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United States District Court 

Northern District of California 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

GLENN BERRY, 

Plaintiff, 

v. 

CITY AND COUNTY OF SAN 

FRANCISCO, et al., 

Defendants. 

Case No.17-cv-00056-EDL 

ORDER THAT XASHA WASHINGTON 

APPEAR ON OCTOBER 23, 2017 TO 

SHOW CAUSE WHY SHE SHOULD 

NOT BE HELD IN CONTEMPT FOR 

FAILURE TO COMPLY WITH A 

SUBPOENA TO APPEAR FOR A 

DEPOSITION 

Re: Dkt. No. 35 

 On August 30, 2017, Plaintiff filed an ex parte letter requesting the Court’s assistance in 

compelling Xasha Washington, a non-party witness, to appear for a deposition, including holding 

Ms. Washington in contempt of court. For the reasons discuss below, the Court construes 

Plaintiff’s ex parte request as a request for an order to show cause why Ms. Washington should 

not be held in contempt of court. For good cause shown, the Court orders Ms. Washington to 

appear before this Court on October 23, 2017 at 10:00 a.m. to show cause why she should be held 

in civil contempt for failure to appear at her deposition. 

I. BACKGROUND 

Plaintiffs contend that Ms. Washington is the sole known witness to the incident at issue in 

this case. Dkt. No. 33. Plaintiff served Ms. Washington with a deposition subpoena on August 

13, 2017, demanding an appearance at Plaintiff’s counsel’s office in San Francisco at 10:00am on 

August 28, 2017. Id. Plaintiff had the subpoena personally served on Ms. Washington on August 

13, 2017. Id. Plaintiff represents that, at the time of service, Ms. Washington expressed some 

opposition to testifying, stating, “I do not testify.” Id. 

Ms. Washington did not appear for her deposition on August 28, 2017. Dkt. No. 33. In 
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United States District Court 

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response, Plaintiff, joined by Defendants, filed a letter on August 30, 2017 informing the Court of 

Ms. Washington’s non-compliance. Id. The letter requested that the Court issue an order 

directing Ms. Washington to comply with the subpoena or hold her in contempt pursuant to Rule 

45(g). Id. On August 8, 2017, the Court issued an order directing Ms. Washington to appear for a 

deposition by October 3, 2017 and explaining that her failure to submit to a deposition may lead to 

the Court holding her in contempt of court. Dkt. No. 34. 

On September 28, 2017, Plaintiff filed another letter informing the Court that Ms. 

Washington has continued to disregard her obligation to appear for the deposition. Dkt. No. 35. 

After receiving the Court’s September 8 order, Plaintiff served the order on Ms. Washington by 

mail. Id., Ex. 1. Plaintiff also attempted personal service, and the process server made seven 

unsuccessful attempts to serve the order. Id., Ex. 2. Plaintiff’s letter asks the Court to take further 

steps to compel Ms. Washington to appear for the deposition, including finding her in contempt of 

court and imposing a monetary sanction to be waived if she appears by a certain date. Id. Plaintiff 

also asks that the Court direct the United States Marshal to serve the resulting order on Ms. 

Washington. Id. Defendants did not join in this most recent letter to the Court. Id. 

II. DISCUSSION 

A. Sufficiency of Subpoena and Service 

A subpoena served pursuant to Federal Rule of Civil Procedure shall “command each 

person to whom it is directed to attend and given testimony or to produce and permit inspection 

and copying of designated books, documents or tangible things in the possession, custody or 

control of that person.” Fed. R. Civ. P. 45(a)(1)(A)(iii). Every deposition subpoena must state the 

court from which it issued, state the title of the action and its civil-action number, specify to each 

person to whom it is directed the time and place set for the deposition, and set out the text of Rule 

45(d) and (e). Fed. R. Civ. P. 45(a)(1)(B)(i)-(iv). A subpoena commanding a deposition must 

also set forth the method for recording the testimony. Fed. R. Civ. P. 45(a)(1)(B). Serving a 

subpoena requires “delivering a copy to the named person,” which is interpreted to mean personal 

service. Fed. R. Civ. P. 45(b)(1). See Prescott v. Cnty. Of Stanislaus, 2012 WL 10617, at *3 

(E.D. Cal. Jan. 3, 2012) (explaining that a majority of courts interpret “delivering” to require 
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United States District Court 

Northern District of California 

personal service). 

As described above, the subpoena contained all required information (such as the time and 

place of the deposition) and was personally delivered to Ms. Washington on August 13, 2017. 

Thus, the subpoena was valid and properly served on Ms. Washington. 

B. Sanctions for Non-Compliance with Valid Subpoena 

Plaintiff has filed an ex parte request that the Court take further action to compel Ms. 

Washington’s compliance with the subpoena, including holding Ms. Washington in contempt of 

court. For the reasons discussed below, the Court construes this as a request to issue an order to 

show cause why Ms. Washington should not be held in contempt of court for her refusal to appear 

for a deposition. 

Rule 45(e), (g) 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.” Fed. R. Civ. P. 45(g). 

See also Pennwalt Corp. v. Durand-Wayland, Inc., 708 F.2d 492, 494 (9th Cir. 1983). Proper 

subpoenas issued by attorneys on behalf of the court are treated as orders of the court. See United 

States Sec. & Exh. Comm’n v. Hyatt, 621 F.3d 687, 696-97 (7th Cir. 2010); Martinez v. City of 

Pittsburg, 2012 WL 699462, at *2 (N.D. Cal. Mar. 1, 2012). Because Ms. Washington is a 

nonparty, the proper procedure for seeking compliance with the deposition subpoena is an order to 

show cause why she should not be held in contempt because a “nonparty has a right to be heard in 

a meaningful fashion.” Martinez, 2012 WL 699462, at *2. See Hyatt, 621 F.3d at 696-97; Fisher 

v. Marubeni Cotton Corp., 526 F.2d 1338, 1342 (8th Cir. 1975); Morgutia-Johnson v. City of 

Fresno, 2015 WL 1021123, at *2 (E.D. Cal. Mar. 9, 2015). 

A contempt charge against a nonparty may be criminal or civil in nature. See Falstaff 

Brewing Corp. v. Miller Brewing Co., 702 F.2d 770, 778 (9th Cir. 1983). Criminal contempt is 

punitive, and may include fines payable to the district court (instead of compensating the moving 

party) and jail time. See In re Sequoia Auto Brokers LTD, Inc., 827 F.2d 1281, 1283 n.1 (9th Cir. 

1987); 18 U.S.C. § 401. 

On the other hand, “civil contempt is characterized by the court’s desire to compel 

obedience to a court order or to compensate the contemnor’s adversary for the injuries which 
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United States District Court 

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result from the noncompliance.” Falstaff Brewing Corp. v. Miller Brewing Co., 702 F.2d 770, 

778 (9th Cir. 1983). A civil contempt order must include a “purge” condition such that it gives the 

contemnor an opportunity to comply with the order before payment of the fine or other sanction 

comes due. Martinez, 2012 WL 699462, at *3 (citing De Parcq v. U.S. District Court for the S. 

Dist. of Iowa, 235 F.2d 692, 699 (9th Cir. 1956) (“[C]ivil contempt is conditional in nature and 

can be terminated if the contemnor purges himself of the contempt.”). In imposing civil contempt 

sanctions, the court must impose the least possible sanction to coerce the contemnor to comply 

with the order. Whittaker Corp. v. Execuair Corp., 953 F.2d 510, 517 (9th Cir. 1992). Where the 

purpose of the contempt order is to ensure a party’s compliance, the court must “consider the 

character and magnitude of the harm threatened by continued contumacy, and the probable 

effectiveness of any suggested sanction in bringing the result desired.” Bademyan v. Receivable 

Management Servs. Corp., 2009 WL 605789, at *3 (C.D. Cal. Mar. 9, 2009) (quoting United 

States v. United Mine Workers of Am., 330 U.S. 258, 304 (1947) and citing Whittaker, 953 F.2d 

at 516). 

Based on the sanctions requested, Plaintiff has asked the Court to hold Ms. Washington in 

civil contempt. To establish civil contempt, Plaintiff must show by clear and convincing evidence 

that Ms. Washington violated a specific order of the court. See FTC v. Affordable Media, 179 

F.3d 1228, 1239 (9th Cir. 1999). If Plaintiff meets that burden, the burden shifts to Ms. 

Washington to show that she took every reasonable step to comply with the subpoena and to 

articulate reasons why compliance was not possible. See Donovan v. Mazzola, 716 F.2d 1226, 

1240 (9th Cir. 1983). 

As discussed above, Plaintiff has established that Ms. Washington violated a specific order 

of the Court by failing to appear for her deposition on August 28, 2017, as well as the Court’s 

further order of September 8, 2017 that she must comply with the subpoena. Accordingly, 

Plaintiff’s request for an order to show cause is granted. 

III. CONCLUSION 

For the reasons set forth above, it is hereby ordered that: 
United States District Court 

Northern District of California 

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