In Waste Management v. Kattler, the Fifth Circuit Court of Appeals reversed the district court’s civil contempt finding against an attorney. Notable aspects of the decision (available here) are that:
- the contempt finding was vacated on due process grounds because the show cause order and motion to show cause did not provide the attorney (as opposed to his client) with notice that he was the subject of the contempt proceedings;
- “an alleged contemnor may defend against a prima facie showing of contempt by demonstrating a present inability to comply with a court order” which in this case occurred because the attorney was told by his client that the client did not have a device that was required to be produced pursuant to the court’s order and, when the attorney found out otherwise, he consulted a professional responsibility expert and took steps to withdraw from representing the client; and
- the contempt finding for failure to produce an image of an IPad would be reversed because “a party’s good-faith claim of attorney-client privilege can serve as a valid defense to a finding of contempt” and here it was clear that the IPad contained privileged information, such that the failure to comply with the Court’s order was excusable “because the order required [the attorney] to violate the attorney-client privilege.”