Whether a non-party subpoena recipient is automatically entitled to recover significant expenses incurred in responding to a subpoena before a court order compelling compliance

QUESTIONS PRESENTED If a subpoena recipient objects to a subpoena under Rule 45(d)(2)(B), its duty to respond to the subpoena ceases until a court enters an order compelling compliance, and determining who shall pay the costs of compliance. The questions presented in this appeal concern a situation in which non-party subpoena recipients objected to subpoenas, but nevertheless proceeded to incur significant expenses in responding to the subpoena without seeking any judicial relief or waiting for a court order compelling compliance. The recipients—having objected to the subpoenas—had no legal obligation to comply with the subpoena, and had no legitimate expectation that they would be reimbursed for costs incurred before a court order. By putting the cart before the horse, the subpoena recipients deprived the court of the opportunity to “protect them” from the costs of compliance through, for example, limiting the scope of production. Therefore, the subpoena recipients waived the right to request reimbursement. Based on a gross misreading of the Federal Rules of Civil Procedure, the Sixth Circuit held that a nonparty subpoena recipient is automatically entitled to recover “significant expenses” it incurs in responding to a subpoena before any involvement by the court. This decision resulted in improperly _ shifting $166,187.50 in attorney fees and costs for subpoena compliance from large corporations, including Bank of America and the Dickinson Wright law firm, onto a small Michigan corporation and its attorney. Virtually all of the fees awarded to Bank of America and the other corporations were incurred before any court involvement, and before any invoice or estimate of the cost of subpoena compliance was iii provided to the Petitioners or the Court.! Respondents purposely did not communicate with Petitioners about the subpoenas while Respondents were incurring costs. Respondents improperly presented Petitioners and the bankruptcy court with a fait accompli, and the lower courts erred by endorsing Respondents’ conduct, which was contrary to the Federal Rules of Civil Procedure. The questions presented here are: (1) Whether, as the Sixth Circuit held, Rule 45(d)(2)(B)(ii) entitles a non-party to recover all “significant fees” it incurs (including attorney fees) for responding to a subpoena where the fees were incurred by the non-party before a court order compelling compliance with the subpoena or whether, as the Fourth Circuit and district courts in the Third, Fourth, Ninth, and DC Circuits have correctly held, a non-party may only recover reasonable costs that were incurred after the nonparty is compelled to respond to a subpoena by court order. (2) Whether Rule 45(d)(1) allows sanctions to be imposed against an attorney issuing a subpoena in the absence of a finding of bad faith by the attorney and where the court enters an order for full compliance with the subpoena over the 1 Even worse in this case, Petitioners paid the full amount of $166,187.50, but Respondent Bank of America did not produce all of the documents that it was ordered to produce. Bank of America’s failure to produce all documents prejudiced New Products in its prosecution of its adversary proceeding against the Bankruptcy Trustee. iv recipient’s objections. Petitioners are unaware of any other court in this country awarding any Rule 45(d)(1) sanctions in the absence of bad faith or an order quashing or limiting the subpoena, let alone sanctions in the amount of $166,187.50—the most severe sanctions in the history of Rule 45(d)(1).