AF Holdings, LLC, v. Comcast Cable Communications, LLC

Filing 8

AMENDED MOTION by Plaintiff for order to show cause why COMCAST Cable Services LLC should not be found in contempt of court for failure to comply with subpoenas duces tecum. (Attachments: # 1 Exhibit AF Holdings Subpoena, # 2 Exhibit Pacific Century Subpoena, # 3 Exhibit Sunlust Pictures Subpoena, # 4 Exhibit First Time Videos Subpoena)(Duffy, Paul) (Docket text modified by clerk's office) (vmj, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

AF HOLDINGS, LLC,
CASE NO. 1:12-cv-03516
Plaintiff,
Judge: Hon. Gary Feinerman
v.
Magistrate Judge: Hon. Young B. Kim.
COMCAST CABLE COMMUNICATIONS,
LLC,
Defendant.

PLAINTIFF’S AMENDED MOTION FOR ORDER TO SHOW CAUSE WHY
COMCAST CABLE SERVICES LLC SHOULD NOT BE FOUND IN CONTEMPT OF
COURT FOR FAILURE TO COMPLY WITH SUBPOENAS DUCES TECUM
Plaintiff AF HOLDINGS, LLC, by and through its undersigned counsel, and pursuant to
Federal Rules of Civil Procedure (“Rule”) 45(c), 45(e) and 37(b)(2)(A)(vii), hereby moves this
Court for an order to show cause why Comcast Cable Services LLC (“Comcast”) should not be
held in contempt of Court for failure to timely comply with a subpoena duces tecum issued to it
from this Court.

Plaintiff amends its initial motion to include three other entities --- Pacific

Century International, Ltd.; Sunlust Pictures, LLC; and First Time Videos, LLC (who along with
Plaintiff are referred to as the “Movants”), which undersigned counsel represents and each of
which has consented to join in this Motion ---- with respect to subpoenas duces tecum that each
served on Comcast, and that Comcast has failed to timely object to or comply with.
Comcast should be found to be in civil contempt of this Court for its willful disregard of
four (4) Court-authorized subpoenas duces tecum served upon Comcast (collectively, the
“Subpoenas,” true and correct copies of which are attached at Exhibit “A” through “D” hereto,
respectively, and made a part hereof): a subpoena served on behalf of AF Holdings, LLC on or
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about March 14, 2012; a subpoena served on behalf of Pacific Century International, Ltd. on or
about January 19, 2012; a subpoena served on behalf of Sunlust Pictures, LLC on or about
March 14, 2012; and a subpoena served on behalf of First Time Videos, LLC on or about March
14, 2012.
Under Rule 45, Comcast was required to assert objections within fourteen (14) days of
service for each of the Subpoenas. Fed. R. Civ. P. 45(c)(2)(B). Plaintiff did not object within
fourteen days of service to any of the four Subpoenas, and it did not produce any of the
documents called for in any of the Subpoenas by the respective return dates, which have now
passed. While Comcast served purported objections to one of the Subpoenas on April 24, 2012,
and to the other three Subpoenas on April 26, 2012, each was untimely. To date, Comcast has
produced no documents described in any of the Subpoenas.

Pursuant to Local Rule 37.2,

undersigned counsel communicated with counsel for Comcast through telephone messages, and
an exchange of e-mail communications, between May 2 and 4, 2012, but after good faith
attempts to resolve differences, the parties have been unable to reach an accord.
A subpoena issued out of this Court is a Court order. See Rule 45(a)(3); see also 9 James
Wm. Moore et al., Moore’s Federal Practice ¶ 45.02 (3d ed. 2011) (“A Subpoena is a court
order that requires the person or entity to whom or which it is directed to give testimony or other
evidence concerning the claims or defenses in the action.” (alteration in original)). See, e.g.,
Advisory Committee Notes, 1991 Amendment to Fed. R. Civ. P. 45 (“Two courts of appeals
have touched on the issue and have described lawyer-issued subpoenas as mandates of the
court.” (citing Waste Conversion, Inc. v. Rollins Envtl. Services (NJ), Inc., 893 F.2d 605 (3d Cir.
1990) and Fisher v. Maruben[i] Cotton Corp., 526 F.2d 1338, 1340 (8th Cir. 1975)); Bd. of
Governors of Fed. Reserve Sys. v. Pharaon, 140 F.R.D. 634, 641-42 (S.D.N.Y. 1991). See also

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Jackson v. Brinker, 147 F.R.D. 189, 195-200 (S.D. Ind. 1993) (where state law limited access to
record unless otherwise authorized by “court order,” subpoena obtained by federal court plaintiff
was sufficient as “court order”) (“Although the subpoena is in a sense the command of the
attorney who completes the form, defiance of a subpoena is nevertheless an act in defiance of a
court order . . . .”); Smith v. Pefanis, 652 F. Supp. 2d 1308, 1338-39 (N.D. Ga. 2009) (“A
subpoena issued on behalf of the court should be treated as a court order.” (quoting DeVolk v.
JBC Legal Group, P.C., No. 8:04-CV-1275-T30-EAJ, 2008 WL 1777740, at *1 (M.D. Fla. Apr.
18, 2008)); Calabro v. Stone, 224 F.R.D. 532, 533 (E.D.N.Y. 2004) (“Valid attorney-issued
subpoenas under Rule 45(a)(3) operates as enforceable mandates of the court on whose behalf
they are served.”). Cf. Young v. United States ex rel Vuitton et Fils S.A., 481 U.S. 787, 821
(1987) (Scalia, J., concurring) (“[I]t seems to me likely that all the Court meant by “mandates”
was orders necessary to the conduct of a trial, such as subpoenas.”).
The Subpoenas each set forth an unambiguous command, requiring Comcast to produce
documents on or before the return date stated in each Subpoena. Comcast violated that command by not
timely objecting or producing documents. Comcast’s violation of the Subpoenas was significant, in that it
did not substantially comply with the Court Order. Comcast, by taking no action in connection with the
Subpoena for well more than fourteen (14) days after being served with them, failed to make a reasonable
and diligent effort to comply with the Subpoenas. See U.S. Securities Exchange Commission v. Hyatt,
621 F.3d 687 (7th Cir. 2010).

This “issuing court may hold in contempt a person who, having been served, fails without
adequate excuse to obey the subpoena.” Rule 45(e). The Movants therefore respectfully requests that

this Court enter an order to show cause why Comcast should not be found in contempt of Court
for its failure to comply with the Subpoenas. The Movants further request that the Court order

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Comcast to immediately produce, to the respective Movants, the documents requested the
Movants’ Subpoenas.

Respectfully submitted,
AF HOLDINGS, INC.
DATED: May 15, 2012
By:

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/s/ Paul Duffy
Paul Duffy (Bar No. 6210496)
Prenda Law Inc.
161 N. Clark St., Suite 3200
Chicago, IL 60601
Phone: [phone]
Fax: [phone]
E-mail: [e-mail]
Attorney for Plaintiff