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Legal Voice v. Stormans Inc.

United States Court of Appeals, Ninth Circuit

December 31, 2013

LEGAL VOICE, FKA Northwest Women's Law Center, Non-Party-Appellant,
v.
STORMANS INC., DBA Ralph's Thriftway; Rhonda Mesler; Margo Thelen, Plaintiffs-Appellees.

Argued and Submitted Oct. 10, 2013.

Page 1179

[Copyrighted Material Omitted]

Page 1180

Scott A. Smith (argued) and Daniel J. Gunter, Riddell WilliamsP. S., Seattle, WA, for Non-Party-Appellant.

Steven T. O'Ban (argued) and Kristen K. Waggoner, Ellis, Li & McKinstry, PLLC, Seattle, WA, for Plaintiffs-Appellees.

Appeal from the United States District Court for the Western District of Washington, Ronald B. Leighton, District Judge, Presiding. D.C. No. 3:07-cv-05374-RBL.

Before: A. WALLACE TASHIMA, SUSAN P. GRABER, and MARY H. MURGUIA, Circuit Judges.

OPINION

TASHIMA, Circuit Judge:

Legal Voice, f/k/a Northwest Women's Law Center (" Law Center" ), appeals the district court's denial of sanctions and costs under Federal Rule of Civil Procedure 45(d) (" Rule 45(d)" ).[1] We must determine first whether we have jurisdiction over this appeal and, if so, whether the district court abused its discretion in denying the Law Center's requests for costs

Page 1181

and sanctions. As to the first question, we conclude that we have jurisdiction. As to the merits, we affirm the district court's denial of sanctions, but reverse the district court's denial of costs.

I.

This appeal relates to a discovery dispute that arose in this action challenging Washington's rules that require pharmacies to maintain a representative assortment of drugs for which there is patient demand and to dispense prescription drugs and drugs approved by the Food and Drug Administration for " restricted distribution," unless one of several enumerated exceptions applies. The Washington State Board of Pharmacy (" Board" ) promulgated the rules in April 2007 in response to its concern that there was a lack of clear authority regarding the destruction or confiscation of lawful prescriptions. The Board became concerned with this problem in early 2006 when it received reports of incidents across the country in which pharmacists had refused to dispense emergency contraception, including one instance in which a pharmacist ripped up a patient's prescription. The Law Center was among the organizations bringing these reports to the Board's attention. The Law Center was also a member of a task force that participated in the rule-making process. The task force held a series of meetings and developed the draft text of the rules that were ultimately approved by the Board and that are the subject of the underlying action.

Stormans, Inc., doing business as Ralph's Thriftway, Rhonda Mesler, and Margo Thelen (" Plaintiffs" ) filed suit challenging the rules. In this action, Plaintiffs served a subpoena duces tecum on the Law Center seeking production of fourteen categories of documents. Among the requested documents were any communications concerning the challenged regulations between the Law Center and the Board, the Washington State Human Rights Commission, the Governor's Office, and other advocacy groups. The subpoena also sought internal Law Center communications pertaining to the regulations, as well as general information concerning the Law Center's membership and employees. The Law Center objected to the subpoena on various grounds, including that the requested documents were irrelevant, protected by the First Amendment, and protected by the attorney-client privilege. When Plaintiffs filed a motion to compel, the Law Center raised these objections and requested in the alternative that, if it were compelled to produce any documents, Plaintiffs be required to reimburse the costs of compliance pursuant to Rule 45(d)(2)(B)(ii). On ...


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