IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 93-2283

Summary Calendar

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NATURAL GAS PIPELINE COMPANY

OF AMERICA, ET AL.,

Plaintiffs,

NATURAL GAS PIPELINE COMPANY

OF AMERICA,

Plaintiff-Appellee,

versus

ENERGY GATHERING, INC., ET AL.,

Defendants,

JOHN FOX,

Movant-Appellant.

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Appeal from the United States District Court for the

Southern District of Texas

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September 21, 1993

Before GARWOOD, JONES and EMILIO M. GARZA, Circuit Judges.

GARWOOD, Circuit Judge:

Appellant John Fox (Fox) is a Mississippi attorney who has

been the longtime associate, legal counsel, and business partner of

Navarro Crowson (Crowson), a judgment debtor who owes millions of

dollars to appellees, whom he defrauded. Thus far, Crowson has
2

largely foiled his creditors' efforts to recover their judgments by

concealing his assets and withholding documents that would reveal

their extent and location. When Fox was ordered to turn over all

Crowson-related business or financial records, he persistently

failed to do so. The district court then ordered Fox to produce

his personal tax returns for the last several years. Fox refused

and was ultimately held in civil contempt pending compliance. Fox

appeals, and we reverse in part and remand.

Facts and Proceedings Below

Until his discharge in 1985, Crowson, a resident of

Mississippi, was an employee of appellees Mitchell Energy and

Development Corp. (Mitchell Energy), Southwestern Gas Pipeline,

Inc. (Southwestern Gas), and Winnie Pipeline Co. (Winnie Pipeline).

It is alleged that while so employed Crowson took bribes and

kickbacks in connection with the negotiation of oil and gas

contracts. Following a grand jury investigation, Crowson was

indicted in federal court in Texas. Crowson's counsel in these

criminal proceedings was Fox, an attorney and resident of Houston,

Mississippi, who had represented and had extensive business

dealings with Crowson since at least 1985. Crowson eventually

pleaded guilty to several counts of mail fraud.

On September 14, 1988, appellees Texas Industrial Energy Co.

(TICO), and South Gulf Energy, Inc. (South Gulf), sued Crowson in

the United States District Court for the Southern District of

Texas, Houston Division, to recover damages incurred as a result of

the kickback scheme. Crowson having filed no answer, on June 21,
1 Appellees assert that following his appearance on Crowson's

behalf, Fox was served with all of the pleadings filed in the court

below and received copies of all of the orders entered in the case.

This is not denied by Fox and would be the normal course of

proceeding in the court below.

2 Appellees Mitchell Energy, Southwestern Gas, and Winnie

Pipeline had also brought suit against Crowson in Texas state court

and, on September 23, 1991, obtained a default judgment in excess

of $4.75 million. After reaching a judgment collection agreement

with TICO and South Gulf, these appellees intervened in the federal

court action on January 15, 1993.

3 The Agreed Order provided in part as follows:

3

1991, appellees moved for a default judgment. On September 17,

1991, Fox entered an appearance in the litigation on behalf on

Crowson to oppose the entry of judgment.1 On September 23, 1991,

default judgment was awarded to TICO and South Gulf for

approximately $1.28 million.2

Having obtained their judgment, appellees attempted to

discover the extent and location of Crowson's assets.

Interrogatories and requests for production of documents were

served upon Fox as Crowson's attorney of record. However, no

answers or responsive documents were supplied. On January 15,

1992, the court ordered Crowson to respond to appellees' discovery

requests. This order, too, was ignored. Finally, on June 8, 1992,

the court held a show cause hearing at which Crowson was judged to

be in contempt for failing to comply with post-judgment discovery

and was incarcerated.

To gain release from contempt, on June 15, 1992, Crowson

signed, and the court approved, an "Agreed Order," in which Crowson

pledged to produce all of his financial and business records.3 The
"Crowson agrees to immediately turnover, and hereby

authorizes third-parties to turnover or release, all of

Crowson's financial or business records . . . to the

United States Marshal Service and the representatives of

TICO and/or South Gulf . . . including but not limited to

the following . . ."

There followed twenty-five paragraphs describing in detail types of

records to be produced, including:

"(i) All documents that reflect, evidence, relate or

pertain to Crowson's or MEC's [Mississippi Energy

Corporation, a Crowson entity] participation or ownership

in any partnerships, joint ventures, corporations or

other business entities in which Crowson or MEC hold

either a direct or beneficial interest in from January 1,

1985 to the present.

(j) All documents that reflect, evidence, relate or

pertain to any transfer of assets of any nature by

Crowson or MEC, or any business entity or affiliate with

whom Crowson or MEC have been employed or in which

Crowson or MEC owns or owned a financial interest from

January 1, 1985 to the present, as the actual or

beneficial owner.

. . .

(t) All documents that reflect, evidence, relate or

pertain to Crowson's or MEC'S, or any business entity's,

affiliate's or corporation's with whom Crowson or MEC

have been employed, or in which Crowson or MEC owns or

owned a financial interest from January 1, 1985 to the

present, transfers of assets of any kind, including, but

not limited to, monies, jewelry, furs, automobiles,

boats, charge cards, furniture, homes, condominiums or

apartments since January 1, 1985.

. . .

(v) All contracts of any nature, including commission

agreements, under which Crowson or MEC owns a legal or

equitable interest in from January 1, 1985 to the

present.

(w) Corporate records of any corporation that Crowson

served as officer or director of from January 1, 1985 to

the present.

. . .

4
(y) All documents that reflect, evidence, relate or

pertain to brokerage and commodities accounts, whether

currently open, active or closed, in the name of Crowson

or MEC, or any business entity, affiliate or corporation

in which Crowson or MEC owns or owned a financial

interest from January 1, 1985 to the present . . . ."

The order concluded by stating "ORDERED, that Defendants

Navarro Crowson and Mississippi Energy Company shall comply with

the terms and conditions of the agreed order."

4 This order provided in part as follows:

"ORDERED, that Crowson, MEC, their partners, agents,

servants, employees, attorneys, and all other persons in

active concert or participation with Crowson or MEC who

receive notice of this temporary restraining order shall

be, and are hereby, enjoined from selling, conveying,

assigning or otherwise transferring any of Crowson's or

MEC's real property, personal property, income or other

monies;

. . .

ORDERED, that Crowson and MEC shall immediately

deliver all assets to the U.S. Marshal's service Houston

Office until TICO's and South Gulf's judgment is fully

5

Agreed Order also "authorize[d]" third parties to release such

records. Finally, the Agreed Order provided that Crowson would be

reincarcerated in the event that he failed to comply with its terms

or to cooperate fully with post-judgment discovery. Crowson,

however, evidently had no intention of complying with the Agreed

Order and quickly began to violate it. The record indicates that

sometime after his release, Crowson removed financial records from

his accountant's files. In response, TICO and South Gulf applied

for an ex parte order requiring the turnover of Crowson's assets

and documents. On July 14, 1992, the court ordered Crowson, his

agents and attorneys, to turn over all of his assets to the United

States Marshal Service.4 On July 21, 1992, the court held a
satisfied;

. . .

ORDERED, that all financial institutions, investment

companies, securities brokers, commodities brokers,

accountants, attorneys or other third-parties, that have

or currently hold, maintain or receive assets or income

for Crowson or MEC shall immediately turnover such assets

or income and, all documents relating to such assets or

income upon the service of this order."

This order was predicated on a motion that invoked section

31.002 of the Texas Civil Practice & Remedies Code, paragraph (b)

of which provides in part:

"The court may:

(1) order the judgment debtor to turn over nonexempt

property that is in the debtor's possession or is subject

to the debtor's control, together with all documents or

records related to the property, to a designated sheriff

or constable for execution;

(2) or otherwise apply the property to the

satisfaction of the judgment; or . . . ."

With respect to Vernon's Tex. Ann. Civ. Stat. art. 3827a, the

predecessor to section 31.002, it has been said that "[a]lthough a

third party retains the property, if it is shown to be non-exempt,

owned by a judgment debtor and subject to the debtor's possession

or control, the trial court may issue and enforce its turnover

order." Norsul Oil & Mining v. Commercial Equipment Leasing Co.,

703 S.W.2d 345, 349 (Tex. App.SQSan Antonio, 1985, no writ).

Accord Daniels v. Pecan Valley Ranch, Inc., 831 S.W.2d 372, 384

(Tex. App.SQSan Antonio, 1992, no writ) (section 31.002).

5 The court stated, among other things, "Hamilton, Fox, the

trustee for the children's trust, those people are all your agents,

and they are to produce everything that has anything to do with

anything that you having [sic] interest [in] or Mississippi Energy

6

hearing to determine whether to revoke Crowson's conditional

release from contempt for violating the Agreed Order. At the

hearing, the court ordered Crowson to produce all of his financial

records and to direct his agents to do the same by August 18,

1992.5 The court did not, however, have Crowson reincarcerated.
has interest[in] since 1985."

6 Fox apparently offered to produce a box containing copies of

court records from the lawsuit underlying this appeal, which

appellees declined to accept.

7 By this time, however, Fox had already liquidated and

disbursed the trust's only remaining asset, a life insurance policy

with a cash value of approximately $26,000. 

7

Rather than complying with the various court orders requiring him

to surrender his assets, Crowson repaired to Mississippi where he

filed for bankruptcy and voluntarily committed himself to a mental

hospital. Seeing through this ruse, the court ordered that Crowson

be reincarcerated.

At the same time that Crowson was engaged in this abuse of the

discovery process, appellees were meeting with little more success

with Fox. On June 18, 1992, TICO and South Gulf representatives,

accompanied by a United States Marshal, had the Agreed Order served

upon Fox in his office in Houston, Mississippi. Fox, however,

denied being in possession of any of Crowson's requested records

and produced nothing. On July 7, 1992, appellees and a marshal

returned to Fox's office. Fox again denied being in possession of

any documents responsive to the Agreed Order.6 

Subsequently, appellees discovered that Fox was the trustee of

a trust, established in 1990 by Crowson, known as the Crowson

Children's 1990 Trust (the Children's Trust). On September 14,

1992, the court ordered Fox to turn over all of the trust's assets,

all documents related to the trust, and all assets in his

possession belonging to Crowson (the Trust Order).7 Fox responded

to this order by filing an adversary proceeding in Crowson's
8 Mims had first represented Crowson at the show cause hearing

on June 8, 1992. The court's order of contempt entered after that

hearing recites that "Crowson appeared for the hearing with new

counsel, Bobby D. Mims. Fox never withdrew as Crowson's counsel.

There has been no motion to substitute." The court added that

"Crowson solicited new counsel to obstruct discovery and to dodge

court orders." Mims also co-signed the Agreed Order with Crowson.

Under the local rules of the district court, Fox, having been

Crowson's only attorney, was counsel in charge, and could only

withdraw "by motion and order, under conditions imposed by the

court." S.D. Tex. Local R. 2(D).

8

bankruptcy action seeking a declaratory judgment that the Trust

Order was null and void. The bankruptcy was subsequently

transferred to the court below and dismissed.

On January 21, 1993, the court on its own motion ordered Fox

to file a pleading clearly designating his capacity in the instant

litigation. On February 5, 1993, Fox responded that he was not a

party to the action and that, although he had made a brief

appearance on Crowson's behalf in September 1991, he had since been

replaced as Crowson's counsel by Bobby Mims, an attorney licensed

in Texas.8 Unconvinced, the district ruled that Fox's response was

"inadequate" and that he "remains attorney of record for Navarro

Crowson in this action." 

On February 8, 1993, appellees filed a motion for sanctions

against Fox, who was ordered to appear and show cause why he should

not be sanctioned for failing to produce the Crowson records

pursuant to the Agreed Order and for failing to turn over the

assets of the Children's Trust pursuant to the Trust Order. The

show cause hearing was held on March 15, 1993. At the hearing,

appellees sought to expose the implausibility of Fox's earlier

assertion that he had no documents responsive to the Agreed Order
9 In other hearings, the court heard testimony that Fox and

Crowson: had bought and sold real estate together, with a third

person, as the partnership of Holleman-Fox-Crowson; owned "the Coke

building" in Houston, Mississippi; and owned an oil rig in Alabama.

10 Despite having denied in June and July of 1992 that he was in

possession of any of Crowson's records, Fox, appellees asserted

without contradiction, had subsequently appeared at a hearing in

Crowson's bankruptcy action in Mississippi with copies of a

property settlement from this divorce but had there claimed he

obtained the documents from an unidentified third party.

9

by informing the court, on the basis of evidence obtained in this

case in discovery from other sources, of Fox's extensive business

dealings with Crowson. It was revealed, for example, that: the

two maintained a joint account at a brokerage firm and had actively

traded stocks together as Fox-Crowson Investments; that the two

shared an interest in a condominium in Crested Butte, Colorado; and

that Crowson had assigned to Fox a natural gas pipeline in

Jefferson County, Texas.9 The court also heard testimony about

Fox's activities as Crowson's attorney. Not only had Fox prepared

the Children's Trust, but he had been Crowson's lawyer in a divorce

settlement within the last few years.10 The evidence revealed that

Fox's roles as attorney and business partner overlapped. For

instance, Fox testified that Crowson had assigned him the gas

pipeline as compensation for legal services, but that he (Fox) had

forgotten about it.

It appears that this showing of Fox's deep involvement with

Crowson as the latter's attorney and business partner convinced the

court below of several things: that an agency relationship existed
11 For example, the court stated: "Mr. Fox has been deemed by

this Court to be an agent and alter ego of Mr. Crowson for the

purposes of Crowson's records and activities. I think that

conclusion is inescapable. . . ." The court also observed that Fox

was Crowson's "alter ego in any number of ways" and "is a surrogate

for Crowson."

12 The court stated: "it is inconceivable to me that out of this

18-year relationship there are not a whole lot of records."

13 The court stated: "it seems it's going to be necessary to

reconstruct your life in order to find out how much of your life

and how much of Mr. Crowson's overlap, and see if we can find some

connections."

14 The court stated: 

"[Fox] is doing what is classic discovery stall, so when

[appellees] . . . find out about something, he will

explain it; but there is nothing produced or explained

until they find something from a third source.

. . . 

"And I thought the [Agreed] order made clear that

you were to get the stuff if you didn't have copies. 

. . .

"When I made the mistake of being nice and letting

[Crowson] out [of jail] for a little while, he went out

and, with the help of Mr. Fox and other people, he moved

stuff all around and in violation of every duty he owed

everybody."

10

between Fox and Crowson;11 that documents relating to their joint

ventures must surely exist;12 that the disclosure of these documents

would aid in the location of Crowson's assets;13 and, finally, that

Fox had purposefully withheld documents from the court.14

Accordingly, the court ordered Fox to produce every document in his

possession relating to Crowson or business he had done with

Crowson. The court in this connection also required Fox to produce

all of his own personal tax returns and schedules from 1984 to the
15 The court's minutes from the hearing contain an order that

"Fox shall produce his personal tax returns and schedules for 1984

to the present and all other documents relating to Crowson or

business Fox did or could have done with Crowson."

16 A discovery order, even one directed at a non-party, is not a

final order and hence not appealable. Prior to appeal, the one to

whom the order is directed must first defy it and risk being held

in contempt. If he is so sanctioned, the contempt order is

appealable. See, e.g., In re Grand Jury Subpoena, 926 F.2d 1423,

1430 (5th Cir. 1991); Corporacion Insular de Seguros v. Garcia, 876

F.2d 254, 256-58 (1st Cir. 1989); FTC v. Alaska Land Leasing, Inc.,

778 F.2d 577, 578 (10th Cir. 1985); 8 C. Wright & A. Miller,

Federal Practice & Procedure § 2006, at 30 (1970).

11

present.15 The court commented in this regard:

"Your personal tax returns reflect income from Mr.

Crowson, partnerships with Mr. Crowson, and I don't know

what else.

"But Mr. Zivley [appellees' counsel] is going to

know what else, because your tax returns show the

treatment of property given to or received from Mr.

Crowson. . . .

. . . .

"He is going to get your tax returns that show all

the deals, so he can satisfy himself that there are not

some other things that you don't recall, like this gas

contract." 

The court ordered that the motion for sanctions against Fox be

carried over until April 12, 1993, at which time, if Fox had not

complied with the court's order, he would be held in contempt.

Fox sought a stay from this Court. On April 8, 1993, we

denied his motion on the ground that we lacked appellate

jurisdiction.16 On April 12, 1993, Fox filed a motion to withdraw

as Crowson's counsel. The court had not ruled on this motion as of

the preparation of the record on appeal.

On April 13, 1993, the show cause hearing resumed. As of that
17 Fox attempted initially to notice an appeal on April 13, 1993.

Realizing that the district court did not enter its judgment of

contempt until April 14, 1993, Fox "re-noticed" his appeal on April

26, 1993, to cure any jurisdictional defect. Under 28 U.S.C. §

1826(b), an appeal from a judgment of contempt must be disposed of

within thirty days. Although more than a month has passed, this

appeal has been lawfully processed under established principles.

First, eight circuits have held that time provisions of section

1826(b) do not apply if the contemnor is at liberty during the

appeal. See In re Grand Jury Proceedings (GJ90-2), 946 F.2d 746,

749 n.3 (11th Cir. 1991) (citing cases). According to this

authority, only one circuit holds a contrary view. We believe the

majority rule is a sound one. Second, before the expiration of the

thirty-day period we entered an order extending the time for

disposition of this appeal. This conforms to Fifth Circuit

practice in section 1826(b) cases. See In re Grand Jury

Proceedings (Gavel), 605 F.2d 750, 752 n.1 (5th Cir. 1979) ("Where

appropriate, we will enter an order extending the time within which

the appeal must be decided.") (citing cases).

12

time, Fox still had not produced any of the documents required of

him. At the hearing, Fox initially agreed to turn over every

record in his possession pertaining to Crowson, including his

personal tax returns. After conferring with counsel, however, Fox

recanted and declared that he would not produce his tax returns, at

which point he was held in civil contempt. On April 15, 1993, we

granted Fox a stay of the coercive portions of the order. Fox now

appeals the court's judgment of contempt.17 

Discussion

On appeal, Fox primarily argues that the contempt judgment

against him must be reversed because the court below had no

authority under the Federal Rules of Civil Procedure to order him

to produce his tax returns. Because this order was invalid, Fox

maintains, its violation cannot constitute grounds for contempt.

We will address this argument in Part I and Fox's other contentions

in Part II. 
18 Rule 621(a) provides in relevant part:

"At any time after rendition of judgment, . . . the

successful party may, for the purpose of obtaining

information to aid in the enforcement of such judgment,

initiate and maintain . . . any discovery proceeding

authorized by these rules for pre-trial matters." Tex.

R. Civ. P. 621a.

13

I.

Fox argues that, because he is a non-party and because the

documents at issue are located in Mississippi, Federal Rules 34 and

45 require that a subpoena for their production issue from a

federal district court in Mississippi. Our inquiry must begin,

however, not with Rule 34 or Rule 45, but with Rule 69, which

governs the procedure for post-judgment discovery in federal

courts. Rule 69 provides in relevant part as follows:

"In aid of the judgment or execution, the judgment

creditor . . . may obtain discovery from any person,

including the judgment debtor, in the manner provided in

these rules or in the manner provided by the practice of

the state in which the district court is held."

Fed.R.Civ.P. 69(a).

Thus, Rule 69 allows post-judgment discovery to proceed according

to the federal rules governing pre-trial discovery, or according to

state practice.

Although Texas Civil Practice & Remedies Code § 31.002 has

been construed to authorize turnover orders directed to third

parties (see note 4 supra), the turnover contemplated thereby is

only of property of the debtor and related records. Rule 621a of

the Texas Rules of Civil Procedure, like Federal Rule 69, makes

post-judgment discovery coextensive with pre-trial discovery.18

Texas Rule of Civil Procedure 167(4), which governs the pre-trial
19 Texas Rule 167(4) provides in relevant part:

"The court may order a person, . . . not a party to the

suit to produce in accordance with this rule. However,

such order shall be made only after the filing of a

motion setting forth with specific particularity the

request, necessity therefor and after notice and hearing.

All parties and the nonparty shall have the opportunity

to assert objections at the hearing." Tex. R. Civ. P.

167(4).

14

production of documents by non-parties, provides, among other

things, that a court may order a non-party to produce documents.19

As stated below, we conclude that Texas practice only partially

justifies the court's orders as applied to Fox. However, we first

consider the federal rules and practice.

Fox's primary contention is that the court's order was not in

keeping with Federal Rules 34 and 45. Rule 34 provides as follows:

"A person not a party to the action may be compelled to

produce documents and things or to submit to an

inspection as provided in Rule 45." Fed. R. Civ. P.

34(c).

 

Thus, under Rule 34 a non-party may be compelled to produce

documents in accord with Rule 45. That rule, which governs the

issuance of subpoenas, contains the following key sentence:

"If separate from a subpoena commanding the attendance of

a person, a subpoena for production or inspection shall

issue from the court for the district in which the

production or inspection is to be made." Fed. R. Civ. P.

45(a)(2).

Relying on this text, Fox argues that a district court in Texas

cannot order him to produce his tax returns, which are located in

Mississippi.

 We agree with Fox that a federal court sitting in one district

cannot issue a subpoena duces tecum to a non-party for the
15

production of documents located in another district. Cf. In re

Guthrie, 733 F.2d 634, 637 (4th Cir. 1984). The fact that the

court could not subpoena Fox's records under Rule 45, however, does

not necessarily compel Fox's conclusion that the order at issue was

invalid. After all, no subpoena was issued in this case; instead,

the district court issued a direct order to Fox to produce his tax

returns. At the end of the day, Fox's argument merely establishes

that the court's order must be justified with reference to

something other than Federal Rules 34 and 45. Appellees contend

that the court order was a permissible exercise of the inherent

power with which all federal courts are vested.

For nearly as long as the federal courts have existed, it has

been understood that "[c]ertain implied powers must necessarily

result to our courts of justice from the nature of their

institution," powers "which cannot be dispensed with in a court

because they are necessary to the exercise of all others." United

States v. Hudson, 7 Cranch 32, 34 (1812). See also Anderson v.

Dunn, 6 Wheat. 204, 227 (1821). The Constitution itself confers

this authority upon all Article III courts as an incident to "The

judicial Power." U.S.Const., Art. III, § 1; see Chambers v. NASCO,

Inc., 111 S.Ct. 2123, 2140 (1991) (Scalia, J., dissenting); 1 J.

Moore, Moore's Federal Practice ¶ 0.60[6], at 637 (2d ed. 1988).

The inherent powers of the federal courts are "governed not by rule

or statute but by the control necessarily vested in courts to

manage their own affairs so as to achieve the orderly and

expeditious disposition of cases." Link v. Wabash R. Co., 82 S.Ct.
16

1386, 1389 (1962). At the same time, however, these powers must

be exercised "with restraint and discretion." Roadway Express,

Inc. v. Piper, 100 S.Ct. 2455, 2463 (1980). As we have said,

inherent authority "is not a broad reservoir of power, ready at an

imperial hand, but a limited source; an implied power squeezed from

the need to make the court function." NASCO, Inc. v. Calcasieu

Television & Radio, Inc., 894 F.2d 696, 702 (5th Cir. 1990), quoted

with approval and aff'd, 111 S.Ct. 2123, 2131 (1991). In short,

the inherent power springs from the well of necessity, and

sparingly so.

Fox in essence argues that the Federal Rules of Civil

Procedure completely describe the federal courts' power over civil

procedure, displacing any inherent authority in this area. We

cannot agree. As Judge Posner remarked concerning the relationship

of inherent powers to positive law: "The motto of the Prussian

stateSQthat everything which is not permitted is forbiddenSQis not

a helpful guide." United States v. Torres, 751 F.2d 875, 880 (7th

Cir. 1984). A long line of cases establishes that the Rules are

not always the exclusive source of a federal court's powers in

civil cases. In Link v. Wabash, supra, the Supreme Court held that

a district court has inherent power to dismiss a case sua sponte

for failure to prosecute, even though Federal Rule 41(b) only

provides for such dismissal on a defendant's motion. 82 S.Ct. at

1388-89. In Chambers v. NASCO, supra, the Court held that the

inherent power to impose sanctions for bad-faith conduct during

litigation was not displaced by, and went beyond, such sanctioning
20 There is an apparent tension between the cited cases and

Societe Internationale Pour Participations Industrielles et

Commerciales, S.A. v. Rogers, 78 S.Ct. 1087 (1958). In Rogers, the

district court dismissed a complaint for failure to comply with a

discovery order and the court of appeals affirmed. The district

17

mechanisms as Rule 11 and 28 U.S.C. § 1927. 111 S.Ct. at 2134-36.

Supportive cases can also be found among the decisions of the

courts of appeals. In G. Heileman Brewing Co. v. Joseph Oat Corp.,

871 F.2d 648, 650-53 (7th Cir. 1989) (en banc), the court held that

a district court has inherent power to order litigants to appear at

a pre-trial settlement conference despite the fact that Rule 16(a)

provides only that a court may direct a party's attorneys to attend

such a conference. The court stated:

"[T]he Federal Rules of Civil Procedure do not completely

describe and limit the power of the federal courts. . .

.

"The concept that district courts exercise

procedural authority outside the explicit language of the

rules of civil procedure is not frequently documented,

but valid nevertheless. . . .

. . . 

". . . [T]he mere absence of language in the federal

rules specifically authorizing or describing a particular

judicial procedure should not, and does not, give rise to

a negative implication of prohibition." Id. at 651, 652.

 

For similar statements, see, e.g., Aoude v. Mobil Oil Corp., 892

F.2d 1115, 1119 (1st Cir. 1989); Landau & Cleary, Ltd. v. Hribar

Trucking, Inc., 867 F.2d 996, 1002 (7th Cir. 1989); HMG Property

Investors, Inc. v. Parque Indus. Rio Canas, Inc., 847 F.2d 908, 915

(1st Cir. 1988); Black Panther Party v. Smith, 661 F.2d 1243, 1281

& n.4 (D.C. Cir. 1981) (MacKinnon, J., concurring in part and

dissenting in part), vacated as moot, 102 S.Ct. 3505 (1982).20 
court relied upon Rule 37(b) and its inherent power, and the court

of appeals affirmed on the basis of Rule 41(b) and inherent power.

The Supreme Court reversed. Writing for the Court, Justice Harlan

held that "whether a court has power to dismiss a complaint because

of noncompliance with a production order depends exclusively on

Rule 37," adding that "[r]eliance upon Rule 41 . . . or upon

'inherent power,' can only obscure [the] analysis." Id. at 1093.

As we read Rogers, however, the real issue was whether Rule 37 or

Rule 41 applied to dismissals for discovery abuse, not whether the

Rules limit inherent power. Indeed, just four years later the

Court in Link, again per Justice Harlan, held that the inherent

power to dismiss a case for want of prosecution is broader than

Rule 41(b). No justice in Link suggested it was inconsistent with

Rogers. See also Chambers, 111 S.Ct. at 2135 & n.14 (arguing that

"the inherent power of a court can be invoked even if procedural

rules exist which sanction the same conduct" and that Rogers "is

not to the contrary").

21 Even where the exercise of inherent power would not violate an

applicable rule, a court is not required to use that power where a

party has failed to avail himself of the devices contained in the

Rules. See McGill v. Duckworth, 944 F.2d 344, 353-54 (7th Cir.

1991), cert. denied, 112 S.Ct. 1265 (1992).

18

We note, however, that although a court may have inherent

power to do that which is not specifically provided for in the

Rules, it may not do that which the Rules plainly forbid. Congress

has the power to abrogate a lower court's inherent authority,

although it must adequately express its intent to do so. See

Chambers, 111 S.Ct. at 2134; Link, 82 S.Ct. at 1389. Where such an

expression has been made, a court "may not exercise its inherent

authority in a manner inconsistent with rule or statute." G.

Heileman Brewing, 871 F.2d at 652. "That is, where the rules

directly mandate a specific procedure to the exclusion of others,

inherent authority is proscribed." Landau & Cleary, 867 F.2d at

1002. See also United States v. One 1987 BMW 325, 985 F.2d 655,

661 (1st Cir. 1993); Strandell v. Jackson County, 838 F.2d 884, 886

(7th Cir. 1987).21
22 Criminal courts, too, possess some inherent discovery power.

See, e.g., United States v. Nobles, 95 S.Ct. 2160, 2166-67 (1975)

(both prosecution and defense can be compelled to produce the

previously recorded statements of its witnesses).

23 See United States Catholic Conference v. Abortion Rights

Mobilization, Inc., 108 S.Ct. 2268, 2272 (1988); United States v.

Shipp, 27 S.Ct. 165, 166 (1906).

24 See United States v. Altech, Inc., 929 F.2d 1089, 1091-92 (5th

Cir. 1991).

19

Here, the court's order was not in violation of the relevant

rules because those rules, as was the case with Rule 41(b) in Link,

contain only "permissive language." Link, 82 S.Ct. at 1388. Rule

69(a) provides that post-judgment discovery "may" be obtained in

the manner provided in the Rules. Similarly, Rule 34(c) provides

that a non-party "may" be compelled to produce documents per the

terms of Rule 45. In sum, Rule 69(a) and Rule 34(c) do not purport

to define the sole means of obtaining post-judgment document

discovery or production from a non-party.

Having concluded that the Rules of Civil Procedure do not

foreclose the possibility that the court's orders might be

justified as an exercise of inherent power, we now turn to whether

the court in fact had such power. We first consider whether the

order fell within the ambit of those inherent powers possessed by

the courts to conduct discovery not recognized by rule or statute.

In the civil22 context, for example, it has been held (or stated in

dicta) that courts have inherent power to issue such discovery

orders as are necessary for a court to determine and rule upon its

own jurisdiction,23 to permit the taking and filing of post-trial

depositions,24 to subpoena witnesses for indigent civil litigants
25 See Gibbs v. King, 779 F.2d 1040, 1046-47 (5th Cir.), cert.

denied, 106 S.Ct. 1975 (1986); Lloyd v. McKendree, 749 F.2d 705,

707 (11th Cir. 1985); Estep v. United States, 251 F.2d 579, 580

(5th Cir. 1958).

26 See In re Letter Rogatory, 523 F.2d 562, 563 (6th Cir. 1975);

United States v. Reagan, 453 F.2d 165, 173 (6th Cir. 1971), cert.

denied, 92 S.Ct. 2049 (1972); United States v. Staples, 256 F.2d

290, 292 (9th Cir. 1958); 8 Wright & Miller, supra, § 2083, at 351.

27 See Koskotas v. Roche, 931 F.2d 169, 175 (1st Cir. 1991);

Quinn v. Robinson, 783 F.2d 776, 817 n.41 (9th Cir.), cert. denied,

107 S.Ct. 271 (1986); First Nat'l City Bank of New York v.

Aristeguieta, 287 F.2d 219, 226 (2d Cir. 1960), vacated as moot, 84

S.Ct. 144 (1963). But see In re Extradition of Singh, 123 F.R.D.

108, 115-16 (D.N.J.1987). 

28 See United States v. Porcelli, 1992 U.S. Dist. Lexis 17928

(E.D.N.Y. Nov. 5, 1992) (third-party petitioner in forfeiture

proceeding may obtain discovery of documents from defendantforfeitor).

29 See Harris v. Nelson, 89 S.Ct. 1082, 1086 (1969) (court may

compel answers to interrogatories in habeas proceedings).

30 But see Miner v. Atlass, 80 S.Ct. 1300, 1303 (1960) (admiralty

courts have no inherent power to allow the taking of depositions).

31 Nor should our compilation of this list be construed as an

endorsement of any of those decisions that we are not bound to

follow.

20

who cannot tender fees,25 to issue letters rogatory to foreign

courts,26 and to order some forms of discovery in extradition,27

forfeiture,28 and habeas corpus29 proceedings.30 

We decline today to add to this list a broad, general power to

order non-parties beyond the forum district to produce documents.31

"Because inherent powers are shielded from direct democratic

controls, they must be exercised with restraint and discretion."

Roadway Express, 100 S.Ct. at 2463. Accordingly, an argument for

the existence of such a power must be grounded on more than mere

judicial convenience. We have said that the inherent power
32 Several other courts have quoted this language with approval.

See In re Villa Marina Yacht Harbor, Inc., 984 F.2d 546, 548 (1st

Cir.), petition for cert. filed (May 24, 1993); Aoude, 892 F.2d at

1119; In re San Juan DuPont Plaza Hotel Fire Litigation, 859 F.2d

1007, 1011 n.2 (1st Cir. 1988); HMG Property, 847 F.2d at 915; Eash

v. Riggins Trucking Inc., 757 F.2d 557, 563 (3d Cir. 1985) (en

banc). Cf. Hall v. Cole, 93 S.Ct. 1943, 1946 (1973) (inherent

power to award attorney's fees "'is part of the original authority

of the chancellor to do equity in a particular situation'")

(quoting Sprague v. Ticonic Nat'l Bank, 59 S.Ct. 777, 780 (1939)).

21

"doctrine is rooted in the notion that a federal court, sitting in

equity, possesses all of the common law equity tools of a Chancery

Court (subject, of course, to congressional limitation) to process

litigation to a just and equitable conclusion." ITT Community

Development Corp. v. Barton, 569 F.2d 1351, 1359 (5th Cir. 1978)

(citing Ex parte Peterson, 40 S.Ct. 543 (1920)).32 One such

chancery tool was the bill of discovery, which has been called the

forerunner of all modern discovery procedures. See Hickman v.

Taylor, 67 S.Ct. 385, 395 (1947) (Jackson, J., concurring). Potent

as it was, however, the bill of discovery could not be used to

obtain documents (or other discovery) from someone who was not a

party. See 6 J. Wigmore, Evidence § 1859f, at 594-95 (J. Chadbourn

rev. ed. 1976); id. § 1856d, at 562 & n.1 (citations); G. Ragland,

Discovery Before Trial 16 (1932); Welling, Discovery of Nonparties'

Tangible Things Under the Federal Rules of Civil Procedure, 59

Notre Dame L.Rev. 110, 134 & n.125 (1983); Crew v. Saunders, 2 Str.

1005 (1735). Thus, although federal courts are vested with certain

inherent discovery powers owing to the equitable power of Chancery
33 See McMullen Lumber Co. v. Strother, 136 F. 295, 301 (8th Cir.

1905) ("That bills for discovery and relief inhered in the ancient

jurisdiction of courts of chancery in England at the time of the

adoption of the federal judiciary act is beyond question. This

being so, the like jurisdiction inheres in the federal courts,

unless abolished by statutes, changed or modified by some rule

adopted by the Supreme Court.").

34 A court might well have inherent power to order a party to

produce pertinent documents. See Producers Releasing Corp. de Cuba

v. PRC Pictures, Inc., 176 F.2d 93, 95 (2d Cir. 1949) ("[I]t seems

very reasonable to suppose that a court has inherent power to

compel a party to produce, without the issuance of a subpoena,

documentary evidence within his control and known to be

relevant.").

22

courts to issue bills of discovery,33 we conclude that there is no

broad, general inherent power to order a non-party beyond the

district to produce documents.34

However, here, as the district court noted, "Fox is not a

third party," but was rather Crowson's attorney of record in this

very case, as well as his agent and attorney in other respects.

See also note 11 supra. In these circumstances, we hold that Texas

practice and the court's inherent powers combined to authorize the

court to require Fox to turn over Crowson-related records, as

specified in the June 15 Agreed Order. Fox argues that the Agreed

Order only "authorizes" third parties to turn over Crowson's

documents, but does not require them to do so. This was plainly

not the plaintiffs' or the district court's understanding of the

Agreed Order, as it applied to Fox. Crowson himself had testified

at the July 21, 1992, hearing that, following the entry of the

Agreed Order, "I called Mr. Fox the very first thing, and I told

Mr. Fox that, as far as I was concerned, he needed to release any

files that he had." In any event, the district court subsequently
35 Additionally, the court's July 14, 1992, turnover order (see

note 4 supra) clearly required Fox to turn over Crowson's records

(as did the July 21, 1992, order; see note 5 supra).

23

made fully clear to Fox at the March 15, 1993, hearing that he was

required to turn over all of Crowson's records responsive to the

Agreed Order.35 Moreover, we conclude that the combined authority

of Texas Civil Practice & Remedies Code § 31.002 (note 4 supra) and

Texas Rule 167(4) (note 19 supra) empowered the court to so order

Fox, and that, as applied to Fox, after March 15, 1993, any failure

to comply with all the procedural requirements of those provisions

was not substantially prejudicial.

These considerations, however, do not suffice to sustain the

district court's order that Fox produce his personal tax returns.

This order, unlike the requirement that Fox produce Crowson's

records, had never been requested by any of the parties and was

ordered by the district court entirely sua sponte. For this

reason, it is not within Texas Rule 167(4). Fox's own tax returns

are not sufficiently related to his dealings with Crowson and thus,

for the purposes of an order for their discovery, Fox would stand

in the shoes of a non-party. The order is therefore not within

section 31.002, which applies only to the debtor's property and

records.

The district court may have ordered Fox to produce his tax

returns as a sanction for refusing to comply with discovery orders.

If possible and within reason, we will construe the district

court's actions in a favorable (that is to say permissible) light.

We review a court's imposition of sanctions for abuse of
36 As also was his April 13 offer to produce Crowson's records.

37 Fox claimed he did not understand the Agreed Order to refer to

records such as deeds and the like, although it obviously did (see

note 3, supra). The district court was also obviously concerned

about Fox's having purportedly forgotten about certain of his

transactions with Crowson.

24

discretion. Chambers v. NASCO, Inc., 111 S.Ct. 2123, 2138 (1991).

A review of the record persuades us that Fox's evasiveness and

intransigence justified sanctions. The district judge found that

Fox had disobeyed three separate turnover orders, two of which were

entered before the March 15, 1993, order to Fox to produce his

personal tax returns. The March 15, 1993, and April 13, 1993,

hearings were noticed so as to include sanctions for failure to

comply with the prior orders, including the Agreed Order of June

15, 1992. As previously noted, at least by the March 15, 1993,

hearing, it was made plain to Fox by the court that the Agreed

Order required him to turn over Crowson's records. At the April

13, 1993, hearing, Fox admitted that he still had not done this.

Fox's failure to produce Crowson's records was a violation of the

court's orders and of his duties as Crowson's attorney. Fox's

motion to withdraw as counsel, filed on April 12, 1993, the day

before he was held in contempt, has not been granted by the court

below and is too little too late.36 Fox remains an officer of the

court until he is discharged or the litigation comes to an end. It

is clear that the district court was justified in concluding that

Fox had been evasive37 and that, without some sanction, he could not

be relied on to produce all the records of his extensive financial

relationship with Crowson. Based on Fox's status as Crowson's
38 "[T]he court shall require the party failing to obey the

[discovery] order or the attorney advising that party or both to

pay the reasonable expenses, including attorney's fees, caused by

the failure, unless the court finds that the failure was

substantially justified or that other circumstances make an award

of expenses unjust." Fed. R. Civ. P. 37(b)(2).

25

agent, as well as the unique position he occupied as Crowson's

attorney, the trial court had reasonable grounds to sanction Fox

for his failure to comply with the post-judgment discovery and

turnover orders related to the Crowson documents and assets.

When parties or their attorneys engage in bad faith conduct,

a court should ordinarily rely on the Federal Rules as the basis

for sanctions. Chambers, 111 S.Ct. at 2136. The Federal Rules do

not explicitly provide an avenue to sanction attorneys who fail to

comply with discovery orders. Rule 37(b)(2) is clearly directed to

party failure to obey discovery orders, not attorney failure,

although the attorney is subject to sanctions for obstructive

advice.38 There is, however, no finding of such advice by Fox.

Furthermore, Fox had signed no objectionable court papers or

discovery objections that might give rise to Rule 11 or Rule 26(g)

sanctions. We find no sanction under the Federal Rules directly

applicable to Fox's misconduct.

It was therefore proper for the district judge to resort to

his inherent powers to discipline Fox's intransigence and

complicity in his client's scandalous behavior. The inherent power

to sanction bad faith conduct must extend to reach individuals and

conduct not directly addressed by other mechanisms. Chambers, 111

S.Ct. at 2134. Although it is unclear whether the inherent power
39 We have found no cases sanctioning non-parties for abusing the

discovery process. In In re Rainbow Magazine, Inc., 136 B.R. 545,

553 (Bankr. 9th Cir. 1992), the court reversed the lower court's

assessment of attorney's fees against a non-party because it had

"uncovered no cases imposing sanctions against a non-party under

th[e bad-faith] exception to the American Rule." In Pennwalt Corp.

v. Durand-Wayland, Inc., 708 F.2d 492, 494-95 (9th Cir. 1983), the

court seemed to accept that attorney's fees could be assessed

against a non-party but reversed a lower court order doing so for

failure to find bad faith on the part of the non-party. Finally,

in Parkway Gallery Furniture, Inc. v. Kittinger/Pennsylvania House

Group, Inc., 121 F.R.D. 264 (M.D.N.C. 1988), although the court

stated that "[t]he Court also has inherent power to impose

sanctions on parties, non-parties or attorneys who violate

discovery orders," id. at 267, the sanctions were being sought

against a party, not a non-party, and were ultimately denied.

26

to sanction discovery abuses extends to abuses committed by nonparties,39 there is no doubt that this power may be applied to

attorneys in the case. "The inherent power of a court to manage

its affairs necessarily includes the authority to impose reasonable

and appropriate sanctions upon errant lawyers practicing before

it." Flaksa v. Little River Marine Constr. Co., 389 F.2d 885, 888

n.10 (5th Cir.), cert. denied, 88 S.Ct. 2287 (1968), cited with

approval in Roadway Express, 100 S.Ct. at 2464 n.12; see also

Roadway Express, 100 S.Ct. at 2464 ("The power of a court over

members of its bar is at least as great as its authority over

litigants.").

Although it was proper to invoke inherent powers to sanction

Fox, the district judge abused his discretion by ordering Fox to

produce his personal tax returns and schedules. See Chambers, 111

S.Ct. at 2132 (because of their potency, inherent powers must be

exercised with restraint and discretion). Income tax returns are

highly sensitive documents; courts are reluctant to order their
27

routine disclosure as a part of discovery. SEC v. Cymaticolor, 106

F.R.D. 545, 547 (S.D.N.Y. 1985) (disclosure of tax returns for

purposes of discovery ordinarily demands that the requesting party

demonstrate relevancy and compelling need). Not only are the

taxpayer's privacy concerns at stake, but unanticipated disclosure

also threatens the effective administration of our federal tax laws

given the self-reporting, self-assessing character of the income

tax system. Commodity Futures Trading Commission v. Collins, 62

U.S.L.W. 2059, 2060 (7th Cir. July 7, 1993).

The intrusive nature of the sanction is compounded by its

novelty. Although novel sanctions are not objectionable per se,

they are subject to close examination on review simply because

their reasonableness has not been demonstrated.

Several factors contribute to the order's unreasonableness.

The district judge ordered Fox to produce his tax returns sua

sponte. The judgment creditors had never included them in their

discovery requests, a fact that suggests that the returns were

believed inaccessible or irrelevant for the creditors' purposes.

No evidence came to light in the sanction hearings that proved the

particular usefulness of Fox's tax returns to indicate Crowson's

financial position. The court engaged in a fishing expedition.

Fox could not have anticipated that his conduct would result in

such a sanction.

Further, the judge's order neither provided Fox with the

opportunity to expunge sensitive or irrelevant portions of his

returns before exposing them to opposing counsel, nor did it permit
40 Fox challenges the court's order as based upon impermissible

ex parte communications. Fox was held in contempt only after

receiving notice and two hearings on the record. At both hearings,

Fox gave testimony and was represented by counsel. Fox received

due process. Cf. Holcomb v. Allis-Chalmers Corp., 774 F.2d 398,

401 (10th Cir. 1985).

28

a review of the record in camera to protect their privacy. Even

with such protections, however, a sanction that penalizes errant

lawyers by demanding their personal tax returns risks untoward

consequences. The threat of sanctions in the form of forced

disgorgement of private information subjects uncooperative

attorneys to judicial bludgeoning and humiliation above and beyond

the consequences of a monetary order or an order directly related

to the court proceedings.

The ultimate touchstone of inherent powers is necessity.

Given the post-judgment posture of this case, the scandalous

behavior of Crowson, and the evident complicity of Fox, his

attorney, in the case, we concur that sanctions should have been

imposed on Fox. Necessity did not, however, compel a sua sponte

order to produce Fox's personal tax returns. Traditional sanctions

SQperhaps a monetary penalty that increased each day for Fox's

noncompliance with the other post-judgment discovery ordersSQwould

have accomplished the court's purpose more properly.40

Conclusion

For these reasons, the portion of the district court's order

of March 15, 1993, directing Fox to turn over his personal tax

returns (and the schedules thereto) for the years 1984 to the

present is reversed, and, likewise, so much of the Civil Contempt
41 Nothing in this opinion precludes sanctions against Fox (other

than for his failure to produce his personal tax returns); nor is

resort to subpoena from the appropriate United States District

Court in Mississippi precluded.

29

Judgment signed April 14, 1993, as finds Fox in contempt for

failing to turn over his said personal tax returns (and schedules),

and as imposes confinement or other coercion until he does so, is

also reversed. We find no fault with the balance of the March 15,

1993, order. We remand the balance of the April 14, 1993, Civil

Contempt Judgment for reconsideration in light of our ruling as to

Fox's personal tax returns.41

REVERSED in part and REMANDED