Third-Party Subpoenas: Who's Going To Pay For That?

In litigation, responding to requests for production of documents can be time-consuming and expensive yet those costs are considered part of litigation and are generally born by the parties themselves. But what happens when discovery is sought from a person or entity who is not a party to the litigation? Who is responsible for paying for the costs associated with responding then? The answer to this question depends on whether the lawsuit is in federal court or state court.

Federal Court

Under the Federal Rules of Civil Procedure, an order compelling compliance with a subpoena “must protect a person who is neither a party nor a party's officer from significant expense resulting from compliance.” Fed. R. Civ. P. 45(d)(2)(B)(ii) (emphases added). The Ninth Circuit Court of Appeals has interpreted this rule to require the shifting of the non-party's costs of compliance if those “expenses” are “significant.” Legal Voice v. Stormans Inc., 738 F.3d 1178, 1184 (9th Cir.