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Black Jones Day Lawyer Unable to Subpoena Ex-Partner by Email

May 18, 2021, 4:05 PM

A Black female former Jones Day associate suing the firm for allegedly treating her unequally based on her sex and race must serve a subpoena on a former Jones Day partner in person rather than by email, in order to call her as a witness, a federal judge in D.C. ruled.

Katrina Henderson, who also alleges she was subjected to a hostile work environment, sought email service as an exception from federal procedural rules, which generally require in-person service of third-party subpoenas.

She said the former partner, who apparently is retired, told her while still with Jones Day that the firm would “fight back” if she sued it for employment discrimination and would drag her through the mud and ruin her reputation, the U.S. District Court for the District of Columbia said.

Henderson is entitled to ask the former partner why she said what she did about suing Jones Day, Judge Randolph D. Moss said Monday, explaining why he declined May 4 to issue a protective order blocking Henderson’s efforts to subpoena the witness.

But Henderson, who has failed in various attempts to serve the subpoena on the witness at different physical addresses, isn’t entitled to abandon in-person service, the judge said. Allowing her to effect service through the alternate means of email would violate D.C. Circuit precedent, Moss said.

Most courts have long interpreted Rule 45 of the Federal Rules of Civil Procedure to require personal service of subpoenas on third-party witnesses like the ex-partner Henderson seeks to call, he said. The D.C. Circuit “adopted the majority rule, and that conclusion is binding on this court,” Moss said.

Henderson pointed to cases to the contrary, but they represent the minority view, the court said.

It also refused her request that it order Jones Day to try to identify another physical address for the witness that she can use.

The firm “has no obligation to seek out a witness on Henderson’s behalf,” especially since it’s unclear if the witness even has probative testimony to offer, Moss said.

She also failed to show the witness’s testimony is essential to her case, the court said.

Henderson is the last remaining plaintiff in a one-time proposed class sex discrimination case against Jones Day by six female lawyers. The class allegations were dropped Dec. 14, and the five other women later voluntarily dismissed their remaining claims.

Sanford Heisler Sharp LLP represents Henderson. Jones Day represents itself.

The case is Henderson v. Jones Day, 2021 BL 182706, D.D.C., No. 1:19-cv-00945, 5/17/21.

To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Patrick L. Gregory at pgregory@bloomberglaw.com

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