Mount Hope v. Bash Back!

Mount Hope Church ("Mount Hope” or "the Church”)

appeals a sanction order granting attorneys' fees and costs to

Appellees Riseup Networks ("Riseup”) and Objector

dkwatt@riseup.net ("dkwatt”) under Federal Rule of Civil

Procedure 45(c)(1). The order, which followed the quashing

of a subpoena seeking identifying information for seven email

account holders, found that Mount Hope did not take

reasonable steps to avoid imposing an undue burden on

Appellees, who were non-parties to the underlying case, when

it "shifted its justification for the subpoena multiple times”

and "refus[ed] to engage with the applicable [First

Amendment] legal standards” in a timely manner. Because

there are few published federal court decisions on the

meaning of Rule 45(c)(1)'s "undue burden” language as a

basis for sanctions, and to place the sanction here in a broader

perspective, we write to clarify the scope of that rule.



Holding that Rule 45(c)(1) cannot properly support a sanction

where the cost of complying with the subpoena is minimal

and there is no showing that the subpoena was facially

defective or issued in bad faith, we reverse.



I



This appeal concerns satellite litigation related to an

action filed in the Western District of Michigan.



A



We start with an explanation of the underlying dispute.

In November 2008, a subdivision of the national anarchist

group Bash Back!, which has described itself as largely

composed of gay, lesbian, transgendered, bisexual, and queer

activists, disrupted a Sunday church service at Mount Hope

in Lansing, Michigan. During the protest, which attracted

about thirty participants, one group clad in black clothes and

pink bandanas lined up outside the Church. Another group

snuck into the service. While Church security guards were

occupied with the protesters outside, the protesters inside

initiated action designed to disrupt services in order to

highlight the protesters' cause. Some chanted phrases like,

"It's OK to be gay” and "Jesus was a homo” while flinging

pamphlets, glitter, and condoms into the air. Others unfurled

an eighteen-foot Bash Back! banner from the balcony and

two women ran to the pulpit and kissed. The record is not

entirely illuminating on the explicit motivations of Bash

Back! against Mount Hope Church. However, the Church

promoted anti-gay beliefs, and so Bash Back! was retaliating

by "bashing back” at the Church.1



Thereafter, Mount Hope brought suit in the Western

District of Michigan against Bash Back!, Bash Back!

Lansing, and fourteen known participants under the federal

Freedom of Access to Clinic Entrances Act, 18 U.S.C. § 248

(2006), and common law trespass. Unaware of the identities

of many other protest participants, the Church also named

several "John Doe” defendants. Mount Hope sought an

injunction to prevent Bash Back! and its members from

protesting at churches in the future.



B



We next address the discovery dispute. Mount Hope

contends that, during discovery in the underlying case, it

made several attempts to glean the identities of the missing

defendants. But all defendants apparently refused to name

others present and participating at the protest. To get the

information, Mount Hope obtained a subpoena duces tecum

out of the Western District of Washington on February 22,

2011, seeking the names of seven anonymous e-mail account

holders from Riseup, a Seattle-based online service provider.2

Because planning details for the protest were sent to those email

accounts, the Church believed that the addresses

belonged to missing defendants or, "at the very least, [to

people who] knew who was there.”3 The subpoena's cover

letter cited the anonymous speech decision in Doe v.

2themart.com Inc., 140 F. Supp. 2d 1088 (W.D. Wash. 2001),

and stated that the subpoena was consistent with both that

case and "discovery precedent throughout the Ninth Circuit.”



Upon receiving the subpoena, Riseup notified the listed

e-mail owners and told them that they could hire independent

counsel and file a motion to quash. On March 8, 2011,

Riseup's counsel sent a letter to Mount Hope objecting to the

subpoena as vague, overbroad, unduly burdensome, and

contrary to the First Amendment. Mount Hope responded on

March 15. To answer Riseup's concern that delivering the

subpoenaed information to an address in Scottsdale, Arizona,

would be unduly burdensome, the Church's counsel gave a

Seattle address. The Church also questioned whether Riseup

had standing to raise the First Amendment rights of its users

and sought to discuss the matter by phone. Riseup agreed to

accept a call. The subsequent conversation did not lead to

agreement of the parties, and Mount Hope filed a motion to

compel discovery on March 23, 2011.



One e-mail account holder, dkwatt, as well as Riseup,

opposed the motion to compel. Dkwatt also moved to quash

the subpoena. The district court addressed the two motions

jointly. In an order dated April 21, 2011, the district court

granted the motion to quash and denied the motion to compel

after finding that First Amendment balancing favored

protection.4 Thus Bash Back! prevailed in the discovery

dispute.



C



We come now to the sanction at issue on this appeal.



After entry of the above-mentioned order, dkwatt and Riseup

filed a motion for attorneys' fees and costs under Federal

Rule of Civil Procedure 45(c)(1), alleging that they had

suffered an undue burden in fighting the "baseless” subpoena.

The district court agreed and on July 20, 2011, ordered Mount

Hope to pay a total of $28,181.10 in sanctions, $10,637.10 to

Riseup and $17,544.00 to dkwatt. The district court based its

sanction order on three grounds: (1) that Mount Hope did not

provide any non-speculative reason for the subpoena; (2) that

Mount Hope shifted justification for the subpoena multiple

times over the proceeding; and (3) that Mount Hope

"inexplicabl[y]” failed to analyze the relevant case law in a

timely fashion. The court did not find that the Church acted

in bad faith and noted that the subpoena did not place a

logistical burden on Riseup.



Mount Hope then sought and the court approved a

supersedeas bond for $30,000, resulting in a stayed judgment.

A week before the entry of the sanction order, on July 11,

2011, the Western District of Michigan entered a consent

order in the underlying case. As part of that settlement, all of

the identified defendants in the underlying lawsuit agreed to

a permanent injunction preventing them from disrupting

religious services anywhere in the United States. The

defendants also agreed to pay Mount Hope $2,750 in

damages. The federal district court in Michigan entered

default judgment against the organizational defendants and

closed the case.



II



We have jurisdiction to review the Washington district

court's sanction order under 28 U.S.C. § 1291 because the

decision to award attorneys' fees was final and followed the

final judgment in the underlying lawsuit. See Gates v.

Rowland, 39 F.3d 1439, 1450 (9th Cir. 1994) (a fee award for

costs related to the monitoring of compliance with a final

consent decree is immediately appealable).5 Although an

order imposing sanctions on a party during the course of an

ongoing civil action is not normally an appealable order, Hill

v. MacMillan/McGraw-Hill Sch. Co., 102 F.3d 422, 424 (9th

Cir. 1996), when the sanction order follows the final

resolution on the merits and there is no ongoing adversarial

proceeding, it is immediately appealable.

We review for abuse of discretion a district court's

decision to award monetary sanctions for abuse of the

discovery process. Mattel, Inc. v. Walking Mountain Prods.,

353 F.3d 792, 813 (9th Cir. 2003) (citing Dahl v. City of

Huntington Beach, 84 F.3d 363, 367 (9th Cir. 1996)).6

Factual findings underlying the imposition of sanctions are

reviewed for clear error. Payne v. Exxon Corp., 121 F.3d

503, 507 (9th Cir. 1997). But we review de novo the district

court's interpretation of the Federal Rules of Civil Procedure.

See Swedberg v. Marotzke, 339 F.3d 1139, 1141 (9th Cir.

2003).



As of publication, Mattel, 7 Inc., 353 F.3d at 813–14, is a leading

precedential Ninth Circuit case directly addressing the appropriateness of

Rule 45(c)(1) sanctions. The parties' briefing calls our attention to no

Ninth Circuit case that addresses whether a party can recover sanctions

under Rule 45(c)(1) when the subpoena was narrowly tailored.



III



We consider whether Rule 45(c)(1) allows subpoenaed

parties to recoup expenses incurred while guarding protected

information when the subpoenaing party acted in good faith,

narrowly tailored its discovery request, but potentially

increased litigation costs during motions practice on the

protection issue. Stated another way, we must decide

whether losing a motion to compel here based on

unpersuasive legal arguments, absent other aggravating

factors, is enough to warrant Rule 45(c)(1) sanctions. This

presents an issue of first impression for the Ninth Circuit.7



Federal Rule of Civil Procedure 45(c)(1) provides:

Avoiding Undue Burden or Expense;

Sanctions. A party or attorney responsible for

issuing and serving a subpoena must take

reasonable steps to avoid imposing undue

burden or expense on a person subject to the

subpoena. The issuing court must enforce this

duty and i m p o s e a n a p p r o p r i a t e

sanction—which may include lost earnings

and reasonable attorney's fees—on a party or

attorney who fails to comply.

This rule imposes obligations on both attorneys and courts;

attorneys must obey their duty under the rule, and courts must

enforce it. Fed. R. Civ. P. 45(c)(1). When enforcing, courts

have discretion over the type and degree of sanction imposed.

Id. Payment of opposing counsel's attorneys' fees is one

form of permissible sanction. Id.



The plain language of the provision suggests that

sanctions may be imposed when a subpoenaing attorney

unfairly harms a subpoena recipient by acting carelessly or in

bad faith while issuing and serving a subpoena. Id. The

history of Rule 45 provides guidance on how subsection

(c)(1) should be interpreted. Rule 45 was amended in 1991

to bring the protections for subpoenaed parties under the

single subdivision of Rule 45(c)(1). 9A Charles Alan Wright,

Arthur R. Miller, Mary Kay Kane & Richard L. Marcus,

Federal Practice and Procedure § 2463 (3d ed. 2012). But

the advisory committee notes suggest that the amendment did

not effect a "change in existing law” and was designed to

codify the extant practice, including to give "specific

application” to the principles stated in Rule 26(g). Fed. R.

Civ. P. 45(c) advisory committee's note; see also Wright,

Miller, Kane & Marcus, supra, § 2463.

Federal Rule of Civil Procedure 26(g)(1)(B) requires

parties seeking discovery to act (1) consistently with the rules

of existing law or with good reason to change the law;

(2) without bad faith; and (3) reasonably without imposing

undue burden or expense considering the needs of the case.

Per the terms of Rule 26(g)(3), violation of any one of these

duties without substantial justification results in sanctions.

Fed. R. Civ. P. 26(g)(3). Because Rule 45(c)(1) gives

"specific application” to Rule 26(g), it follows that a violation

of any one of the Rule 26 duties will be relevant to assessing

propriety of sanctions under Rule 45(c)(1)'s "undue burden”

language. This approach is consistent with the interpretation

of other courts.8 See, e.g., Builders Ass'n of Greater Chi. v.

City of Chi., 215 F.R.D. 550, 553–54 (N.D. Ill. 2003).



Appellant Mount Hope urges us to reverse the sanctions

award and hold that it did not violate any of its duties in

issuing the subpoena. Appellees, on the other hand, contend

that Mount Hope violated nearly all of its duties by

subpoenaing arguably protected information and declining to

support its request with case law refuting or evidence

overcoming First Amendment protection. The crux for us

turns on Rule 45(c)(1)'s scope, an inquiry informed by the

traditional role of advocacy in our civil justice system.



The lawyer as advocate plays a key part, along with

judges and scholars, in assisting the sound development of the

law and of legal rules that further justice. Nordyke v. King,

319 F.3d 1185, 1197 n.10 (9th Cir. 2003) (Gould, J.,

concurring) ("The law develops through interdependent

actions of academics advancing theories, advocates

championing them in litigation, and Judges making decisions

that clarify doctrine. The process is ongoing, for after

decisions, academics will critique and offer suggested

improvements, advocates will bring cases arguing what

Judges said as refined by academic feedback, and more

refined decisions result from this process.” (citing Hon. Wade

H. McCree, Jr., The Annual John Randolph Tucker Lecture,

Partners in a Process: The Academy and the Courts,

37 Wash. & Lee L. Rev. 1041 (1981)). Advocacy also helps

triers of fact reach impartial decisions by allowing them to

remain uncommitted while different viewpoints are publicly

explored. Professional Responsibility: Report of the Joint

Conference, 44 A.B.A.J. 1160–61 (1958); see also John T.

Noonan, Jr., The Purposes of Advocacy and the Limits on

Confidentiality, 64 Mich. L. Rev. 1485, 1486–87 (1966).



Through this effect, advocacy promotes justice by preventing

decision-makers from deciding issues too quickly—a risk

inherent in non-adversary systems—and allowing all parties

to be heard. Noonan, supra, at 1487. Given the importance

of advocacy, our adversarial system encourages lawyers to

act with zeal for a client's cause. Model Rules of Prof'l

Conduct R. 1.3 cmt. (2011) ("A lawyer must also act . . . with

zeal in advocacy upon the client's behalf. . . . [but] [t]he

lawyer's duty . . . does not require the use of offensive tactics

or preclude the treating of all persons involved in the legal

process with courtesy and respect.”). But zeal cannot go

unchecked, and many mechanisms, including sanctions, exist

to ensure that advocacy supports instead of erodes justice.



Yet, while these mechanisms serve a vital purpose, their

overuse may chill an attorney's enthusiasm and creativity, in

turn impeding both a tribunal's decision-making process and

the creation of new case law. See, e.g., Greenberg v. Sala,

822 F.2d 882, 887 (9th Cir. 1987) (quoting the Rule 11

advisory committee's note and expressing concern that broad

interpretations of Rule 11 would increase "excess litigation”

and "would blur the roles of attorneys and finders of fact.”);

see also Cooter & Gell v. Hartmarx Corp., 496 U.S. 384,

393, 408 (1990) (holding that Rule 11 does not authorize a

district court to award appellate attorneys' fees due to similar



It is easy to see why these advocacy-re 9 lated concerns resulted in Rule

11's curtailment. One need only ask, for example, whether Mount Hope

would have been able to pursue successfully Rule 11 sanctions if Riseup

had lost its effort to obtain Rule 45(c)(1) sanctions, or can pursue Rule 11

sanctions for Riseup's motion if we reverse. We think not.

concerns). For this reason, sanctions should not result from

normal advocacy.9



With this in mind, we turn to the task of formulating a test

for when Rule 45(c)(1) permits sanctions. Appellees urge us

to look beyond the face of the subpoena and to read the

"undue burden” language in Rule 45(c)(1) as including the

burdens associated with guarding protected information. We

decline, however, to adopt such a reading. Our only Rule

45(c)(1) sanction-specific case interprets "undue burden” as

the burden associated with compliance. See Mattel, Inc.,

353 F.3d at 813–14 (holding that a subpoena requesting "all

documents” relating to certain people, products, and

procedures imposed an undue burden). The Fifth Circuit,

which has addressed the issue, agrees. Tiberi v. CIGNA Ins.

Co., 40 F.3d 110, 112 (5th Cir. 1994) (noting that Rule 45(c)

provides for sanctions against "one issuing a vexatiously

overbroad subpoena” but reversing a sanctions award where

the issuing party engaged in "sufficient good faith efforts to

negotiate reasonable parameters on the subpoena”).



It would not be correct in law to say that there is undue

burden every time a subpoena calls for privileged

information. For privileges can be waived, e.g., Union

Pacific R. Co. v. Mower, 219 F.3d 1069, 1077 (9th Cir. 2000)

("[Plaintiff] fails to recognize that privileges can be

waived.”), and, even when not waived, there is often a

balancing of interests before resolution of a dispute, e.g.,

Perry v. Schwarzenegger, 591 F.3d 1147, 1161 (9th Cir.

2009) (stating that "we balance the burdens imposed on

individuals and associations against the significance of the

. . . interest in disclosure to determine whether the interest in

disclosure outweighs the harm” as part of deciding whether

to deny a party discovery on First Amendment grounds

(internal quotation marks and citations omitted)).



We acknowledge that some courts have indicated a

willingness to read Rule 45(c)(1) more broadly. See, e.g., In

re Shubov, 253 B.R. 540, 544, 547 (B.A.P. 9th Cir. 2000)

(suggesting in a case where bad faith was present that

"literally everything done in response to [an illegitimate

subpoena] constitutes 'undue burden or expense' within the

meaning of Civil Rule 45(c)(1)”). Yet district courts have

routinely rejected this interpretation. See, e.g., Baily Indus.,

Inc. v. CLJP, Inc., 270 F.R.D. 662, 672 (N.D. Fla. 2010)

(denying sanctions in the form of attorneys' fees where a

subpoena was not overly broad); Alberts v. HCA Inc.,

405 B.R. 498, 502–03 (D.D.C. 2009) ("[T]he mere fact . . .

that a disputed subpoena is ultimately deemed unwarranted

does not, standing alone, demand the imposition of

sanctions.”); Scherer v. GE Capital Corp., 185 F.R.D. 351,

352 (D. Kan. 1999) (finding that sanctions were not

appropriate simply for the expense of filing the motion to

quash). Even Huntair, Inc. v. Climatecraft, Inc., 254 F.R.D.

677, 679–80 (N.D. Okla. 2008), a district court case cited by

both parties, supports this interpretation. There, the non-party

who sought to protect proprietary information by modifying

an overly broad subpoena received an award specifically

because the incurred costs were the direct result of a

"needlessly overbroad and burdensome subpoena.” Id. at

680.



The advisory committee's notes to another clause of

Federal Rule of Civil Procedure 45 also support our reading

of "undue burden.” In explaining the same language in

section (c)(3)(A)(iv), the advisory committee stated that "it

might be an undue burden to compel an adversary to attend

trial as a witness if [they] are known to have no personal

knowledge of matters in dispute, especially if [they] would be

required to incur substantial travel burdens.” Fed. R. Civ. P.

45(c)(3)(A)(iv) advisory committee's note. Under this

example, the burdens of complying with the subpoena are the

ones that count. Because the district court found that the

subpoena requesting information about seven e-mail

addresses was "not a logistical burden or the result of a

failure to narrowly tailor requests,” the scope of the subpoena

did not cause an undue burden. This finding is supported by

the record, which indicates that the Church only requested a

limited amount of information that was easily accessible by

Riseup.



Given that the "undue burden” language is limited to

harms inflicted by complying with the subpoena, it follows

that other Rule 26(g) duties, acting consistent with existing

law or with good reason to change it and absent bad faith,

relate to the subpoena process and not to the adjudication of

related follow-on issues, such as whether the subpoenaed

information is potentially protected by a privilege.



Appellees contend that the subpoena did not comply with

existing law because it did not provide any supporting

evidence necessary to overcome First Amendment protection.

District courts have found that parties fail to comply with

existing law when they do not follow the subpoena

procedures in Rule 45, Murphy v. Bd. of Ed., 196 F.R.D. 220,

224–25 (W.D.N.Y. 2000) (enforcing Rule 11 sanctions for

failing to notify opposing counsel of subpoenas), and request

information that is "wholly irrelevant under any reasonable

legal theory,” Builders Ass'n of Greater Chi., 215 F.R.D. at

553–54. But Mount Hope's subpoena was facially valid

under Rule 45. The Church was not required to include

evidence refuting First Amendment protection in its request.



Because Mount Hope and its counsel could reasonably assert

that First Amendment privilege did not invalidate the

subpoena, they could issue discovery process based on that

reading without fear of sanctions. The Church also had

objective reason to subpoena the information and therefore

complied with existing law under 45(c)(1).



Appellees also contend that Mount Hope's position means

that a Rule 45(c)(1) sanction requires a finding of bad faith

before sanctions may be imposed. But Mount Hope has not

so contended.10 Under Rule 26(g), we have held that bad

faith is sufficient to invoke Rule 45(c)(1) sanctions. See

Mattel, 353 F.3d at 814 (holding that sanctions were

appropriate where the subpoena was served for the improper

purpose of "exert[ing] pressure on the witnesses not to

testify”). But we have never stated that bad faith is

necessary, and we do not do so now. More precisely, bad

faith is a sufficient ground for sanction, but it is not a

necessary ground if Rule 45(c)(1) is otherwise violated in

good faith. Several district courts have similarly held that

bad faith is sufficient but not necessary for Rule 45(c)(1)

sanctions. See, e.g., Georgia-Pacific, L.L.C. v. Am. Int'l

Specialty Lines Ins. Co., 278 F.R.D. 187, 191 (S.D. Ohio

2010) (imposing fees under Rule 45(c)(1) absent a finding of

bad faith); Liberty Mut. Ins. Co. v. Diamante, 194 F.R.D. 20,

23 (D. Mass. 2000) (same). We also agree with district court

decisions suggesting that Rule 45 places more emphasis on

the recipient's burden than on the issuer's motives. See

Huntair, Inc., 254 F.R.D. at 679; Builders Ass'n of Greater

Chi., 215 F.R.D. at 553–54.



But because we already held that Mount Hope fulfilled its

Rule 45(c)(1) duties to narrowly tailor the subpoena and issue

it in compliance with existing law, in the circumstances of

this case bad faith would be necessary to uphold the sanction.



The district court did not find bad faith and the record shows

that none existed. Mount Hope did not believe the

subpoenaed information was protected by the First

Amendment and raised legal issues, such as Riseup's

potential lack of standing, in its communications with the

company. There is nothing sanctionable in such advocacy,

even if it turns out that Mount Hope had a losing legal

position.



The subpoena issued in the present action was narrowly

tailored and did not at all pose an undue burden on Riseup.



To the contrary, what Riseup is complaining about is

essentially the advocacy of its opponent, which it says

improperly added to its burdens. But we do not think that the

mere need to respond to an opponent's advocacy in our civil

justice system should be viewed as unduly burdensome when

legal arguments are advanced in good faith. For our legal

system to improve, to respond to current needs and not

stagnate in the face of change and new requirements, lawyers

should not have their advocacy efforts stifled and chilled.



We do not suggest that Rule 45(c)(1) sanctions are

inappropriate where a party subpoenas clearly protected

information in bad faith. We merely hold that bad faith

supporting Rule 45(c)(1) sanctions did not exist here, and that

the demands of the subpoena were focused and not unduly

burdensome in terms of required production of documents.



In the present circumstances, we do not see good grounds for

sanctions.



Appellees finally ask that we read Rule 45(c)(1) more

broadly when those subpoenaed are not parties to the

underlying lawsuit. While we are sensitive to the imposition

of large discovery costs on non-parties and recognize the

special need to protect them, see United States v. Columbia

Broad. Sys., Inc., 666 F.2d 364, 371 (9th Cir. 1982)

("Nonparty witnesses are powerless to control the scope of

litigation and discovery, and should not be forced to subsidize

an unreasonable share of the costs of litigation to which they

are not a party.”), we will not read "undue burden” differently

just because a non-party was subpoenaed.



IV



Faced with sharply adverse parties and unclear law, the

district judge interpreted Rule 45(c)(1)'s vague "undue

burden” language and came to a different result than the one

we reach today. But having considered the language, history,

and purposes of Rule 45(c)(1), and its placement within the

context of our civil justice system, which respects advocacy

of lawyers, we hold that absent undue burden imposed by an

oppressive subpoena, a facially defective subpoena, or bad

faith on the part of the requesting party, Rule 45(c)(1)

sanctions are inappropriate. Sanctions for issuing a subpoena

are in no way supported merely because a party advocated a

position in seeking discovery that lost in the end.11 The scope

of permissible sanctions under Rule 45(c)(1) should not be so

broad as to chill or deter the vigorous advocacy on which our

civil justice system depends. We reverse the sanctions

imposed here, which we think would have the effect of

chilling valuable advocacy.12



* * *



See: http://www.ca9.uscourts.gov/datastore/opinions/2012/11/26/11-35632.pdf