Sometimes. A business that is not a party to a lawsuit may still incur substantial expense if it receives a broad subpoena for records/electronic information. Such requests may be expansive in their substantive scope, as well as their temporal scope. Requests for old records may require considerable investigation just to locate employees who can identify the location of the information.

Sometimes an attorney can negotiate with the attorneys for the subpoenaing party to obtain reimbursement for the costs of having employees search for the information in question. Typically, however, the cost of a company’s own diversion of employee resources is not reimbursed by the subpoenaing party without an order from a court requiring such reimbursement. Substantial duplication costs and costs of third parties (e.g., copying or computer searching) are more likely to be reimbursed.

There are mechanisms to present a dispute to the court regarding whether searching and duplication costs are recoverable in a particular case. These same mechanisms are also available to address subpoena requests that are overbroad in their substantive or temporal scope. Courts often apply a proportionality test in determining whether a subpoenaing party should be required to incur searching and duplication costs. As a practical matter, unless the costs are large, courts often view such expenses as part of the cost of doing business for larger corporations. Another consideration is that a sustained legal battle to obtain reimbursement of subpoena response costs can result in incurring legal costs that exceed the value of what is recovered.

You Received a Subpoena, Now What?

Litigator Saša Trivunić gives you the basics of what to do when you get a subpoena. 

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Electronic Document Retention Policy + Lawsuits

Revisit Ralph Breitfeller’s examination of having the right policies in place before a lawsuit.

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E-Discovery + Predictive Coding

Lori Fuhrer reviews decisions + judicial opinions regarding the use of computer-assisted review in discovery.

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