Opinion
Civil Action No: 00-2196 Section: "K"(1)
October 1, 2001
HEARING ON MOTION
APPEARANCES: Submitted on briefs
MOTION: MOTION FOR CONTEMPT OF DEPOSITION SUBPOENA and MOTION TO COMPEL A NON-PARTY DEPONENT
GRANTED IN PART AND DENIED IN PART
Before the undersigned is the motion of the defendant, Environmental Monitoring Service, Inc. ("EMS"), to compel compliance with its deposition subpoena to anon-party, Inez Causey ("Ms. Causey"). Rec. doc 22. EMS sought to serve the motion on Ms. Causey at 7232 Bunkerhill Road, New Orleans, LA 70127 via certified mail return receipt requested. The return receipt shows there were three attempts at delivery, but Ms. Causey did not retrieve the motion. Rec. doc. 33.
EMS caused a subpoena to be served on Ms. Causey requiring her appearance at a deposition on July 25, 2001. Exhibit A to Rec. doe. 22. The subpoena was served on Ms. Causey at the Bunker Hill Road address along with a witness and mileage fee of $50.00. Exhibits A and B to Rec. doc. 22. On July 25, 2001, counsel for EMS, who had traveled to New Orleans from Shreveport for the deposition, appeared for the deposition with a court reporter. Ms. Causey failed to appear. Exhibit C to Rec. doc. 22.
EMS seeks an order compelling Ms. Causey to attend and give testimony at a deposition. A motion to compel is not available for an alleged failure to comply with a subpoena duces tecum served upon a non-party under Fed.R.Civ.P. 45. A motion to compel is available when a party fails to make disclosure or cooperate in discovery. Fed.R.Civ.P. 37.
EMS also requests that Ms. Causey be held in contempt, and the Court will treat this motion as having been filed pursuant to Fed.R.Civ.P. 45. Rule 45(e) provides that the failure of a person without adequate excuse to obey a subpoena served upon him "may be deemed a contempt of the court from which the subpoena was issued." Fed.R.Civ.P. 45(e). A contempt order is not available where the person subpoenaed timely objects to the subpoena. Broussard v. Lemons, 186 F.R.D. 396, 397 (W.D.La. 1999). Ms. Causey made no response whatsoever to the subpoena, so a contempt order is available.
In Natural Gas Pipeline Co. of America v. Energy Gathering. Inc., 2 F.3d 1397, 1411, (5th Cir. 1993), the Fifth Circuit said it was "unclear whether the inherent power to sanction discovery abuses extends to abuses committed by non-parties. . . ." It found no cases sanctioning non-parties for abusing the discovery process, but recognized that inPennwalt Corp. v. Durand-Wayland, Inc., 708 F.2d 492, 36 Fed.R.Serv.2d 1438 (9th Cir. 1983), the court seemed to accept that attorney's fees could be assessed against a non-party.
Where a non-party has been properly served with a subpoena for a deposition, the non-party is required to either object to the subpoena or attend. If the non-party does neither, the non-party may be held in contempt. EMS incurred attorney's fees for its counsel to appear in New Orleans and to prepare this motion for contempt. There were expenses incurred to serve Ms. Causey, to travel to New Orleans for the deposition, and for the court reporter. The administration of civil cases depends on compliance by all persons, including non-parties with the orders of the court, including subpoenas. Ms. Causey may one day be a party to litigation and require the attendance of witnesses to prosecute or defend her own claims.
Ms. Causey will be required to pay the reasonable fees and expenses incurred by EMS in connection with the attempt to depose her on July 25, 2001, and in presenting this motion. In making the application for attorneys' fees, EMS shall pro-rate travel time over any other work that counsel for EMS was required to do in New Orleans on July 25, 2001.
It is ORDERED that EMS' motion for contempt of deposition subpoena and motion to compel a non-party deponent is GRANTED in PART and DENIED in PART as follows:
1. Within ten (10) working days of the entry of this minute entry, EMS shall submit to the undersigned, an application for reasonable fees and expenses in accord with this minute entry;
2. This order is issued without prejudice to the right of Ms. Causey to seek relief from the order upon a showing of good cause for her failure to appear on July 25, 2001, and a showing that she has contacted counsel for EMS to arrange for and actually appeared for her deposition at a date and time acceptable to EMS; and
3. The clerk shall serve a copy of this minute entry both by regular mail and by certified mail return receipt requested on Ms. Causey at 7232 Bunker Hill Road, New Orleans, Louisiana 70127.