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Judge Leibensperger Orders Cost Shifting on Rule 45 Subpoena

While litigants often invoke Rule 45 to discover documents from third parties during the course of litigation, courts have rarely ordered payment of the fees incurred by the third party to comply with the subpoena. Judge Leibensperger, however, recently ordered one of the parties in Medical Source, Inc. et al. v. Perkinelmer Health Sciences, Inc. who had issued a subpoena in the case to do just that.

Plaintiff Medical Source subpoenaed third party Virscidian, Inc. for 14 categories of documents and a 30(b)(6) deposition concerning a software component that Virscidian developed for defendant, Perkinelmer. Virscidian, asserting that compliance with the subpoena would cost it $500,000 and was therefore unduly burdensome for a small company with only four full-time employees, moved for a protective order limiting the scope of discovery and requiring plaintiff to bear the cost of the review and production of responsive documents.

Balancing Medical Source’s right to discover relevant evidence against the cost and disruption to third-party Virscidian’s business, Judge Leibensperger narrowed the document requests to reduce the estimated cost of the discovery to $100,000 and ordered Medical Source to pay up to $50,000 to cover Virscidian’s costs to hire a contractor to search, review, and produce documents responsive to the subpoena.

Medical Source, Inc. et al. v. Perkinelmer Health Sciences, Inc.

November 28, 2017

Full decision here.

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