Case Type:
Case Status:
17-2256 (6th Circuit, Apr 26,2018) Published
Court of Appeals for the Sixth Circuit affirmed bankruptcy court's award of attorney fees and costs (and subsequent finding of civil contempt for failure to pay the award as ordered) related to subpoenas duces tecum served pursuant to Federal Rule of Civil Procedure 45 (Fed. R. Bankr. P. 9016). The bankruptcy court specifically found, after undertaking a case-specific inquiry, that the subpoenas issued to the non-parties were unduly burdensome for reasons that included the undisputedly broad scope of the requests in terms of the number of categories, and the breadth of each category.
Procedural context:
Appeal from the United States District Court for the Western District of Michigan at Grand Rapids.
In the course of litigating the adversary proceeding brought by New Products Corporation (NPC) against the Chapter 7 Trustee and his surety, NPC’s Attorney Mark Demorest served five non-parties with subpoenas duces tecum pursuant to Federal Rule of Civil Procedure 45 (Fed. R. Bankr. P. 9016). The subpoenas included as many as 58 broad categories of documents going back over 9 years. The non-parties sought to narrow the requests but counsel for NPC was not responsive. The non-parties would not produce until a protective order was in place. The non-parties sought to shift the cost of production and review to the NPC. Pursuant to rule 45, the bankruptcy court determined that NPC and its counsel should bear the burden of reasonable attorney fees and costs incurred by the non-parties. In all the bankruptcy court awarded over $165,000 to the non-parties. The payment was not forthcoming, so the non-parties filed a motion for contempt, which the bankruptcy court granted and ordered an additional $4,725. NPC and its counsel appealed to the district court which upheld the award. NPC and its counsel appealed to the Court of Appeals for the Sixth Circuit.
GUY, SUTTON, and COOK, Circuit Judges

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