Non-Party Recovery of the Costs of a Subpoena Requiring Document Production

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Businesses in California already have a hard enough time making ends meet. The responsibilities of meeting payroll, coming within budget and maintaining a positive cash flow are harder to meet than they were just a few years ago.

An added pressure to businesses can be the cost of responding to a subpoena requiring the production of documents. While many assume that only parties can be subpoenaed, a third party, also known as a non-party, can be subject to this power as well.

Being unwittingly included in litigation via subpoena can be a hassle, but current laws ensure fair compensation for the time and resources you expend on meeting its requirements.

In California, businesses are able to charge the party issuing the subpoena for all reasonable costs associated with producing records in a civil case,[1] including postage, clerical charges and reproduction of documents.[2]  Payment for these costs can be received when you deliver the subpoenaed records, and you have no obligation to deliver the records until the party in the litigation case makes the payment.[3]

However, you must produce an itemized statement in order to be compensated.[4]  Moreover, if a party to the litigation merely inspects or makes copies of documents at your place of business, recoverable fees cannot exceed $15.[5]

Subpoenas requiring the production of records from non-parties aren’t just limited to litigation in California state court. Attorneys can also issue such subpoenas to non-parties in a case filed in federal court.

Federal rules require that such subpoenas not be unreasonable or oppressive,[6] and if they are, the issuing party can be mandated to produce reasonable payment beforehand.[7] In fact, federal rules instruct courts to protect non-parties from significant expense.[8]

Thus, if a business is facing significant expense to produce documents, it is within their legal right to seek reimbursement.

The attorneys at Talkov Law often represent California businesses in business litigation, and regularly counsel clients who receive a subpoena as a third party to the litigation. Often times, the attorneys are able to work with the subpoenaing party to reduce the burden on your business.

[1] Cal. Evid. Code § 1563(b).

[2] Cal. Evid. Code § 1563(b)(1).

[3] Cal. Evid. Code § 1563(b)(2).

[4] Cal. Evid. Code § 1563(b)(3).

[5] Cal. Evid. Code § 1563(b)(6).

[6] Federal Rules of Civil Procedure, Rule 45.

[7] Shepherd v. Castle, 20 F.R.D. 184 (D.C. Mo. 1957).

[8] Fed. R. Civ. P. 45(c)(2)(B) Advisory Committee’s Note (“a non-party required to produce documents or materials is protected against significant expense resulting from involuntary assistance to the court.”).

**This client advisory is intended to provide the reader with general information regarding current legal issues. It is not to be construed as specific legal advice nor as a substitute for the need to seek advice from an attorney on specific legal matters.**

About Scott Talkov

Scott Talkov is a real estate lawyer, business litigator and bankruptcy lawyer in California. He founded Talkov Law Corp. after of experience with one of the region's oldest law firms, where he served as one of the firm's partners. He has been featured on CNN, KCBS, and KCAL-9, and in the Los Angeles Times, the Orange County Register, the San Diego Union-Tribune, and the Press-Enterpise. Scott has been named a Super Lawyers Rising Star every year since 2013. He can be reached about new matters at info@talkovlaw.com or (844) 4-TALKOV (825568). He can also be contacted directly at scott@talkovlaw.com.

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