319 F.R.D. 277
N.D. Cal.2017Background
- PB&A served subpoenas on nonparty URS for documents (12 categories) and to depose URS employee Steve Brokken; parties narrowed scope to 2011–2013 after meet-and-confer.
- URS objected to producing ~30 handwritten Brokken notebooks because they contained mixed-project/confidential material and required detailed review; URS sought cost-sharing for review and production.
- PB&A refused to pay URS’s proposed fees for notebook review; URS produced most documents (≈42,000 pages) in November 2016 but produced only ~50 pages of notebooks by Nov. 29 and provided a privilege log.
- URS’s counsel had purchased travel and hotel reservations for a deposition agreed to be reset to Nov. 30, 2016; PB&A cancelled the deposition the day before, after most production had been received.
- URS moved for sanctions under Rule 45 seeking $25,309.76 in production costs, $383.46 in nonrefundable travel costs, and $3,645 in attorneys’ fees; the court granted only the travel costs and denied the rest.
Issues
| Issue | URS's Argument | PB&A's Argument | Held |
|---|---|---|---|
| Mandatory cost-shifting under Rule 45(d)(2)(B)(ii) for URS’s production costs | URS argued its production costs were significant and thus must be shifted to PB&A | PB&A argued URS is a large public company likely able to bear costs and much production was not responsive to narrowed scope | Denied — court found URS did not show costs were "significant" or that costs resulted solely from compliance; URS provided no evidence of inability to pay |
| Discretionary sanctions under Rule 45(d)(1) for undue burden from subpoena | URS argued PB&A failed to avoid imposing undue burden and expense on the nonparty | PB&A argued it conferred to narrow scope and needed notebooks for defense; it had not confirmed deposition because URS had missed earlier production promises | Mixed — court found most production not unduly burdensome given relevance and PB&A’s efforts to limit burden; denied sanctions for production costs |
| Recovery of non-refundable travel/hotel costs from cancelled deposition | URS sought reimbursement of $383.46 for travel canceled after PB&A belatedly cancelled Nov. 30 deposition | PB&A contended it never confirmed the date and cancelled due to URS’s missed production commitments | Granted — court awarded $383.46, finding PB&A failed to timely inform URS and cancellation one day before imposed undue expense |
| Attorneys’ fees for litigating the sanctions motion | URS requested $3,645 in attorneys’ fees | PB&A opposed | Denied — court declined to award attorneys’ fees related to the sanctions motion |
Key Cases Cited
- Legal Voice v. Stormans Inc., 738 F.3d 1178 (9th Cir.) (discusses Rule 45 cost-shifting and when costs are "significant")
- United States v. McGraw-Hill Cos., 302 F.R.D. 532 (C.D. Cal. 2014) (factors for assessing whether expenses are "significant" and whether costs "result from compliance")
- Linder v. Calero-Portocarrero, 251 F.3d 178 (D.C. Cir.) (treatment of substantial estimated subpoena expenses for government entities)
- Williams v. City of Dallas, 178 F.R.D. 103 (N.D. Tex. 1998) (discussion that four-figure discovery costs may be "significant" for individuals/attorneys)