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9th Circuit: Sanctions Under FRCP 45(c)(1) Not Justified Merely Because Party Seeking Discovery Failed to Prevail

In November 2012, the Ninth Circuit reversed a district court’s sanction order granting attorney fees and costs under Fed. R. Civ. P. 45(c)(1), holding that sanctions are inappropriate merely because, during discovery, a party sought a subpoena by advocating position that was insufficient to withstand a motion to quash. Permissible sanctions, the Court reasoned, “Should not… chill or deter the vigorous advocacy on which our civil justice system depends.”

In November 2008, members of Bash Back!, a national anarchist group composed largely of gay, lesbian, transgendered, bisexual, and queer activists, disrupted the Sunday services of a Michigan church (Mount Hope) which promotes anti-gay beliefs. Mount Hope filed federal suit against Bash Back!, seeking to enjoin its members from disrupting the church’s services in the future.

Unaware of the identities of many of the protest participants, Mount Hope obtained a subpoena duces tecum, which it served on Riseup, an online service provider used by the protesters, the church believed, to plan their protest activities.

Riseup successfully moved to quash the subpoena, then moved for attorney’s fees and costs under Fed. R. Civ. P. 45(c)(1), alleging that if had faced an “undue burden” in having to fight the subpoena.

The district court agreed and ordered Mount Hope (which otherwise prevailed in its suit) to pay in excess of $28,000 in sanctions.

On appeal, addressing an issue of first impression, the Ninth Circuit rejected the argument that the “undue burden” provision of Rule 45(c)(1) was triggered merely by the fact that a disputed subpoena is ultimately deemed unwarranted. Such an interpretation, the Court reasoned, would have a tendency to chill the zealous advocacy on the part of lawyers that is the backbone of the adversarial system.

On the facts before it, the Ninth Circuit held that he subpoena issued was narrowly tailored and therefore compliance with its terms was not unduly burdensome. And even though Mount Hope adopted a losing legal position, because its legal arguments were not advanced in bad faith, sanctions were inappropriate. See: Mount Hope Church v. Bash Back!, 705 F.3d 418 (9th Cir. 2012).

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Related legal case

Mount Hope Church v. Bash Back!