Seeking Attorney’s Fees After Successfully Quashing a Federal Subpoena

Seeking Attorney’s Fees After Successfully Quashing a Federal Subpoena

Getting hit with a federal subpoena can be a real pain, am I right? Just when you think you’re in the clear, BOOM – here comes a subpoena demanding you turn over documents, testify at a deposition, or appear in court. And if you don’t comply, you could face contempt charges. Not cool.

Luckily, there are ways to fight back against burdensome or improper subpoenas. One method is filing a motion to quash the subpoena. If the court agrees with you and quashes the subpoena, you’re off the hook and don’t have to comply. Hallelujah!

But here’s the thing – fighting that subpoena can get expensive, what with attorney’s fees and all. So can you recover those costs from the party that served the subpoena? Let’s break it down:

The Basic Rule

Under Federal Rule of Civil Procedure 45(d)(1), the court must protect any person subject to a subpoena from “significant expense” resulting from compliance. Some key takeaways:

• This rule applies to both parties and non-parties.
• “Significant expense” includes attorneys’ fees.
• The court may shift costs to the issuing party to avoid imposing undue burden or expense on the subpoena recipient.

So in theory, if you successfully quash a subpoena that would have imposed significant expense on you, the court can make the issuing party pay your attorneys’ fees and other costs related to fighting it. Seems fair, right?

The Reality: It’s Tricky

Recovering fees after quashing a federal subpoena is easier said than done. Why? A few reasons:

• Courts have a lot of discretion here. Some are more willing to shift fees than others.
• You have to show the subpoena imposed an undue burden or expense. If the court thinks your costs are reasonable, you likely won’t recover them.
• The process can be time-consuming and complex. More legal fees!

Because of these roadblocks, fee shifting often doesn’t happen. But that doesn’t mean you shouldn’t try!

Strategies for Recovery

If you’re dead set on recouping your subpoena expenses, here are some tips:

• Confer with the issuing party first. See if you can resolve things without court intervention.
• If that fails, file a motion to quash and request attorneys’ fees in your motion.
• Clearly explain how the subpoena imposes undue burden or expense. Get detailed.
• Ask for a specific dollar amount and provide billing records to justify it.
• Highlight any bad faith by the issuing party.

Even then, full recovery is unlikely. But following these steps gives you the best shot. And hey, getting even a portion of your fees back is better than nothing.

When You Shouldn’t Bother

Despite the possibility of cost shifting, there are times when seeking fees after quashing a subpoena just isn’t worth it:

• If your expenses are relatively minor or routine.
• If you don’t have detailed billing records.
• If the issuing party has limited resources.
• If the court seems hostile to fee requests.
• If it will take significant effort compared to the amount at stake.

The juice probably ain’t worth the squeeze if one of those factors is present. You may just want to call it a day after getting the subpoena quashed.

The Million Dollar Question

Okay, let’s say you successfully quash a subpoena and get your related expenses reimbursed. Can you also recover fees for drafting the fee request itself? This is where things get murky.

Some courts allow full recovery of fees, including those incurred requesting fees. Their logic is that you wouldn’t have spent time on the fee request if not for the improper subpoena. Makes sense.

But other courts take a narrower view. They’ll reimburse your expenses for quashing the subpoena, but not for preparing your fee request. Their take is that the rule only covers compliance costs, not fees related to fee litigation.

So on this point, the law remains unsettled. If it’s important to you, argue for full recovery. But don’t bank on it.

Parting Thoughts

Dealing with federal subpoenas is a pain, but getting your related expenses reimbursed takes finesse. Arm yourself with knowledge about the fee shifting rules and strategies. But also be realistic – the law is imperfect and courts have wide latitude. With smart and measured efforts, you can maximize your chances of recovery. But full compensation is never guaranteed. The most prudent course is usually to quash bothersome subpoenas first, then seek fees second as icing on the cake. So fight the good fight against improper subpoenas. But don’t let perfect be the enemy of good – getting the subpoena tossed is often victory enough.

References

Federal Rules of Civil Procedure, Rule 45 – https://www.law.cornell.edu/rules/frcp/rule_45

Third Party Subpoenas: Who’s Going to Pay for That? – https://www.cades.com/2022/07/11/third-party-subpoenas-whos-going-to-pay-for-that/

Cost Shifting and Document Subpoena Compliance – https://www.williamsmullen.com/news/cost-shifting-and-document-subpoena-compliance-under-federal-rules-civil-procedure-and-rules-supreme

Fresh Takes on Seeking Costs and Fees Under Rule 45 – https://www.troutman.com/insights/fresh-takes-on-seeking-costs-and-fees-under-rule-45.html

Survey of Issues Regarding Federal Rule of Civil Procedure 45 – https://www.uscourts.gov/file/3179/download

Recovering the Costs of Responding to a Nonparty Subpoena – https://www.reuters.com/practical-law-the-journal/litigation/recovering-costs-responding-nonparty-subpoena-2023-02-01/