IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

SHERMAN DIVISION

KESANIA POWELL

v.

NELNET, INC. 

§

§

§

§

§

§

§

 

 NO. 4:23-cv-00783-SDJ-BD

MEMORANDUM OPINION AND ORDER

On September 12, 2024, the defendant moved to compel compliance with a subpoena for the 

deposition testimony of nonparty witness Dr. Thomas L. Jones. Dkt. 48. The motion also seeks 

attorneys’ fees for work expended in securing compliance with the subpoena. Id. at 10–14. Having 

reviewed the motion and plaintiff Kesania Powell’s response, Dkt. 53, the court will GRANT the 

motion in part. 

BACKGROUND

Powell sued Nelnet LLC, which she initially identified as “Nelnet, Inc.,” and others for 

violations of the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. She seeks compensatory and 

punitive damages, including compensation for “severe emotional distress” caused by Nelnet’s 

conduct. Dkt. 1 at 4, 13. Powell identified Dr. Thomas L. Jones, her therapist, as a potential witness. 

Dkt. 48 at 2.

Nelnet served Jones with a subpoena to produce certain documents, which are subject to an 

agreed protective order. Dkt. 31. Powell at first refused to sign a HIPAA release form and later 

signed a modified release that limited the information Jones could release to Nelnet. See Dkt. 40 at 

4. After a hearing before the magistrate judge at which Nelnet alleged that Powell unjustifiably 

interfered with Jones’s document production, the court ordered Powell to authorize Jones to 

release the requested documents. See Aug. 8, 2024, Minute Entry; Dkt. 43. The court also ordered 

Powell to produce communications between her counsel and Jones. Dkt. 43. Jones eventually 

Case 4:23-cv-00783-SDJ-BD Document 54 Filed 09/30/24 Page 1 of 4 PageID #: 399
2

produced the requested documents. But after reviewing them, Nelnet served a subpoena ordering 

Jones to sit for a deposition via Zoom. Dkt. 48-1. Jones refused to appear. He instead filed a motion 

to quash the subpoena on the day of the scheduled deposition. Dkt. 46. Because the motion to 

quash did not comply with the Eastern District’s local rules, the Clerk of Court flagged the filing 

as deficient, and this court did not consider the motion. See Clerk’s Notice of Deficiency, entered 

Sept. 3, 2024.

Nelnet now moves to compel Jones’s deposition testimony. Powell filed a response to the 

motion. Dkt. 53. Because Jones did not file a response, it is presumed that he does not controvert 

the facts set out in the motion or have any evidence to offer in opposition. See Local Rule CV-7(d). 

Jones previously defended his refusal to comply with the subpoena by insisting that he could not 

take time away from his counseling practice and that he would sit for a deposition only if Nelnet 

paid him his hourly fee for counseling services and the court ordered him deposed. Dkt. 48 at 8;

Dkt. 48-2 at 3.

Powell’s response asks the court to modify the subpoena to limit the scope of Jones’s testimony 

to “a timeline of the documents produced.” Dkt. 53 at 2. Powell did not file a timely motion to 

quash the subpoena. Neither does she argue why her proposed modification is required under 

Rule 26(b)(1) or why the protections afforded by Rule 30(c) and (d) do not adequately protect her 

interests.

ANALYSIS

“Whether a [deposition] subpoena subjects a witness to undue burden generally raises a 

question of the subpoena’s reasonableness,” which requires a court to balance the burden of 

compliance against “whether the information is necessary and unavailable from any other source.” 

Positive Black Talk Inc. v. Cash Money Recs., Inc., 394 F.3d 357, 377 (5th Cir. 2004). Jones, who 

identifies himself as a “counseling psychologist,” Dkt. 48-2 at 9, insists that sitting for a deposition

will keep him away from his patients. Powell claims that Nelnet intends the deposition to last “up 

to 7 hours.” Dkt. 53 at 2. Federal Rule of Civil Procedure 30(d)(1) allows for a deposition of up to 

Case 4:23-cv-00783-SDJ-BD Document 54 Filed 09/30/24 Page 2 of 4 PageID #: 400
3 

seven hours in a single day unless the court permits a longer time consistent with Rule 26(b)(1). 

Nelnet rightly points out that even physicians “must sit for depositions just like everyone else.” 

Dkt. 48 at 8. Further, as Powell’s counselor, Jones is best positioned to testify about her alleged 

emotional distress and its connection to Nelnet’s conduct. Weighing the need for the information, 

the unavailability of that information from other sources, and the burden of complying with the 

subpoena, the court finds that a deposition conducted via Zoom and limited to the time permitted 

by Rule 30(d)(1) will not unduly burden Jones.

Nor is Jones entitled to his usual hourly fee for time spent testifying in a deposition. Witnesses 

testifying at trial or deposition “shall be paid an attendance fee of $40 per day for each day’s 

attendance.” 28 U.S.C. § 1821(b). Witnesses are entitled to additional reimbursements for travel 

expenses, id. § 1821(c)–(d), but those expenses do not apply to a deposition conducted via 

Zoom. Powell suggests that, if she were permitted to call Jones as an expert witness, then “this 

dispute would be handled.” Dkt. 53 at 2. But Powell identified Jones as a fact witness, id. at 1, 

and Nelnet seeks his testimony only as such. If Powell wants to introduce Jones’s expert 

testimony, she is free to do so, subject to the limitations of Federal Rule of Evidence 702 and 

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Nelnet has offered to pay 

Jones the fee to which he is entitled by statute. Jones’s refusal to testify unless paid his usual 

hourly fee is not supported by any legal authority. 

As to Jones’s refusal to sit for a deposition unless ordered by the court, a subpoena is a court 

order that calls upon a “public duty, which every person within the jurisdiction of the Government 

is bound to perform when properly summoned.” United States v. Bryan, 339 U.S. 323, 331 (1950) 

(citing Blair v. United States, 250 U.S. 273, 281 (1919)). Jones has been ordered to testify, and he

refused without good cause. Refusal to comply with a valid subpoena may subject the witness to a 

finding that he is in contempt of court pursuant to Federal Rule of Civil Procedure 45(g) and to

confinement for up to the remainder of the proceeding pursuant to 28 U.S.C. § 1826(a). 

Finally, Nelnet seeks an award of attorneys’ fees. Jones failed to comply with a valid subpoena.

His retained counsel filed a deficient motion to quash the subpoena and failed to refile a corrected 

Case 4:23-cv-00783-SDJ-BD Document 54 Filed 09/30/24 Page 3 of 4 PageID #: 401
4

motion after notice from the Clerk of Court. Jones and his counsel have advanced meritless 

arguments and needlessly delayed discovery. Rule 37(a)(5)(A) requires this court, upon granting a 

motion to compel discovery, to order the party or deponent necessitating the motion to pay the 

movant’s reasonable expenses, including attorneys’ fees. The court, however, may order the 

deponent to pay those expenses only after “giving an opportunity to be heard” and must not order 

the deponent to pay expenses if his noncompliance was substantially justified or other 

circumstances make the award of expenses unjust. Fed. R. Civ. P. 37(a)(5)(A).

CONCLUSION

Nelnet’s deposition subpoena is not unduly burdensome to Jones. Neither Powell nor Jones 

has identified a valid basis for relieving Jones of his duty to testify at a deposition.

It is ORDERED that the motion, Dkt. 48, is GRANTED to the extent that it requires Jones 

to sit for a deposition during the month of October, 2024.

It is further ORDERED that, within 14 days of this order, Jones must file a response setting 

forth his position on the award of expenses and fees pursuant to Rule 37(a)(5)(A). His response

may also request oral argument on the matter.

Case 4:23-cv-00783-SDJ-BD Document 54 Filed 09/30/24 Page 4 of 4 PageID #: 402