Giuffre_Maxwell_Batch1_p00607.png

Case 1:15-cv-07433-LAP Document 1320-28 Filed 01/03/24 Page 14 of 32 instead, demonstrate her lack of diligence in securing Mr. Brunel’s testimony and also show that she has waived any right to seek an out-of-time deposition. Plaintiff first issued a Notice of a Rule 45 subpoena for documents from Mr. Brunel on February 16, at an address “c/o” attorney, Joe Titone. No documents were ever produced pursuant to that subpoena. Menninger Decl., Ex. F. Then, on May 23, 2016, Plaintiff issued a new “Notice of Subpoena Duces Tecum,” attached to which was actually a subpoena for deposition testimony to occur on June 8, at 9:00 a.m. in New York. Jd. Again, the subpoena was addressed “c/o” attorney Robert Hantman. Then, on June 2, Plaintiffs counsel sent an email that they had received “an email yesterday from Mr. Brunel's attorney saying he needs to reschedule. I believe he is trying to get us new dates today or tomorrow.” Jd. The “scheduled date” of June 8 came and went without any indication of any new dates provided by Mr. Brunel’s counsel. The following week, Plaintiff's counsel stated in a phone conversation that Mr. Brunel’s counsel said his client had gone to France and it was unclear when he would be returning to the United States. Following the filing of the instant motion, counsel for Ms. Maxwell requested copies of the certificates of service for all of Plaintiff's Rule 45 subpoenas in this case. Plaintiff's counsel provided certificates on June 14. Notably absent was any certificate of service for Mr. Brunel. Thus, either Mr. Brunel was never served, or he was served and Plaintiff unilaterally extended his compliance date to an unscheduled time in the future. Either way, the time to complain about a witness’s non-compliance is at or near the time it occurs. Failure to timely complain regarding non-compliance with a subpoena constitutes a waiver. In any event, whether served or not, Mr. Brunel apparently promised to provide new dates before his deposition date came and went, did not do so, has left the country and not indicated a present intention to return. Given Plaintiffs 11