                      NOTICE: NOT FOR OFFICIAL PUBLICATION.
  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                  AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                     IN THE
              ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                       In re the Award of Attorney Fees:

                ELIZABETH A. DAVIS, Respondent/Appellant,

                                         v.

              DESERT HIGHLANDS ASSOCIATION, Appellee

                               No. CV 14-0668 FC
                                FILED 12-10-2015


            Appeal from the Superior Court in Maricopa County
                           No. FC2014-051436
                     The Honorable Jay M. Polk, Judge

                                   AFFIRMED


                                    COUNSEL


Best Law Firm, Phoenix
By Cynthia L. Best, Tali Collins, Robert Hendricks, Stephen Vincent
Counsel for Respondent/Appellant

Fennemore Craig, P.C., Phoenix
By Jessica Post
Counsel for Appellee
                     DAVIS v. DESERT HIGHLANDS
                         Decision of the Court



                      MEMORANDUM DECISION

Judge Peter B. Swann delivered the decision of the court, in which
Presiding Judge Kenton D. Jones and Judge Samuel A. Thumma joined.


S W A N N, Judge:

¶1           Elizabeth Davis (“Davis”) appeals from a family court order
requiring her to pay $3,000 in attorney’s fees as a sanction to The Desert
Highlands Association arising out of her “Expedited Motion for the Court
to Order Disclosure of Petitioner’s Employee File.” Because the trial court
acted well within its discretion in entering the sanction, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2            This appeal does not relate to the merits of the underlying
family law matter -- it relates solely to sanctions imposed as a result of
Davis’s counsel’s conduct of third-party discovery.1 On March 24, 2014,
Davis’s counsel (“Best”) served a subpoena duces tecum for documents she
wished to use at a hearing concerning legal decision-making and
parenting time. The subpoena was directed to Father’s employer, The
Desert Highlands Association (“the Association”), and requested
personnel records, discipline records, financial records, performance
reviews, security reports or videos, memoranda, and correspondence
since Father’s date of hire. By its terms, the subpoena required that the
records be produced by April 21, 2014. But Best later informed the
Association that she needed the records on April 11 -- before the return
date on the subpoena. On April 3, she requested that the Association
produce the records “immediately.”2


1     The underlying family law case was captioned In re the Marriage of:
Ryan D. Davis, Petitioner/Appellee v. Elizabeth A. Davis, Respondent/Appellant,
with Desert Highlands Association, Appellee appended. Our caption has
been amended to reflect the real parties in interest in this appeal and
should be used henceforth.

2     In an e-mail, Best explained the acceleration of production under
the subpoena: “It happened because we originally thought 30 days was
reasonable to respond but then the judge set a temporary orders hearing



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                     DAVIS v. DESERT HIGHLANDS
                         Decision of the Court
¶3            The Association agreed to produce most of the requested
records. It objected that some of the requests -- especially those for
security reports, videos and correspondence since the date of hire -- were
overbroad and unduly burdensome. The Association contended the
subpoena would require it to review more than 700 hours of video footage
and search every e-mail sent during Father’s employment. It also
requested that Best agree to a protective order in view of the sensitive
nature of its personnel files. Best first balked at the proposed protective
order (writing “[w]e do not understand the concept of disclosing the
documents pursuant to a protective order with opposing counsel”), but
later agreed to sign a stipulation providing that the files would be used
only for the present case.

¶4            While negotiations over the disclosure of Father’s records
were ongoing, Best indicated in an e-mail on April 3 that she was going to
file an expedited motion to enforce the subpoena “so we do not run out of
time.” On the same day, Best filed the “Expedited Motion for the Court to
Order Disclosure of Petitioner’s Employee File,” (“the Motion”) asking to
have all the requested materials produced by April 8, even though the
Association had already agreed to provide records before the April 11
hearing date. Best did not serve the Motion on the Association, and the
Association did not become aware of it until April 7 when Father’s
counsel revealed that it had been filed.

¶5             Because Best refused to withdraw the Motion, the
Association filed a response, accompanied by a request for sanctions and
attorney’s fees. The court denied the Motion because (1) Davis failed to
serve the Association, (2) the Motion did not contain the Ariz. R. Fam. L.
P. 65(A)(2)(c) language certifying a good faith effort to resolve the dispute,
and (3) the Motion was premature given the April 21 deadline in the
subpoena. The court ultimately granted the Association’s request for
attorney’s fees, and directed counsel for the Association to submit a fee
application.

¶6           The Association’s requested fees totaled $7,847. Davis
challenged this amount as unreasonable, contending inter alia that the
actual disclosure of records had only taken 12 minutes and that the
Association’s counsel’s billing rate was excessive. In addition to her
response, Best also submitted a sur-reply, which the court struck as

for April 11 and that sped up the timetable.” (Emphasis added.) This
statement was false. The court had set the April 11 hearing on March 10,
2014 -- two weeks before Best served the subpoena.



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                        Decision of the Court
unauthorized. The court ultimately ordered Davis to pay $3,000 in fees,
and certified its order as final under Rule 78(B). Davis appeals.

                              DISCUSSION

¶7           We review an award of attorney’s fees for abuse of
discretion. MacMillan v. Schwartz, 226 Ariz. 584, 592, ¶ 36 (App. 2011).

¶8           On behalf of Davis, Best filed a 55-page appellate brief to
defend her actions in this $3,000 dispute. On appeal, Davis contends that
the proceedings regarding the subpoena and her Motion were not
unreasonable and did not cause undue expense or burden to the
Association. She argues that the award should be reduced to $73 --
compensation for the time Davis claims the Association actually spent
complying with the subpoena.

¶9           Ariz. R. Fam. L. P. 52(C)(1) requires that the party serving a
subpoena “shall take reasonable steps to avoid imposing undue burden or
expense on a person subject to that subpoena.” It also allows the court to
award reasonable attorney’s fees to sanction breaches of that duty. Id.
Because the record amply supports the trial court’s conclusion that Best’s
actions were unreasonable and imposed undue expense on the
Association, we affirm the award of attorney’s fees.

¶10           Best knew or should have known the April 11 hearing date
before she sent the subpoena to the Association. It was her failure to
choose the proper return date for the subpoena that led to her attempts to
shorten the time for compliance. Further, Best filed the Motion after the
Association agreed to produce the majority of the requested documents
early. Best did not include with the Motion the required Ariz. R. Fam. L.
P. 65(A)(2)(c) certification that she had attempted to resolve the discovery
dispute by meeting and conferring with the Association. Finally, she
failed to serve the Motion on the Association. These facts support the
conclusion by the trial court that Best did not take reasonable actions to
avoid imposing undue burden or expense. Indeed, given the high level of
cooperation that Best received from the Association, it is difficult to
discern how the discovery dispute was anything other than imaginary.
Put simply, no motion should ever have been filed.

¶11           The Association is a non-party to the underlying action. The
expense it incurred in responding to the subpoena and the machinations
Best employed to accelerate compliance were not functions of its own
wrongdoing and could never have inured to its benefit. The courts should
be vigilant in such circumstances to ensure that counsel are discouraged


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                        Decision of the Court
from imposing any greater cost on non-parties than absolutely necessary.
Without the Motion, the Association would have saved the cost of
preparing every filing it was to submit in this case.

¶12           The family court properly awarded fees against Davis to
compensate the Association for wasteful expenditures necessitated by
Best’s transformation of routine subpoena compliance into a litigated
discovery dispute. Indeed, the court was measured in the sanction it
chose, limiting its award to less than half of the fees requested by the
Association. On this record, Davis has not come close to showing that the
trial court abused its discretion by awarding fees greater than it properly
should have awarded. We also would have considered an award of the
entire amount sought by the Association reasonable under the
circumstances here.

                             CONCLUSION

¶13           For the foregoing reasons, we affirm the trial court’s award
of attorney’s fees. Both the Association and Davis request an award of
attorney’s fees on appeal.     Given the frivolous nature of the appeal,
Davis’s request is denied. In exercise of our discretion, we award
reasonable attorney’s fees in favor of the Association and against Davis’s
counsel only under ARCAP 25, subject to the Association’s compliance
with ARCAP 21(c).

¶14           We forward this decision to the State Bar of Arizona for
disciplinary investigation.




                                :ama




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