Dale, Candy W., United States Magistrate Judge
Trial court allowed recovery of costs for production for complying with third party subpoena, but not attorneys’ fees spent arguing the motion. Nonparty government entity to litigation sought reasonable costs of production for complying with plaintiff’s subpoena that required government entity to produce all emails and attachments concerning the defendant. The government entity conducted a database search which produced forty-four responsive emails. The government entity sought attorney’s fees, costs from its IT department, data storage costs, and “other costs” to comply with the subpoena. Before state trial court could determine what the reasonable costs were, case was removed to federal court.
Plaintiff argued that “costs” does not include attorney’s fees within the meaning of Idaho R. Civ. P. 45 (d) because Idaho rules of civil procedure define “costs” in other rules exclusive of attorney’s fees. Further, plaintiff argued that IT labor fees were not “costs” because they were accumulated for labor and were not incident to the actual production of documents.
Non-party government entity alleged that “costs for production” included “the efforts of a third party to actually bring forth the information requested.” Therefore, IT costs and attorney’s fees fell within the ambit of the Idaho R. Civ. P. 45 (d). Further, the plaintiff noted that Idaho R. Civ. P. 45 (b) expressly states that “the party serving the subpoena shall pay the reasonable costs of producing or copying the documents, electronically stored information or tangible things.”
Relying on Idaho and Federal civil procedure rules, the court noted that the decision was one of judicial discretion. The court looked to the state trial judge’s finding that the plaintiff had acted unreasonably for refusing to limit the email search and the government entity had complied with the broad scope of the subpoena. The court held that the plaintiff was responsible for all of the costs of production with the exception of 60 hours in attorney’s fees because those hours were expended arguing discovery motions rather than in the actual production of documents.
v.
John GUSTIN, an individual; Moreton Insurance of Idaho, Inc., an Idaho corporation d/b/a Moreton & Company; Elizabeth Schattin, an individual; Fast Enterprises, L.L.C., a New York limited liability company, Defendants
Counsel
Jeff R. Sykes, Michael E. Baldner, Jason G. Dykstra, Meuleman Mollerup LLP, Boise, ID, for Plaintiff.Robert Blaine White, Justin Andrew Steiner, Givens Pursley, Brad P. Miller, Jason D. Scott, Hawley Troxell Ennis & Hawley, Erik F. Stidham, Holland & Hart LLP, Boise, ID, for Defendants.
MEMORANDUM DECISION AND ORDER
(1) quash or modify the subpoena if it is unreasonable, oppressive, fails to allow time for compliance, requires disclosure of privileged or other protected matter and no exception or waiver applies, or subjects a person to undue burden or (2) condition compliance with the subpoena upon the advancement of the reasonable cost of producing the books, papers, documents, electronically stored information or tangible things by the person in whose behalf the subpoena is issued.