Mount Hope Church, et al v. Bash Back!

Filing

FILED OPINION (MARY M. SCHROEDER, RONALD M. GOULD and JED S. RAKOFF) REVERSED., Judge: RMG Authoring. FILED AND ENTERED JUDGMENT. [8413169]

Case: 11-35632

11/26/2012

ID: 8413169

DktEntry: 38-1

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

MOUNT HOPE CHURCH ,
Plaintiff - Appellant,

No. 11-35632

v.

D.C. No.
2:11-cv-00536RAJ

BASH BACK!,
Defendant,
OPINION
and
DKWATT @RISEUP .NET ; RISEUP
NETWORKS, Regarding subpoena
directed to Riseup Networks,
Objectors - Appellees.

Appeal from the United States District Court
for the Western District of Washington
Richard A. Jones, District Judge, Presiding
Argued and Submitted
August 27, 2012–Seattle, Washington
Filed November 26, 2012

Page: 1 of 21

Case: 11-35632

2

11/26/2012

ID: 8413169

DktEntry: 38-1

MOUNT HOPE CHURCH V . BASH BACK!

Before: Mary M. Schroeder and Ronald M. Gould, Circuit
Judges, and Jed. S. Rakoff, Senior District Judge.*
Opinion by Judge Gould

SUMMARY**

Civil Procedure
The panel reversed the district court’s sanction order
granting attorneys’ fees and costs under Federal Rule of Civil
Procedure 45(c)(1).
The order, which followed the quashing of a subpoena
seeking identifying information for seven e-mail account
holders, found that appellant did not take reasonable steps to
avoid imposing an undue burden on appellees, who were nonparties to the underlying case. In reversing the sanctions
order, the panel held 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.

*
The Honorable Jed S. Rakoff, Senior District Judge for the U.S.
District Court for the Southern District of New York, sitting by
designation.

**

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

Page: 2 of 21

Case: 11-35632

11/26/2012

ID: 8413169

DktEntry: 38-1

MOUNT HOPE CHURCH V . BASH BACK!

Page: 3 of 21

3

COUNSEL
Brian W. Raum, Dale Schowengerdt (argued), Holly L.
Carmichael, Alliance Defense Fund, Scottsdale, Arizona, for
Plaintiff-Appellant.
Devin T. Theriot-Orr (argued), Gibbs Houston Pauw, Seattle,
Washington, for Objector-Appellee Riseup Networks.
Larry Hildes (argued), Law Office of Lawrence A. Hildes,
Bellingham, Washington, for Objector-Appellee
[e-mail].

OPINION
GOULD, Circuit Judge:
Mount Hope Church (“Mount Hope” or “the Church”)
appeals a sanction order granting attorneys’ fees and costs to
Appellees Riseup Networks (“Riseup”) and Objector
[e-mail] (“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.

Case: 11-35632

4

11/26/2012

ID: 8413169

DktEntry: 38-1

MOUNT HOPE CHURCH V . BASH BACK!

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

Page: 4 of 21

Case: 11-35632

11/26/2012

ID: 8413169

DktEntry: 38-1

MOUNT HOPE CHURCH V . BASH BACK!

Page: 5 of 21

5

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

1

An organization like Bash Back! of course has free speech rights and
may advance strong views about sexual freedoms or about how society
ought to be organized. See Snyder v. Phelps, __ U.S. __, 131 S. Ct. 1207,
1219 (2011) (“[S]peech cannot be restricted simply because it is upsetting
or arouses contempt.”). But no group is permitted to violate valid laws in
order to “bash” others, trespassing into their lives or harming their
persons. See id. at 1121 (Breyer, J., concurring) (“[S]uppose that A were
physically to assault B, knowing that the assault (being newsworthy)
would provide A with an opportunity to transmit to the public his views
. . . . The constitutionally protected nature of the end would not shield A’s
use of unlawful, unprotected means.”).

Case: 11-35632

11/26/2012

6

ID: 8413169

DktEntry: 38-1

MOUNT HOPE CHURCH V . BASH BACK!

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),
2

In addition to the names of the account holders, Mount Hope sought
the dates on which each account was created, any billing or payment
information (with account information redacted), the IP addresses
associated with each account, and all identifying customer information.
The Church did not seek any e-mail content. Mount Hope also
subpoenaed other online service providers for information about some
remaining e-mail addresses. Those providers complied with the
subpoenas and provided the information to M ount Hope.
3

Language from the e-mails sent between Bash Back! leaders and
various recipients, whose identities the Church sought, show why the
Church could have reasonably believed these individuals participated in
the action or knew who did. W e thought pertinent the following excerpts:
•

“Megabus doesn’t go there, and most of us can’t spend the
time hitching. W e should try to get a list going of how
many cars are going, and if there is room in any.” (e-mail
sent on M onday, October 6, 2008).

•

“[P]lease at least send one or two representatives from your
affinity groups to this convergence.” (e-mail sent on
Tuesday, October 7, 2008).

•

“***Please RSVP with how many you are bringing so that
we can work out housing and food.” (e-mail sent on
Tuesday, October 7, 2008).

•

“This is the most planned out action I have been a part of.”
(e-mail sent on Thursday, November 6, 2008).

Page: 6 of 21

Case: 11-35632

11/26/2012

ID: 8413169

DktEntry: 38-1

MOUNT HOPE CHURCH V . BASH BACK!

Page: 7 of 21

7

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

Case: 11-35632

8

11/26/2012

ID: 8413169

DktEntry: 38-1

MOUNT HOPE CHURCH V . BASH BACK!

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.

4

T he district court applied a hybrid approach of the balancing tests in
SaleHoo Grp., Ltd. v. ABC Co., 722 F. Supp. 2d 1210, 1215–16 (W .D.
W ash. 2012) and 2themart.com Inc., 140 F. Supp. 2d at 1088. Both cases
address discovery of material protected by the First Amendment right of
users to anonymously speak or endorse the speech of others on the
Internet. The cases are distinguishable in that SaleHoo Grp., Ltd. sets
forth the standard for unmasking a defendant, 722 F. Supp. 2d at 1215–17,
whereas 2themart.com, 140 F. Supp. 2d at 1095, sets forth the standard for
unmasking a witness. Because it was unclear whether the Internet users
in this case were defendants or witnesses, or neither, the district court
applied a hybrid approach.

Page: 8 of 21

Case: 11-35632

11/26/2012

ID: 8413169

DktEntry: 38-1

MOUNT HOPE CHURCH V . BASH BACK!

Page: 9 of 21

9

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
5

W e do not decide whether an order arising from a discovery
proceeding outside of the circuit where the underlying action is still
pending is immediately appealable. But we note that several of our sister
circuits have held that such orders are immediately appealable because,
absent interlocutory appeal, there would be no effective review. See StoltNielsen SA v. Celanese AG, 430 F.3d 567, 574 n.5 (2d Cir. 2005) (dealing
with the denial of a motion to compel); see also Haworth, Inc. v. Herman
Miller, Inc., 998 F.2d 975, 977 (Fed. Cir. 1993) (same).

Case: 11-35632

10

11/26/2012

ID: 8413169

DktEntry: 38-1

MOUNT HOPE CHURCH V . BASH BACK!

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).

6
In United States v. Hinkson, we adopted a two-part test for abuse of
discretion in the context of denial of a new trial. 585 F.3d 1247, 1261–62
(9th Cir. 2009) (en banc). That test allows reversal (1) if the trial court
identified the incorrect legal rule or (2) if the trial court’s application of
the correct legal standard was illogical, implausible, or without support in
inferences that may be drawn from facts in the record. Id. W ithout
deciding that Hinkson should be applied in this sanctions context, we note
that an application of that standard supports reversal. Asking, as Hinkson
does, whether the district court accurately identified the correct legal
standard, we hold that it did not. Our decision today explains the meaning
of “undue burden” within Rule 45(c)(1), and applies the district court’s
findings of fact to it. This satisfies both the Hinkson standard, id. at 1262,
and antecedent formulations of abuse of discretion. E.g., Delay v.
Gordon, 475 F.3d 1039, 1043 (9th Cir. 2007) (“The judgment below must
be affirmed unless (1) we have ‘a definite and firm conviction that the
district court committed a clear error of judgment in the conclusion it
reached upon weighing the relevant factors,’ (2) the district court applied
the wrong law, or (3) the district court rested its decision on clearly
erroneous findings of fact.” (citing SEC v. Coldicutt, 258 F.3d 939, 941
(9th Cir. 2001)).

Page: 10 of 21

Case: 11-35632

11/26/2012

ID: 8413169

DktEntry: 38-1

MOUNT HOPE CHURCH V . BASH BACK!

Page: 11 of 21

11

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

7
As of publication, Mattel, 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.

Case: 11-35632

12

11/26/2012

ID: 8413169

DktEntry: 38-1

MOUNT HOPE CHURCH V . BASH BACK!

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

Page: 12 of 21

Case: 11-35632

11/26/2012

ID: 8413169

DktEntry: 38-1

MOUNT HOPE CHURCH V . BASH BACK!

Page: 13 of 21

13

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

8

Some courts have used a similar test to determine whether an undue
burden exists, usually in the context of modifying or quashing a subpoena
under Rule 45(c)(3)’s identical “undue burden” language. Wiwa v. Royal
Dutch Petroleum Co., 392 F.3d 812, 818 (5th Cir. 2004); Precourt v.
Fairbank Reconstruction Corp., 280 F.R.D. 462, 467 (D.S.D. 2011)
(citations omitted). Other courts have analyzed a claimed violation of Rule
45(c)(1) like a claimed violation of Rule 11. Dravo Corp. v. Liberty Mut.
Ins. Co., 160 F.R.D. 123, 128 (D. Neb. 1995); Mann v. Univ. of
Cincinnati, 152 F.R.D. 119, 126 n.2 (S.D. Ohio 1993).

Case: 11-35632

14

11/26/2012

ID: 8413169

DktEntry: 38-1

MOUNT HOPE CHURCH V . BASH BACK!

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

Page: 14 of 21

Case: 11-35632

11/26/2012

ID: 8413169

DktEntry: 38-1

MOUNT HOPE CHURCH V . BASH BACK!

Page: 15 of 21

15

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.,

9
It is easy to see why these advocacy-related concerns resulted in Rule
11’s curtailment. One need only ask, for example, whether M ount 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.

Case: 11-35632

16

11/26/2012

ID: 8413169

DktEntry: 38-1

MOUNT HOPE CHURCH V . BASH BACK!

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.

Page: 16 of 21

Case: 11-35632

11/26/2012

ID: 8413169

DktEntry: 38-1

MOUNT HOPE CHURCH V . BASH BACK!

Page: 17 of 21

17

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

Case: 11-35632

11/26/2012

18

ID: 8413169

DktEntry: 38-1

MOUNT HOPE CHURCH V . BASH BACK!

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,
10

Mount Hope states in its reply brief that it does not believe that bad
faith is necessary for sanctions.

Page: 18 of 21

Case: 11-35632

11/26/2012

ID: 8413169

DktEntry: 38-1

MOUNT HOPE CHURCH V . BASH BACK!

Page: 19 of 21

19

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

Case: 11-35632

20

11/26/2012

ID: 8413169

DktEntry: 38-1

MOUNT HOPE CHURCH V . BASH BACK!

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

Page: 20 of 21

Case: 11-35632

11/26/2012

ID: 8413169

DktEntry: 38-1

MOUNT HOPE CHURCH V . BASH BACK!

Page: 21 of 21

21

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
REVERSED.

11

A fee-shifting provision is distinguishable from a sanction. See
Chambers v. NASCO, Inc., 501 U.S. 32, 52–53 (1991) (distinguishing feeshifting rules from sanctions by stating that fee-shifting rules “embody a
substantive policy, such as a statute which permits a prevailing party in
certain classes of litigation to recover fees,” whereas sanctions are not
outcome dependent). But, even fee-shifting is not necessarily the
automatic consequence of loss. See, e.g., Equal Access to Justice Act,
28 U.S.C.A. § 2412 (West 2012) (permitting fee shifting only where the
government fails to prove that its position was not “substantially
justified”); Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422
(1978) (holding that for a defendant to recoup attorneys fees under
§ 706(k) of Title VII, a court must find that the plaintiff litigated his or her
claim beyond the point where it became “frivolous, unreasonable, or
groundless” or where plaintiff acted in bad faith); but see Civil Rights
Attorney’s Fees Award Act of 1976, 42 U.S.C. § 1988 (2006)
(automatically awarding “reasonable” attorneys’ fees and expert fees to
the prevailing party in some types of civil rights litigation). Fee-shifting
awards frequently use protective mechanisms to guard nonfrivolous
advocacy, just as we do today.
12

Because we reverse the sanction order, we do not address the
propriety of the amount of fees awarded.