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Responding to a Rule 45 Subpoena – Who Pays the Costs and Fees?

March 3, 2023

*Originally published by LaszloLaw

So, you or your client was served with a Rule 45 subpoena in a lawsuit or arbitration in which you’re not involved. Responding to a Rule 45 subpoena takes time and money, and often assistance by an attorney.

Who pays the costs and fees incurred in responding to a Rule 45 subpoena?

In Federal litigation, the general rule is that the party responding to the subpoena pays the costs associated with responding. Essentially, federal courts see it as a cost of doing business. Of course, no non-party ever sees it this way. And we’re constantly asked if costs and fees incurred in responding to a subpoena are recoverable. The answer is … well, “it depends.”

A recent case from the United States District Court for the District of Colorado provides a very good analysis of who pays for responding to a subpoena and takes the analysis one step further by adding an additional consideration to the analysis. Prairie Walk Condo. Ass’n v. Am. Ins. Co., No. 22-CV-00870-DDD-NRN, 2022 WL 18024718, at *2 (D. Colo. Dec. 30, 2022)

Fed. R. Civ. P. 45(d)(1) provides that a party issuing a subpoena “must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena.”

Rule 45(d)(2)(B) states that “an order to compel production shall protect any person who is not a party or an officer from significant expense resulting from the inspection and copying commanded.”

In the Tenth Circuit, the analysis focuses on whether the third party faces a “significant expense,” not whether the third party faces an “undue burden.” Rhea v. Apache Corporation, 833 Fed.Appx. 186, 191 (10th Cir. 2020).

“Under [Rule 45(d)(2)(B)(ii)], the questions before the district court are whether the subpoena imposes expenses on the non-party, and whether those expenses are ‘significant.’ If they are, the court must protect the non-party by requiring the party seeking discovery to bear at least enough of the expense to render the remainder ‘non-significant.’” Linder v. Calero-Portocarrero, 251 F.3d 178, 182 (D.C. Cir. 2001).

What Factors Do Courts Consider in Shifting the Cost of Responding to a Subpoena?

Various factors are used in the calculus under Rule 45 to determine whether and to what extent attorneys’ fees and costs should be shifted from the person responding to the subpoena to the party seeking discovery.

These include:

(1) whether the non-party actually has an interest in the outcome of the case,

(2) whether the non-party can more readily bear the costs than the requesting party;

(3) whether the litigation is of public importance;

(4) the invasiveness of the request;

(5) the extent to which the producing party must separate responsive information from privileged or irrelevant material, and

(6) the reasonableness of the costs of production.

Multiple courts have commented that the non-party’s interest in the litigation outcome is an important consideration in the cost shifting. This is fair because participating in litigation necessarily has certain costs and a party, or non-party with discoverable evidence and a financial interest in the outcome, should expect to incur some costs as they see the litigation through, as they will presumably ultimately benefit from that work.

To this list, the Colorado Federal Court added another consideration: which party (or non-party) is in the best position to efficiently maintain relevant discoverable records in a manner to minimize the cost of production. Where documents or files are almost certain to be requested in litigation, and the party who created those documents is a repeat player in the litigation game, then that party should make a concerted effort, from the very beginning of any involvement in a claim or dispute, to maintain those documents so that they can be efficiently searched and produced.

This new additional consideration proposed by the Colorado Court  is a fairly surprising and adds another wrinkle and potential for arguments over who is in the best position to maintain relevant records.  Frankly, I can imagine a lot of extended conferrals and discovery conferences over this topic — its hard to say how judges are going to handle this analysis.  We’ll have to see.

How Can You Shift the Cost?

In order to protect your chances of recovering the costs and fees associated with responding to a Rule 45 subpoena, the best practice is to work with the issuing party to negotiate who is going to pay for the production, and get an agreement in place before undertaking the search, and/or before making the production. Keep in mind that the party issuing the subpoena is far better off if the responding party is in a good mood when responding to the subpoena … it’s simple … a happy witness is a cooperative witness, and an angry witness isn’t.

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