*1 Before the Court is [27] Plaintiff Kerry Balder Ward's October 5, 2018 motion for sanctions against a non-party. Ward asks the Court to hold Ian Eastman in contempt for (1) failing to obey a subpoena duces tecum[1] commanding him to produce “electronically preserved or stored photographs taken of Donald Balder, or alleged injuries to Donald Balder,” including all metadata associated with each photograph, all text messages and emails between Eastman and Balder and between Eastman and Tia Saucier Pedersen from December 1, 2017 through the present date (presumably the date the subpoena was issued September 12, 2018), and “the original cellular phone or any electronic device in use by [Eastman] on ... December 3, 2017...” to communicate, take or receive photos of Balder on December 3, 2017 or any date thereafter, and (2) for telling non-party Tia Pedersen to delete information from her phone. Plaintiff's attorney Tim Holleman personally served the subpoena on Eastman on September 13, 2018, while Eastman was in Mississippi to testify for Balder in other proceedings between Ward and Balder. [27-1], [28, pp. 3-4] On its face, the subpoena shows Eastman's address is in Roaring Gap, North Carolina.

Ward and Balder are former spouses, now divorced, who are involved in a child-custody dispute in Harrison County Chancery Court. In her lawsuit filed in this Court in April 2018, Ward alleges Balder came to her home to pick up some personal property on December 3, 2017. As Balder walked down the driveway carrying a picture frame, Ward kicked a deflated basketball out of the garage, and the ball hit the frame. Ward alleges Balder made no complaint of injury at the time, but he later filed an affidavit with Biloxi Police alleging Ward had caused him bodily injury “by kicking a soccer ball at him hitting him in the right leg,” and two days later, Balder signed a Petition for Domestic Abuse Protective Order “which falsely made multiple allegations” against Ward to obtain custody of the children. (26, p. 4) Biloxi Police arrested Ward and detained her for several hours before she was released on bond, and she was prohibited from having any contact with her children for ten days. Ward claims Balder knew his allegations against her were false at the time he made them, and the domestic violence charge against Ward was dismissed in her favor when Balder failed to appear for trial. Ward seeks compensatory and punitive damages from Balder for malicious prosecution, abuse of process, and intentional infliction of emotional distress.

According to Ward's memorandum [28] in support of the motion for sanctions, Eastman was with Balder in Harrison County Chancery Court on September 11, 2018, and in Biloxi Municipal Court the following day. On September 13, 2018, Holleman served Eastman with the subpoena commanding production on September 27, 2018 at Holleman's office. [27-1] According to the motion, Eastman neither produced the requested items nor served any objections to the subpoena. Ward certifies service of her motion for sanctions and memorandum on Eastman by mail and electronic transmission, but the docket reflects no response by Eastman. [27, p. 5], [28, p. 7] The docket likewise reflects no motion to compel filed by Ward, who instead filed the instant motion for sanctions.

*2 Ward's motion asserts that after Eastman received his subpoena, he immediately told Tia Pedersen she should delete all communications with him from her phone, and Pedersen did so. Ward's attorney then served Pedersen with a subpoena virtually identical to the one served on Eastman. [27-2] Ward alleges Pedersen appeared at Holleman's office on September 28, 2018, and advised she had no documents responsive to the subpoena due to the deletion on Eastman's instruction. Ward asks the Court to hold Eastman in contempt for disobeying the subpoena and for advising Pedersen to “delete evidence” from her phone, and for allegedly deleting evidence from his own phone. Ward requests expenses and attorney's fees incurred as a result of Eastman's conduct.

On March 20, 2019, the Court first noticed an in-person hearing on Ward's motion for sanctions for May 2, 2019, and instructed attorney Holleman to “prepare and serve Ian Eastman to appear for the hearing.” See Minute Entry of 3/20/2019. On April 8, 2019, Holleman issued a subpoena for Tia Saucier Pedersen (a Gulfport, Mississippi resident) to appear for the hearing [58] and had Pedersen served, but no subpoena was issued for or served on Eastman. Holleman filed [59] a notice of the May 2 hearing on April 18, 2019, and apparently sent it to Eastman via FedEx. Eastman received it on April 19, 2019. See Ex. 1, p. 2, an April 30, 2019 email in which Eastman responded to Holleman that he had been unemployed since January 2019 and was financially unable to travel to the hearing, but would come to testify if someone would pay for his travel and hotel. Eastman also advised that he had provided answers to the subpoena requests to Balder's attorney “Diana” (Dianne Ellis) before he left Biloxi on September 12, 2018 to return to his home in North Carolina, and she told him she would submit those answers to Holleman.[2] In this email, Eastman provided his responses to Holleman essentially stating he had no documents responsive to the subpoena – no emails or text messages between him and Balder, or between him and Pedersen, and was no longer in possession of any cell phone or electronic device which he was using in December 2017. On May 2, 2019, the Court reset the hearing on the motion to June 20, 2019 “at the request of counsel.” See Notice of Hearing entered 5/2/2019. Not only was Eastman never served with a subpoena for the hearing, nothing in the docket shows he was notified that the hearing had been reset.

On June 20, 2019, the Court called the motion for hearing. In attendance were Plaintiff's attorney Mr. Holleman, Balder's attorneys, and witness Tia Pedersen. Eastman was not present or otherwise represented at the hearing. See Minute Entry of 6/20/2019. Upon inquiry from the Court, Holleman advised the Court that he did not subpoena Eastman for the hearing, but that he had sent Eastman notice of the hearing via FedEx. The Court received Plaintiff's exhibits and Pedersen's testimony, and heard argument of Plaintiff's counsel. Pedersen confirmed that she was at Biloxi City Court in September 2018 regarding the charges Balder had brought against Ward. Advised that she could not bring her phone into the courthouse, she left to take the phone back to her car. Eastman followed her and told her she had to delete anything on her phone between her and him (Eastman) and Balder. Pedersen testified she deleted text messages but no photos. When she re-entered the courthouse, Holleman served her with a subpoena. Pederson adamantly denied ever taking or transmitting (by phone or email) any photos of purported injuries sustained by Balder on December 3, 2017; she testified she does not know who took the photos in Exhibits 2 and 3, or who is shown in those photos. This is the only testimony offered on the motion.

*3 In addition to Exhibit 1 discussed above, Plaintiff presented copies of the subpoenas served on Eastman and Pedersen [Exs. 4 and 5]; an email chain of communications which begins at 1:40 p.m. on September 9, 2018 with Balder sending Eastman's name and address and stating “[Eastman] has a photo sent from Tia to him the evening of Kerry Assault 12-3-2017;” followed by an 8:53 a.m., September 10 email from Eastman to Balder, copied to Balder's then-lawyer Dianne Ellis, attaching two photos which Ellis forwarded to Steven Eckert (Biloxi Municipal Court Prosecutor) at 2:02 p.m., and Eckert forwarded it to Holleman at 4:31 p.m. on September 10, 2018 [Exs. 2-3]; and a 3:19 p.m., June 19, 2019 email from attorney Holleman to Eastman re: the hearing set for the following day and stating he would provide Eastman's emails to the Court; and ending with Eastman's June 20 emails to the effect that he had received no prior notice of the resetting of the hearing to June 20, and that he remained unemployed and financially unable to attend the hearing.

The Court is of the opinion that this record is insufficient to warrant imposition of sanctions on Eastman, much less to find him in contempt. First, the Court has concerns about the propriety of serving a summons on a witness present for judicial proceedings outside the state of his residence. There is no dispute that Eastman was a North Carolina resident in September 2017 and was in Mississippi for other ongoing judicial proceedings between Ward and Balder. “[W]itnesses and parties attending a judicial proceeding outside the territorial jurisdiction of their residence are immune or exempt from service of civil process in another suit while in attendance at court in the jurisdiction to which they have been summoned.” Wright & Miller, Federal Practice and Procedure: Civil 3d § 2454. The rule applies “to witnesses attending voluntarily as well as those under subpoena.” Stewart v. Ramsey, 242 U.S. 128, 129-130 (1916). Second, as Plaintiff's Ex. 1 demonstrates, Eastman actually sent his responses to the subpoena via email to Plaintiff's attorney on April 30, 2019, before the date of the first scheduled hearing. Third, the docket reflects no attempt to otherwise secure compliance with the subpoena before filing the motion seeking the extreme sanction of contempt. Fourth, the docket does not reflect that Eastman was provided notice that the hearing had been re-set to June 20, 2019. Fifth, while Eastman's e-mail response to the motion for sanctions concedes that he told Pedersen to delete messages from her phone, there is no evidence before the Court that Pedersen deleted any photographs, which appears to be the primary focus of the subpoena. In fact the only evidence on this issue is Pedersen's testimony that she deleted some text messages, but she never took or transmitted any photos of any purported injuries sustained by Balder in the December 2017 incident between Balder and Ward. Finally, the Court has been presented no authority which would allow this Court in this civil lawsuit to impose sanctions on a non-party witness for violation of a criminal statute.

Based upon the totality of the circumstances presented and the record made on the motion, the Court finds Plaintiff has failed to show she is entitled to the relief she requests. It is therefore,

ORDERED AND ADJUDGED that Plaintiff's motion for sanctions is denied, this the 30th day of August 2019.