The opinion of the court was delivered by: Kaplan, District Judge.
Plaintiff Roman Sterlin commenced a purported class action in the
United States District Court for the District of Utah, Central Division,
against Biomune Systems, Inc. ("Biomune") and others for alleged
securities fraud.*fn1 The details of the case are immaterial for present
purposes. Suffice it to say that the movant, Kathryn Welling, was an
associate editor of the Dow Jones publication, Barron's, and wrote an
article that prompted counsel in the Biomune case to conclude that she
might have relevant evidence. After considerable difficulty, they
succeeded in serving Ms. Welling with a subpoena issued by this Court.
The subpoena called upon Ms. Welling to produce certain documents and to
testify at a deposition on January 26, 1999. The parties then continued
the return date of the subpoena without date to permit Ms. Welling to
file a motion to quash.*fn2
On February 5, 1999, Ms. Welling moved to quash the subpoena, arguing
that (1) it seeks information that is irrelevant to the Biomune action,
(2) compliance would be unduly burdensome,*fn3 and (3) the subpoena
seeks materials that should be subject to a qualified reporters'
privilege, either under the First Amendment or federal common law, against
the disclosure of unpublished, non-confidential materials.*fn4 On March
15, 1999, Judge Baer, sitting in Part I, denied Ms. Welling's motion to
quash in a bench ruling. He indicated his view that the materials sought
are discoverable, that the delays perpetrated by Ms. Welling and her
counsel were "unconscionable,"*fn5 and that he probably would have
granted an application for costs if one had been made. He also denied
Ms. Welling's motion to stay enforcement of the subpoena. Nevertheless,
counsel conceded at oral argument that no new return date has been set
following Judge Baer's order. In consequence, Ms. Welling has not yet
failed to comply with the subpoena.
On March 17, 1999, two days after Judge Baer denied Ms. Welling's
motion, her counsel, who represents her employer Dow Jones as well,
informed Biomune's attorneys that Ms. Welling had left Dow Jones' employ
on March 10, 1999, that the documents in question remained in Dow Jones'
possession, and that the subpoena served upon Ms. Welling therefore no
longer reached the documents. It appears that these facts were not
disclosed to Judge Baer at the time the motion to quash was before him
although their existence arguably mooted part of the motion to quash.
Certainly the specter of a putative contemnor seeking the adjudication
of her own contempt is unusual. It perhaps therefore is not surprising
that there are serious problems with the application, the object of which
obviously is to promote an appellate test case of a legal proposition
rather than to achieve the usual purposes of contempt motions.
The first difficulty is that there is no basis whatsoever for holding
Ms. Welling in contempt of Judge Baer's order. Contempt, insofar as is
relevant here, is "[d]isobedience or resistance to [a court's] lawful
writ, process, order, rule, decree, or command."*fn6 Judge Baer's order
did not require Ms. Welling to do or abstain from doing anything.*fn7 It
merely declined to quash the subpoena. Hence, Ms. Welling is not in
contempt of that order. Counsel conceded as much during argument.
To be sure, disobedience of a subpoena, in appropriate circumstances,
is punishable by contempt.*fn8 But there is no basis at this stage for
concluding that Ms. Welling is in contempt of the subpoena either. The
continued return date — the time for compliance — has not yet
been fixed, much less passed. Ms. Welling, despite her counsel's contrary
protestations, may change her mind by the time any new return date
arrives, a possibility that makes any contempt adjudication at. this
point an advisory opinion. Furthermore, in light of her counsel's advice
that Ms. Welling left Dow Jones on March 10 and that the papers in
question remain in Dow Jones' possession, Ms. Welling may not be in a
position to comply with the duces tecum aspect of the subpoena at the time
when compliance is required, which may well constitute a defense to a
charge of contempt based on non-production of the documents. Moreover, it
is far from clear that Ms. Welling has any memory of the events about
which she might be questioned if she appears for her deposition.*fn9 If
she has no recollection, the question whether she has a privilege to
refuse to disclose the information Biomune seeks would be entirely
academic. Thus, even if the Court were to treat the motion as one to hold
Ms. Welling in contempt of the subpoena, the motion would be one
improperly seeking an advisory ruling on a hypothetical set of facts. And
there is yet another basic difficulty with Ms. Welling's motion.
Civil contempt is a remedy designed "to protect the rights of parties
to the litigation or someone who has a pecuniary interest in the subject
matter of the injunction"
or other court process.*fn10 Such contempt proceedings "must be
instituted by the parties aggrieved," who "control the litigation."*fn11
Indeed, where the party aggrieved elects not to go forward with a civil
contempt application, it has been said, the court may proceed no
In this case, Ms. Welling is not aggrieved by her own failure to
acquiesce in the ruling denying her motion to quash the subpoena.
Indeed, she would not be aggrieved by her failure to comply with the
subpoena should that come to pass. She therefore may not seek to enforce
the order or subpoena against herself. The question whether Ms. Welling
should be found in and punished for contempt of court properly will arise
for decision if and when she defies the subpoena and a party allegedly
aggrieved by that action moves to ...