` United States Court of Appeals,

Fifth Circuit.

No. 93-9109.

Frederick C. TIBERI, et al., Plaintiffs,

v.

CIGNA INSURANCE COMPANY, et al., Defendants,

CIGNA Insurance Company, et al., Defendants-Appellants.

M. Eliza STEWART, Appellant,

v.

MILLERS MUTUAL FIRE INSURANCE COMPANY and Millers Group

Insurance, Appellees.

Dec. 19, 1994.

Appeal from th e United States District Court for the Northern

District of Texas.

Before POLITZ, Chief Judge, DUHÉ and BARKSDALE, Circuit Judges.

POLITZ, Chief Judge:

CIGNA Fire Underwriters Insurance Company and its attorney M.

Eliza Stewart appeal an order of the district court denying them

discovery and awarding costs and attorneys fees to Millers Mutual

Fire Insurance Company and Millers Group Insurance. We affirm in

part, reverse in part, and vacate in part.

Background

This appeal arises from attempts at discovery in the Northern

District of Texas for litigation pending in the District of New

Mexico in which CIG NA is the defendant in a breach of contract

suit. The gravamen of that action is a claimed loss of business by

insurance sales personnel because of acts by CIGNA.

CIGNA determined from records of the New Mexico Department of2

Insurance that the plaintiffs may have written insurance with other

carriers despite an exclusivi ty agreement with it. CIGNA sought

discovery from Millers regarding any insurance the plaintiffs may

have written with it. Following discussions between CIGNA and

Millers, CIGNA obtained a subpoena duces tecum in the Northern

District of Texas for a deposition to be take n in Dallas in late

September 1993. On September 9, 1993, Millers moved to quash or,

in the alternative, for a protective order.

On September 21, 1993, the court a quo scheduled a hearing on

the motion for the ne xt morning. Late on September 21, CIGNA's

counsel in Ne w Mexico prepared and executed sworn statements

relevant to the next day's hearing and faxed them to their Dallas

counte rparts. At the hearing the next day the court refused to

consider the facsimile statements, barred the discovery sought, and

ordered Stewart and CIGNA to pay Millers' costs and attorneys fees

totaling $4100 for the motion to quash or protective order. CIGNA

timely appealed.

Analysis

CIGNA first contends that the district court erred in refusing

to admit the faxed affidavits. Fed.R.Civ.P. 43(e) provides that

"[w]hen a motion is based on facts not appearing of record the

court may hear the matter on affidavits presented by the respective

parties, but the court may direct that the matter be heard wholly

or partly on oral testimony or deposition." The district court1 Although the district court rejected the faxed affidavits

of Jennifer L. Weed and M. Eliza Stewart, it admitted and

apparently considered Weed's earlier affidavit.

2 It might be contended that this error was harmless in light

of the district court's alternative conclusion that, even if

admitted, CIGNA's faxed affidavits would hold no weight as

against Millers' live testimony. As a rule, the court suggested

that an affidavit will not prevail over credible, conflicting

live testimony. That general statement must be taken cum grano
salis in the factual situation at bar considering temporal and

proximity factors. We conclude that the faxed affidavits provide

strong and essentially uncontroverted evidence of the good faith

efforts of CIGNA and Stewart to narrow the subpoena. Under the
controlling circumstances, the trial court erred in not according

appropriate weight to the faxed affidavits.

3 admitted one affidavit into evidence, 1 thereby determining that the

hearing would not be wholly on oral testimony and that written

evidence could be considered.

Fed. R.Civ.P. 5(e) permits papers to be filed by facsimile

transmission if permitted by the rules of the district co urt.

Fed.R.Evid. 1003 provides that duplicates, which we understand to

include facsimile s, are as admissible as the originals, assuming

there are no authenticity concerns. We conclude that under the

very ti ght time constraints involved herein the district court

abused its discretion in refusing to consider the facsimiles. 2

That evidentiary ruling is REVERSED.

CIGNA challenges the order of attorneys fees and cos ts,

contending that Fed.R.Civ.P. 26(c) and 37 (a)(4) are inapplicable

and that it took reasonable steps to avoid imposing an undue burden

on Millers. The application of Rule 37(a) sanctions via Rule 26(c)

is not without question. Rule 37 is entitled "Failure to Make

Disclosure or Cooperate in Discovery: Sanctions," and by its4

express terms applies to one resisting discovery. Rule 26(c),

entitled "Protective Orde rs," states that the Rule 37(a)(4)

provisions "apply to the award of expenses incurred in relation to

the motion" for a protective order. Read together, the rules

appear to apply only to p ersons refusing to comply with a valid

discovery request and not to persons seeking overbroad discovery.

Rule 26(c) is taken to state that the sanctions provision of Rule

37(a)(4) applies only if the "motion for a protective order is

denied in whole or in part." Further, Rule 37(a)(4)(A) provides:

If the motion [to compel] is granted or if the disclosure or

requested discovery is provided after the motion was filed,

the court shall

... req uire the party or deponent whose

conduct necessitated the motion

... to pay to the moving party the reasonable expenses incurred ... unless the court finds

that the motion was filed without the movant's first making a

goo d faith effort to obtain the disclosure or discovery

without court action, or that the opposing party's

nondisclosure, response, or objection was substantially

justified ... (emphasis added).

The sanctions provisions of Rules 26 and 37 authorize expenses

against a party resisting discovery by unreasonably necessitating

a motion to compel or by unreasonably moving for a protective

order. There is neither warrant nor need to strain the express

language of these rules given the ready applicabili ty of another

rule. Rule 45(c)(1) specifically provides for sanctions, including

"lost earnings and a reasonable attorney's fee" against one issuing

a vexatiously overbroad subpoena.

Upon completion of our revi ew, we conclude that the

erroneously excluded affidavits present adequate proof that CIGNA

and Stewart engaged in sufficient good faith efforts to negotiate

reasonable parameters on the subpoena duces tecum to preclude3 United States v. Arditti, 955 F.2d 331 (5th Cir.1992),

cert. denied, --- U.S. ----, 113 S.Ct. 597, 121 L.Ed.2d 534

(1992) and --- U.S. ----, 113 S.Ct. 980, 122 L.Ed.2d 134 (1993).

4 "On timely motion, the court by which the subpoena was

issued shall quash or modify the subpoena if it ... requires

disclosure of ... protected matter ... or ... subjects a person

to undue burden." Fed.R.Civ.P. 45(c)(3)(A). The choice to quash

or modify is discretionary in the district court. See also
Wright and Miller, Federal Practice & Procedure: Civil § 2457.

5 An order quashing a subpoena apparently has no res judicata

effect on a later, narrower subpoena. See Ariel v. Jones, 693
F.2d 1058, 1060 n. 2 (11th Cir.1982) (affirming quashing of

subpoena in one district but noting that the requesting party

could "in fact obtain the requested information in another

district"). Indeed, in the instant case the district court

expressly authorized a new subpoena stating that its order "does

not prevent further discovery from Millers, but merely prohibits

the discovery sought by the subpoena at issue." The district

court, while preserving judgment until Millers could present

objections, appears to endorse a subpoena limited in scope to

CIGNA's stated needs: "[t]he names and kinds of policies, the

5 sanctions. The award of same was an abuse of discretion and the

sanctions are VACATED.

Finally, CIGNA contends that the district court erred in

bar ring discovery. We review the grant of a motion to quash a

subpoena for abuse of discretion. 3 Although CIGNA's initial

request was overbroad, the dist rict court described a more

appropriate, more narrowly-drawn request and gave CIG NA the

opportunity to proffer a new subpoena within those limits. Though

modification of an overbroad subpoena might be prefer able to

quashing, courts are not required to use that lesser remedy first. 4

Rather than totally barring neces sary discovery, the trial court

exercised its discretion by comb ining its decision to quash the

ove r broad subpoena with an expressed willingness to entertain

thereafter a more narrowly-drawn subpoena. 5 The district court'samount of premiums those policies have generated for Mr. Tiberi

or his agency and the amount of commissions ... generated by

those policies...."

6 decision to quash the subpoena and to allow CIGNA to start anew on

a clean slate instead of itself modifying the subpoena was within

the court's sound discretion. The district court's order quashing

the subpoena is therefore AFFIRMED. The matter is remanded in

order that CIGNA may pursue a new subpoena consistent with the

district court's order.

A FFIRMED IN PART, REVERSED IN PART, VACATED IN PART, and

REMANDED.