One would think that from anyone from his/her grade school days would remember that to explain a serious health-related absence a doctor’s note was essential. I’m surprised that the well-credentialed trusty attorneys for GO Risk Management, Inc., et al., Docket No. 14012-21, filed 2/25/26, didn’t seek (or allege that they sought but were refused) such.

Said trusty attorneys want to depose MT (name omitted) “…for the purpose of perpetuating his testimony because, petitioners assert, ‘Petitioners have substantial and well-founded concern that MT may not survive until the currently scheduled trial date of July 5, 2026, or that his condition will deteriorate to the point where he will be unable to communicate effectively.’” Order, at p. 1.

Before raising the want of underpinning, Judge Rose E. (“Cracklin'”) Jenkins notes the want of a Rule 81(b)(2) certificate of service on MT. 

Taishoff says maybe trusty attorneys should have foreseen this problem by alleging that MT’s condition precludes personal service, and none of attorney, guardian, conservator, or next friend could be located to receive service (if such were the case). And HIPAA may be a barrier to obtaining medical information.

Howbeit, the underlying problem with the application for deposition remains: “…petitioners provide nothing other than counsel’s assertions in the application in support of the contentions concerning Mr. Theisen’s health.” Order, at p. 1. And as petitioners haven’t shown that MT was served, Judge Jenkins can’t know what MT would say. or even knows about this.

Judge Jenkins has a suggestion.

“Given the allegations concerning MT’s health, the Court might consider granting a procedurally compliant application that provided a better foundation for the necessity and timing for the proposed deposition, as opposed to remote testimony at trial, but the infirmities of the application before the Court warrant its denial.” Order, at p. 1.

Application tossed without prejudice; try again.