The Court of Appeals for the Ninth Circuit determined the meaning of Rule 45(c)(1)’s “undue burden” language as a basis for sanctions. In Mount Hope Church v. Bash Back!, ___ F.3d ____ (9th Cir. 201 2) 2012 WL 5907498 the district court granted a motion for sanctions against plaintiff following the quashing of a subpoena that the Church had served on a third party. A number of individuals affiliated with the defendant had interrupted church services at plaintiff’s church. The individuals were demonstrating against the churches anti-gay position. The church had served a subpoena on an online service provider seeking the names of seven anonymous email account holders. Emails planning details for the protest had been sent to these email accounts and the church believed that the addresses belonged to people who disrupted the services or at least knew who was there. After the motion to quash was granted the online service provider and one of the email account holders filed a motion for attorneys’ fees and costs under Federal Rule of Civil Procedure 45(c)(1) alleging they had suffered an undue burden in fighting a “baseless” subpoena. The district court agreed and ordered the church to pay a total of $28,181.10 in sanctions. The court based the sanction order on three grounds (1) that the church did not provide any non-speculative reason for the subpoena; (2) that the church shifted justification for the subpoena multiple times over the proceeding; and (3) that the church “inexplicitly” failed to analyze the relevant case law in a timely fashion. There was no finding for bad faith and the subpoena did not place a logistical burden on the online service provider.
In reversing the sanctions the court said:
“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 position in seeking discovery that lost in the end. 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 reserve the sanctions imposed here, which we think would have the effect of chilling valuable advocacy.”