The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Plaintiff is a state prisoner, presently housed at Atascadero State Hospital, and proceeding through counsel. By order filed December 19, 2011, the California Department of Corrections and Rehabilitation ("CDCR") was ordered to show cause why a contempt citation should not be issued against the CDCR, and plaintiff's request for evidentiary sanctions against defendants was taken under submission. The CDCR filed a response on January 20, 2012, and counsel for defendants filed a declaration on December 22, 2011. The court addresses these issues seriatim.
I. Order to Show Cause for a Contempt Citation
On December 19, 2011, the undersigned issued an order reciting the history of plaintiff's efforts to obtain discovery pursuant to a subpoena duces tecum served on nonparty CDCR on August 26, 2011. The court will not repeat that history here. Plaintiff asks the court to sanction CDCR for its failure to adequately respond to the subpoena, correctly noting that this court has authority to hold the CDCR in contempt for failing, without adequate excuse, to obey the subpoena. Fed. R. Civ. P. 45(e).
The only authority in the Federal Rules of Civil Procedure for the imposition of sanctions against a nonparty for failure to comply with a subpoena duces tecum is Rule 45[e]*fn1 . [footnote omitted] Fisher v. Marubeni Cotton Corp., 526 F.2d 1338, 1341 (8th Cir. 1975).
Pennwalt Corp. v. Durand-Wayland, Inc., 708 F.2d 492, 494 (9th Cir. 1983).*fn2 Rule 37 of the Federal Rules of Civil Procedure is not applicable. Pennwalt Corp., 708 F.2d at 494. A subpoena shall "command each person to whom it is directed to attend and give testimony or to produce and permit inspection and copying of designated books, documents or tangible things in the possession, custody or control of that person." Fed. R. Civ. P. 45(a)(1)(iii). The issuing court may hold a person in contempt for failing to obey a subpoena. Fed. R. Civ. P. 45(e). "Even though subpoenas are issued by attorneys, they are issued on behalf of the Court and should be treated as orders of the Court." Higginbotham v. KCS Int'l, Inc., 202 F.R.D. 444, 455 (D. Md. 2001) (citing Advisory Committee Notes to Rule 45(a) 1991 amend. ["Although the subpoena is in a sense the command of the attorney who completes the form, defiance of a subpoena is nevertheless an act of defiance of a court order and exposes the defiant witness to contempt sanctions"] ); Halawani v. Wolfenbarger, 2008 WL 5188813, *7 (E.D. Mich. Dec. 10, 2008) (same).)*fn3
A civil contempt sanction is designed to force the contemnors to comply with an order of the court and therefore affect discovery. Cunningham v. Hamilton County, Ohio, 527 U.S. 198, 207 (1999). Civil contempt in this context consists of a party's disobedience to a specific and definite court order by failure to take all reasonable steps within the party's power to comply. Courts have inherent power to enforce their orders through civil contempt. See Spallone v. United States, 493 U.S. 265, 276 (1990), citing Shillitani v. United States, 384 U.S. 364, 370 (1966). Civil contempt is characterized by the court's desire to compel obedience with a court order, or to compensate the contemnor's adversary for the injuries which result from the non-compliance. Falstaff Brewing Corp. v. Miller Brewing Co., 702 F.2d 770, 778 (9th Cir. 1983). A district court has wide latitude in determining whether there has been a contemptuous defiance of one of its orders. Stone v. City of San Francisco, 968 F.2d 850, 856 (9th Cir. 1992).
The responding party is entitled to a hearing on the order to show cause where, unless waived, live testimony must be taken or an opportunity afforded to cross examine the declarants. See Pennwalt Corp., 708 F.2d at 495. However, where the affidavits offered in support of a finding of contempt are uncontroverted, a full evidentiary hearing is not essential to due process and the trial court may treat the facts set forth in the uncontroverted affidavits as true. See Peterson v. Highland Music, 140 F.3d 1313, 1324 (9th Cir. 1998). Without an issue of material fact, the district court is only required to give notice and an opportunity to be heard. See United States v. Ayres, 166 F.3d 991, 996 (9th Cir. 1999).
"The standard for finding a party in civil contempt is well settled: The moving party has the burden of showing by clear and convincing evidence that the contemnors violated a specific and definite order of the court." FTC v. Affordable Media, 179 F.3d 1228, 1239 (9th Cir. 1999). Once the moving party meets this standard, the burden shifts to the contemnor to demonstrate that he or she took every reasonable step to comply, and to articulate reasons why compliance was not possible. See Donovan v. Mazzola, 716 F.2d 1226, 1240 (9th Cir. 1983). To assess whether an alleged contemnor has taken "every reasonable step" to comply with the terms of a court order, the district court can consider (1) a history of noncompliance, and (2) a failure to comply despite the pendency of a contempt motion. See Stone, 968 F.2d at 856-57. A party's subjective intent and willfulness is irrelevant. See McComb v. Jacksonville Paper Co., 336 U.S. 187, 191 (1949); Donovan, 716 F.2d at 1240. Thus, the disobedient party's good faith or intent in attempting to comply does not bar a finding of contempt. Stone, 968 F.2d at 857. If, however, "a defendant's action 'appears to be based on a good faith and reasonable interpretation of (the court's order),' he should not be held in contempt." Vertex Distributing v. Falcon Foam Plastics, 689 F.2d 885, 889 (1982), quoting Rinehart v. Brewer, 483 F. Supp. 165, 171 (S.D. Iowa 1980).
Sanctions for civil contempt are imposed to coerce compliance with a court order, to compensate the party pursuing contempt for injuries resulting from the contemptuous behavior, or both. United States v. United Mine Workers of America, 330 U.S. 258, 303-04 (1947). "Generally, the minimum sanction necessary to obtain compliance is to be imposed." Whittaker Corp. v. Execuair Corp., 953 F.2d 510, 517 (9th Cir. 1992), citing Spallone, 493 U.S. at 280. Where the purpose of the contempt order is to ensure a party's compliance, the court must "consider the character and magnitude of the harm threatened by continued contumacy, and the probable effectiveness of any suggested sanction in bringing about the result desired." Bademyan v. Receivable Management Services Corporation, 2009 WL 605789 (C.D. Cal. March 9, 2009), citing Whittaker Corp., 953 F.2d at 516.
In the CDCR's response, counsel sets forth the efforts of several individuals, including counsel, to search for and produce documents responsive to the subpoena prior to the filing of the instant motion. The CDCR contends that despite the mistakes that were made, none of the actions by CDCR employees or their counsel were made in bad faith. The CDCR argues that all of the individuals involved in responding to the subpoena acted reasonably and in good faith. After the hearing on the instant motion, and during the subsequent search for documents, additional discovery was located and produced. Counsel for the CDCR declares under penalty of perjury that a thorough and diligent search has been made for all confidential and non-confidential documents requested pursuant to the . . . subpoena . . .[and] all confidential and non-confidential documents, still in existence, . . . have now been produced to plaintiff's counsel. This includes any and all physical and electronic documentation in its possession, custody, or control.
(Dkt. No. 157-1 at 2.) Counsel also declares that they "have taken a broadened view of the scope of [the] subpoena," to review other documents which, even though not requested in the subpoena at issue, "might provide potentially relevant information." (Id. at 4.) These documents include "mental health information, some of which was provided with the production of the additional "EOP" documents and which may be provided based upon a review of the mental health records of each inmate currently being undertaken." (Id.) Counsel states he may seek the Court's direction regarding disclosure because "these records are specifically protected from production pursuant to the Federal HIPAA and state CMIA regulations." (Id.)
CDCR senior staff counsel Jason Hurtado provides a declaration explaining the initial delays, and his efforts to comply with the subpoena. (Dkt. No. 157-5 at 1-2.) Hurtado was informed that responsive documents were produced, and stated that if he had "been aware of the existence of potentially responsive confidential information at that time, [he] would have retained [private counsel] for this purpose much sooner." (Id. at 3.)
As set forth in the December 19, 2011 order, this court is very troubled by the delays, as well as the piecemeal production and searches for documents responsive to the subpoena, as well as "inadvertent," erroneous responses.*fn4 However, there is no evidence that the CDCR, a nonparty, willfully disobeyed the subpoena, or that the individuals involved acted, or failed to act, in bad faith, or colluded with defendants' counsel to withhold discovery. Thus, the court declines to find nonparty CDCR in contempt, or to order contempt sanctions. While the CDCR did intentionally withhold documents the CDCR deemed to be confidential, without seeking court intervention, the court previously ordered those documents produced without redaction or in camera review, and no sanctions as ...