Cost Of Complying With Subpoena By Third Party Was Minimal And Subpoena Was Not Issued In Bad Faith Or Was Not Facially Defective
Federal Rule of Civil Procedure 45(c)(1) allows a district judge issuing a subpoena to award appropriate sanctions, including lost earnings and reasonable attorney’s fees, against a party or attorney responsible for issuing and serving a subpoena that imposes “undue burden or expense” on a person subject to the subpoena.
In Mount Hope Church v. Bash Back!, Case No. 11-35632 (9th Cir. Nov. 26, 2012) (published), the Ninth Circuit reversed a $28,181.10 sanctions order comprised of fees and costs awarded to a third party under Rule 45(c)(1). It found that the “undue burden and expense” language was not satisfied where the costs of complying with the subpoena was minimal, it was not issued in bad faith, and it was not facially defective--engrafting the requirement that a violation of Rule 26(g) discovery principles is necessary in order to avoid chilling advocacy (punishing a litigant or attorney who ultimately lost the battle to sustain a subpoena on the merits, but otherwise demonstrated good faith in pursuing the litigant’s position).
“They’re saved! They’re saved!” Sailor rescuing a woman and her child from the sea . The picture is a companion piece to John C. McRae's print "My child! My child!” circa 1855. Library of Congress.