I. Factual Background

This dispute arises from Petitioners’ attempts to take discovery from Mr. Joseph Szlavik (“Respondent” or “Mr. Szlavik”) for use in a proceeding in Belgium (the “Belgian Litigation”) to which Mr. Szlavik is not a party. On February 5, 2018, this Court granted Petitioners’ application for discovery pursuant to 28 U.S.C. § 1782, and ordered that: (1) Petitioners were authorized to serve Mr. Szlavik with a subpoena “substantially in the form” as that attached to the § 1782 application; and (2) Mr. Szlavik was to “produce the documents ... as requested in the subpoena[ ], by no later than February 26, 2018, and to provide the deposition testimony requested in the subpoena[ ] on or before March 26, 2018.” See Order, ECF No. 4 (the “February 5 Order”).[2]

Petitioners unsuccessfully attempted to serve Mr. Szlavik with the February 5 Order and a copy of the subpoena at Mr. Szlavik's office in Washington, D.C. seven times, and at Mr. Szlavik's residence in Harleysville, Pennsylvania five times. See Pet'rs’ Br. at 2. Petitioners also unsuccessfully attempted to arrange service multiple times through their professional process servers and investigators, but to no avail. Id. On April 2, 2018, the Court administratively closed the case, because the March 26 deadline to complete discovery had passed. See 04/02/2018 Min. Order.

On April 12, 2018, having thus far been unable to effect personal service, Petitioners moved for leave to serve Mr. Szlavik by alternative means. See Mot. Alternative Service, ECF No. 5. Specifically, Petitioners sought to serve Mr. Szlavik by posting a copy of the subpoena at his residence in Harleysville, Pennsylvania and sending a copy of the subpoena to that residence via certified mail. Id. at 6. Because the deadlines set in the Court's February 5 Order had since passed, Petitioners explained they would adjust the return dates of the subpoena to provide Mr. Szlavik “21 days from service” to comply. Id. Petitioners also requested that the Court keep the case open until discovery was completed. Id. at 7.

*2 The Court denied Petitioners’ motion as to their request to serve Mr. Szlavik by alternative means. See 04/15/2018 Min. Order. The Court granted Petitioners’ motion as to their request to reopen the case. Id.

Petitioners eventually served Mr. Szlavik by personal service on May 2, 2018 at Mr. Szlavik's Pennsylvania residence. See Pet'rs’ Br. Ex. 1 (Aff. Service), ECF No. 12-2. Petitioners served Mr. Szlavik with a subpoena directing him to testify at a deposition on March 26, 2018 (the “Subpoena”), the February 5 Order, and a cover letter explaining that Petitioners were willing to extend the deadlines set by the Subpoena and February 5 Order until 21 days from service. See Pet'rs’ Br. Ex. 2 (Cover Letter, February 5 Order, and Subpoena), ECF No. 12-3. Mr. Szlavik did not respond to the Subpoena within 21 days, despite Petitioners’ attempts to coordinate a response with Mr. Szlavik and Mr. Szlavik's attorney for another matter. See Pet'rs’ Br. at 3.

II. Procedural Background

On June 6, 2018, Petitioners moved this Court to compel Mr. Szlavik's response to the Subpoena, to hold Mr. Szlavik in contempt for failure to obey the Subpoena and the February 5 Order, and order Mr. Szlavik to pay Petitioners’ attorneys’ fees incurred in preparing the Motion to Compel. See Pet'rs’ Br. at 4–5. Mr. Szlavik opposed Petitioners’ Motion to Compel, but indicated that he would be willing to “participate in a brief deposition and to produce documents, if any, limited to the Belgian [L]itigation.” See Resp't’s Br. Ex. JS-1 ¶ 13 (“Szlavik Decl.”), ECF No. 18-3. The undersigned ordered the parties to confer and submit a joint status report indicating whether the issues before the Court could be narrowed. See 10/11/2018 Min. Order.

After conferring, the parties filed a joint status report indicating that they had reached “an agreement in principle.” See Joint Status Report ¶ 2, ECF No. 28. The parties thereafter filed a stipulation and proposed consent order, directing Mr. Szlavik to produce any responsive documents by November 8, 2018 and to appear for deposition on November 28, 2018. See Stipulation, ECF No. 29. The Court granted the stipulation and consent order. See Stipulation and Consent Order, ECF No. 30. The parties then filed a revised stipulation, setting Mr. Szlavik's deposition for December 11, 2018, which the Court also granted. See Stipulation, ECF No. 31; Revised Stipulation and Consent Order, ECF No. 32. Both the original and revised consent orders held Petitioners’ Motion for attorneys’ fees and costs in abeyance until 15 days after completion of discovery. See Stipulation and Consent Order ¶ 3, ECF No. 30; Revised Stipulation and Consent Order ¶ 5, ECF No. 32.

Mr. Szlavik appeared for his deposition on December 11, 2018. See Notice, ECF No. 33. On December 26, 2018, Petitioners notified the Court that they wished to proceed with their Motion. Id. Mr. Szlavik responded with a supplemental memorandum in opposition, addressing issues arising from his deposition. See Resp't’s 1st Suppl. Mem., ECF No. 34. Petitioners replied to the supplemental memorandum. See Pet'rs’ Resp. 1st Suppl. Mem., ECF No. 35. On March 5, 2019, Mr. Szlavik filed a second supplemental memorandum, addressing issues arising from recent news articles. See Resp't’s 2d Suppl. Mem., ECF No. 39. Petitioners replied to the second supplemental memorandum as well. See Pet'rs’ Resp. 2d Suppl. Mem., ECF No. 40.[3]

*3 28 U.S.C. § 1782 authorizes district courts to order a person who resides or is found within the district “to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal ... upon the application of any interested person.” 28 U.S.C. § 1782(a). The statute does not, however, authorize the Court to compel a person “to give his testimony or statement or to produce a document or other thing in violation of any legally applicable privilege.” Id. Absent a court order to the contrary, the compelled discovery must be taken or produced “in accordance with the Federal Rules of Civil Procedure.” Id.

Federal Rule of Civil Procedure 45 governs discovery requested from a non-party through a subpoena, and applies to requests for discovery issued under § 1782. See In re Edelman, 295 F.3d 171, 178 (2d Cir. 2002) (identifying Rule 45 as one of the procedural rules that governs subpoenas issued under § 1782); see generally Fed. R. Civ. P. 45. Under Rule 45(g), a court may “hold in contempt a person who, having been served, fails without adequate excuse to obey the subpoena or an order related to it.” Fed. R. Civ. P. 45(g). The moving party must demonstrate the respondent's noncompliance by “clear and convincing evidence.” SEC v. Bilzerian, 613 F. Supp. 2d 66, 70 (D.D.C. 2009). The moving party need not demonstrate that the respondent acted in bad faith, because “unlike a criminal contempt proceeding, a civil contempt action is a remedial sanction used ... to compensate for damage sustained as a result of noncompliance.” Food Lion, Inc. v. United Food and Commercial Workers Intern. Union, AFL-CIO-CLC, 103 F.3d 1007, 1016 (D.C. Cir. 1997) (citations omitted).

I. The Supplemental Memoranda Are Not Properly Before the Court

Petitioners ask the Court to disregard Mr. Szlavik's supplemental briefs and to conclude that briefing ended with Petitioners’ reply memorandum. See Pet'rs’ Resp. 1st Suppl. Mem. at 1. Although Mr. Szlavik captioned his filings as “supplemental memoranda” they are technically sur-replies because they were “filed after the [Petitioners’] reply brief with the purpose of supplementing the opposition to [the Motion].” Nyambal v. Mnuchin, 245 F. Supp. 3d 217, 221 (D.D.C. 2017). As the Court's local rules do not contemplate that any briefing will be submitted after the reply memorandum, a party must obtain leave of court to file a surreply. See Nyambal, 245 F. Supp. 3d at 221 (“Before filing a surreply, a party must request the Court's permission to do so ....”) (citing Gebretsadike v. Travelers Home & Marine Ins. Co., 103 F. Supp. 3d 78, 86 (D.D.C. 2015); Robinson v. Detroit News, Inc., 211 F. Supp. 2d 101, 113 (D.D.C. 2002) (“A party seeking to file a surreply must move the court for leave to file such a surreply.”); see generally Local Civ. R. 7. Mr. Szlavik did not seek leave of Court to file the supplemental memorandum, nor did the parties seek leave to file the subsequent supplemental memoranda. See Resp't’s 1st Suppl. Mem., ECF No. 34; Pet'rs’ Resp. 1st Suppl. Mem., ECF No. 35; Resp't’s 2d Suppl. Mem., ECF No. 39; Pet'rs’ Resp. 2d Suppl. Mem., ECF No. 40. Consequently, the supplemental memoranda, and the responses thereto, are not properly before the Court. The undersigned therefore recommends that the Court disregard the supplemental memoranda.[4]

II. Rule 45 Governs the Instant Motion

*4 The parties dispute whether Rule 37 or Rule 45 governs the Court's review of Petitioners’ Motion. Petitioners assert that, although a motion to compel compliance with a subpoena is governed by Rule 45, see Pet'rs’ Br. at 3, an award of sanctions is governed by Rule 37(a)(5). See id. at 4; see also Pet'rs’ Reply at 8. Mr. Szlavik asserts Rule 37 is inapposite, and that Rule 45 governs Petitioners’ Motion. See Resp't’s Br. at 7, 12.

Mr. Szlavik is correct that Rule 45, and not Rule 37, governs. Rule 37(a) permits a party to move to compel a response to deposition questions posed under Rule 30, or documents requested under Rule 34. See Fed. R. Civ. P. 37(a)(3)(B)(i), (iv). In contrast, Rule 45 governs discovery requested from a non-party through a subpoena. Thus, because Mr. Szlavik is not a party to a case pending before this Court or to the foreign proceedings, see Szlavik Decl. ¶ 10, ECF No. 18-3, and the discovery was requested through a subpoena issued pursuant to § 1782, Rule 45 governs the contempt motion. See, e.g., Athridge v. Aetna Cas. and Sur. Co., 184 F.R.D. 200, 208 (D.D.C. 1998) (motions for fees incurred in preparing a motion to compel a nonparty are governed by Rule 45, not Rule 37); In re Exxon Valdez, 142 F.R.D. 380, 385 (D.D.C. 1992) (“Rule 37 by its terms applies only to a motion to compel production from a party under Rule 34.”); Alexander v. F.B.I., 186 F.R.D. 170, 180 (D.D.C. 1999) (“Rule 37 and its sanctions provision apply only to parties to the case.”); see generally 04/15/2018 Min. Order (citing Rule 45 standard to evaluate Petitioner's request for alternative service).

Petitioners’ reliance on HT S.R.L. v. Velasco, 125 F. Supp. 3d 211 (D.D.C. 2015), is misplaced. Petitioners correctly point out that the magistrate judge in that case awarded fees in the context of a § 1782 proceeding, pursuant to Rule 37(a)(5). See Pet'rs’ Reply at 8 (citing HT S.R.L., 125 F. Supp. 3d at 231). In that case, however, the district judge found that the magistrate judge's application of Rule 37(a)(5) was clearly erroneous, and set aside the award of attorneys’ fees and costs. See HT S.R.L. v. Velasco, 15-mc-664 (RBW), 2015 WL 13759884 at *6 (D.D.C. Nov. 13, 2015). The district judge concluded that “the proper avenue for relief is through Rule 45, which allows a court to ‘hold in contempt a person who, having been served, fails without adequate excuse to obey the subpoena or an order related to it.’ ” Id. (citing Fed. R. Civ. P. 45(g)). Accordingly, Velasco confirms that Rule 45 governs Petitioners’ Motion.

III. The Court Should Excuse Mr. Szlavik's Noncompliance

Mr. Szlavik concedes that he did not comply with the Subpoena or the February 5 Order. See Resp't’s Br. at 9. As Mr. Szlavik acknowledges, the Subpoena and February 5 Order required the production of documents on or before February 26, 2018 and his appearance for a deposition on or before March 26, 2018. Id.; see also Pet'rs’ Br. Ex. 2 (Cover Letter, February 5 Order, and Subpoena), ECF No. 12-3. Mr. Szlavik did not comply with the Subpoena and February 5 Order by either of those deadlines, because Mr. Szlavik was not aware of those deadlines until May 2018. See Resp't’s Br. at 9. Thus, the undersigned concludes, by clear and convincing evidence, that Mr. Szlavik failed to obey the Subpoena and the February 5 Order.

*5 The crux of this dispute is not whether Mr. Szlavik failed to comply, but whether his noncompliance should be excused. Mr. Szlavik asserts that the Subpoena was invalid because he was not personally served, and because he was not “found in” the District of Columbia. See Resp't’s Br. at 10. Mr. Szlavik also asserts that even if the Subpoena were valid, compliance was “simply impossible” because the deadlines had expired at the time of service. Id. at 11. Lastly, Mr. Szlavik asserts that Petitioners’ fees request is unsupported and excessive. Id. at 12. Petitioners respond that Mr. Szlavik was in fact personally served, that he works and is “found in” the District of Columbia, that a cover letter served with the Subpoena set a deadline for three-weeks after the time of service, and that an itemized list of time entries and disbursements can be issued later to support Petitioners’ fees request. See Pet'rs’ Reply at 2–3. Petitioners also assert that Mr. Szlavik waived his objections by failing to timely oppose the Subpoena. Id. at 6.

As a preliminary matter, all of Mr. Szlavik's objections are untimely, because Mr. Szlavik chose to ignore the Subpoena rather than file a written objection, as contemplated by Rule 45. Rule 45 requires that “objections must be served before the earlier of the time specified for compliance or 14 days after the subpoena is served.” Fed. R. Civ. P. 45(d)(2)(B). “The failure to serve written objections to a subpoena within the time frame specified by Rule 45(c)(2)(B) [now Rule 45(d)(2)(B)] typically constitutes a waiver of such objections.” In re Denture Cream Prods. Liab. Litig., 292 F.R.D. 120, 124 (D.D.C. 2013) (citing Alexander v. FBI, 186 F.R.D. 21, 34 (D.D.C. 1998)). The district court may consider untimely objections, however, “in unusual circumstances and for good cause.” Yousuf v. Samantar, 451 F.3d 248, 252 (D.C. Cir. 2006) (citing Concord Boat Corp. v. Brunswick Corp., 169 F.R.D. 44, 48 (S.D.N.Y. 1996)). Such “unusual circumstances” include where the subpoena is “overbroad on its face and exceeds the bounds of fair discovery,” where the witness has acted in good faith, or where counsel for the witness and counsel for the party issuing the subpoena were in contact prior to the filing of a formal objection. Id.; see also Judicial Watch, Inc. v. U.S. Dep't of Commerce, 196 F.R.D. 1, 3 (D.D.C. 2000) (declining to consider untimely objections with exception of witness's Fifth Amendment claims, based on the “fundamental” privilege against self-incrimination).

Mr. Szlavik did not file a written objection until July 5, 2018, when he filed his opposition to Petitioners’ Motion to Compel. See Resp't’s Br. Thus, Mr. Szlavik's objections clearly are untimely. However, unusual circumstances and good cause warrant consideration of Mr. Szlavik's objection that compliance was impossible because the deadlines had expired at the time of service. That argument goes to the facial validity of the Subpoena, and thus merits the same consideration as an untimely objection to a subpoena that was “overbroad on its face and exceed[ed] the bounds of fair discovery.” Yousuf, 451 F.3d at 252. Indeed, deeming the objection waived would be manifestly unjust in these circumstances, because Mr. Szlavik could not have timely filed an objection if the “time specified for compliance” had already passed when the Subpoena was served. Thus, this is not a situation in which a party could have timely objected but chose not to.

The fact that a subpoena is void on its face so as to render compliance impossible provides “adequate excuse” for a failure to comply with the subpoena. See, e.g., Walker v. Ctr. for Food Safety, 667 F. Supp. 2d 133, 136–37 (D.D.C. 2009) (recognizing defense where defendant shows “an inability to comply with the order”). Impossibility is only a defense where the witness is “powerless to comply” with a court's order. Am. Rivers v. U.S. Army Corps of Eng'rs, 274 F. Supp. 2d 62, 66 (D.D.C. 2003) (citing Nat. Ress. Def. Council, Inc. v. Train, 510 F.2d 692, 713 (D.C. Cir. 1974)); see also Walker, 667 F. Supp. 2d at 137 (“The defendant must demonstrate an inability to comply ‘categorically and in detail.’ ”) (citing SEC v. Bankers All. Corp., 881 F. Supp. 673, 678 (D.D.C. 1995)).

*6 Mr. Szlavik could not have complied with the Subpoena or February 5 Order, because he was not served until after those deadlines had passed. Furthermore, Mr. Szlavik's inability to comply was categorical, because the Subpoena and February 5 Order did not provide an alternative deadline in the event of delayed service. Thus, this case squarely meets the criteria for the impossibility defense.

Petitioners’ real frustration appears to be Mr. Szlavik's refusal to comply within 21 days of service—not his refusal to comply with the deadline stated in the Subpoena and February 5 Order. See Pet'rs’ Br. at 3 (describing the “May 23, 2018 deadline”); Pet'rs’ Reply at 2–3 (asserting that Mr. Szlavik “ignores the cover letter served with the Subpoena, which set a three-week deadline for document production ... and a deadline of three weeks after that for a deposition”). Further, while Mr. Szlavik could not have complied with the February 5 Order, it is unclear why he could not comply, or raise a timely objection, by the deadline established in Petitioners’ cover letter. Mr. Szlavik apparently offers no excuse, let alone an adequate one, for why he chose to ignore Petitioners’ efforts to amicably resolve this discovery dispute.

Yet, the Court cannot sanction Mr. Szlavik for failing to act within the deadlines afforded by Petitioners in their cover letter. A cover letter is neither a subpoena nor a court order. Thus, failure to comply with a subpoena by the date specified in a cover letter falls outside the sanctionable conduct specified in Rule 45(g). See Velasco, 2015 WL 137598884 at *14 (setting aside a magistrate judge's award of attorneys’ fees and costs where “there was no predicate court order commanding compliance with the subpoena for the respondent to violate”); see also Fed. R. Civ. P. 45(g) advisory committee's note to 2013 amendment (“In civil litigation, it would be rare for a court to use contempt sanctions without first ordering compliance with a subpoena, and the order might not require all the compliance sought by the subpoena.”).

It is immaterial that Petitioners sought leave to amend the deadlines. See Pet'rs’ Reply at 7–8. Although not made explicit, the Court arguably granted Petitioners request to amend the deadlines set in their subpoena when the Court re-opened this matter. See id. at 8; 04/15/2018 Min. Order (granting “applicants’ motion to keep this action open pending completion of applicants’ requested discovery”). Yet, even assuming that Petitioners were granted leave to amend the deadlines, Petitioners did not serve Mr. Szlavik with an amended Subpoena or the Court's April 15, 2018 Minute Order. See Pet'rs’ Br. Ex. 2 (Cover Letter, February 5 Order, and Subpoena). Rather, Petitioners chose to serve only the original Subpoena, the February 5 Order, and a cover letter. Thus, nothing served upon Mr. Szlavik indicated that the 21 day “deadline” described in the cover letter was anything other than a courtesy. Nor does Mr. Szlavik's alleged bad faith in attempting to evade service explain why Petitioners continued to rely upon papers they knew had expired.

The facts here are substantially similar to those in Alston v. Select Garages, LLC, 12-cv-1459 (GBD) (KNF), 2013 WL 3357172 (S.D.N.Y. July 3, 2013). In that case, the court declined to hold witnesses in contempt for failure to appear at a postponed deposition, where the date noticed in the subpoena was voluntarily adjourned, and the later date was not set by subpoena or court order. The court found that plaintiffs “acted at their own peril” in choosing not to issue a new subpoena, despite the defendants’ alleged bad faith and the availability of Rule 45. Id. at *3. Similarly, here, Petitioners acted at their own peril in choosing to rely on a cover letter, rather than an amended subpoena or court order, to set the deadline for compliance. See also Kupritz v. Savananah Coll. of Art & Design, 155 F.R.D. 84, 88–89 (E.D. Pa. 1994) (declining to hold witness in contempt for failure to appear for a deposition noticed to commence at 1:30 P.M., where the subpoena was not served until 1:45 P.M.).

*7 In short, the undersigned concludes that Mr. Szlavik has shown adequate excuse for his noncompliance because compliance was not possible, and no alternative deadline was provided by subpoena or court order.[5] Having concluded that Mr. Szlavik has shown adequate excuse based on impossibility, the undersigned finds it unnecessary to adjudicate Mr. Szlavik's remaining objections.

For the foregoing reasons, the undersigned recommends that the Court DENY Petitioners’ Motion to Compel, for Sanctions and/or for a Finding of Contempt, ECF No. 12.

The parties are hereby advised that under the provisions of Local Rule 72.3(b) of the United States District Court for the District of Columbia, any party who objects to the Report and Recommendation must file a written objection thereto with the Clerk of this Court within 14 days of the party's receipt of this Report and Recommendation. The written objections must specifically identify the portion of the report and/or recommendation to which objection is made, and the basis for such objections. The parties are further advised that failure to file timely objections to the findings and recommendations set forth in this report may waive their right of appeal from an order of the District Court that adopts such findings and recommendation. See Thomas v. Arn, 474 U.S. 140 (1985).

Pet'rs’ Mem. Supp. Mot. Compel, Sanctions, Finding Contempt (“Pet'rs’ Br.”), ECF No. 12-1; Resp't’s Mem. P. & A. Opp. Mot. Pet'rs’ Mot. Compel, Sanctions, Finding Contempt (“Resp't’s’ Br.”), ECF No. 18-1; Pet'rs’ Reply Supp. Mot. Compel, Sanctions, Finding Contempt (“Pet'rs’ Reply”), ECF No. 20; Not. Pending Mot. Compel, Sanctions, Finding Contempt (“Pet'rs’ Notice”), ECF No. 33; Resp't’s Resp. Not. and Suppl. Mem. Resp. Mot. Compel, Sanctions, Finding Contempt (“Resp't’s 1st Suppl. Mem.”), ECF No. 34; Pet'rs’ Reply Resp't’s Suppl. Resp. Mot. Compel, Sanctions, Finding Contempt (“Pet'rs’ Resp. 1st Suppl. Mem.”), ECF No. 35; Resp't’s 2d Suppl. Mem. Resp. Mot. Compel, Sanctions, Finding Contempt (“Resp't’s 2d Suppl. Mem.”), ECF No. 39; Pet'rs’ Resp. Resp't’s 2d Suppl. Mem. Resp. Mot. Compel, Sanctions, Finding Contempt (“Pet'rs’ Resp. 2d Suppl. Mem.”), ECF No. 40.

The Order was signed on February 2, 2018, and filed on February 5, 2018. See Order, ECF No. 4.

Because Mr. Szlavik appeared for his deposition as directed by the Revised Stipulation and Consent Order, the portion of Petitioners’ Motion that seeks to compel compliance with the Subpoena may be denied as moot. Accordingly, this Report and Recommendation focuses on the portions of Petitioners’ Motion that were held in abeyance under the Revised Stipulation and Consent Order—i.e., Petitioners’ request for attorneys’ fees and costs as a sanction for noncompliance. See Revised Stipulation and Consent Order ¶ 5, ECF No. 32.

Even if the supplemental memoranda were properly before the Court, they would not facilitate the Court's adjudication of the pending motion because they raise issues that are irrelevant to Mr. Szlavik's noncompliance with the Subpoena. The First Supplemental Memorandum raises objections based on Petitioners’ conduct at the deposition as evidence of Petitioners’ alleged improper purpose in seeking the discovery, and the Second Supplemental Memorandum raises a similar objection based on news reports published in February 2019 (after the motion to compel was filed). See Resp't’s 1st Suppl. Mem. at 5; Resp't’s 2d Suppl. Mem. at 1–2. Those arguments have no bearing on whether Mr. Szlavik's conduct in 2018, before the deposition, violated Rule 45 or this Court's prior Order. See In re LeFande, 919 F.3d 554, 563 (D.C. Cir. 2019) (holding that “the validity of the contempt order [was] unaffected by [respondent] LeFande's assertion that [petitioner] District Tile sought to depose him for [an] ‘improper purpose’ ”).

This is not to say that the undersigned condones Mr. Szlavik's conduct. Certainly, the time and energy expended in adjudicating this matter could have been minimized had Mr. Szlavik timely contacted Petitioners to arrange for his deposition. Alternatively, Mr. Szlavik could have preempted Petitioners’ Motion by moving to quash the Subpoena. Yet the issue before the undersigned is not whether Mr. Szlavik's behavior was considerate of Petitioners’ time and the Court's time; it is whether Mr. Szlavik's behavior is sanctionable.