*1 On behalf of all Brand Defendants, GlaxoSmithKline served a third-party subpoena on Michael Bretholz on August 4, 2021. I later quashed the subpoena in full, finding that it sought “information that is of marginal, if any, relevance [and that] [r]equiring Mr. Bretholz to comply with the full subpoena is disproportionate to the needs of the case.” ECF No. 5165 at 6. Mr. Bretholz moves under Federal Rule of Civil Procedure 45(d)(1) for fees and costs associated with challenging the subpoena. ECF No. 5821. For the reasons stated below, the Motion for Fees and Costs is DENIED.

Valisure is an independent laboratory. Mr. Bretholz is a lawyer who is also an investor in Valisure. He has provided legal services to Valisure in the past. In 2019, Valisure conducted testing that concluded that ranitidine-containing products caused cancer (“the Valisure Study”). Based on this testing, Valisure filed a Citizen's Petition with the FDA in September 2019. That Citizen's Petition ultimately helped lead to a voluntary halt in sales of Zantac[1] and to this consolidated multidistrict litigation.

As most relevant here, the Plaintiffs allege that Zantac degrades into a carcinogen that causes multiple kinds of cancer. The parties have engaged in extensive “general causation” discovery directed to that hypothesis. As part of that discovery, the Brand Defendants served a subpoena on Mr. Bretholz to try to develop a theory that Valisure, along with Mr. Bretholz and others, engaged in concerted efforts to generate false lab results for the purpose of furthering its financial interests and the financial interests of potential litigants, their lawyers, and their litigation funders. After a hearing, I quashed in full the subpoena to Mr. Bretholz.

Rule 45(d) requires the issuer of a subpoena on a third party to “take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena. The court for the district where compliance is required must enforce this duty and impose an appropriate sanction – which may include lost earnings and reasonable attorney's fees – on a party or attorney who fails to comply.” Fed. R. Civ. P. 45(d)(1). “The decision to award sanctions under Rule 45(d)(1) is discretionary with the court and generally made after balancing the need for discovery against the burden imposed on the person from whom discovery was sought.” In re ATIF, Inc., 622 B.R. 127, 131 (Bankr. M.D. Fla. 2020). As the party seeking discovery sanctions, Mr. Bretholz bears the burden of proof. Accord Cutlass Collieries, LLC v. Jones, No. 20-80001, 2021 WL 6135152, at *1 (S.D. Fla. Dec. 7, 2021).

By the plain terms of Rule 45(d)(1), the Court must first assess whether the subpoena imposed an undue burden on Mr. Bretholz. If it did, the Court looks to what steps, if any, the Brand Defendants took to avoid imposing that burden. If those steps were insufficient, the Court would decide how much (if any) fees and costs to shift. Breaking Media, Inc. v. Jowers, 2021 WL 1299108 at *7 (S.D.N.Y. Apr. 7, 2021). In assessing the third step, the Court applies a three-part test: first, whether the non-party has an interest in the outcome of the case; second, whether the non-party can more readily bear the cost than the requesting party; third, whether the litigation is of public importance. In re Hornbeam Corp., 14-CV-24887, 2019 WL 5106768, at *3 (S.D. Fla. Sept. 27, 2019) (J. Louis) (Court can apportion partial costs to a subpoena respondent who is not a “classic disinterested” party.).

*2 Among the factors a Court considers in deciding if a subpoena imposes an undue burden on a non-party are “relevance, the requesting party's need for the documents, the breadth of the document request, and the time period covered by the request.” Bozeman v. Chartis Cas. Co., Case No. 2:10–cv–102–FtM–36SPC, 2010 WL 4386826, *3–4 (M.D. Fla. Oct. 29, 2010) (citations omitted). Courts also consider whether the subpoenaed person is a party or nonparty and the burden imposed by enforcing the subpoena. Gamache v. Hogue, 2022 WL 989483, at *7 (M.D. Ga. Mar. 30, 2022).

Mr. Bretholz argues that the subpoena imposed an undue burden on him, by definition, because it was quashed: “When a subpoena should not have been issued, literally everything done in response to it constitutes ‘undue burden or expense.’ ” Breaking Bad at *7 (citation omitted) (emphasis in original), cited in ECF No. 5821 at 9. I did not find that the subpoena should not have been issued. I found that the subpoena sought “information that is of marginal, if any, relevance.” I also found that, even if the subpoenaed materials were relevant, producing them was not proportional to the needs of the case in light of the other evidence that Brand Defendants already possessed. The subpoena broadly called for 29 categories of documents and did not have a date limitation. I find that Mr. Bretholz has shown that the subpoena was unduly burdensome.

Turning to the mitigation question, the Brand Defendants note that they paid the entire cost of Mr. Bretholz's e-discovery vendor, ECF No. 5863-1, and offered to have that vendor deduplicate documents already produced from other sources, “so Mr. Bretholz would only have to review and produce unique documents.” ECF No. 5863 at 9. The Brand Defendants also offered to pay up to $50,000 toward the costs of contract attorneys to conduct document reviews. ECF No. 5863-2. Mr. Bretholz's Reply does not contest these facts. I find that these efforts were reasonable steps to mitigate the burden imposed by the subpoena.

In the interest of completeness, I now turn to the three-part test for whether to shift costs (fully or in part) under Rule 45(d)(1). The first factor looks to whether the subpoena recipient has a vested interest in the outcome of the litigation. Mr. Bretholz does not dispute that he is an investor in Valisure. ECF No. 5821 at 11 (Mr. Bretholz “is an angel investor” in Valisure). I previously found that Valisure had a vested financial interest in the outcome of the litigation. ECF Nos. 5614 at 6-7, 5615. As an equity investor in Valisure, Mr. Bretholz derivatively has the same interest.

The second factor focuses on the financial burden. As with Valisure, this factor weighs in favor of Mr. Bretholz. ECF No. 5614 at 7. The Brand Defendants can more readily bear the costs of subpoena compliance than Mr. Bretholz.

The third factor weighs in favor of the Brand Defendants. As I explained previously, “This factor incorporates the principle that it is sometimes appropriate to have a non-party witness incur expenses when the information sought will ultimately benefit the public. See, e.g., United States v. IBM, Corp., 62 F.R.D. 526, 529 (S.D.N.Y. 1974).” ECF No. 5614 at 7-8. This nationwide MDL is unquestionably of significant public importance.

Having considered the relevant factors, I find that Mr. Bretholz has not met his burden of proving an entitlement to sanctions under Rule 45(d)(1). He has not shown that the Brand Defendants failed to take reasonable steps to avoid imposing an undue burden. Alternatively, he has failed to show that a proper balancing of the three-part test for fee shifting weighs in his favor. Therefore, the Motion for Fees and Costs is DENIED.

*3 DONE and ORDERED in Chambers at West Palm Beach, Palm Beach County, in the Southern District of Florida, this 15th day of August 2022.