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Bruce v. Potomac Electric Power Co.

Court of Appeals of Columbia District

June 29, 2017

Jeanette M. Bruce, Appellant,
v.
Potomac Electric Power Company, Appellee.

          Argued October 26, 2016

         Appeal from the Superior Court of the District of Columbia (CAB9586-12) (Hon. Michael L. Rankin, Trial Judge)

          John R. Ates, with whom Patricia A. Smith and Allison C. Pienta were on the brief, for appellant.

          Martin H. Freeman, with whom Mark A. Freeman was on the brief, for appellee.

          Before Blackburne-Rigsby, Chief Judge [*] Glickman, Associate Judge, and Pryor, Senior Judge.

          BLACKBURNE-RIGSBY, CHIEF JUDGE.

         In this appeal, appellant Jeanette M. Bruce challenges the trial court's enforcement of a subpoena against her and challenges the trial court's award of attorney's fees to appellee Potomac Electric Power Company ("Pepco"). She also challenges the trial court's decision declining to impose sanctions on Pepco. Because Mrs. Bruce ultimately complied with the subpoena, we conclude that her appeal of the trial court's order enforcing the subpoena is moot and should be dismissed. Settlemire v. District of Columbia Office of Emp. Appeals, 898 A.2d 902, 904-05 (D.C. 2006) ("[W]hen the issues presented are no longer 'live' or the parties lack 'a legally cognizable interest in the outcome,' a case is moot."). Regarding her remaining claims, we hold that the trial court did not abuse its discretion in declining to sanction Pepco because Pepco's subpoena was not improper, oppressive, or issued in bad faith. However, we conclude that the trial court abused its discretion by awarding Pepco attorney's fees, absent a finding from the trial court that Mrs. Bruce acted in bad faith. Accordingly, we vacate the trial court's order awarding attorney's fees and costs to Pepco, and affirm its decision declining to impose sanctions on Pepco.

         I. Factual and Procedural Background

         On June 29, 2012, during a "derecho" thunderstorm,[1] a tree fell onto a Pepco-operated power line in front of the residence of Shiva and Mohammed Ghafoorian, setting fire to Mr. Ghafoorian's car. While attempting to extinguish the fire, Mr. Ghafoorian sustained serious injuries and later died. Mrs. Ghafoorian - who also sustained serious injuries, but survived the incident - filed suit against Pepco, claiming the downed power line electrocuted Mr. Ghafoorian, and that Pepco was negligent in failing to install interrupters to shut off the flow of electricity to the downed power line. In defense, Pepco argued that Mr. Ghafoorian could not have been killed by the downed power line because it was de-energized at the time of the incident. Pepco's theory of the case was that Mr. Ghafoorian died from burns sustained while fighting the fire.

         Mrs. Bruce, one of the Ghafoorians' neighbors, took a photograph of the fire with her cell phone at 11:05 p.m. on the night of the storm. She voluntarily emailed a copy of the photograph to Pepco's counsel during discovery on November 5, 2013. Shortly thereafter, Pepco deposed Mrs. Bruce and learned that she observed Mr. Ghafoorian using a fire extinguisher at the time she took the photograph. Although the photograph that was sent to Pepco was dark and unclear, it possibly contained a figure to the left of Mr. Ghafoorian's car. Because Pepco had independent evidence that the power line was deactivated by 10:55 p.m. on the night of the storm, the photograph and Mrs. Bruce's testimony that Mr. Ghafoorian was alive and fighting the fire at 11:05 p.m. appeared to corroborate Pepco's defense that Mr. Ghafoorian was not electrocuted.

         One month later, Mrs. Bruce amended her deposition answers pertaining to when she saw Mr. Ghafoorian and when she took the photograph.[2] Concerned that the amended answers might affect their theory of the case, Pepco served Mrs. Bruce with a subpoena duces tecum requesting that she appear for a second deposition and produce her cell phone. It stated:

Mrs. Bruce is to produce her cell phone along with her sim card, the actual (unaltered) jpeg file containing the photograph of the car fire as described in your deposition taken on November 15, 2013 (attached hereto as Exhibit "A"), and the cell phone number, account number, account name and service provider of the phone used to take the photograph as described in your deposition taken on November 15, 2013 of the car fire described in your deposition taken on November 15, 2013.

         In response to the subpoena, Mrs. Bruce filed a motion to quash or modify the subpoena, and requested Pepco be sanctioned for "failing to take reasonable steps to avoid imposing an undue burden or expense on her" pursuant to Super. Ct. Civ. R. 45 (c)(1).[3] She argued that Pepco's subpoena was unduly burdensome because it violated her right to privacy, as her cell phone contained confidential information, and because "she ha[d] already produced the one photograph she took at the scene and [had] provided her deposition testimony . . . ." Pepco, in turn, filed a motion to compel production of her cell phone.

         On April 24, 2014, the trial court denied Mrs. Bruce's motion and granted Pepco's motion to compel, permitting Pepco to inspect and copy the relevant photograph and "identifying information." However, the trial court also ordered that Pepco conduct the inspection pursuant to an existing protective order for confidential information in the case. The protective order provided general rules and limitations for designating, handling, and destroying confidential materials. The court further ordered Pepco's expert to follow the procedure that Pepco claimed was necessary for obtaining the original photograph: "copy all of the photographs on Mrs. Bruce's phone and then . . . delete all but the single photograph Pepco sought."

         Instead of handing over her phone, Mrs. Bruce retained her own expert in computer forensics to inspect the contents of her phone.[4] After Pepco served a second subpoena on Mrs. Bruce, she submitted a declaration to Pepco from her expert attesting that the photograph she produced via email was an "exact duplicate" of the one on her phone, and submitted another copy of the photograph to Pepco using a flash drive. In addition, Mrs. Bruce filed a second motion to quash and a motion for reconsideration of the court's April 24, 2014, order for her to turn over her phone in light of the Supreme Court's decision in Riley v. California, 134 S.Ct. 2473 (2014).

         The trial court denied both motions, finding that "the photograph and its identifying information could be dispositive" to Pepco's case. Pepco moved for Mrs. Bruce to be held in contempt, and in response, Mrs. Bruce argued that she was in substantial compliance with the court's order by furnishing her own expert to supply the photograph for inspection. The trial court did not rule on the contempt motion, but ordered Mrs. Bruce to make her expert available for Pepco to depose, to provide Pepco with the expert's methodology, and to bear the costs ...


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