Subpoena-thon: Sanctions for Overbroad Subpoenas

Lawyers tend to be over inclusive when drafting subpoenas.  However, they do have an obligation to draft reasonable subpoenas.

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 court for the district where compliance is required must enforce this duty and impose an appropriate sanction—which may include lost earnings and reasonable attorney’s fees—on a party or attorney who fails to comply.[1]

This rule was expressly addressed in SEC v. Schooler, where the SEC was attempting to collect on a $147,610,280.00 judgment and subpoenaed the judgment debtor’s ex-wife for information about the judgment debtor’s assets.  The subpoena commanded the ex-wife to give a deposition and produce 50 categories of documents.  The ex-wife attempted repeated meet and confers to object and narrow the subpoena’s scope.  The SEC refused to budge, so the ex-wife filed a motion to quash or for protective order.

The court concluded some of the categories were appropriate in pursuit of the judgment debtor’s assets, however many of the others were over broad.  The SEC then later agreed to narrow the majority of the document categories.  The ex-wife then moved for sanctions per Rule 45(d)(1).

Sanctions under Rule 45(d)(1) are discretionary.[2]  The district court has discretion “over the type and degree of sanction imposed,” and “[p]ayment of opposing counsel’s attorneys’ fees is one form of permissible sanction.”[3]  “Merely losing a motion to compel does not expose a party to Rule 45 sanctions.”[4]

Similarly, while failure narrowly to tailor a subpoena may be a ground for sanctions, the district court need not impose sanctions every time it finds a subpoena overbroad; such overbreadth may sometimes result from normal advocacy, which we have said should not give rise to sanctions. A court may, however, impose sanctions when a party issues a subpoena in bad faith, for an improper purpose, or in a manner inconsistent with existing law.[5]

Magistrate Judge Cobb concluded the SEC acted properly in issuing the subpoena, “but the subpoena served on Ms. Schooler was blatantly overbroad and … the SEC made no attempt to narrow the requests. The SEC had the opportunity to narrow its requests … but instead simply insisted the subpoena was not overbroad and demanded that the documents be produced as requested.”  The SEC was properly interested in the ex-wife financial affairs given that she had divorced the debtor in the middle of SEC enforcement proceedings against him, however the subpoena went too far.

The subpoena requested a plethora of documents concerning Ms. Schooler’s ownership interests in real and personal property, assets, trusts, pensions, mechanic’s or other liens, all account statements from all types of accounts held, transfers of property, credit applications, charge card statements, insurance policies and claims, documents pertaining to any court proceeding she was involved in, complete federal and state tax returns, and a multitude of documents related to Mr. Schooler’s business entities.

The SEC admitted its goal “was to look at Ms. Schooler’s household income and any transfers between Mr. Schooler and Ms. Schooler; yet, the requests were not so limited.”  Worse, the court concluded the SEC’s later willingness to compromise as disingenuous.

A party demands the sun, moon and stars in a document request or interrogatory, refusing to give even a little bit. The meet and confer required by a court in advance of a motion is perfunctory at best, with no compromise whatsoever. But when the parties appear before the court, the recalcitrant party possesses newfound flexibility and a willingness to compromise. Think Eddie Haskell singing the Beaver’s praises to June Cleaver, only moments after giving him the business in private.[6]

The SEC was sanctioned $10,661.00.

[1] Rule 45(d)(1).
[2] Legal Voice v. Stormans Inc., 738 F.3d 1178, 1185 (9th Cir. 2013).
[3] Mount Hope Church v. Bash Back!, 705 F.3d 418, 425 (9th Cir. 2012) (citation omitted).
[4] Legal Voice, 738 F.3d at 1185.
[5] Id.
[6] Quoting Bos. Sci. Corp. v. Lee, No. 5:14-mc-80188, 2014 U.S. Dist. LEXIS 107584, 2014 WL 3851157 (N.D. Cal. Aug. 4, 2014).