United States District Court, D. Oregon
OPINION AND ORDER
F. BECKERMAN United States Magistrate Judge.
Cell Film Holdings, LLC (“Plaintiff”) moves,
pursuant to Fed.R.Civ.P. 45(g) (“Rule 45”), for
an order sanctioning non-party Shannon Halvorson
(“Halvorson”) for failing to attend and testify
at a Rule 45 deposition. As discussed below, the Court finds
that Halvorson violated a court order when (s)he failed to
attend and testify at the Rule 45 deposition, and should
therefore be sanctioned. Accordingly, the Court orders
Halvorson to pay to Plaintiff its attorney's fees and
costs resulting from Halvorson's failure to appear.
February 11, 2017, Plaintiff filed a Complaint against a Doe
defendant identified only by an Internet Protocol
(“IP”) address. Plaintiff's investigators
observed the IP address distributing Plaintiff's motion
picture, Cell, via a public BitTorrent network.
Thereafter, Plaintiff issued a subpoena to Internet Service
Provider Comcast, pursuant to Standing Order 2016-8, seeking
the identity of the IP address subscriber. Comcast returned a
subpoena identifying Halvorson as the subscriber.
April 23, 2017, after Halvorson failed to respond to letters
from Plaintiff's counsel, Plaintiff personally served
Halvorson with, among other things, a Rule 45 subpoena,
providing notice of a deposition scheduled for May 23, 2017.
Halvorson did not appear for the deposition or otherwise
respond to the Rule 45 subpoena.
2, 2017, Plaintiff filed a Motion for Order to Show Cause,
asking the Court to find Halvorson in contempt for failing to
appear and testify at the deposition, and to impose
sanctions. On July 13, 2017, the Court ordered Halvorson to
appear for a show cause hearing, and advised Halvorson that
if (s)he did not participate in the hearing, (s)he would be
subject to financial sanctions, including payment of
Plaintiff's attorney's fees and costs, for failing to
appear at the deposition and for failing to participate in
the hearing. On July 28, 2017, a show cause hearing was held,
and Halvorson failed to appear at the hearing, show cause, or
respond in any way.
explained in LHF Prods., Inc. v. Doe, No.
3:16-CV-00716-AC, 2016 WL 6208269 (D. Or. Oct. 21, 2016), a
district court “may hold in contempt a person who,
having been served, fails without adequate excuse to obey the
subpoena or an order related to it.” Id. at *2
(citation omitted). In order to initiate a civil contempt
proceeding, a district court “must issue an order to
show cause as to why a contemnor should not be held in
contempt, as well as a notice of a date for the
hearing.” Id. At the hearing, the moving party
must establish, by clear and convincing evidence, that the
non-party violated a specific and definite court order.
Id. Sanctions, such as attorney's fees and
costs, may be warranted when a non-party fails to comply with
a subpoena. Id.
has established, by clear and convincing evidence, that
Halvorson violated a specific and definite court order.
Plaintiff's Rule 45 subpoena, which was issued pursuant
to Standing Order 2016-8, “constitutes a court order
for which [Halvorson's] failure to comply could result in
a finding of civil contempt.” LHF Prods., 2016
WL 6208269, at *2 (citations omitted). Plaintiff personally
served Halvorson with the Rule 45 subpoena, compelling
Halvorson's appearance at a deposition. By failing to
appear at the deposition, Halvorson violated a court order.
See id. (holding the same). Halvorson also
failed to: (1) respond to Plaintiff's motion to show
cause; (2) comply with the Court's order to appear for a
show cause hearing; (3) respond to court-appointed
counsel's communications; or (4) provide any explanation
for this noncompliance. On the basis of these events, the
Court concludes that sanctions are warranted here.
like Halvorson may disagree with copyright law as applied to
BitTorrent use, and may view this type of litigation as
unsavory, unfair, or an abuse of judicial process.
Nevertheless, the law is the law, and a court order is a
court order. If a non-party receives a Rule 45 subpoena, that
non-party must appear for the scheduled deposition,
or contact Plaintiff's counsel to reschedule the
deposition. Failure to appear for the deposition is a
violation of a court order, and will be sanctioned by this
non-party appears for deposition and is not the infringing
party, the non-party's involvement in the case is likely
over. If the non-party appears for the deposition and accepts
responsibility for the alleged infringement, this Court's
statutory damage award will, in almost all cases, be less
than the sanction for not appearing at the deposition in the
first place. This Court gave Halvorson every opportunity to
participate in this litigation while protecting
Halvorson's rights, and Halvorson chose to ignore the
Court. The functioning of our justice system requires respect
for, and ...