It's hard to believe it has been almost a year, but last August we wrote about a Mavexar-related witness who refused to travel to Delaware to testify, instead insisting that she would offer testimony only remotely.
The Court fined her $200 per day for contempt of Court. She immediately appealed, arguing that the Court cannot force her to attend as she is outside of the 100-mile subpoena radius permitted under FRCP 45. The Court denied her motion to stay the fine pending appeal.
Yesterday, the Federal Circuit issued an order affirming the contempt sanction (and doing so pretty enthusiastically). The Federal Circuit made clear that the Court's inherent authority absolutely permits it to order a witness to appear, even if that witness is more than 100 miles away:
We hold that the District Court’s order requiring [the witness] to appear at an in-person hearing falls squarely within its inherent powers. Contrary to Appellants’ arguments, the District Court’s order did not conflict with FRCP 45, because that Rule does not limit the geographical range of a court’s ability to sua sponte issue an order to appear.
. . .
Nowhere does FRCP 45 mention the court’s own orders to appear, issued without a request from a party or attorney. Given this silence, the District Court’s sua sponte order compelling [the witness] to appear is not “contrary to any express grant of or limitation on the district court’s power contained in a rule or statute.” Dietz v. Bouldin, 579 U.S. 40, 45–46 (2016). . . . The absence of an express limit on sua sponte court orders in FRCP 45 alone is dispositive.
Backertop Licensing LLC v. Canary Connect, Inc., C.A. No. 2023-2367, at 11-13 (Fed. Cir. July 16, 2024).
The Court didn't have to, but it went on to reject an argument the witness' attorneys never made on appeal: that the Court's contempt order was unreasonable or an abuse of discretion. It found that it was not:
Turning to the District Court’s contempt order, Appellants focus on an alleged conflict between the District Court’s order to appear and FRCP 45. Backertop and [the witness] do not argue that the District Court’s order to appear was otherwise unreasonable or an abuse of discretion. Nor could they. The District Court’s order was a “‘reasonable response to the problems and needs’ confronting the court’s fair administration of justice.” Dietz, 579 U.S. at 45 (quoting Degen v. United States, 517 U.S. 820, 823–24 (1996)).
The District Court’s order to compel [the witness'] attendance was an appropriate means to investigate potential misconduct involving Backertop, a corporate party of which she is the sole representative. . . . [I]t was not an abuse of discretion to compel [her] attendance at the July 20, 2023, hearing and hold her in civil contempt of the court when she did not appear.
Id. at 13-15.
Really, the overall scope of the order here is fairly narrow, but it addresses an issue that has come up from time to time: Can the Court compel a someone to appear in person if they live more than 100 miles away?
I've seen this come up before, including when the Court orders a particular decision maker to appear at mediation, or when a party tries to make one of its own witnesses unavailable for trial. It's good to have clear precedent that the Court has the power to make witnesses appear even if a party wouldn't under FRCP 45.
What Is Going on Here, Anyway?
We'll have to see. By my count, the witness' fine may be up to $44,400. It has been ticking up by $200/day for "each day that the Court is open and [the witness] does not appear" since August 23, 2023. Backertop Licensing LLC v. Canary Connect, Inc., C.A. No. 22-572-CFC, D.I. 57 at 1 (D. Del. Aug. 21, 2023).
(Here is my math for that $44,400 figure: (236 business days - 14 holidays) x $200).
The witness' only objection was that she did not want to appear again in person (which she had previously done). She requested to appear by videoconference, and she she confirmed her agreement to do so again in her later brief accusing the Court of "textbook gender harassment and intimidation" and of influencing her employer to engage in "mansplaining" (a brief that the Court did not find persuasive).
So at this point, assuming she continues not to appear and that the Court takes action to collect, the witness will likely have spent on the order of $50,000 just to avoid a trip to Delaware. Is Delaware really that bad?!
It's easy to imagine that one of the behind-the-scenes entities may be covering the cost of pushing back. But to what end? If the witness is willing to appear by videoconference regardless, do they really have $50k worth of benefit to gain from preventing an in-person examination as opposed to a remote examination? It's hard to say what might be going on here.
What Will Happen Next?
We'll have to see what happens next. Will the Court make efforts to collect on its fine? Will it step up the pressure with a greater sanction (a larger fine, or imprisonment)?
I have not seen a Delaware case where the Court had to actually execute on its own sanction against a party. If the Court ultimately has to take action here, you can bet we'll have a post on how it does so.
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