Summary
The United States Court of Appeals for the District of Columbia Circuit reviewed whether a nonparty witness was entitled to costs and attorney's fees after refusing to allow a deposition to be videotaped absent a written stipulation or court order. The court held that the subpoena required only a stenographically recorded deposition and that CBS's contempt petition lacked a reasonable basis under Federal Rule of Civil Procedure 11. It reversed the denial of sanctions related to defending the contempt petition but did not extend Rule 30(g) fee recovery to the nonparty witness for attending the deposition.
Topics
Practice areas
Questions Presented
- Whether the court of appeals had jurisdiction under the collateral-order exception to review the district court's denial of costs and attorneys' fees to a nonparty witness.
- Whether CBS's petition seeking to hold Helms in contempt for refusing videotaping violated Federal Rule of Civil Procedure 11.
- Whether Helms was entitled to costs and attorneys' fees for attending the subpoenaed deposition under Federal Rule of Civil Procedure 30(g) or other authority.
- What sanctions and fee-related relief were appropriate on remand.
Holdings
- The denial of attorneys' fees incurred in defending the contempt petition was immediately reviewable under the collateral-order exception because it conclusively resolved an issue separate from the merits and was effectively unreviewable after final judgment in the underlying action.
- CBS's petition seeking to hold Helms in contempt for refusing to be videotaped violated Rule 11 because it had no reasonable basis in fact or law. Where sanctionable circumstances exist under the amended Rule 11, the district court must impose some sanction, although it retains discretion to select the type and amount.
- Helms was not entitled to costs and attorneys' fees for attending the deposition under Rule 30(g), because that rule expressly provides relief to parties and Helms was a nonparty. The district court also did not abuse its discretion in denying relief under other authorities.
- On remand, the district court was required to impose at least reasonable attorneys' fees, costs, and expenses directly attributable to defending the contempt petition, including reasonable fees incurred in prosecuting the successful appeal. The sanction could be imposed against CBS, its counsel, or both, but required specific findings.
Key quotations
“The rule clearly contemplates only two methods for non-stenographic recording of a deposition: the parties must either stipulate in writing to some other method, i.e., electronic recording, videotaping, etc., or the party seeking discovery must move the court to order some other method.” (770 F.2d at 1174)
“Thus, absent a written stipulation, a Rule 45(d) subpoena which is silent as to how the deposition will be recorded entitles the party seeking discovery only to a stenographically-recorded deposition.” (770 F.2d at 1174)
“However, once the court finds that these factors exist, Rule 11 requires that sanctions of some sort be imposed. A refusal to invoke Rule 11 constitutes error.” (770 F.2d at 1176)
“We therefore find that the district court's denial of costs and attorneys' fees in connection with appellee's petition was not properly grounded on the relevant factors, and that their denial by the court under Rule 11 constituted error.” (770 F.2d at 1177)
“The judgment regarding the petition is reversed and the case is remanded to the district court for an assessment of costs, expenses, and reasonable attorneys' fees incurred in the district court and on this appeal in defending against appellee's petition for contempt, in addition to any other sanction the district court may find appropriate, against appellee, its counsel, or both, supported by specific findings.” (770 F.2d at 1179)
Factual background
CBS subpoenaed nonparty witness Richard Helms to appear for a deposition concerning General Westmoreland's libel action against CBS. The subpoena was silent about the method of recording, and Helms appeared willing to proceed with a stenographic deposition but refused to consent to videotaping. CBS did not move under Federal Rule of Civil Procedure 30(b)(4) for an order authorizing nonstenographic recording; instead, it sought to hold Helms in contempt based on the subpoena. The district court rejected the contempt theory, treated the request as a Rule 30(b)(4) motion, denied videotaping, and denied Helms's requests for costs and attorneys' fees.
Procedural history
During discovery in General Westmoreland's libel action against CBS, CBS subpoenaed Helms for a deposition but announced at the deposition that it intended to videotape him. Helms agreed to proceed stenographically but refused videotaping absent a written stipulation or court order. CBS filed a contempt petition rather than a Rule 30(b)(4) motion. The district court treated the petition as a Rule 30(b)(4) motion, denied videotaping, and denied both sides' requests for costs and fees. The court of appeals reversed the denial of fees and costs related to defending the contempt petition, affirmed the denial of relief related to Helms's attendance at the deposition, and remanded for sanctions and fee assessment.
Remand instructions
Remand for imposition of at least reasonable attorneys' fees, costs, and expenses incurred in the district court and on appeal in defending against CBS's contempt petition, plus any other sanction the district court finds appropriate. The district court must make specific findings identifying whether the sanction should be imposed against CBS, its counsel, or both. The award must exclude fees and expenses incurred litigating whether the deposition could be recorded by nonstenographic means. The denial of relief relating to Helms's attendance at the deposition was affirmed.