Jeanette M. Bruce, Appellant,
Potomac Electric Power Company, Appellee.
October 26, 2016
from the Superior Court of the District of Columbia
(CAB9586-12) (Hon. Michael L. Rankin, Trial Judge)
R. Ates, with whom Patricia A. Smith and Allison C. Pienta
were on the brief, for appellant.
H. Freeman, with whom Mark A. Freeman was on the brief, for
Blackburne-Rigsby, Chief Judge [*] Glickman, Associate Judge, and
Pryor, Senior Judge.
BLACKBURNE-RIGSBY, CHIEF JUDGE.
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.
Factual and Procedural Background
29, 2012, during a "derecho"
thunderstorm, 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.
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.
month later, Mrs. Bruce amended her deposition answers
pertaining to when she saw Mr. Ghafoorian and when she took
the photograph. 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
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.
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). 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.
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
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."
of handing over her phone, Mrs. Bruce retained her own expert
in computer forensics to inspect the contents of her
phone. 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).
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