Rule 45 Requires That a Party Imposing an Undue Financial Burden on a Third Party Must Reimburse its Costs

Rule 45 provides that “[a] party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena.”  Fed. R. Civ. P. 45(d)(1).  Discoverable information from a non-party is construed more narrowly, and is weighed against the potential prejudice to the non-party.  See Laxalt v. McClatchy, 116 F.R.D. 455, 458 (D.Nev.1986) (“The standards for non-party discovery … require a stronger showing of relevance than for simple party discovery.”); Litton Indus., Inc. v. Chesapeake & Ohio Railway Co., 129 F.R.D. 528, 529-30 (E. D. Wis. 1990) (providing that “records of non-party shipbuilder concerning ship construction” were germane to establishing ship construction costs for damage purposes and would not prejudice the producing non-party; however, the other vast categories of  documents sought regarding business operations were not discoverable from the non-party).  The rules require that the courts be sensitive to the costs imposed on third parties, protecting them against significant cost.  Watts v. S.E.C., 482 F.3d 501, 509, 375 U.S.App.D.C. 409, 417 (D.C. Cir. 2007).

Courts must also protect third parties from any undue burden associated with compliance with the subpoena.  Lo v. Fed. Nat. Mortgage Ass’n, 2:12-CV-01411-GMN, 2013 WL 2558614 (D. Nev. June 10, 2013).  However, a non-party who objects that a Subpoena Duces Tecum is unduly burdensome or onerous has the burden of establishing that “the manner and extent of the burden and the injurious consequences of insisting upon compliance with the subpoena.”  Id. (citing Goodman v. United States, 369 F.2d 166, 169 (9th Cir.1966); 9A Charles Alan Wright et al., Federal Practice and Procedure § 2463.1 (3d ed. 2013)).  Once the objecting party makes its showing of the undue burden, the court must weigh the burden placed on the subpoenaed party against the prejudice that would be endured by the requesting party.   Id. (citing Moon v. SCP Pool Corp., 232 F.R.D. 633, 637 (C.D.Cal.2005)).

Should the court require disclosure despite an undue burden, however, it must cause the party issuing the subpoena to bear the burden of the cost of the disclosure.  The plain language of the rule makes cost shifting mandatory.  See Legal Voice v. Stormans Inc., 738 F.3d 1178, 1184 (9th Cir. 2013) (citing Linder v. Calero–Portocarrero, 251 F.3d 178 (D.C.Cir.2001) (“the [1991] amendment made cost shifting mandatory in all instances in which a non-party incurs significant expense from compliance with a subpoena.”).  Cost shifting is mandatory if the court finds that the Subpoena imposes a significant expense on the non-party.  Id. at 1184.  Once the Court makes that finding, it must cause the requesting party to bear the cost until the same is “non-significant.”  Id.  In fact, the court should focus its inquiry not on how burdensome the compliance is, but only on how costly it is.  To do otherwise would be to err.  Id.

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Jay Young, Mediator and Arbitrator

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