(purported) Certificate of Service

Mark Ellis, 11.5.2007, 7:31am: v/m transcript

Hey Robert,

It's ... Mark Ellis at ... Ellis, Coleman -- how ya doin'?

... You know that I've ... noticed, and I think now subpoenaed you for deposition. I thought that I'd subpoenaed you weeks ago and I understand that there's some problem with that.

... I'm sure that ... this is not something that you really want to do, and I understand that you'd like to talk with me a little bit about it, and that's fine.

My telephone number is 916 283 8820 [repeats #] ... and I'd be happy to talk with you.

Thank you,

Bye-bye

RGM, 11.5.2007, 4:53pm: Reply to Voicemail

• video (4:04)

Robert Merritt (blue) Reply to Mark Ellis, Esq. (red):

Hey Robert,
It's ... Mark Ellis at ... Ellis, Coleman -- how ya doin'?

Dear Mr. Ellis,
I am fine, thank you.

... You know that I've ... noticed, and I think now subpoenaed you for deposition. I thought that I'd subpoenaed you weeks ago and I understand that there's some problem with that.

There is a problem. On Friday, November 2, 2007, I received a fax that you sent to Simmonds & Narita in San Francisco. This was, to my knowledge, the first (and to date, only) written communication that I have received from your office. The fax included your purported notice of deposition and subpoena. The Certificate of Service does not even recite that it was served on me, or on anybody representing me. And, in fact, it was not served on me.

... I'm sure that ... this is not something that you really want to do ...

Not so. It would have been an honor.

... and I understand that you'd like to talk with me a little bit about it, and that's fine.

I think you were misinformed. I told Rozanne at your office – when she called me on November 1, 2007 – that I declined your invitation to speak, but would be pleased to cooperate, if you would kindly serve me formally with a valid subpoena.

My telephone number is (916) 283-8820 ... and I'd be happy to talk with you. Thank you, bye bye.

I note the handwritten notation “email” followed by the initials “re” on the Certificate of Service. Do you contend that service was accomplished via email? If so, when? And to which address? The notice does not say. In any event, please explain the significance of that handwritten notation.

I don't mind being deposed. I would have been glad to cooperate on the scheduling. But for sound reasons I require a formal, valid subpoena. I decline to testify voluntarily.

I'll reserve judgment, but this sure looks to me like an attempt to pretend that service was accomplished, when in fact it has not been.

I have high personal regard for your clients, but I require a valid subpoena before I will testify in a case involving a former client.

I have not been properly compelled to appear, and I do not intend to appear on the date listed in your purported notice.

Please communicate with me in writing from this point forward. [Videos will gladly be accepted too ;-]

Sincerely,

Robert Merritt


a/v version (4:04)



larger screen

-- oOo --

Mark Ellis, 11.5.2007, 6:51pm

Thank you for your email and thank you for indicating that you will not be appearing at what I believe to be your properly noticed and served deposition. I think as an attorney you understand the possible consequences of not showing up at a properly noticed deposition. As you say, I also “reserve judgment” but your cc to Mr. Hankins tells me what I need to know. Very truly yours,

Mark E. Ellis, Managing Partner
ELLIS, COLEMAN, POIRIER, LAVOIE & STEINHEIMER, LLP

RGM, 11.6.2007, 1:09pm

Dear Mr. Ellis,
Would you care to respond substantively to the questions I posed in my communication from yesterday? By the way, the online record of our communications may be viewed at this link: http://meetandconfer.blogspot.com.

Very truly yours,

Robert G. Merritt

Mark Ellis, 11.6.2007, 5:06pm

What a nice “blog.” I’m sure you will post this response also. There was testimony by a witness today in the Eskanos and Adler case today about things you said and asked them for. Don’t worry, I’ll attach the testimony which is Civil Code section 47(b)(2) privileged to your blog site when it is available. Cheers.

Mark E. Ellis, Managing Partner
ELLIS, COLEMAN, POIRIER, LAVOIE & STEINHEIMER, LLP

RGM, 11.6.2007 6:05pm

Dear Mr. Ellis,
I ask you once more if you'd care to comment substantively on the questions I have raised regarding the validity of the purported notice you sent me on November 2nd? Here is a convenient link to a larger screen format of the a/v version of our exchange from yesterday.

Thank you for your kind words about http://meetandconfer.blogspot.com. Unfortunately, you do not have publication privileges on [this] site, but I would be happy to consider for publication any attachments to communications I receive from you. To facilitate publication, please send documents in .pdf format.

Very truly yours,

Robert G. Merritt

Mark Ellis, 11.6.2007, 6:13pm

Don’t worry Mr. Merritt; I can assure you will be seeing the proof of service very soon; that will be my substantive comment and response; as to your self publication of things I write and say to you, that certainly is your choice; and thanks for sharing your picture—I will be passing that on to the process server who will be serving you soon for the upcoming arbitration. :-)

Mark E. Ellis, Managing Partner
ELLIS, COLEMAN, POIRIER, LAVOIE & STEINHEIMER, LLP

RGM, 11.6.2007, 6:53pm

Dear Mr. Ellis,
Let me reiterate the parts of my previous communications where I told you that I don't at all mind being a witness; it's just that I wish to be properly compelled to testify if called upon to do so in a case involving a former client. Here is what I wrote:

I don't mind being deposed. I would have been glad to cooperate on the scheduling. But for sound reasons I require a formal, valid subpoena. I decline to testify voluntarily. [e-mail, RGM to Mark Ellis, 11.5.2007, 4:53pm]

If having my picture will help you grant that eminently reasonable request, then I am all in favor of you downloading it from my public web page.

Very truly yours,

Robert G. Merritt

Mark Ellis, 11.6.2007, 7:00pm

And I perfectly understand that having represented attorneys for years and as witnesses and parties in over 30 trials; what I don’t understand is your snarky response; and if that’s how you want to “play” then so be it; I thought I was talking professionally to a professional. How this goes foward is entirely up to you.

Mark E. Ellis, Managing Partner
ELLIS, COLEMAN, POIRIER, LAVOIE & STEINHEIMER, LLP

RGM, 11.6.2007, 7:35pm

Dear Mr. Ellis,
Perhaps this mode of communication is unconventional, but I do not think "snarky" is a shoe that fits. If you have any issues with the substance of anything in any of my communications, I encourage you to be more specific so that I may understand what your issues are and respond.

Very truly yours,

Robert G. Merritt

Mark Ellis, 11.6.2007, 7:43pm

Thank you. I have no issues with you and these interchanges while mildly amusing are ultimately pointless; I have work to do; I’m pretty sure we will be seeing each other in the near future. Good night.

Mark E. Ellis, Managing Partner
ELLIS, COLEMAN, POIRIER, LAVOIE & STEINHEIMER, LLP

RGM, 12.12.2007

Dear Mr. Ellis,

I am returning your check #2439 that accompanied the civil subpoena you caused to be served on me. Although I appeared in response to the subpoena this morning promptly at 9:00am, you informed me upon my arrival that I was not needed as a witness, and that I was excused.

You appeared to have been aware prior to today that I would not be needed as a witness. Yet you decided not to bother to let me know that. You seemed to expect that counsel for the defense should have informed me; but they do not represent me (nor I them), and there was no reason to expect that they would contact me.

Furthermore, the subpoena I received advised me to report to 2 Embarcadero Center, Suite 1500 (which I did). Yet the arbitration was being held at 1 Sansome Street, Suite 1600, several blocks away. Your office seems to have trouble filling out forms correctly. (This reminds me of your purported deposition subpoena, the subject of our previous communications, which was accompanied by a certificate of service that did not even recite that it was served on me, among other glaring defects.)

I am sure that your clients do not condone this kind of unprofessional behavior being perpetrated in their name (or at all). As I am not acting as counsel in this matter, I am not barred from sharing this communication directly with your client, which I do by carbon copy of this letter.

Very truly yours,

/s/

Robert G. Merritt

cc: Irwin Eskanos, Esq.
cc: Stephen M. Hankins, Esq.

. . .. oOo .. . .

View Larger Map

Mark Ellis, 11.6.2007, 7:43pm

Thank you. I have no issues with you and these interchanges while mildly amusing are ultimately pointless; I have work to do; I’m pretty sure we will be seeing each other in the near future. Good night.

Mark E. Ellis, Managing Partner
ELLIS, COLEMAN, POIRIER, LAVOIE & STEINHEIMER, LLP

RGM, 11.6.2007, 7:35pm

Dear Mr. Ellis,
Perhaps this mode of communication is unconventional, but I do not think "snarky" is a shoe that fits. If you have any issues with the substance of anything in any of my communications, I encourage you to be more specific so that I may understand what your issues are and respond.

Very truly yours,

Robert G. Merritt

Mark Ellis, 11.6.2007, 7:00pm

And I perfectly understand that having represented attorneys for years and as witnesses and parties in over 30 trials; what I don’t understand is your snarky response; and if that’s how you want to “play” then so be it; I thought I was talking professionally to a professional. How this goes foward is entirely up to you.

Mark E. Ellis, Managing Partner
ELLIS, COLEMAN, POIRIER, LAVOIE & STEINHEIMER, LLP

RGM, 11.6.2007, 6:53pm

Dear Mr. Ellis,
Let me reiterate the parts of my previous communications where I told you that I don't at all mind being a witness; it's just that I wish to be properly compelled to testify if called upon to do so in a case involving a former client. Here is what I wrote:

I don't mind being deposed. I would have been glad to cooperate on the scheduling. But for sound reasons I require a formal, valid subpoena. I decline to testify voluntarily. [e-mail, RGM to Mark Ellis, 11.5.2007, 4:53pm]

If having my picture will help you grant that eminently reasonable request, then I am all in favor of you downloading it from my public web page.

Very truly yours,

Robert G. Merritt

Mark Ellis, 11.6.2007, 6:13pm

Don’t worry Mr. Merritt; I can assure you will be seeing the proof of service very soon; that will be my substantive comment and response; as to your self publication of things I write and say to you, that certainly is your choice; and thanks for sharing your picture—I will be passing that on to the process server who will be serving you soon for the upcoming arbitration. :-)

Mark E. Ellis, Managing Partner
ELLIS, COLEMAN, POIRIER, LAVOIE & STEINHEIMER, LLP

RGM, 11.6.2007 6:05pm

Dear Mr. Ellis,
I ask you once more if you'd care to comment substantively on the questions I have raised regarding the validity of the purported notice you sent me on November 2nd? Here is a convenient link to a larger screen format of the a/v version of our exchange from yesterday.

Thank you for your kind words about http://meetandconfer.blogspot.com. Unfortunately, you do not have publication privileges on [this] site, but I would be happy to consider for publication any attachments to communications I receive from you. To facilitate publication, please send documents in .pdf format.

Very truly yours,

Robert G. Merritt

Mark Ellis, 11.6.2007, 5:06pm

What a nice “blog.” I’m sure you will post this response also. There was testimony by a witness today in the Eskanos and Adler case today about things you said and asked them for. Don’t worry, I’ll attach the testimony which is Civil Code section 47(b)(2) privileged to your blog site when it is available. Cheers.

Mark E. Ellis, Managing Partner
ELLIS, COLEMAN, POIRIER, LAVOIE & STEINHEIMER, LLP

RGM, 11.6.2007, 1:09pm

Dear Mr. Ellis,
Would you care to respond substantively to the questions I posed in my communication from yesterday? By the way, the online record of our communications may be viewed at this link: http://meetandconfer.blogspot.com.

Very truly yours,

Robert G. Merritt

Mark Ellis, 11.5.2007, 6:51pm

Thank you for your email and thank you for indicating that you will not be appearing at what I believe to be your properly noticed and served deposition. I think as an attorney you understand the possible consequences of not showing up at a properly noticed deposition. As you say, I also “reserve judgment” but your cc to Mr. Hankins tells me what I need to know. Very truly yours,

Mark E. Ellis, Managing Partner
ELLIS, COLEMAN, POIRIER, LAVOIE & STEINHEIMER, LLP

RGM, 11.5.2007, 4:53pm: Reply to Voicemail

• video (4:04)

Robert Merritt (blue) Reply to Mark Ellis, Esq. (red):

Hey Robert,
It's ... Mark Ellis at ... Ellis, Coleman -- how ya doin'?

Dear Mr. Ellis,
I am fine, thank you.

... You know that I've ... noticed, and I think now subpoenaed you for deposition. I thought that I'd subpoenaed you weeks ago and I understand that there's some problem with that.

There is a problem. On Friday, November 2, 2007, I received a fax that you sent to Simmonds & Narita in San Francisco. This was, to my knowledge, the first (and to date, only) written communication that I have received from your office. The fax included your purported notice of deposition and subpoena. The Certificate of Service does not even recite that it was served on me, or on anybody representing me. And, in fact, it was not served on me.

... I'm sure that ... this is not something that you really want to do ...

Not so. It would have been an honor.

... and I understand that you'd like to talk with me a little bit about it, and that's fine.

I think you were misinformed. I told Rozanne at your office – when she called me on November 1, 2007 – that I declined your invitation to speak, but would be pleased to cooperate, if you would kindly serve me formally with a valid subpoena.

My telephone number is (916) 283-8820 ... and I'd be happy to talk with you. Thank you, bye bye.

I note the handwritten notation “email” followed by the initials “re” on the Certificate of Service. Do you contend that service was accomplished via email? If so, when? And to which address? The notice does not say. In any event, please explain the significance of that handwritten notation.

I don't mind being deposed. I would have been glad to cooperate on the scheduling. But for sound reasons I require a formal, valid subpoena. I decline to testify voluntarily.

I'll reserve judgment, but this sure looks to me like an attempt to pretend that service was accomplished, when in fact it has not been.

I have high personal regard for your clients, but I require a valid subpoena before I will testify in a case involving a former client.

I have not been properly compelled to appear, and I do not intend to appear on the date listed in your purported notice.

Please communicate with me in writing from this point forward. [Videos will gladly be accepted too ;-]

Sincerely,

Robert Merritt


a/v version (4:04)



larger screen

-- oOo --

Mark Ellis, 11.5.2007, 7:31am: v/m transcript

Hey Robert,

It's ... Mark Ellis at ... Ellis, Coleman -- how ya doin'?

... You know that I've ... noticed, and I think now subpoenaed you for deposition. I thought that I'd subpoenaed you weeks ago and I understand that there's some problem with that.

... I'm sure that ... this is not something that you really want to do, and I understand that you'd like to talk with me a little bit about it, and that's fine.

My telephone number is 916 283 8820 [repeats #] ... and I'd be happy to talk with you.

Thank you,

Bye-bye

(purported) Certificate of Service