A company unexpectedly receives a subpoena for production of documents related to litigation to which it is not a party. The company’s general counsel passes the subpoena to outside counsel to object and respond. The general counsel also tells outside counsel that she thinks the subpoena is greatly overbroad and asks outside counsel to seek reimbursement for the costs of compliance.
Protection of Non-Parties
Rule 45 of the Federal Rules of Civil Procedure protects non-parties from “undue burden and expense” in complying with a subpoena. One tool federal courts can use to prevent undue burden is shifting the costs of compliance from the responding non-party to the issuing party. There are limits, however, and it is up to the responding party to convince the court to shift fees and costs. A non-party can take steps while responding to a subpoena to maximize both its chances for recovery of costs and the amount it can ultimately recover.
A Roadmap for Reimbursement
First, a non-party subpoena recipient may object to and refuse to produce documents in response to a subpoena request that is overly broad or unduly burdensome or that would require the non-party to go to great lengths or expense to comply with the subpoena. These objections make fee recovery more likely, as a court that orders compliance with a subpoena over the subpoena recipient’s objection must protect the non-party from “significant expense” incurred in responding. The objections and responses are also an opportunity for the non-party to notify the requesting party that it intends to seek reimbursement of fees and costs.
Relatedly, it is good practice to provide the requesting party with an accurate estimate of the costs of production as early as possible. To do so, the requesting party and the non-party recipient will need to reach early agreement on the terms and scope of document collection, review and production. This is important, as some courts have refused to shift fees and costs incurred before the non-party provided the requesting party with a production plan and a cost estimate.
Once the non-party has an accurate estimate of the cost of complying with the subpoena, it is a good idea to seek the requesting party’s agreement to pay these costs. While the issuing party may not agree to pay anything, the court may appreciate that the non-party tried to save the court’s time and the costs associated with litigating a motion to shift fees. Further, the subpoena recipient should seek a reasonable scope of production—if it doesn’t do so, a court will be less likely to award costs and fees.
And, as the non-party moves toward actual collection and production of the documents, it remains important to avoid unnecessary cost. Courts are less likely to award costs and fees associated with search, review and production of documents where those expenses could have been minimized or where less expensive means could have been used.
Perhaps most importantly, the non-party must maintain detailed records of associated fees and costs for which it seeks reimbursement. This includes costs associated with collecting, processing and storing the documents, as well as attorneys’ fees incurred for the actual review of the documents. If the non-party uses an e-discovery vendor to assist in the process, the non-party should ask the vendor to provide an itemized invoice of its services. The non-party should also document any issues that delay the production or otherwise raise the cost of compliance. Accurate recordkeeping is crucial because the non-party will have to present the court with evidence of fees and costs and convince the court that those fees and costs were reasonable. Clear and accurate records will allow the non-party to do so; without them, the non-party could end up bearing its own costs.
Finally, the non-party should attempt to minimize the costs associated with filing a motion to shift costs and fees. Courts have proven to be less likely to award these costs than those associated with negotiating the scope of the subpoena and producing responsive documents.
Communicating with the requesting party early on, taking care to keep fees and costs down, and keeping detailed records of those fees and costs will maximize the chance that the court will make the requesting party share the burden.