Who pays the price of litigation. Or at least subpoena compliance?

The subpoena is a powerful document in litigation. It is a court order (when used properly) requiring a non-party to do things like produce documents.

Some entities get subpoena'ed all the time, and they have turned subpoena compliance into a profit center. They will send a bill along with the requested documents, or a letter demanding payment before complying with the subpoena. Can they do this?

One Texas court answered this question in Telephone Consumer Protection Act case Shields v. Eleveated Energy Sols., CIVIL ACTION NO. 3:19-CV-00390, (S.D. Tex. Sep. 23, 2020).

Although a relatively small amount of money is at stake here, the underlying issue is one that often confounds litigants, non-parties, and courts: when may a non-party shift fees and costs to the party serving a subpoena? Few district courts in the Fifth Circuit have written on this topic. I hope this opinion provides some guidance for those courts having to decide who should be required to shoulder the financial burden of complying with a subpoena directed to a non-party.

TCPA plaintiff Joe Shields issued a subpoena to Inteliquent, a large telecom provider, seeking the name and contact information for two phone numbers used to call him. In return, Intelliquent sent Shields a demand for $50.

Shields objected to the $50 and turned to the court to order Intelliquent to provide the data, and the federal court had to decided what to do. The judge went back to first principles:

Our judicial system is based, in part, on the principle that, if properly summoned, every person has a civic duty to testify regardless of the financial burden imposed by doing so. See Hurtado v. United States, 410 U.S. 578, 589 (1973) ("It is beyond dispute that there is in fact a public obligation to provide evidence . . . no matter how financially burdensome it may be."). As the United States Supreme Court explained more than a century ago

And found that because the cost of complying with a subpoena is generally considered part of the public duty of providing evidence, district courts across the country routinely hold that a non-party is required to pay its own costs for complying with a Rule 45 subpoena, especially when those costs are minimal.

The court did identify two land mines the unwary might trip over:

the rule gives district courts the authority to assess fees and costs to parties serving subpoenas as a sanction for failing to take "reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena." FED. R. CIV. P. 45(d)(1).

And

the rule provides that if a district court issues an order compelling compliance with a subpoena, "the order must protect a person who is neither a party nor a party's officer from significant expense resulting from compliance." FED. R. CIV. P. 45(d)(2)(B)(ii)

In this particular case, the judge didn't allow Inteliquent to cost shift a small fee to Shields, even though the court recognized that a lot of small fees at up. The bigger take away from this court case is when issuing a subpoena, narrow the request as much as possible to minimize expense while accomplishing the goal. And second, if there is no way around causing a significant expense, you may have to shoulder some or all of it.

Would you like a free case review? Do you have a question or a telemarketing, debt collection, or bankruptcy case that would make a great blog article? We might even review your pro-se complaint or motion in a blog post. Email peter@nwdebtresolution.com and/or nathen@nwdebtresolution.com and we may answer it for everyone!

Are telemarketers harassing you in Washington, Oregon, or Montana? My Washington State TCPA plaintiff law practice can help, just give us a call at 206-800-6000 or email peter@nwdebtresolution.com.

The thoughts, opinions and musings of this blog are those of Peter Schneider, a consumer advocate and Washington State plaintiff's TCPA attorney at Northwest Debt Resolution, LLC. They are just that, his thoughts, opinions and musings and should be treated as such. They are not legal advice. If you are looking to file a lawsuit for TCPA violations and unwanted calls please contact me for a consultation.

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