Westmoreland v. CBS, Inc.

• Decision Date: 20 August 1985
• Docket Number: No. 84-5366,84-5366
• Citation: 248 U.S.App.D.C. 255,770 F.2d 1168
• Parties: , 2 Fed.R.Serv.3d 1451 General William C. WESTMORELAND, Ambassador Richard Helms, Appellant, v. CBS, INC., et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1168

770 F.2d 1168

248 U.S.App.D.C. 255, 2 Fed.R.Serv.3d 1451

General William C. WESTMORELAND, Ambassador Richard Helms, Appellant, v. CBS, INC., et al.

No. 84-5366.

United States Court of Appeals District of Columbia Circuit.

Argued Feb. 14, 1985.

Decided Aug. 20, 1985.

Appeal from the United States District Court for the District of Columbia (Misc. No. 84-00067).

John G. Kester, Washington, D.C., for appellant Ambassador Richard Helms.

David Boies, New York City, with whom Stuart W. Gold and William F. Duker, New York City, were on brief, for appellees CBS, Inc., et al.

Before MIKVA and STARR, Circuit Judges, and MacKINNON, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge MacKINNON.

MacKINNON, Senior Circuit Judge:

During the course of discovery arising out of a libel suit brought by retired United States Army General William C. Westmoreland against the Columbia Broadcasting System ("CBS"), appellee CBS obtained a subpoena duces tecum ad testificandum to depose a non-party witness, appellant Richard Helms. The witness appeared but refused to permit appellee to videotape the deposition absent a court order for a videotaping. Instead of moving under Federal Rule of Civil Procedure 30(b)(4) to have the deposition videotaped, appellee petitioned the district court for an order to show cause why the witness should not be held in civil contempt of court. The district court denied the petition, treated it as a motion under Rule 30(b)(4) to have the deposition videotaped by non-stenographic means, and in turn denied that motion. ¹ Westmoreland v. CBS, Inc., 584 F.Supp. 1206 (D.D.C.1984). The district court also denied appellee's motion for costs and Helms' motion for costs and attorneys' fees incurred in attending the deposition, and Helms' motion for costs and attorneys' fees in defending the petition. Id. at 1211 n. 6. The issue raised in this appeal is whether the district court erred in denying an award of costs and attorneys' fees to the non-party witness for appearing at the subpoenaed deposition and for defending against appellee's petition for a contempt order. As to the petition for contempt, we conclude that the district court erred in not imposing sanctions, and reverse.

I. BACKGROUND

The present controversy arose in connection with a libel action brought by retired general William C. Westmoreland against CBS. ² Appellant Richard Helms served as Director of the Central Intelligence Agency from 1966 to 1973 and was not a party to the underlying libel suit. On February 3, 1984, appellee served Helms with a subpoena duces tecum ad testificandum directing him to appear for a deposition at appellee's Washington, D.C. offices on February 22, 1984 regarding the Westmoreland libel suit (Joint Appendix (J.A.) 37). The subpoena was silent as to the means of recording the deposition. On February 15, 1984, Helms' counsel, in reviewing a prior deposition in the Westmoreland litigation, noticed that it had been videotaped. He subsequently learned from Kathleen McGinn, counsel for Westmoreland, that several witnesses in the case had permitted appellee to videotape their depositions. Affidavit of John G. Kester at 3 (J.A. 83). On February 21, 1984, after researching the issue, Helms' counsel had a messenger deliver to appellee's counsel copies of all subpoenaed documents plus a letter stating that Helms would "not consent to [the] videotaping of [his] deposition," if contemplated by appellee (J.A. 42, 82).

On February 22, 1984, Helms and counsel appeared at appellee's offices at the appointed time for the deposition. Upon Helms' arrival, appellee announced for the first time that it intended to videotape the deposition. Helms' counsel restated his client's refusal to consent to be videotaped. Affidavit of Kester at 3 (J.A. 35). Though appellee's counsel stated he thought he had an informal understanding with Westmoreland's counsel agreeing to the videotaping of depositions, appellee's counsel "acknowledged that there was no order of the court and no stipulation in writing" authorizing videotaping. Id. Helms' counsel again pointed out that Helms was present and willing to proceed with the deposition before a stenographer. Id. Appellee's counsel, however, stated he did not wish to open the record and would seek a court order authorizing videotaping. Id.

On February 24, appellee informed Helms' counsel that instead of requesting a videotaping order, it would petition the court to hold Helms in contempt of court (J.A. 35), which it did. Appellee proceeded on the theory that the subpoena was a court order compelling Helms "to testify" (J.A. 15) and that Helms' refusal to be videotaped violated that order. The district court rejected such reasoning. The court noted that appellee had never moved for a Rule 30(b)(4) order, and thus "[t]here is no question that [Helms] is not in contempt of an order of the Court" (J.A. 102) (comments from the bench). The district court further found that "Helms does not object to being deposed; indeed, he has been most cooperative in scheduling his deposition and in producing the documents he was asked for." 584 F.Supp. at 1213. In the interest of judicial economy, the court treated appellee's motion as a request for a Rule 30(b)(4) order, and denied it.

In connection with the aborted deposition, both parties moved the court for costs, and Helms' moved additionally for attorneys' fees. Helms also moved for costs and attorneys' fees in connection with defending appellee's contempt petition. In a footnote, the court denied all motions:

Both CBS and Helms pray for an award of costs incurred with respect to the deposition and the petition, and Helms asks for an award of attorneys' fees under Rule 37, Rule 11, and 28 U.S.C. Sec. 1927. Since both parties were aware in advance of the other's intransigence in the matter, yet went ahead to confrontation without first applying to the Court, and the attorneys' fees and costs would have been incurred had either proceeded by way of a prior application--CBS for a Rule 30(b)(4) order for videotaping (as the petition for a rule to show cause is hereafter treated), or Helms for a Rule 26(c) protective order--giving no cause for sanctions, the prayers for awards of fees and costs are denied.

584 F.Supp. at 1211 n. 6. Helms moved for partial reconsideration. In response, the district court noted that "proceedings in connection with the proposed videotaping of [Helms'] deposition were inevitable and substantially justified." Westmoreland v. CBS, Inc., Nos. 82-0298, 83-0313, 84-0067 (D.D.C. May 15, 1984) (Order) (J.A. 13). On appeal Helms challenges the district court's denial of costs and attorneys' fees incurred in attending the deposition and defending appellee's petition to show cause why Helms should not be held in contempt of court. Helms makes no claim for, nor do we decide, his right to attorneys' fees and costs incurred in resisting the resulting Rule 30(b)(4) videotape motion.

II. DISCUSSION

A. Jurisdiction

We first determine our appellate jurisdiction. Orders relating to discovery matters are generally characterized as interlocutory and thus nonappealable because they are not final orders under 28 U.S.C. Sec. 1291. Review must usually wait until a final judgment is entered in the underlying action. We find, however, that in this case the district court's denial of costs and attorneys' fees fits within the collateral order exception to the finality rule as articulated in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The rationale and application of the collateral order doctrine are well explained in United States v. Columbia Broadcasting System, Inc., 666 F.2d 364, 369-71 (9th Cir.), cert. denied, 457 U.S. 1118, 102 S.Ct. 2929, 73 L.Ed.2d 1329 (1982), and need not be reiterated here. According to Cohen, "the order must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment." Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978). This case meets the requirements of Cohen. First, the district court's denial of attorneys' fees was conclusive on that issue; it was not "tentative, informal or incomplete." Cohen, 337 U.S. at 546, 69 S.Ct. at 1225. Second, Helms' right to attorneys' fees incurred in the defense of appellee's show cause petition is an issue separate from and collateral to the merits of the Westmoreland lawsuit. Third, given that Helms was a non-party in the underlying litigation which was ongoing in a district court in another circuit, there is no way Helms could otherwise have obtained review of his denial of costs and attorneys' fees. See National Life Insurance Co. v. Hartford Accident & Indemnity Co., 615 F.2d 595, 597 & n. 2 (3d Cir.1980) (cases cited). Thus, we find that the present case fits within the Cohen collateral order exception to the finality rule, and accordingly is presently reviewable by this court.

B. Sanctions

Ambassador Helms moved the district court for an award of attorneys' fees pursuant to Federal Rules of Civil Procedure 11 and 37, and 28 U.S.C. Sec. 1927. Helms contends that "if CBS had followed the procedure prescribed by the Federal Rules ... to compel [testimony] under Rule 37(a), ... Helms would be entitled to reimbursement of his costs and attorneys' fees" under Rule 37(a)(4) ³ for successfully defending against appellee's motion. Brief of Appellant at 14. Rule 37(a)(2) provides: "If a deponent fails to answer a question propounded ... under Rule [ ] 30 ... the discovering party may move for an order compelling an answer...." However, appellee did not resort to the process of Rule 37(a), and we decline to apply the remedy provisions of Rule 37(a)(4) based on what appellee did not do. "Rule 37(a)(4) is not a general attorneys' fee awards for...