Anbang Group Holdings Co. Limited v. Zhou

Background

The plaintiffs moved under Federal Rule of Civil Procedure 45(g) for an order requiring non-party Peter Crowley to show cause why he should not be held in civil contempt. The motion concerned a deposition subpoena served on Crowley on November 19, 2023. The subpoena required him to appear for a deposition on December 12, 2023, at the offices of Gibson, Dunn & Crutcher LLP in Palo Alto, California.

The plaintiffs sent Crowley a reminder letter and emails before the deposition. Court reporters and videographers were present, but Crowley did not appear. He later told plaintiffs’ counsel that transportation difficulties had made attendance difficult. Counsel offered to reschedule the deposition and proposed several dates, including dates outside business hours. Crowley said he would respond with possible dates but did not do so. The plaintiffs stated that their later phone calls and text messages went unanswered.

Legal standard

Rule 45(g) permits the court in the district where compliance is required to hold in contempt a person who was served with a subpoena and fails, without an adequate excuse, to obey it or a related court order. The court explained that an order to show cause, rather than a motion to compel, is the appropriate procedural step when a non-party fails to attend a subpoenaed deposition.

To establish civil contempt, the plaintiffs had to prove by clear and convincing evidence that Crowley violated a specific and definite court order. If they met that burden, Crowley would then have to show that he took every reasonable step to comply and explain why compliance was not possible. Civil contempt must include a purge condition, meaning a way for the person to end the contempt by complying.

Ruling

The court found that the plaintiffs had shown that Crowley violated a specific and definite court order by failing to comply with the subpoena. It therefore granted the plaintiffs’ motion for an order to show cause.

The court ordered Crowley to appear for his deposition by February 1, 2024. If he did not do so, he was ordered to show cause why he should not be held in civil contempt. Crowley was required to file a declaration by February 8, 2024, and appear at a February 15, 2024 hearing before the court. If the deposition occurred by February 1, the parties were required to notify the court immediately, and the hearing would be vacated. The court also ordered the plaintiffs to serve the order on Crowley and file proof of service.