Thursday, December 8, 2011

Fourth District Reverses Order Finding Non-Party Witness Waived Service Requirements

In Garfinkel v. Katzman (4D11-1354), the Fourth District reversed the trial court's order and agreed with a challenge by a non-party witness to "an order of the trial court finding she waived her objection to the court’s exercise of jurisdiction over her person by filing a motion for protective order that sought to quash the deposition subpoena for lack of service and to limit any deposition permitted on the grounds of the spousal and litigation privileges." The court held that:
A court lacks jurisdiction over a non-party and the authority to require the non-party to appear for deposition where she has not been served with the deposition subpoena....The filing of the motion for protective order, seeking to quash or limit the deposition, was defensive and not a claim for affirmative relief that resulted in a waiver of the claim of lack of service and personal jurisdiction.


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