In Re: Subpoena and Deposition Notice to David Thomas
Federal Court Proceeding New York Western District Court, Case No. 6:18-mc-06011
District Judge Elizabeth A. Wolford, presiding

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Last Updated February 7, 2019 at 10:18 PM ST (2.3 years ago) Request Update Request UpdateSpaceE-Mail Alert Get E-Mail Alerts

No Logo Jason Lou Peralta, Respondent

Toggle Switch Represented by East Bay Law

Name Phone Fax E-Mail
ATTORNEY TO BE NOTICED, LEAD ATTORNEY, ATTORNEY TO BE NOTICED, LEAD ATTORNEY Andrew Wagdy Shalaby +1 510 528 8500 +5 105 282 2412 panel@eastbaylaw.com
No Logo Kurtis M. Bailey, Respondent

Toggle Switch Represented by East Bay Law

Name Phone Fax E-Mail
ATTORNEY TO BE NOTICED, LEAD ATTORNEY, ATTORNEY TO BE NOTICED, LEAD ATTORNEY Andrew Wagdy Shalaby +1 510 528 8500 +5 105 282 2412 panel@eastbaylaw.com
No Logo Subpoena and Deposition Notice to David Thomas, In Re

Toggle Switch Represented by Woods Oviatt Gilman LLP

Name Phone Fax E-Mail
ATTORNEY TO BE NOTICED, LEAD ATTORNEY William G. Bauer +1 585 987 2800 +1 585 987 2911 wbauer@woodsoviatt.com
Citation Motion to Quash
Nature of Suit 550 - Prisoner Petitions: Civil Rights
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Legal Document (Payment Possibly Required) 12 Filed: 1/7/2019, Entered: None Unknown Document Type
RESPONSE to Motion re 1 MOTION to Expedite MOTION to Quash ref: dkt 11 minute entry - transcript and proposed questions for deponent David Thomas filed by Jason Lou Peralta. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Shalaby, Andrew) (Entered: 01/07/2019)
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    Legal Document (Payment Possibly Required) 9 Filed: 12/19/2018, Entered: None Unknown Document Type
    TEXT ORDER. For the reasons set forth on the record at the hearing held on December 19, 2018, the Court finds that additional submissions are required. On or before January 7, 2019, counsel for the plaintiff in the underlying matter shall submit to the Court (1) a copy of the transcript of the December 11, 2018, proceeding in Peralta v. Worthington Industries Inc., 2:17-cv-03195-JJT (D. Ariz.) and (2) a written list of the questions counsel seeks to ask movant David Thomas ("Movant") at deposition. Movant shall file any response to this submission by no later than January 18, 2019. The Court will thereafter issue a written decision resolving the motion to quash. Movant's compliance with the challenged subpoena is stayed pending further order of the Court. SO ORDERED. Signed by Hon. Elizabeth A. Wolford on 12/19/2018. (CDH) (A copy of this text order was emailed to attorneys Andrew Shalaby and David Chen) (Entered: 12/19/2018)
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      Legal Document (Payment Possibly Required) 10 Filed: 12/19/2018, Entered: None Unknown Document Type
      NOTICE of Appearance by Andrew W. Shalaby on behalf of Jason Lou Peralta, Kurtis M. Bailey (Shalaby, Andrew) (Entered: 12/19/2018)
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        Legal Document (Payment Possibly Required) 11 Filed: 12/19/2018, Entered: None Unknown Document Type
        Minute Entry for proceedings held before Hon. Elizabeth A. Wolford: Appearances: William G. Bauer, Esq. on behalf of movant, David Thomas; Andrew W. Shalaby, Esq. and David W. Chen on behalf of plaintiffs. Court addresses plaintiffs' attorneys applications for admission. Counsel are deemed admitted. Hearing regarding plaintiff Jason Peralta only as discovery in plaintiff Kurtis Bailey matter is currently stayed. Court requests additional submissions with regard to underlying matter. Counsel for the plaintiff shall submit to the Court by January 7, 2019, a copy of the transcript of the December 11, 2018, proceeding in Peralta v. Worthington Industries Inc., 2:17-cv-03195-JJT (D. Ariz.) and a written list of the questions counsel seeks to ask movant David Thomas at deposition. Movant shall file any response to this submission by no later than January 18, 2019. The Court will then issue a written decision resolving the motion to quash. Stay granted with regard to the challenged subpoena. (Court Reporter Diane Martens.) (DPS) (Entered: 12/21/2018)
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          Legal Document (Payment Possibly Required) 5 Filed: 12/18/2018, Entered: None Unknown Document Type
          MEMORANDUM in Support re 1 MOTION to Expedite MOTION to Quash filed by Subpoena and Deposition Notice to David Thomas. (Attachments: # 1 Declaration William G. Bauer, Esq. with attached Exhibit A, # 2 Declaration of David Thomas (Second))(Bauer, William) (Entered: 12/18/2018)
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            Legal Document (Payment Possibly Required) 6 Filed: 12/18/2018, Entered: None Unknown Document Type
            TEXT ORDER. Counsel for the plaintiffs in the actions underlying this motion to quash have submitted opposition papers (Dkt. 4) that contain a request for several individuals to appear telephonically at the hearing set for December 19, 2018. This request is denied. The Court's order setting the hearing specifically states that counsel are required to "appear in person" on December 19, 2018. (Dkt. 2). Counsel have had nearly two weeks to arrange for such appearance and have failed to provide any reasonable explanation for their failure to do so. The Court further notes that none of the attorneys who signed the opposition papers are admitted to practice in this Court. While the Court appreciates that the expedited nature of this proceeding may have complicated the completion of admissions for application, as of this date, no such application has been received by the Clerk of Court. Any attorney appearing at the December 19, 2018, hearing must have submitted an application for either general admission or pro hac vice admission to the bar of this Court. Such application(s) for admission shall note any required documents that counsel have been unable to timely obtain, state the reasons why counsel was unable to obtain them, and give an estimated time frame for such documents to be submitted to this Court. Counsel are reminded that Local Rule of Civil Procedure 83.2 requires attorneys admitted pro hac vice who do not maintain an office in this District to obtain local counsel, which is "defined as a Member of the bar of this Court who maintains an office in this District, with whom the Court and opposing counsel may readily meet and communicate regarding the conduct of this case." L. R. Civ. P. 83.2(a)(1). Again, the Court notes that counsel have had nearly two weeks in which to comply with this requirement. The Court is aware that the plaintiffs in the underlying actions have signed the opposition papers in addition to their attorneys, and that they purport to be proceeding "pro per." However, the papers were drafted and submitted by counsel, and it is well-established that "the rights of self-representation and representation by counsel cannot be both exercised at the same time" and that as such "a party seeking to assert his statutory right of self-representation must clearly and unequivocally discharge any lawyer previously retained." O'Reilly v. New York Times Co., 692 F.2d 863, 868 (2d Cir. 1982) (quotation omitted). So-called "hybrid representation," where a party seeks "to straddle the line between self-representation and representation by counsel," is not permitted. Antonmarchi v. Consol. Edison Co. of N.Y., 678 F. Supp. 2d 235, 240 (S.D.N.Y. 2010). Accordingly, unless and until the plaintiffs in the underlying actions unequivocally indicate to this Court that they intend to appear on their own behalf, the Court will treat them as represented by counsel, and those counsel must be admitted before this Court in order to appear on their behalf. SO ORDERED. Signed by Hon. Elizabeth A. Wolford on 12/18/2018. (CDH) (Entered: 12/18/2018)
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              Legal Document (Payment Possibly Required) 7 Filed: 12/18/2018, Entered: None Unknown Document Type
              Remark: A copy of the Court's December 18, 2018 Text Order (Dkt. 6 ) has been emailed to attorneys Alan J. Gould, David W. Chen, and Andrew W. Shalaby at the email addresses provided in Dkt. 4 . (CDH) (Entered: 12/18/2018)
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                Legal Document (Payment Possibly Required) 8 Filed: 12/18/2018, Entered: None Unknown Document Type
                CERTIFICATE OF SERVICE by Subpoena and Deposition Notice to David Thomas re 5 Memorandum in Support of Motion, (Bauer, William) (Entered: 12/18/2018)
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                  Legal Document (Payment Possibly Required) 4 Filed: 12/17/2018, Entered: None Unknown Document Type
                  RESPONSE in Opposition re 1 MOTION to Quash subpoena upon David Thomas. (TF) (Entered: 12/17/2018)
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                    Legal Document (Payment Possibly Required) 1 Filed: 12/6/2018, Entered: None Unknown Document Type
                    MOTION to Expedite hearing and MOTION to Quash by Subpoena and Deposition Notice to David Thomas. (Attachments: # 1 Declaration and exhibits, # 2 Motion to Quash, # 3 Declaration and exhibits, # 4 Memorandum in Support), filing fee paid receipt #ROC010985 $47.00(TF) (Entered: 12/06/2018)
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                      Legal Document (Payment Possibly Required) 2 Filed: 12/6/2018, Entered: None Unknown Document Type
                      ORDER granting 1 Motion to Expedite a hearing on the motion to quash. A copy of this Order and all papers in support of the Motion to Quash shall be served on counsel for parties to the litigation pending in the District of Arizona and the Northern District of Illinois by December 7, 2018, by electronic meansand overnight delivery. Papers in opposition shall be served and filed on or before December 14, 2018; and FURTHER, that any reply papers shall be served and filed on or before December 18, 2018, at 9:00 a.m.. Counsel shall appear in person for oral argument before the Court on December 19, 2018, at 11:30 a.m., at the United States Courthouse, 100 State Street, Rochester, New York. Signed by Hon. Elizabeth A. Wolford on 12/6/18. (TF) (Entered: 12/06/2018)
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                        Legal Document (Payment Possibly Required)  Filed: 12/6/2018, Entered: None Unknown Document Type
                        Set/Reset Deadlines as to 1 MOTION to Quash. Responses due by 12/14/2018. Replies due by 12/18/2018. Oral Argument set for 12/19/2018 11:30 AM in US Courthouse, 100 State Street, Rochester NY 14614 before Hon. Elizabeth A. Wolford. (TF)
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                          Legal Document (Payment Possibly Required) 3 Filed: 12/6/2018, Entered: None Unknown Document Type
                          CERTIFICATE OF SERVICE by Subpoena and Deposition Notice to David Thomas re Set Motion and R&R Deadlines/Hearings, 2 Order on Motion to Expedite,,, 1 MOTION to Expedite MOTION to Quash via Email and Federal Express (Bauer, William) (Entered: 12/06/2018)
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