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Retired California Chief Justice Malcolm Lucas wasn’t amused last year when attorney Geoffrey Mousseau argued that he had complied with five subpoenas by shipping documents to himself. So Lucas, acting as a referee in a case involving Sears, Roebuck and Co., hit the Glendale, Calif., lawyer with nearly $12,500 in sanctions, then heaped on $9,650 three months later for other reasons. On Aug. 15, Los Angeles’ 2nd District Court of Appeal affirmed, saying Mousseau’s decision to deliver himself documents sought by Sears wasn’t done in good faith. “Not only did the subpoenas call for production at the address of Sears’ lawyers, Mousseau, as a lawyer himself, must have known what was intended,” Justice Laurence Rubin wrote. “Simply put, his contention that he could comply by delivering the documents to himself is preposterous.” Justices Candace Cooper and Paul Boland concurred. The court held that Mousseau, owner of Mousseau & Associates, took advantage of a typographical error that directed him to produce documents not only to Sears’ lawyers, but to the deposition officer — incorrectly identified as Mousseau. By delivering to himself, Mousseau argued, he had complied with the subpoenas. Sears’ lawyers had subpoenaed Mousseau to try to prove that he helped National Union Fire Insurance Co. of Pittsburgh develop a defense to an insurance claim filed by Sears. The department store giant had sued the insurer for bad faith for allegedly refusing to pay for the theft of $20 million by Focus Media Inc., a Studio City, Calif., advertising agency once hired by Sears. According to the ruling, Mousseau had represented some of Focus Media’s principals, non-party witnesses subpoenaed as part of Sears’ discovery efforts. The appeal court ruled that Mousseau had relied on “evasions and false promises” to avoid compliance. The justices also noted that while Sears, after trying diligently to contact Mousseau, had finally filed its discovery motion with Lucas just days before deadline, Mousseau was at fault. “Even if Sears danced too close to the cut-off date,” Rubin wrote, “it was Mousseau who was leading.” The ruling is Sears, Roebuck v. National Union Fire Insurance.

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