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Keywords

attorneysubpoenadepositionappealmotionwillcivil procedure

attorneysubpoenadepositiondiscoveryappealpleamotionwillcivil procedureappellantappellee

Related Cases

Westmoreland v. CBS, Inc., 770 F.2d 1168, 248 U.S.App.D.C. 255, 2 Fed.R.Serv.3d 1451

Facts

The case arose from a libel suit filed by General William C. Westmoreland against CBS. CBS issued a subpoena for Richard Helms to testify, but Helms refused to allow the deposition to be videotaped without a court order. CBS then petitioned the court to hold Helms in contempt for his refusal. The district court denied the contempt petition and also denied motions for costs and attorney fees from both parties, leading to Helms' appeal.

During the course of discovery arising out of a libel suit brought by retired United States Army General William C. Westmoreland against the Columbia Broadcasting System (“CBS”), appellee CBS obtained a subpoena duces tecum ad testificandum to depose a non-party witness, appellant Richard Helms.

Issue

Whether the district court erred in denying an award of costs and attorneys' fees to the non-party witness for appearing at the subpoenaed deposition and for defending against CBS's petition for a contempt order.

The issue raised in this appeal is whether the district court erred in denying an award of costs and attorneys' fees to the non-party witness for appearing at the subpoenaed deposition and for defending against appellee's petition for a contempt order.

Rule

The court applied Federal Rule of Civil Procedure 11, which mandates sanctions for groundless motions, and Rule 30(b)(4), which requires a court order or written stipulation for non-stenographic recording of depositions.

Rule 11 of the Federal Rules of Civil Procedure provides: Every pleading, motion, and other paper of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated….

Analysis

The court found that CBS's petition to hold Helms in contempt was groundless because CBS failed to follow the proper procedure for videotaping the deposition. The court noted that Helms had complied with the subpoena by appearing and agreeing to a stenographic recording. Since CBS did not obtain a court order for videotaping, Helms's refusal to consent did not constitute contempt. Therefore, the court concluded that Helms was entitled to attorney fees for defending against the contempt petition.

In reviewing the district court's decision, “we ‘must [also] consider whether the [district court's] decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.’”

Conclusion

The court reversed the district court's denial of costs and attorney fees related to the contempt petition and remanded for the determination of the appropriate amount. However, it upheld the denial of fees for attending the aborted deposition.

Because appellee's filing of a petition seeking to hold Helms in contempt of court clearly violated Rule 11, we reverse the decision of the district court.

Who won?

Richard Helms prevailed in part, as the court recognized his entitlement to reasonable attorney fees for defending against the contempt petition due to CBS's groundless actions.

The court noted that appellee had never moved for a Rule 30(b)(4) order, and thus “[t]here is no question that [Helms] is not in contempt of an order of the Court.”

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