Blake et al v. NCMIC Insurance Company et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
BRITTANY BLAKE, D.C.; MORGAN
LOFTUS (f/k/a MORGAN MARSH);
RAQUEL OSTERBAUER; PATRICIA
ASMAN; TAMARA RYAN;
CYNTHIA TARANTO; and KERI
WILLIAMS,
Plaintiffs,
vs.
NCMIC INSURANCE COMPANY;
and NCMIC INSURANCE
SERVICES, INC.,
Defendants.
Case No. 3:17-cv-00193-JMK
ORDER DENYING MOTION FOR
ATTORNEY’S FEES
Pending before the Court at Docket 107 is non-party Dr. Myron Schweigert’s
Motion for Attorney’s Fees (the “Motion”). 	Defendant NCMIC Insurance Company
(“NCMIC”) filed an opposition at Docket 108. 	Plaintiffs responded to NCMIC’s
opposition at Docket 112. 	Dr. Schweigert filed a reply in support of the Motion at
Docket 115. For the following reasons, the Motion is DENIED.
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I. 	BACKGROUND
Plaintiffs are seven female former patients of Dr. Schweigert.1 	Plaintiffs
previously sued Dr. Schweigert in Alaska Superior Court, Case No. AN-15-11597CI,
bringing claims for professional malpractice, sexual harassment, breach of the covenant of
good 	faith 	and 	fair 	dealing, 	and 	wrongful 	discharge 	(the 	“Underlying 	Action”).2
Dr. Schweigert sought coverage for the Underlying Action under NCMIC Professional
Liability Policy No. MP00034696 (the “Policy”).3 	NCMIC took the position that the
claims 	in 	the 	Underlying 	Action 	constituted 	sexual 	impropriety 	and 	therefore 	the
Underlying Action falls outside the Policy’s scope of coverage and falls within a specific
exclusion under the Policy.4 NCMIC agreed to pay for Dr. Schweigert’s defense under the
Policy’s Supplemental Legal Defense Endorsement, which affords coverage for up to
$25,000 in defense costs in certain covered proceedings.5 	In May 2017, Dr. Schweigert
and Plaintiffs entered into a settlement agreement to resolve the Underlying Action.6 The
settlement agreement provided that Dr. Schweigert’s claims under the Policy were assigned
to Plaintiffs and that, “Dr. Schweigert, at his own expense, will cooperate and testify as a
witness in any future lawsuit involving the Plaintiffs and NCMIC Insurance Company
and/or its agents.”7 	Plaintiffs, acting as assignees under the Policy, then filed the instant
1 Docket 1-1 at 9.
2 Docket 1-4 at 13–25.
3 Docket 1-1 at 10.
4 Docket 109-4 at 3–5.
5 Id. at 1, 4.
6 Docket 1-5 at 3.
7 Id. at 2–3.
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action, alleging that, through its coverage position in the Underlying Action, NCMIC
breached its duty to defend and duty to indemnify.8
In February 2021, NCMIC issued a subpoena to Dr. Schweigert, requesting
that he appear for a deposition and that he produce certain documents related to the
Underlying Action.9 	Dr. Schweigert objected to the document requests, arguing that the
documents at issue already had been produced to NCMIC by Plaintiffs in the instant
action.10 Dr. Schweigert’s counsel wrote that “[i]f NCMIC want[s] to receive a duplicate
copy of documents which apparently have already been produced in this matter from
Dr. Schweigert, you will be required to pay for any attorney’s fees and costs associated
with this production.”11 In response to those objections, NCMIC provided the documents
previously produced by Plaintiffs to Dr. Schweigert for his review, clarifying that NCMIC
would not require Dr. Schweigert to produce documents previously produced by Plaintiffs
in this action if Dr. Schweigert would stipulate to the authenticity and completeness of
Plaintiffs’ documents.12 	Dr. Schweigert’s counsel responded, indicating that he would
stipulate to the completeness of the previous production by Plaintiffs, but there may be
certain responsive documents that were not previously produced.13 	Dr. Schweigert’s
counsel also indicated that Dr. Schweigert would expect NCMIC “to pay the cost of review
of the subpoena and production of documents.”14 NCMIC responded that it was difficult
8 Docket 1-1 at 15–18. Plaintiffs’ bad faith claim was dismissed at Docket 29.
9 Docket 107-3.
10 Docket 107-4 at 2.
11 Id. at 3.
12 Docket 107-5; Docket 107-6.
13 Docket 107-7 at 1.
14 Id.
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to tell the source of the documents produced by Plaintiffs and to confirm that everything
produced by Dr. Schweigert in the Underlying Action was, in fact, produced to NCMIC in
the instant ligation.15 	NCMIC requested that Dr. Schweigert reproduce everything to
NCMIC that was produced by Dr. Schweigert in the Underlying Action and provide a
privilege log.16 	The parties then agreed to schedule Dr. Schweigert’s deposition for
April 27, 2021, and Dr. Schweigert produced the documents requested in the subpoena
prior to that date.17
On January 20, 2022, Dr. Schweigert’s counsel wrote to NCMIC requesting
that it pay for the costs associated with Dr. Schweigert’s subpoena response.18 	NCMIC
refused to pay these costs19 and Dr. Schweigert then brought the instant motion, requesting
an order requiring NCMIC to pay Dr. Schweigert’s fees in responding to the subpoena and
for drafting the present Motion, an amount totaling $14,662.50.20 Dr. Schweigert asserts
that he is entitled to these costs under Federal Rule of Civil Procedure 45(d)(1)21 “or
alternatively, because NCMIC has either agreed to pay these costs, or through its conduct,
is equitably estopped from objecting to the payment of such.”22
15 Docket 107-8 at 1.
16 Id.
17 Docket 107 at 10–11.
18 Docket 107-9.
19 Docket 109-12.
20 Docket 107 at 2, 12.
21 Dr. Schweigert refers to Federal Rule of Civil Procedure 45(c)(1) as the basis for the
present Motion. Rule 45 was amended in 2013. Those amendments added a new subdivision (c),
such that subdivision (d) contains the provisions formerly in subdivision (c). 	Rule 45(c)(1)
currently delineates the acceptable places of compliance for subpoenas. 	The Court assumes
Dr. Schweigert intended to cite Rule 45(d)(1) as the basis for his Motion and mistakenly was
relying on an outdated version of Rule 45.
22 Docket 107 at 2.
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II. 	LEGAL STANDARD
Federal Rule of Civil Procedure 45(d)(1) provides that “[a] party or attorney
responsible for issuing and serving a subpoena must take reasonable steps to avoid
imposing undue burden or expense on a person subject to the subpoena.” The Court “must
enforce this duty and impose an appropriate sanction––which may include lost earnings
and 	reasonable 	attorney’s 	fees––on 	a 	party 	or 	attorney 	who 	fails 	to 	comply.”23
Rule 45(d)(1) is discretionary, but the Ninth Circuit has provided guidance for when
Rule 45(d)(1) sanctions are appropriate.24 	A court may impose Rule 45(d)(1) sanctions
“when a party issues a subpoena in bad faith, for an improper purpose, or in a manner
inconsistent with existing law.”25 “[W]hile failure [to] narrowly [] tailor a subpoena may
be a ground for sanctions, the district court need not impose sanctions every time it finds a
subpoena overbroad; such overbreadth may sometimes result from normal advocacy which
. . . should not give rise to sanctions.”26
The 	doctrine 	of 	equitable 	estoppel 	requires 	proof 	of 	three 	elements:
“(1) assertion of a position by conduct or word, (2) reasonable reliance thereon, and
(3) resulting prejudice.”27
23 Fed. R. Civ. P. 45(d)(1).
24 Legal Voice v. Stormans Inc., 738 F.3d 1178, 1185 (9th Cir. 2013).
25 Id.
26 Id.
27 Alborn Constr., Inc. v. Dep’t of Lab. & Workforce Dev., Lab. Standards & Safety Div.,
507 P.3d 468, 480 (Alaska 2022) (quoting Municipality of Anchorage v. Schneider, 685 P.2d 94,
97 (Alaska 1984)).
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III. 	DISCUSSION
A. 	Rule 45(d)(1)
Federal Rule of Civil Procedure 45(d) “provides two related avenues by
which a person subject to a subpoena may be protected from the costs of compliance;
sanctions 	under 	Rule 	45(d)(1) 	and 	cost-shifting 	under 	Rule 	45(d)(2)(B)(ii).”28
Rule 45(d)(2)(B)(ii) provides that, when a court orders a non-party to respond to a
subpoena, “the order must protect a [non-party] from significant expense resulting from
compliance.” 	Rule 45(d)(2)(B)(ii) provides for “mandatory” cost-shifting because when
discovery is ordered against a non-party, “the only question before the court in considering
whether to shift costs is whether the subpoena imposes significant expense on the non-
party.”29 	In determining whether expenses are “significant,” courts within this circuit
assess (1) the non-party’s ability to bear the costs of production; (2) whether the non-party
has an interest in the outcome of the underlying case; and (3) whether the underlying
litigation is of public importance.30 Both Dr. Schweigert and NCMIC rely on this test,”31
yet Dr. Schweigert and NCMIC acknowledge that Rule 45(d)(2)(B)(ii) is inapplicable here
because the Court did not issue an order compelling Dr. Schweigert to comply with the
subpoena.32 Instead, the present motion falls under Rule 45(d)(1). Neither Dr. Schweigert
28 Legal Voice, 738 F.3d at 1184.
29 Id.
30 See In re Fresh & Process Potatoes Antitrust Litig., No 4:10-md-02186-BLW-CWD,
2016 WL 11784717, at *6 (D. Idaho Sept. 30, 2016); Stormans Inc. v. Selecky, No. C07-5374
RBL, 2015 WL 224914, at *6 (W.D. Wash. Jan. 15, 2015); Cornell v. Columbus McKinnon Corp.,
No. 13-cv-02188-SI, 2015 WL 4747260, at *3 (N.D. Cal. Aug. 11, 2015); United States v.
McGraw-Hill Companies, Inc., 302 F.R.D. 532, 534 (C.D. Cal. 2014).
31 Docket 108 at 14–15; Docket 115 at 8–9.
32 See Docket 107 at 15; Docket 108 at 14.
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nor NCMIC cites any authority from this circuit applying this three-part test to a
Rule 45(d)(1) motion;33 the Court therefore finds that the three-part test does not apply to
the present motion.
“Unlike Rule 45(d)(2)(B)(ii), Rule 45(d)(1) is discretionary.”34 	Sanctions
under Rule 45(d)(1) are appropriate “when a party issues a subpoena in bad faith, for an
improper purpose, or in a manner inconsistent with existing law.”35 	Considering these
factors, the Court declines to impose sanctions under Rule 45(d)(1). There is no evidence
that NCMIC issued its subpoena to Dr. Schweigert in bad faith, for an improper purpose
or with an improper motive. 	More importantly, NCMIC complied with Rule 45(d)(1)’s
mandate by taking reasonable steps to alleviate Dr. Schweigert’s burden in responding to
the subpoena.36 	Dr. Schweigert claims that the documents requested in NCMIC’s
subpoena already had been produced in the Underlying Action.37 	NCMIC initially
proposed accepting a stipulation that Dr. Schweigert’s previous production was accurate
and complete,38 but ultimately found that it was too difficult to tell the source of the
documents from Plaintiffs’ production and requested that Dr. Schweigert reproduce his
33 Dr. Schweigert and NCMIC cite Kipperman v. Onex Corp., No. 1:05-CV-1242-JOF,
2008 WL 11333467, at *5 (N.D. Ga. Mar. 19, 2008). Docket 108 at 14–15; Docket 115 at 8–9.
This Northern District of Georgia case is not binding on this Court. Further, Kipperman appears
to suggest that this three-part test applies to all motions brought under Rule 45, a position which
finds no support in the Ninth Circuit. See Kipperman, 2008 WL 11333466, at *5.
34 Legal Voice, 738 F.3d at 1185.
35 Id.
36 See Balfour Beatty Infrastructure, Inc. v. PB & A, Inc., 319 F.R.D. 277, 283 (N.D. Cal.
2017) (finding that Rule 45(d)(1) sanctions were inappropriate where information requested was
duplicative of a previous production because of the relevance of the documents and the requesting
party’s attempts to minimize the burden from production).
37 Docket 107 at 15.
38 Docket 107-5.
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prior production with a privilege log.39 In the context of this case, and in light of the back
and forth amongst the different counsel groups, this request was reasonable and within the
realm of normal advocacy. It is not clear to this Court how reproducing a set of documents
that previously was produced is especially burdensome. 	If the contention is that the
documents had to be reviewed again to create a privilege log, that was an entirely
foreseeable aspect of compliance with any subpoena that was served upon Dr. Schweigert
in this matter. Dr. Schweigert initially seemed to take primary issue with the timing of the
deposition, which was rescheduled,40 and then lamented the fact that the requested
production was duplicative, but, after discussions with counsel for NCMIC, Dr. Schweigert
agreed to produce the requested documents.41 It was therefore reasonable for NCMIC to
assume that providing a duplicate set of a prior production was not especially onerous and
that further steps to alleviate Dr. Schweigert’s burden were unnecessary.42 	Further,
although Dr. Schweigert refers to the documents requested in his subpoena as “wholly”
duplicative of his previous production,43 Dr. Schweigert and NCMIC both acknowledge
that there were some responsive documents that were not previously produced in the
Underlying Action.44
39 Docket 107-8.
40 See Docket 107-4 at 1, 3.
41 See Docket 107-7; Docket 109-8 (“We will produce the rest of our file, with the
exception of the medical records, and a privilege log for the redacted emails.”).
42 Docket 108 at 21.
43 Docket 107 at 8, 15.
44 Id. at 16; Docket 108 at 16.
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Finally, although courts disfavor seeking discovery from non-parties when
the documents sought are available from a party,45 this concern is lessened here because
Dr. Schweigert is not the type of non-party that Rule 45 was designed to protect. 	“The
Rule is aimed at protecting persons who are disinterested, and thus have little to gain from
their outlays in compliance cost.”46 	Non-parties who are “substantially involved in the
underlying transaction” such that they should have anticipated that the transaction would
reasonably spawn some litigation, including discovery, are not the focus of Rule 45’s
protections.47 	Dr. Schweigert was a defendant in the Underlying Action. 	He certainly
foresaw that entering into a settlement agreement with Plaintiffs would spawn further
litigation; he assigned the claims he had against NCMIC to Plaintiffs and agreed that
“Dr. Schweigert, as his own expense, will cooperate and testify as a witness in any future
lawsuit involving the Plaintiffs and NCMIC Insurance Company and/or its agents.”48 The
burden of compliance with a subpoena, and the advocacy that accompanies litigating the
scope of a subpoena, should not have come as a surprise to Dr. Schweigert.
In conclusion, the Court, in its discretion, declines to award Dr. Schweigert
sanctions under Rule 45(d)(1) for the costs he incurred in responding to NCMIC’s
subpoena.
45 See Audio MPEG, Inc. v. HP Inc., No. 16-mc-80271-HRL, 2017 WL 950847, at *3
(N.D. Cal. Mar. 10, 2017); Roosevelt Irrigation Dist. v. Salt River Project Agric. Improvement,
No. 2:10-cv-00290-DAE-BGM, 2016 WL 159842, at *3 (D. Ariz. Jan. 14, 2016).
46 Cornell v. Columbus McKinnon Corp., No. 13-cv-02188-SI, 2015 WL 4747260, at *5
(N.D. Cal. Aug. 11, 2015).
47 Id. (quoting Tutor-Saliba Corp. v. United States, 32 Fed. Cl. 609, 610 n.5 (1995)).
48 Docket 109-1 at 2.
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B. 	Estoppel
Dr. Schweigert argues that “[t]he Court [S]hould Find that NCMIC Either
Agreed to Pay Dr. Schweigert’s Costs in Responding to the Subpoena or It is Equitably
Estopped from Objecting to the Payment of Such Costs.”49 Both arguments fail for the
simple reason that NCMIC never agreed to pay Dr. Schweigert’s costs in responding to
the subpoena.50
Dr. Schweigert relies on a Middle District of North Carolina case for the
proposition that “[i]n a situation where a non-party voluntarily complies with a subpoena,
but does not strictly follow Rule 45, the Court will look to the words and actions of the
party and non-party to see whether they have reached some voluntary agreement.”51
However, in that case, it was “clear that the parties did reach some agreement. Defendant
agreed she would pay for any copying or related services” but did not explicitly agree to
pay for costs associated with reviewing documents for privilege.52 Accordingly, the Court
denied the plaintiffs’ request for reimbursement for the production of documents other than
the costs of copying because “it would not be fair to say that defendant Kelly agreed to pay
for attorney’s fees resulting from the production of documents.”53 	Here, it would not be
fair to say that NCMIC agreed to pay Dr. Schweigert’s costs.
49 Docket 107 at 18.
50 See Docket 108 at 21; Docket 109-12.
51 Angell v. Kelly, 234 F.R.D. 135, 139 (M.D.N.C. 2006).
52 Id.
53 Id.
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In a February 24, 2021 letter, Dr. Schweigert’s counsel stated, “[i]f you want
to receive a duplicate copy of documents which apparently have already been produced in
this matter from Dr. Schweigert, you will be required to pay for any attorney’s fees and
costs associated with this production . . . .”54 	NCMIC’s counsel responded, indicating
“[w]e don’t need document[s] previously produced again if Schweigert will stipulate to
their authenticity and completeness.”55 	Dr. Schweigert then indicated he would so
stipulate.56 In a March 5, 2021 letter, counsel for Dr. Schweigert again stated that “[w]e
will expect your client to pay the cost of review of the subpoena and production of
documents.”57 In that letter, Dr. Schweigert’s counsel stated that Plaintiffs had objected to
production of their medical records and indicated that Dr. Schweigert’s counsel was “still
in the process of reviewing emails and our files to determine if there are any documents
subject 	to 	disclosure, 	which 	have 	not 	already 	been 	produced 	by 	Ms. 	Brown.”58
Dr. Schweigert’s 	counsel 	then 	followed 	up, 	asking 	whether 	NCMIC 	is 	requiring
Dr. Schweigert to produce documents which previously had been produced by Plaintiffs’
counsel and whether NCMIC will require a privilege log.59 Dr. Schweigert’s counsel did
not mention payment of fees, concluding the email with “[w]e will make every effort to
produce documents expediently and to schedule a deposition once this clarification has
been provided.”60 NCMIC’s counsel responded, requesting that Dr. Schweigert reproduce
54 Docket 107-4 at 3.
55 Docket 107-5 at 1.
56 Docket 107-7 at 1; Docket 108 at 19.
57 Docket 107-7 at 1.
58 Id.
59 Docket 109-9 at 4.
60 Id.
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everything that he produced in the underlying lawsuit, along with a privilege log, and
requesting that Dr. Schweigert certify that the medical records produced in the underlying
litigation were complete.61 The next mention of reimbursement for Dr. Schweigert’s costs
came on January 20, 2022, nine months after Dr. Schweigert’s deposition.62
The 	attorney 	exchanges 	reveal 	that 	Dr. 	Schweigert 	raised 	objections
concerning the scope of his subpoena response and NCMIC responded by making
suggestions for ways to alleviate the burden on Dr. Schweigert while ensuring all
responsive documents were produced. Dr. Schweigert then sought clarification regarding
what documents were being requested, and NCMIC provided the necessary clarification.
This exchange cannot be fairly interpreted as NCMIC’s acquiescence to Dr. Schweigert’s
demands for costs.
For the same reasons, Dr. Schweigert’s estoppel argument fails. 	First,
Dr. Schweigert relies on the doctrine of equitable estoppel, but promissory estoppel is the
more appropriate legal theory. “The ‘primary difference between promissory and equitable
estoppels is that the former is offensive, and can be used for affirmative enforcement of a
promise, whereas the latter is defensive, and can be used only for preventing the opposing
party from raising a particular claim or defense.’”63 	Here, Dr. Schweigert appears to be
attempting 	to 	enforce 	NCMIC’s 	purported 	implicit 	“promise” 	that 	it 	would 	pay
61 Docket 109-9 at 3.
62 Docket 107-9 at 1.
63 Alaska Trademark Shellfish, LLC v. State, Dep’t of Fish & Game, 172 P.3d 764, 766
n.8 (Alaska 2007) (quoting Simpson v. Murkowski, 129 P.3d 435, 440 n.18 (Alaska 2006)).
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Dr. Schweigert’s 	fees 	and 	costs 	in 	connection 	with 	the 	subpoena.64 	Second,
notwithstanding 	whether 	the 	doctrine 	of 	promissory 	or 	equitable 	estoppel 	applies,
Dr. Schweigert must show NCMIC made an “actual promise” or “asserted a position by
conduct or words” that it would pay Dr. Schweigert’s fees.65 An “actual promise” must be
“definitive,” “very clear,” “must use precise language,” and “must manifest an unequivocal
intent to be bound.”66 	NCMIC’s silence in the face of Dr. Schweigert’s request for fees
clearly cannot meet this standard. 	“[E]quitable estoppel requires more than inaction or
silence by a person who has no obligation to speak or act . . . [although] there can be
circumstances where inaction or silence combined with acts or representations” can give
rise to the application of equitable estoppel.67 	Here, there are no acts or representations
that reasonably allow the Court to conclude that NCMIC took the position that it would
pay Dr. Schweigert’s fees. There are “many conceivable reasons other than acquiescence
that would explain”68 why NCMIC did not explicitly object to Dr. Schweigert’s demands
for payment; most notably, as described above, that NCMIC thought its clarification of its
position mooted the demands for fees.69 	Therefore, because NCMIC made no actual
64 Docket 107 at 19–21.
65 Alaska Trademark Shellfish, LLC v. State, Dep’t of Fish & Game, 172 P.3d 764, 766–
67 (Alaska 2007); Alborn Constr., Inc. v. Dep’t of Lab. & Workforce Dev., Lab. Standards &
Safety Div., 507 P.3d 468, 480 (Alaska 2022) (quoting Municipality of Anchorage v. Schneider,
685 P.2d 94, 97 (Alaska 1984)).
66 Alaska Trademark Shellfish, 172 P.3d at 767.
67 Ennen v. Integon Indem. Corp., 268 P.3d 277, 288 (Alaska 2012) (citing Groseth v.
Ness, 421 P.2d 624, 632 n.23 (Alaska 1966)).
68 See Cowan v. Yeisley, 255 P.3d 966, 977 (Alaska 2011).
69 Docket 107 at 19–21.
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promise and took no position on Dr. Schweigert’s demands for payments, the doctrines of
promissory and equitable estoppel are inapplicable.
IV. 	CONCLUSION
For the reasons stated above, Dr. Schweigert’s Motion for Attorney’s Fees at
Docket 107 is DENIED. 	The Court declines to award Dr. Schweigert any costs in
connection with his response to the subpoena issued to him by NCMIC.
IT IS SO ORDERED this 17th day of February, 2023, at Anchorage, Alaska.
/s/ Joshua M. Kindred
JOSHUA M. KINDRED
United States District Judge
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