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Walker v. Center for Food Safety

November 5, 2009


The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge


The Center for Food Safety ("CFS") abhors the application of sewage sludge onto land, believing that it is harmful to animal health and the environment. It, and its Executive Director Andrew C. Kimbrell, have offered support and information to a group of plaintiffs in a qui tam lawsuit*fn1 in Georgia ("Georgia Plaintiffs") that challenges the accuracy of a report on the subject done for the Environmental Protection Agency and alleges that the authors violated the False Claims Act, 31 U.S.C. § 3729 et seq.. See CFS Mem. in Opp'n to Pet'rs Mot. for Contempt ("CFS Mem.") [Dkt. # 6] at 3-4. When the defendants in the Georgia suit became Petitioners here and attempted to subpoena documents from CFS, it refused to comply. This litigation to enforce the subpoena ensued, and the Court ordered CFS to produce the documents requested under the subpoena. Before the Court now are a motion for contempt from Petitioners and a motion for reconsideration from CFS.


CFS is located in Washington, D.C. It is not a party to the Georgia lawsuit, although it apparently agrees with its goals and has provided various forms of support to it. On April 29, 2009, Petitioners' counsel caused this Court to issue a subpoena to produce documents that was served on CFS via personal service by Capital Process Services, Inc., on April 30, 2009.*fn2 Executive Director Kimbrell responded in writing to the subpoena on May 8, 2009, but did not produce any documents, asserting that the requested items were all protected by the attorney-client or attorney work product privileges. Nor did he produce a privilege log. On May 14, 2009, Petitioners' counsel sent a letter to CFS disputing the claims of privileges and requesting further information. CFS did not respond. Petitioners' counsel sent a second letter to CFS on May 29, 2009, threatening to file a motion to compel if CFS did not respond. CFS did not respond. See Pet'rs Mot. for Contempt ("Pets. Mot.") [Dkt. # 5] at 2-3.

Petitioners filed their motion to compel in this Court on June 5, 2009. See Dkt. # 1. The motion to compel was served on CFS on June 24, 2009. CFS filed no opposition or any response of any kind. Petitioners then filed, on July 14, 2009, a Motion for Entry of Order Compelling Production of Documents, which the Court entered on the same day, compelling CFS "to produce all documents in its possession, custody or control requested by the subpoena . . . issued by this Court and served on the Center for Food Safety on April 29, 2009, within five (5) days of the Court's Order." July 14, 2009 Order Granting Motion to Compel [Dkt. # 4].

Despite the Court's Order, Mr. Kimbrell wrote to Petitioners' counsel on July 20, 2009, refusing to produce any documents and providing an admittedly insufficient privilege log. See Pet'rs Mot. at 4; CFS Mot. at 10. Petitioners' counsel replied on July 27, 2009, informing Mr. Kimbrell that CFS was in violation of the Court Order and should produce the documents by July 30, 2009, or Petitioners would seek to have CFS held in contempt. At that point, CFS retained counsel, who indicated that a response to the July 27 letter could not be prepared by July 30. On July 31, 2009, CFS wrote to Petitioners' counsel and again refused to produce the documents because of the claimed privileges. See Pet'rs Mot. at 4-5.

Petitioners filed a motion for contempt on August 4, 2009. See Dkt. # 5. On August 18, 2009, CFS filed an opposition to the motion for contempt and a motion for reconsideration of the Court's Order compelling CFS to respond to the subpoena, see Dkt. # 6, to which Petitioners have responded. For the reasons set forth below, the Court will grant Petitioners' motion for contempt and deny CFS's motion for reconsideration.


Federal Rule of Civil Procedure 45(e) states: "The issuing court may hold in contempt a person who, having been served, fails without adequate excuse to obey the subpoena." Fed. R. Civ. P. 45(e). Furthermore, "'[t]he power to punish for contempts is inherent in all courts; its existence is essential to . . . the enforcement of the judgments, orders, and writs of the courts, and consequently to the due administration of justice.'" Broderick v. Donaldson, 437 F.3d 1226, 1234 (D.C. Cir. 2006) (quoting Ex parte Robinson, 86 U.S. (19 Wall.) 505, 510 (1874)). As another court in this district has recognized, [f]ederal court orders are to be obeyed unless and until litigants succeed in having them duly overturned by the appropriate court of appeals. Litigants may not defy court orders because their commands are not to the litigants' liking. If the rule of law is to be upheld, it is essential that the judiciary takes firm action to vindicate its authority and to compel compliance with lawfully issued directives.

Am. Rivers v. Army Corps of Eng'rs, 274 F. Supp. 2d 62, 70 (D.D.C. 2003).

Courts employ civil contempt sanctions "'for either or both of two purposes: to coerce the defendant into compliance with the court's order, and to compensate the complainant for losses sustained.'" Sheet Metal Workers v. EEOC, 478 U.S. 421, 443 (1986) (quoting United States v. United Mine Workers of Am., 330 U.S. 258, 303-04 (1947)). "Unlike discovery sanctions, civil contempt sanctions may not be punitive -- they must be calibrated to coerce compliance or compensate a complainant for losses sustained." In re Fannie Mae Secs. Litig., 552 F.3d 814, 823 (D.C. Cir. 2009).

A civil contempt proceeding typically involves three distinct steps:

(1) issuance of an order; (2) following disobedience of that order, issuance of a conditional order finding the recalcitrant party in contempt and threatening to impose a specified penalty unless the recalcitrant party purges itself of contempt by complying with prescribed purgation conditions; and (3) exaction of the threatened penalty if the purgation conditions are not fulfilled.

NLRB v. Blevins Popcorn Co., 659 F.2d 1173, 1184 (D.C. Cir. 1981). Because of their conditional nature, civil contempt sanctions may be imposed in an ordinary civil proceeding upon notice and an opportunity to be heard and do not require a jury trial or proof beyond a reasonable ...

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