Great Lakes Reinsurance SE v. Peter Herzig

Background

A trial in this insurance dispute was scheduled for July 10, 2023. Peter Herzig issued a subpoena to Great Lakes Reinsurance (UK) SE seeking in-person trial testimony from Great Lakes’ “Officer most knowledgeable about [Herzig’s] counterclaims.” Great Lakes moved to quash, meaning to cancel, the subpoena.

Great Lakes identified Beric Anthony Usher as the officer with the most knowledge. Usher was described as the Managing Director and Senior Underwriter for Concept Special Risks Ltd., Great Lakes’ managing general agent. Great Lakes alternatively identified Steven Sensibar, its Senior Claims Manager, if the required witness had to be a Great Lakes employee rather than an employee of its managing agent.

Usher stated that he lived and worked in the United Kingdom and did not regularly conduct business in person within 100 miles of the federal courthouse at 40 Foley Square in New York or anywhere in New York. He also stated that Sensibar lived and worked in London and likewise did not regularly conduct business in person within 100 miles of the courthouse or anywhere in New York.

Rule 45’s Geographic Limits

Federal Rule of Civil Procedure 45 limits where a subpoena may require a person to attend a trial. Generally, attendance may be required within 100 miles of where the person lives, works, or regularly conducts business in person. A party or party officer may also be required to attend within the state where that person lives, works, or regularly conducts business in person. The rule requires a court to quash a subpoena that requires compliance beyond those geographic limits.

The court explained that a 2013 amendment to Rule 45 resolved earlier disagreements about whether the rule applied to parties and party officers located outside the 100-mile area. Under the amended rule, the geographic limits apply to party officers as well as nonparties. The court also stated that a trial subpoena requiring a plaintiff who lives outside the court’s subpoena power to attend may be quashed for that reason alone.

Application

The court concluded that both Usher and Sensibar were outside its power to compel attendance at trial. Both lived in the United Kingdom, which was more than 100 miles from the courthouse; neither lived in New York; both worked in the United Kingdom; and neither regularly conducted business in person within 100 miles of the courthouse or anywhere in New York.

The court rejected Herzig’s argument that Great Lakes’ frequent litigation in New York and its use of New York choice-of-law provisions showed that Great Lakes transacted business in New York. The court said Rule 45 asks where the person whose attendance is commanded lives, works, or regularly conducts business in person—not where that person’s employer conducts business. The court also found irrelevant Herzig’s argument that Great Lakes had earlier threatened to bring witnesses from the United Kingdom for a bench trial, stating that Rule 45 left no discretion to overlook the geographic limits.

Disposition

The court granted Great Lakes’ motion to quash Herzig’s June 15, 2023 trial subpoena. The Clerk of Court was directed to terminate the motion. The court separately ordered Great Lakes to respond by July 7, 2023, at 5:00 p.m., to Herzig’s argument that Great Lakes’ refusal to produce a witness in its control entitled him to an adverse inference at trial.