Anderson v. Snohomish County, No. C25-1705-JCC (W.D. Wash. Nov. 9, 2026), full opinion (PDF)
A subpoenaed nonparty whose sworn description of her ESI search falls short can still avoid a show-cause order by curing the gaps under oath. A plaintiff subpoenaed a Washington state representative who was not a party, seeking communications that mention the plaintiff by name or title. After a court-ordered declaration left gaps, the plaintiff moved for an order to show cause. She also asked for a third-party forensic search of the representative's devices at the representative's expense. The court denied the motion, largely because a supplemental declaration cured most defects in the earlier one. It refused to make the representative pay for any forensic examination.
What happened
Concluding that the representative's first response was insufficient, the court granted a motion to compel. The court noted that she is not a lawyer and had, until recently, handled the subpoena herself. The order compelling compliance required her to describe her search in a sworn declaration, including the terms, sources and date range she used.
In the court's view, her first declaration was facially non-compliant. She had not certified which platforms she searched. Her search had stopped at her devices and immediately accessible storage. The plaintiff then challenged her search terms, the platforms covered and the date range.
The court's analysis
The court measured the motion against the civil contempt standard. Civil contempt requires clear and convincing evidence that the alleged contemnor violated a court order. A person who substantially complied, or who acted on a good-faith and reasonable reading of the order, is not in contempt.
The subpoena's list of search terms ended with the phrase "or any known variants or aliases thereof". Its list of platforms used a conjunction instead, which the court read as requiring a search of every platform. Giving the disjunctive its plain meaning, the court concluded that the representative was not obligated to search every listed term. Its own order, the court added, required her only to state the terms she used.
The supplemental declaration explained that she chose the terms most likely to produce hits on communications about the plaintiff. The court acknowledged that leaving out terms it read as examples fell below the thoroughness it expects of a party. Noting that she is not a party, the court concluded that her search was reasonable and made in good faith.
On platforms, the court concluded that the supplemental declaration largely resolved any sanctionable deficiency. The representative certified that she had searched text messages and email accounts. She also certified searches of other messaging platforms after the plaintiff singled them out. Even if she never certified a Facebook Messenger search, the court viewed that gap as a mere technicality.
The court treated the date-range objection as already moot. Its order required her only to state the range she searched. Her supplemental declaration acknowledged and corrected an error in that range.
The plaintiff repeatedly pointed to messages that might exist in other people's records. The representative declared under penalty of perjury that she regularly deletes personal messages. Absent contrary evidence, the court reasoned, that statement explains why any such messages did not appear in her search results.
The representative offered to submit her phone for forensic examination at the plaintiff's expense. The court called that offer "a clear example of good faith" and said it undercut any claim of contempt. It refused to order the representative to bear the expense of the examination.
If the plaintiff accepts the offer, the court reminded her, Rule 45(d)(1) obliges her to limit any undue burden or expense to the representative. In the court's view, that duty includes bearing the cost of the examination. The duty also bars an examination that unreasonably interferes with the representative's personal use of her devices or her official duties.
Why it matters
A party drafting an ESI subpoena should state plainly whether the recipient must run every listed term. A list closed with a disjunctive phrase invites the recipient to treat the terms as examples.
A requesting party should be prepared for a court to give a nonparty latitude, especially one without a lawyer. Search-term choices that would fall short for a party may pass as a reasonable search when a nonparty explains them under oath.
A nonparty facing a deficiency claim should run the searches her obligation requires before answering the claim. Her supplemental declaration should name the sources, terms and date range searched and give a defensible basis for any term or source left out. An offer to make a device available for examination at the requester's cost gives a court concrete evidence of good faith.
Before seeking a forensic examination of a nonparty's phone, a requesting party should budget for its cost. Its proposal should limit the examination's intrusion into the nonparty's personal and official use of the device.
The full opinion is available as a PDF.
