United States District Court, W.D. Washington, Tacoma
ORDER AWARDING COSTS OF PRODUCTION AND APPELLATE ATTORNEYS' FEES TO NON-PARTY LEGAL VOICE
RONALD B. LEIGHTON, District Judge.
THIS MATTER is before the Court on remand from the Ninth Circuit Court of Appeals. The Plaintiffs, two individual pharmacists and a corporate pharmacy, challenged Washington's State Board of Pharmacy regulations that compelled pharmacies and pharmacists to dispense lawfully prescribed emergency contraceptives over sincere religious objections. Legal Voice, formerly known as The Northwest Women's Law Center, is an advocacy organization that employs attorneys and, in some situations, acts as a law firm. It is not a named defendant in the case, but it does represent a number of intervenors and has been directly involved in the litigation. Its involvement in this matter, however, started well before this case was filed. Legal Voice was one of the entities that lobbied the Board to enact the rules. Then, when the Board was considering the rules, Legal Voice directly participated in the rule-making process as a member of a task force that held a series of meetings and ultimately drafted the text of the rules that the Board approved and enacted.
During discovery in this lawsuit, the Plaintiffs subpoenaed fourteen classes of documents from Legal Voice. Legal Voice objected to the subpoena, so the Plaintiffs moved to compel. Legal Voice was ordered to produce some, but not all, of the documents. During the fight over production, both sides asked for attorneys' fees and costs, and both requests were denied. After the merits of the case were decided, Legal Voice appealed the denial of its attorneys' fees and production costs. Based on the incomplete record before it, the Ninth Circuit found that Legal Voice's costs of complying with the subpoena were "significant." The Ninth Circuit reversed the Court's denial of expenses under Fed.R.Civ.P. 45(d)(2)(B)(ii) and held that Legal Voice should have been awarded at least a portion of the costs that it incurred complying with the subpoena. The Ninth Circuit affirmed the Court's denial of sanctions under Fed.R.Civ.P. 45(d)(1).
This Court has been instructed to determine what expenses Legal Voice actually incurred complying with the subpoena and to award at least a portion of those expenses to Legal Voice so that the remainder is "non-significant." This Court has also been instructed to award Legal Voice reasonable attorneys' fees for its successful appeal. Legal Voice asks for an award totaling nearly $260, 000. The Plaintiffs argue that Legal Voice "overreaches" and that it should only receive about $20, 000.
The fight over the subpoena was contentious and hard fought. It took three rounds of briefing and over 50 briefs and supporting documents to conclusively establish what Legal Voice had to produce. Add three more rounds of briefing on appeal and one more in this Court on remand, and the Plaintiffs and Legal Voice have managed to turn a $10, 000 to $20, 000 dispute into a fight over more than a quarter of a million dollars.
A. Rounds 1-3: The Motions to Compel
The Plaintiffs' initial motion to compel sought production of fourteen categories of documents. The Plaintiffs also asked for their attorneys' fees for being forced to file the motion. In response, Legal Voice argued that the subpoenaed documents were privileged, were protected by the First Amendment, were not likely to lead to admissible evidence, and that the Plaintiffs' requests were unduly burdensome, overly broad, and vague. Legal Voice estimated that it would incur over $100, 000 in costs just to search for, review, and print the requested documents. It asked the Court to quash the subpoena and for its attorneys' fees as sanctions against the Plaintiffs under Rule 45(d)(1) for failing to take reasonable steps to avoid imposing an undue burden on Legal Voice. Legal Voice's only citation to Rule 45(d)(2)(B) in its initial brief was as a side note. After arguing for sanctions at length, Legal Voice cited Rule 45 subsection (d)(2)(B) and wrote, "[a]lternatively, to extent [sic] the Law Center is ordered to produce any documents, Plaintiffs should be required to compensate the Law Center for its expenses." (emphasis added).
The motion to compel was granted in part and denied in part. Legal Voice was ordered to produce six of the fourteen classes of documents that the Plaintiffs requested. Regarding attorneys' fees and costs, the Court ordered that, "[e]ach party will bear its own costs incurred in connection with these motions."
Unfortunately, the initial Order did not end the Plaintiffs and Legal Voice's quarrel. Legal Voice and the Plaintiffs disputed the scope of the Court's Order, so Legal Voice filed a motion for clarification. Legal Voice and the Plaintiffs again fought over what had to be produced, and in that round of briefing, Legal Voice shifted its request for attorneys' fees to a request for its production costs. Recognizing a distinction between the costs "in connection with the motions, " and the costs of production, Legal Voice asked the Court to order the Plaintiffs to pay for the costs that it would incur complying with the subpoena. This time around, Legal Voice argued (for the first time) that fee and cost-shifting is mandatory under Rule 45(d)(2)(B)(ii) when a non-party incurs significant expenses complying with an order to produce documents.
The Court granted the motion for clarification and further explained the scope and intent of its prior order. The Court denied Legal Voice's request for its production costs because it believed that the scope of production had been sufficiently narrowed such that it would not be overly burdensome for Legal Voice to incur the costs of production.
The Court's attempt to clarify its order and end this dispute was in vain. Two months after the clarification order, the Plaintiffs filed a second motion to compel. The Plaintiffs again sought production of documents that Legal Voice refused to produce, and Legal Voice again asked for its costs of production under Rule 45(d)(2)(B)(ii). The Court again clarified which documents had to be produced and denied Legal Voice's request for its production costs. Although that order finally put an end to the dispute over the scope of production, the fight over Legal Voice's production expenses was just beginning.
B. Rounds 4-6: The Appeal
After the Court entered final judgment in the Plaintiffs' favor, Legal Voice appealed both the denial of sanctions under Rule 45(d)(1) and the denial of its production costs under Rule 45(d)(2)(B)(ii). Even before the initial briefing, the Plaintiffs filed a preliminary motion to dismiss the appeal, claiming that it was untimely. Both sides briefed the issue, and the appeals court commissioner denied the motion. Following briefing and oral argument, the Ninth Circuit held that the appeal was timely, that this Court did not err by denying Legal Voice sanctions under Rule 45(d)(1), but that Legal Voice should have been awarded some or all of its production costs under Rule 45(d)(2)(B)(ii).
True to their form, both sides filed motions for clarification and/or revision, and both were denied. Legal Voice then moved for an award of attorneys' fees on appeal, which, of course, required more briefing. The Ninth Circuit granted Legal Voice's request but remanded the matter to this Court to determine the amount of fees to be awarded. Finally, Legal Voice petitioned the Ninth Circuit to publish its order awarding fees, which it agreed to do.
C. Round 7: Motion for Reimbursement of Expenses on Remand
This petition is (hopefully) the end of this long, drawn-out dispute. Legal Voice seeks over $230, 000 in attorneys' fees and over $20, 000 for internal expenses that it incurred complying with the Plaintiffs' subpoena. The Plaintiffs take issue with nearly all of Legal Voice's claimed expenses and assert every conceivable objection to Legal Voice's calculation of its attorneys' fees. After applying reduction after reduction, the Plaintiffs conclude that Legal Voice should receive no more than $20, 490 combined for its costs of compliance and attorneys' fees. It's safe to say that the actual award should (and will) be somewhere between the two extremes.
The Federal Rules of Civil Procedure were enacted to "secure the just, speedy, and inexpensive determination of every action and proceeding." 8 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2001 (3d ed. 1998) (emphasis added). One of the Rules' most important developments was the expansion of the discovery process. Id. Before the Federal Rules, the discovery process in federal courts was cumbersome and restricted. 8 Wright and Miller, Federal Practice and Procedure § 2002. Facts were revealed primarily by the pleadings. 8 Wright and Miller, Federal Practice and Procedure § 2001; Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385 (1947). The Federal Rules expanded the scope of discovery considerably and limited the pleadings' purpose to general notice-giving. The Rules give parties a number of discovery tools that enable them to reveal all of the relevant facts and narrow the issues before trial. 8 Wright and Miller, Federal Practice and Procedure § 2001. The open discovery makes trials less a game of wits, and more a search for the truth. 8 Wright and Miller, Federal Practice and Procedure § 2001.
One of the tools that parties now have to discover information is the ability to subpoena documents from anyone who has them in their control. See Fed.R.Civ.P. 45. The parties' ability to subpoena documents from anyone, including non-parties, means that, occasionally, someone who has no interest in the underlying litigation may be forced to produce documents that he or she only serendipitously happens to possess. In 1991, Rule 45 was amended to add protection for non-parties that have to produce documents for litigation that they have no interest in and no ability to control. Rule 45(d)(2)(B)(ii) provides that an "order [compelling production] must protect a person who is neither a party nor a party's officer from significant expense resulting from compliance." It is that Rule that this Court has been instructed to apply.
A. Legal Voice's Compliance Expenses
This Court's first task is to shift enough of Legal Voice's expenses "resulting from compliance" to the Plaintiffs under Rule 45(d)(2)(B)(ii) so that the remainder is non-significant. To do that, the Court must first determine what costs qualify as "expense[s] resulting from compliance." The Court can then establish what Legal Voice's compliance costs actually were and what amount ...