Bourgeois v. Bourgeois

135 So. 3d 1, 2013 La.App. 1 Cir. 0038, 2013 WL 5016383, 2013 La. App. LEXIS 1869
CourtLouisiana Court of Appeal
DecidedSeptember 13, 2013
DocketNo. 2013 CA 0038
StatusPublished
Cited by2 cases

This text of 135 So. 3d 1 (Bourgeois v. Bourgeois) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bourgeois v. Bourgeois, 135 So. 3d 1, 2013 La.App. 1 Cir. 0038, 2013 WL 5016383, 2013 La. App. LEXIS 1869 (La. Ct. App. 2013).

Opinion

McClendon, j.

|2In this appeal, we review a judgment that granted a motion to quash a subpoena duces tecum and for sanctions. For the following reasons, we amend, and, as amended, affirm.

FACTUAL AND PROCEDURAL HISTORY

Christopher J. Bourgeois filed a petition for divorce from Dana Benintende Bourgeois on September 25, 2009. The divorce was granted on January 10, 2011, and the parties were awarded joint custody of their three children. In response to a motion to modify child support filed by Mr. Bourgeois, Ms. Bourgeois sought the financial records of Mr. Bourgeois. On April 2, 2012, she filed a request for the issuance of a subpoena duces tecum upon Regions Bank for the banking records of Mr. Bourgeois commencing January 1, 2011. On April 3, 2012, in connection with the subpoena duces tecum request, Ms. Bourgeois filed into the record a notice of records deposition to Regions Bank.1

Also, on April 3, 2012, Ms. Bourgeois filed a motion to compel, asserting that on January 3, 2012, she served upon Mr. Bourgeois Interrogatories and Requests for Production. Ms. Bourgeois contended that Mr. Bourgeois did not respond to the discovery requests until the afternoon of February 28, 2012, and that the discovery responses “were wholly insufficient.” Ms. Bourgeois continued:

[Mr. Bourgeois’] responses included claims that documents had already been produced, which in fact had not been produced, and promises were made to supplement the discovery, which was never done. Additionally, responses to Interrogatories were insufficient, including requests for contact information that would have allowed [Ms. Bourgeois] to conduct further discovery of employers, and financial accounts of [Mr. Bourgeois], which are central issues in [Ms. Bourgeois’] rule for reduction in child support. The discovery insufficiencies were discussed at the February 29, 2012 [hearing on the parties’ objections to the hearing officer’s report], to which [Mr. Bourgeois’] counsel confirmed that no further discovery responses would be provided and [Ms. Bourgeois’] recourse would be a Motion to Compel.

|sMs. Bourgeois further alleged that Mr. Bourgeois had failed to provide any supplemental responses to the interrogatories and requests for production of documents, other than the original responses provided on February 28, 2012.

In response, on April 19, 2012, Mr. Bourgeois filed a Motion to Quash Subpoena Duces Tecum and for Sanctions asserting that Ms. Bourgeois failed to follow the requirements for the production of bank records as set forth in LSA-R.S. 6:333. Mr. Bourgeois also maintained that the motion to compel was ambiguous, failed to address the sufficiency of any of his discovery responses, and was filed without attempting to schedule a 10.1 conference to discuss any discovery concerns.2 Mr. [4]*4Bourgeois stated that at no time between the delivery of the discovery responses on February 28, 2012, and April 12, 2012, when he received the motion to compel and the subpoena duces tecum requests, did his counsel receive a letter or telephone call in relation to the sufficiency of his discovery responses or the scheduling of a 10.1 conference. Mr. Bourgeois asserted that the motion to compel was presented for an improper purpose, such as, to upset the trial date or to needlessly increase the cost of the litigation. He further asserted that the motion was not warranted by existing law, and he sought attorney fees and costs incurred in connection therewith.

The matter came for hearing on June 4, 2012, on Mr. Bourgeois’s Motion to Quash Subpoena Duces Tecum and for Sanctions. Oral argument was presented, and the trial court took the matter under advisement. On July 3, |42012, the trial court issued its written reasons for judgment, granting the motion to quash and motion for sanctions. Ms. Bourgeois’ attorney, Elizabeth S. Robins, was sanctioned in the amount of $1,928.25, representing attorney fees and costs incurred by Mr. Bourgeois in response to the subpoena duces tecum and the motion to compel. Judgment in conformity with the reasons was signed on July 18, 2012, and Ms. Bourgeois appealed.

DISCUSSION

Motion to Quash

In her appeal, Ms. Bourgeois initially asserts that the trial court erred in granting the motion to quash, as there was no procedural error in her request for the subpoena duces tecum to the bank and the bank records requested were highly relevant and not confidential.

The exclusive method for obtaining records from a bank is found in LSA-R.S. 6:383. Dana Johno, LLC v. Centennial Ins. Co., 04-1658 (La.App. 4 Cir. 12/1/04), 891 So.2d 32, 34. Subsection C allows a bank to disclose financial records pursuant to a disclosure demand, but only if the statutory requirements are met prior to such disclosure. Louisiana Revised Statutes 6:333 provides, in pertinent part:

C. A bank may disclose financial records pursuant to a disclosure demand if each of the following conditions are met:
(1) The disclosure demand is served on the bank’s president, one of the bank’s registered agents for service of process, or, if applicable, on the bank’s counsel of record unless such service on such individuals is expressly waived by the bank.
(2) Prior to the return date, the person requesting the issuance of the disclosure demand furnishes the bank with an affidavit certifying both of the following:
(a) That such disclosure demand, or a certified copy thereof, has also been personally served upon each customer named in the disclosure demand to whom the financial records being sought pertain or upon such customer’s counsel of record in accordance with Subsection D of this Section.
[5]*5(b) That such service was made at least fifteen business days prior to the return date.
| s(3) The bank has not received written notice that a customer to whom the financial records pertain has taken legal action to enjoin or otherwise restrain the release of the financial records.
D. Service of a disclosure demand, or certified copy thereof, on any customer shall be made by utilizing any applicable method for service of citation on said customer authorized by the Code of Civil Procedure, including Articles 1281 through 1265. However, any such service may be made by an individual who is not a party and who is at least eighteen years of age, rather than by the sheriff. Service on any customer’s counsel of record shall be made by personal service in the office of such counsel of record on either his secretary, as defined in Code of Civil Procedure Article 1235(C), or any partner or office associate of such counsel of record. Service on a customer or on his counsel of record may be made within or without the state of Louisiana.

In its written reasons, the trial court found no proof that the disclosure demand was personally served upon the customer, Mr. Bourgeois, or his counsel of record, as required by the statute. The court stated that “[m]ailing a copy of the letter requesting the subpoena duces tecum to [Mr. Bourgeois’] counsel of record does not comply with the statute as the statute specifically requires service of the disclosure demand through the Sheriff or a private process server.” Additionally, the trial court found no proof that the disclosure demand was personally served upon either Mr.

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Cite This Page — Counsel Stack

Bluebook (online)
135 So. 3d 1, 2013 La.App. 1 Cir. 0038, 2013 WL 5016383, 2013 La. App. LEXIS 1869, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bourgeois-v-bourgeois-lactapp-2013.