In Re: Ex parte Application of Tracey Amon

Background

Tracey Amon applied under 28 U.S.C. § 1782 for discovery from American Express Company to assist a proceeding in another country. On January 26, 2023, the court authorized Amon to serve American Express with a subpoena. Amon served the subpoena on February 10, 2023.

In March 2024, Amon asked the court to compel American Express to produce documents responsive to the subpoena. The court entered orders requiring American Express to respond, but American Express did not comply by the required deadlines. Amon then asked the court to require American Express to explain its failure. On April 9, 2024, the court ordered American Express to show cause—that is, to explain in writing why it should not be sanctioned—for failing to follow the earlier orders.

American Express later appeared through counsel and, after receiving extensions, responded to the show-cause order with three declarations. Amon’s counsel did not file a response by the deadline set by the court.

Legal standard

The court explained that sanctions against a nonparty for failing to comply with a subpoena or an order related to a subpoena arise under Federal Rule of Civil Procedure 45. Rule 45(g) allows the court to hold a served person in contempt if that person fails, without an adequate excuse, to obey the subpoena or a related order.

Because this was a civil, non-consent matter, Magistrate Judge Aaron’s role regarding contempt was to determine whether the evidence established an initial case for contempt and, if appropriate, certify the facts to a district judge. Civil contempt generally requires a clear and unambiguous order, clear and convincing proof of noncompliance, and a failure to make a diligent and reasonable effort to comply.

Analysis

The court declined to impose sanctions for two independent reasons. First, it found that American Express had provided adequate excuses for not complying with the earlier orders. According to a declaration from Stacia McCray, a manager and litigation counsel in American Express’s subpoena-response unit, American Express had told Amon’s counsel in February 2023 that the relevant documents concerned accounts issued by Swisscard AECS GmbH in Switzerland. American Express then closed its file after determining that it had no responsive documents.

McCray also stated that she did not notice the court’s March 18, 2024 response deadline because the order appeared at the bottom of page five of an endorsement. The court found that explanation adequate. The court further found an adequate excuse for the failure to meet the March 28 order’s deadline because McCray understood that the dispute had been resolved while the parties were communicating. That understanding was based on American Express’s position that it did not possess Swisscard’s documents, its effort to connect Amon’s counsel with Swisscard’s in-house counsel, and its production of Amon’s own United States account documents.

Second, the court found that the facts did not support contempt sanctions. It concluded that McCray, on behalf of American Express, had made a diligent and reasonable effort to comply with the subpoena and the earlier orders. Magistrate Judge Aaron therefore declined to certify American Express’s conduct to District Judge Koeltl for a contempt determination.

Disposition and next step

The court declined to impose sanctions on American Express. It did not resolve whether Amon’s motion to compel was moot or decide whether American Express could legally be required to produce documents held by Swisscard. Instead, the court ordered Amon to file a letter by May 29, 2024, stating whether the motion to compel was moot based on American Express’s communications and representations. If Amon believed it was not moot, she had to identify the legal basis for compelling American Express to produce documents from Swisscard.