposition breached the attorney's duty to ensure that pleadings signed by him are “well grounded in fact, warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law and not imposed for any improper purposes.” See La. C.C.P. art. 863(B).

In Sternberg, we pointed out that under La. C.C.P. art. 1437, the attendance of witnesses at depositions “may be compelled by the use of subpoena as for witnesses in trials.” Id. at 1071. We further opined that, La. C.C.P. art. 1355 mandates that a subpoena “be served and a return thereon made in the same manner and with the same effect as a service of and return on a citation,” provided however, that where the person to be deposed is a party “service of the subpoena may be made by personal service on the witness’ attorney of record.” Id. at 1071-71. Further, article 1356(B) states that “[s]ubpoenas ․ compelling the appearance of a witness who is not a party shall be served within a reasonable period of time before the time specified for the deposition.” We found in the Sternberg case that, while article 1357 authorizes a court to hold a recalcitrant witness in contempt, it may only do so where the witness has been compelled by subpoena. We opined that there is “no provision in the law which would subject a non-party witness to the contempt power of a court for failing to attend a deposition for which his attendance was not mandated by subpoena.” Id. at 1072.

The First Circuit Court of Appeal was faced with a similar issue in Seaward v. City of Hammond, 01-0770 (La. App. 1 Cir. 6/21/02), 822 So.2d 38 in which the plaintiffs sought discovery from a nonparty (in that case through a subpoena duces tecum). After receiving no return on service after three months, the plaintiffs filed a motion for contempt and requested service on the nonparty through its registered agent for service of process. The certificate of service also stated that service had been mailed to a person stated to be the attorney for the nonparty. The nonparty failed to appear at the contempt hearing and the district court ordered the nonparty to either respond to the subpoena duces tecum or pay $1,000 per day until compliance. 822 So.2d at 39.

On appeal, the First Circuit observed that a subpoena duces tecum had been issued pursuant to La. C.C.P. art. 1463(B) and that when the nonparty failed to comply, that person violated La. C.C.P. art. 1357 and committed a constructive contempt of court. The court found, however, that because the subpoena duces tecum had been issued to a nonparty, the initial subpoena was jurisdictional. “A subpoena, like a summons, is a jurisdiction-getting paper.” Id. at 40. The court, quoting Guidry v. State Farm Mutual Automobile Insurance Co., 99-0383 (La. App. 3 Cir. 12/8/99), 759 So.2d 95, 97-98, observed that:

The summons secures jurisdiction of a defendant in an action, subjecting the defendant to the jurisdiction of the court so that any judgment that may be rendered in the action will bind the defendant. The mission of the subpoena is to secure jurisdiction of a witness, who is usually not a party to the action, so as to obtain from the witness testimony or documents (or other things) needed by one of the parties.

․ The incentive of the subpoenaed witness is to obey the subpoena so as to avoid punishment for contempt, the sanction that backs a subpoena

․.

Seward, 822 So.3d at 40.

The court rejected the plaintiffs’ assertion that the fact that the nonparty had actual notice of the hearing by other means than service by the sheriff was sufficient, stating that, “[b]ecause service is jurisdictional for a non-party, actual notice is irrelevant ․ the mailing of a discovery request to a nonparty is not “a jurisdiction accomplishing device.” Id. citing Guidry, 759 So.2d at 98. The court held that if the nonparty was not properly served with the original subpoena duces tecum by the sheriff, “the trial court did not have jurisdiction to find [the nonparty] in contempt even if the motion for contempt were properly served.” Id. at 41. Since the nonparty was not served initially with a subpoena, all service following thereafter was invalid. Id.

As in Sternberg and Seaward, we find that Ms. Motta was initially required to be served by subpoena with the Notice and Deposition, as provided in La. C.C.P. art. 1448(A), which states:

After commencement of the action, any party may take the testimony of any person, including a party, by deposition upon written questions. The attendance of witnesses may be compelled by the use of a subpoena as for witnesses in trials. (Emphasis added).

There is no provision in Article 1448(A) that permits service by mail on a nonparty witness who is to be deposed upon written questions. Ms. Motta is not a party to these proceedings, nor is she an attorney of record for any party in these proceedings; nor is she herself represented by counsel in this matter. As such, Zurich was required to serve Ms. Motta by subpoena issued as if she were being called as a witness at trial. In such a case, La. C.C.P. art. 1355(A) provides, in pertinent part, that “a subpoena shall be served and a return thereon made in the same manner and with the same effect as a service of and return on a citation.” (Emphasis added). Article 1231 of the Code of Civil Procedure provides that service of a citation may be personal or domiciliary. Personal service is where “a proper officer tenders the citation or other process to the person to be served.” La. C.C.P. art. 1232. Domiciliary service is where a proper officer leaves the citation or other process to be served “at the dwelling house or usual place of abode, with a person of suitable age and discretion, residing in the domiciliary establishment.” La. C.C.P. art. 1234.

Article 1355(B) provides, in pertinent part, that “when the sheriff has not made service of a subpoena within five days after its receipt or when a return has been made certifying that the sheriff has been unable to make service, any person over the age of majority, not a party and residing within the state, may make service of the subpoena in the same manner as is required by the sheriff.” (Emphasis added). An Affidavit of David Day attached to Zurich's Memorandum in Support (the “Day Affidavit”), states that Mr. Day—who identified himself in the affidavit as a person of the full age of majority, a resident of Orleans Parish, who was competent to make the affidavit—made personal service of the Notice and Deposition on Ms. Motta on December 5, 2023. There is no indication in the Day Affidavit that any subpoena was served on Ms. Motta. Zurich represented in its Memorandum in Support that Ms. Motta had been properly served with the Notice, in support of which it attached the Day Affidavit. At the April 18, 2024 hearing, counsel for Zurich represented to the district court that “[t]he code allows a party to do a deposition or any questions to the nonparty. And, service [is], you know, like a typical pleading.” The district court did not inquire further relative to service of the Notice and Deposition.

In fact, service of a notice of deposition upon written questions on a nonparty is not “like a typical pleading.” Service of a deposition upon written questions to a nonparty is to be made in accordance with Article 1448(A). Under Articles 1448(A) and 1355(A), Zurich was required to request and serve Ms. Motta with a subpoena to appear for a deposition upon written questions in the same manner that it would have requested and served her with a subpoena to appear at trial. There is no evidence in the record that Zurich requested the issuance of a subpoena to Ms. Motta to compel her to submit to the Deposition. Nor does the record reflect that Zurich requested the sheriff serve Ms. Motta with the Notice and Deposition. Accordingly, service on Ms. Motta of the Notice and Deposition was insufficient.

La. C.C.P. art. 1453 provides that “[a]ll errors and irregularities in the notice for taking a deposition are waived unless written objection is promptly served upon the party giving the notice.” The question then becomes whether waiver as to the “notice for taking a deposition” encompasses the failure to request and serve a subpoena compelling attendance at the deposition, as required by Article 1448(A). We find that it does not.

The process to be quashed or objected to is the subpoena. Ms. Motta objected in writing to the Deposition and served her objections on counsel for Zurich on January 31, 2024, prior to the date set for the Deposition. At the same time, Ms. Motta notified counsel for Zurich, in writing that she objected to the taking of the deposition at all and would not appear. Article 1453 does not specify any form for the written objections, nor does it require any written objections to be filed into the record of the action. Accordingly, we find that Ms. Motta did not waive her objections to the Notice of Deposition upon Written Questions, nor to the issuance of a subpoena for the taking of the deposition itself.

The district court erred in granting the Motion to Compel without first inquiring whether proper procedures for service of the Notice and Deposition had been followed. This error is highlighted in this case where service of process had been challenged repeatedly and such a challenge was anticipated by counsel for Zurich, as its counsel stated at oral argument on its Motion to Compel.

A judgment rendered against a person who has not been “served with process as required by law” is an absolute nullity, which may be asserted at any time. La. C.C.P. art. 2002(A)(2) and (B). “[A]n absolute nullity may be asserted by any person with an interest in a collateral proceeding at any time and before any court, without resort to an action in nullity.” Hernandez v. State ex rel Dept. of Transportation and Development, 02-0162, 02-0163 (La. App. 4 Cir. 10/16/02), reh'g en banc granted in part, aff'd 12/30/02), 841 So.2d 808, 816 (citations omitted), 03-0261 (La. 12/30/02), and writ denied, 03-0307 (La. 4/25/03), 842 So.2d 399; State v. Ramos, 18-136 (La. App. 5 Cir. 12/27/18), 264 So.3d 564, 567; Champagne and Rogers Realty Co., Inc. v. Guilliot, 06-237 (La. App. 5 Cir. 11/14/06), 947 So.2d 39, 45, writ denied, 06-2920 (La. 3/9/07), 949 So.2d 440. The burden of proof on an action to annul an absolutely null judgment ⁸ is on the party challenging the validity of the service to show by a preponderance of the evidence that service was not properly made. Merial, Ltd. v. Lagrazie, 07-182 (La. App. 5 Cir. 10/30/07), 971 So.2d 403,406, citing Hall v. Folger Coffee Co., 03-1734 (La. 4/14/04), 874 So.2d 90, 97; State ex rel Dept. of Social Svces v. Langlois, 03-849 (La. 3/3/04), 874 So.2d 216, 217.⁹

In light of the facts that: there was no subpoena compelling Ms. Motta to appear at the Deposition; there was insufficient service of the Notice and Deposition; and, there was no waiver of Ms. Motta's objection to the process as required by Article 1448(A), there was no motion to compel properly before the district court. Failure to properly serve Ms. Motta with a subpoena obligating her to appear and submit to the Deposition are fatal to the Motion to Compel and the district court's judgment granting it. Even if that were not the case, service of the Motion to Compel and Rule to Show Cause were insufficient.

Our above analysis of the provisions of the Code of Civil Procedure indicates that parties and nonparty witnesses are not to be treated the same with respect to service of process, and leads us to conclude that Article 1313(1) applies to adverse parties to the action and their counsel, but not to nonparty witnesses. The Motion to Compel and Rule to Show Cause should have been served personally on Ms. Motta, a nonparty witness. It was not. Therefore, the district court's April 18, 2024 judgment granting Zurich's Motion to Compel is an absolute nullity under La. C.C.P. art. 2002. The district court erred when it denied Ms. Motta's Motion to Vacate the absolutely null judgment compelling her to submit to the Deposition, because she had not been subpoenaed or properly served with Notice.

2. Lack of a La. C.E. art. 508 Hearing

Our ruling above renders Ms. Motta's second assignment of error moot. Nevertheless, under the authority granted to us in La. C.C.P. art. 2164, we address the Article 508 issue because this issue has been raised repeatedly in the district court and is certain to be raised again on remand.

In her second assignment of error, Ms. Motta contends that the district court could not compel her to submit to a deposition, whether on written questions or otherwise, without first conducting a La. C.E. art. 508 hearing and that, as a result, the district court erred in denying her Motion to Vacate the judgment ordering her to submit to the Deposition. We agree.

Article 508 states, in pertinent part:

A. General rule. Neither a subpoena nor a court order shall be issued to a lawyer or his representative to appear or testify in any civil or juvenile proceeding, including pretrial discovery․or hearing, where the purpose of the subpoena or order is to ask the lawyer or his representative to reveal information about a client or former client obtained in the course of representing the client unless, after a contradictory hearing, it has been determined that the information sought is not protected from disclosure by any applicable privilege or work product rule; and all of the following:

(1) The information sought is essential to the successful completion of an ongoing investigation, is essential to the case of the party seeking the information, and is not merely peripheral, cumulative, or speculative.

(2) The purpose of seeking the information is not to harass the attorney or his client.

(3) With respect to a subpoena, the subpoena lists the information sought with particularity, is reasonably limited as to subject matter and period of time, and gives timely notice.

(4) There is no practicable alternative means of obtaining the information.

B. Waiver. Failure to object timely to non-compliance with the terms of this Article constitutes a waiver of the procedural protections of this Article, but does not constitute a waiver of any privilege.

(Emphasis added).

Ms. Motta is an attorney.¹⁰ Zurich has admitted that Ms. Motta represented one or more of the individuals as to whom Zurich seeks to have her testify, with the subject matter of the testimony sought being their communications with Ms. Motta. Even if Zurich were not seeking to discover communications between Ms. Motta and possible clients, Article 508(A) does not require that the information sought consist of communications between the lawyer and the client, former client or potential client. The protections afforded by Article 508 extend to information about the client, former client or potential client, as long as the information was obtained in the course of representing the client.

In McClanahan v. McClanahan, 09-182 (La. App. 5 Cir. 10/13/09), 27 So.3d 862, 866, the plaintiff sought to depose an attorney in a malicious prosecution action. The attorney filed a motion to quash the subpoena duces tecum and the plaintiffs filed a motion to compel the deposition and issue the subpoena duces tecum. The district court conducted a hearing after which it granted the motion to quash and denied the motion to compel. The district court did, however, grant the plaintiffs an opportunity to depose the attorney. There, we stated as follows:

Here, the trial court held a hearing on the Motion to Quash and the Motion to Compel. As provided in the transcript of the hearing, the trial court stated that ‘․ the subpoena is overly broad and seeks to elicit information that might be subject to the attorney-client privilege ․’ ․However, the trial court did not issue a definitive ruling as to whether or not the information requested by the plaintiffs is protected from disclosure by any applicable privilege or work product rule. A contradictory hearing must be held to determine whether or not the requested information by the plaintiffs is protected before the subpoena duces tecum can be found as proper.

Therefore, we find that the Subpoena Duces Tecum filed by the plaintiffs does not comply with La. C.E. art. 508. (Italics in original; bold emphasis added).

See also, Succession of Willoz, 22-1026 (La. App. 1 Cir. 7/25/23), 2023 WL 4347961 (finding subpoena duces tecum issued to attorney was improper without a prior contradictory hearing); Porter v. Baton Rouge Police Dept., 16-0625 (La. App. 1 Cir. 4/12/17), 218 So.3d 150, 157 (finding the district court abused its discretion in finding that it was not necessary to hold a contradictory hearing before issuing a subpoena to attorney and failing to grant motion to quash).

The information requested by Zurich is subject to Article 508. Therefore, the district court is required to conduct a La. C.E. article 508 hearing to determine whether the information requested by Zurich is protected from disclosure by any applicable privilege or work product rule prior to ordering Ms. Motta to submit to any deposition upon written questions or otherwise.

DECREE

For the reasons stated above, we declare the district court's April 18, 2024 judgment granting Zurich's Motion to Compel to be an absolute nullity, and reverse the district court's judgment of July 2, 2024, denying Ms. Motta's Motion to Vacate the Trial Court's April 18, 2024 Judgment. This matter is remanded to the district court for further proceedings consistent with this ruling.

REVERSED AND REMANDED

FIFTH CIRCUIT

101 DERBIGNY STREET (70053)

POST OFFICE BOX 489

GRETNA, LOUISIANA 70054

www.fifthcircuit.org

SUSAN M. CHEHARDY CHIEF JUDGE

FREDERICKA H. WICKER

JUDE G. GRAVOIS

MARC E. JOHNSON

STEPHEN J. WINDHORST

JOHN J. MOLAISON, JR.

SCOTT U. SCHLEGEL

TIMOTHY S. MARCEL

JUDGES

CURTIS B. PURSELL CLERK OF COURT

SUSAN S. BUCHHOLZ CHIEF DEPUTY CLERK

LINDA M. TRAN FIRST DEPUTY CLERK

MELISSA C. LEDET DIRECTOR OF CENTRAL STAFF

(504) 376-1400

(504) 376-1498 FAX

NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY

I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY JUNE 4, 2025 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

24-CA-433

CURTIS B. PURSELL CLERK OF COURT

E-NOTIFIED

24TH JUDICIAL DISTRICT COURT (CLERK)

HONORABLE MICHAEL P. MENTZ (DISTRICT JUDGE)

LAURENCE D. COHEN (APPELLEE)

NATHAN M. GAUDET (APPELLEE)

PATRICK SCHMIDT (APPELLEE)

MAILED

VANESSA MOTTA (APPELLANT)

3632 CANAL STREET

NEW ORLEANS, LA 70119

GUY D. PERRIER (APPELLEE)

ATTORNEY AT LAW

365 CANAL STREET

SUITE 2550

NEW ORLEANS, LA 70130

FOOTNOTES

1.   Personal service occurs when the citation or other process is delivered to the person by a proper officer. La. C.C.P. art. 1232. Domiciliary service is made when the citation or other process is left “at the dwelling house or usual place of abode of the person to be served, with a person of suitable age and discretion residing in the domiciliary establishment.” La. C.C.P. art. 1234.

2.   Mr. Garrison was one of a number of individuals indicted on September 18, 2020, in an alleged accident staging scheme. Mr. Garrison was murdered shortly after the indictment was handed down.

3.   Mr. Warren was a passenger in a vehicle being driven by Mr. Hamilton on April 30, 2018, during an accident similar to the one at issue in the underlying lawsuit in this case.

4.   Ms. Motta was correct that La. C.C.P. art. 1457 permits interrogatories to be served only on a “party;” however La. C.C.P. art. 1448(A), permits depositions on written questions to nonparties.

5.   Ms. Motta had previously filed a Petition for Appeal and Motion for Setting of Return Day, which was denied by the district court.

6.   Ms. Motta styled her pleading as Motion to Quash Motion to Compel and/or Motion for Contempt; however, Zurich did not file any Motion for Contempt. They filed a Motion to Compel Deposition upon Written Questions or, Alternatively, Motion to Compel Oral Deposition.

7.   It is unclear whether subpoenas were issued in conjunction with these depositions.

8.   If the judgment sought to be annulled is contended to be absolutely null under Article 2002, the issue may be raised in a petition to annul the judgment or in a motion to vacate the judgment but if the grounds for nullity arise under Article 2004, applicable to the relative nullity of a judgment, a challenge may be made only by the filing of a petition for nullity.

9.   Where service is made by the sheriff and the sheriff's return is filed into the record stating that service was made, the return is entitled to a rebuttable presumption that service was validly made and it is then upon the one challenging the validity of service to demonstrate by clear and convincing evidence that service was insufficient. La. C.C.P. art. 1291; Hall, 2003-1734,874 So.2d at 96-97; Canterberry v. Slade Bros., 232 La. 1081, 96 So.2d 4 (1957).

10.   While Ms. Motta is currently suspended from the practice of law, the questions Zurich seeks to propound to her address facts and actions relevant to Ms. Motta's role as an attorney and, therefore, are subject to a La. C.E. art. 508 analysis.

FREDERICKA HOMBERG WICKER JUDGE