November 29, 2019 Practice Points

Going Outside the Rules to Keep Fees on the Table under Rule 45(g)

In addition to the contempt sanctions under Rule 45(g), practitioners should be mindful of the courts’ inherent authority to award attorney fees for willful misconduct.

By Renier P. Pierantoni

As most practitioners know, federal courts impose sanctions for noncompliance sparingly. This general reluctance extends to imposition of sanctions and other relief for noncompliance with a subpoena issued under Fed. R. Civ. P. 45.

Noncompliance under Rule 45 is governed by subpart (g); entitled, “Contempt,” Rule 45(g) provides that the court “may hold in contempt a person who, having been served, fails without adequate excuse to obey the subpoena or an order related to it.” Notably absent from this rule is what form of sanction a court can or should impose for such contempt, including whether the subpoenaing party may recover its attorney fees.

Indeed, even where a motion for sanctions is granted, the district and circuit courts are loath to award the moving party its attorney fees unless either the law under which the motion is brought expressly provides for the recovery of legal fees, or the court deems a noncompliant party’s action so insolent and rooted in bad faith that it is compelled to order attorney fees be paid to the movant under its inherent powers. See generally, Chambers v. NASCO, Inc., 501 U.S. 32, 33 (1991) (quoting Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 259 (1975)) (recognizing the longstanding “American Rule” providing that each party is responsible for its own attorney fees, unless the noncompliant party has “acted in bad faith, vexatiously, wantonly, or for oppressive reasons”). See also, 18 U.S.C.A. § 401 (one of several federal statutes giving courts “power to punish by fine or imprisonment, or both [for] [d]isobedience or resistance to its lawful writ, process, order, rule, decree, or command,” but not providing for the recovery of attorney fees).

But though Rule 45(g) does not expressly allow for the award of attorney fees in the event of contempt, there is nothing in the rule that precludes the subpoenaing party from moving the court to award its legal fees under the court’s inherent powers. (This is not to be confused with Fed. R. Civ. P. 45(d)(1), which allows for cost shifting of attorney fees from a third party responding to a subpoena to the subpoenaing party.) Numerous federal courts across the country have granted such awards based on their inherent powers. See generally, Trs. of the Teamsters Local 456 Pension v. A.G. Constr. Corp., No. 12 CIV. 2994 (ER), 2017 WL 590322, at *2 (S.D.N.Y. Feb. 14, 2017) (citing Sprint Nextel Corp. v. Ace Wholesale, Inc., No. 1:12-CV-2902-JEC, 2014 WL 4308355, at *1–2 (S.D.N.Y. Aug. 26, 2014) (“holding defendant in contempt [under Rule 45(g)] for failure to comply with plaintiffs’ subpoena and awarding plaintiffs’ reasonable attorneys’ fees and costs”); Sell v. Country Life Ins. Co., No. CV-15-00353-PHX-DJH, 2017 WL 5713885, at *5 (D. Ariz. Feb. 27, 2017) (finding the award of attorney fees proper for noncompliance with an ordered deposition where “Rule 45(g) authorizes contempt sanctions not only for non-compliance with a subpoena but also for non-compliance of subpoena-related orders”); Trs. of the Connecticut Pipe Trades Local 777 Health Fund v. Plumbing Creations, LLC, Docket No. 3:15-cv-00822 (MPS), 2019 U.S. Dist. LEXIS 115873 (D. Conn. July 11, 2019) (as to a party-defendant, awarding plaintiff’s motion for contempt under 18 U.S.C.A. § 401 and Rule 45(g) under its inherent powers, sua sponte, due to defendant’s willful conduct).

Rather than assuming that noncompliance with a subpoena is punishable solely by contempt under Rule 45(g), practitioners thus should also consider these holdings (and their progeny) for circumstances in which their clients can recover their reasonable attorney fees, as well.

As such, these holdings (and progeny) might be worth examining for the practitioner seeking to file a Rule 45(g) motion, but who might be hesitant to ask for anything more than a fine, dismissal, or anything else short of attorney fees.

Renier P. Pierantoni is a litigator with Cooper, LLC, in New York, New York.

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