Court Shifts Subpoenaed Third Party’s eDiscovery Costs Under FRCP 45
In Re Subpoena of American Nurses Association (Hinterberger, et al. v. Catholic Health Sys., Inc., No. 08-CV-0380 (W.D.N.Y.)), Case No. RWT 11-cv-2836 (D. Md. Mar. 31, 2015), the District Court of Maryland considered Plaintiffs’ appeal of an award of costs for a third-party electronic data production.
Plaintiffs subpoenaed the American Nurses Association (ANA) for information contained in its electronic database. ANA objected and moved to quash to the subpoena as overly burdensome and costly, as producing the data would require hiring an eDiscovery vendor. The court denied the ANA’s Motion to Quash, but ordered Plaintiffs to bear the ANA’s reasonable costs of production. The eDiscovery vendor sent a Scope of Work (SOW) to Plaintiffs for approval. Plaintiffs approved the SOW but only after making changes to it over a six month period.
Per the court’s order, the ANA filed a motion for costs. The magistrate judge ordered Plaintiffs to pay the ANA 67.4% of the total amount, or $50,118. It denied cost shifting the remaining amount, finding the remaining $24,253 in expenses to be unreasonable. Plaintiffs filed objections, claiming the magistrate judge failed to sufficiently restrict the costs to legal work “reasonably necessary” to produce the documents. Plaintiffs also argued that the court should overrule a portion of the costs because the ANA failed to comply with the court’s suggested protocol for electronically stored information. The protocol encourages (but not does mandate) best practices, including meeting and conferring to try to reduce the costs of acquiring the necessary data.
Relying on FRCP 45(c)(2)(B), which provides that a court “must protect a person who is neither a party nor a party’s officer (e.g., a third party like the ANA here) from significant expenses resulting from compliance [with a subpoena],” the court overruled the objections and upheld the award of costs, holding that the magistrate judge acted well within the FRCP by ordering eDiscovery cost shifting to Plaintiffs.