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In Re Subpoenas To Brady Folliard and Mcknight & Kennedy v. Cdw Government

March 16, 2012


The opinion of the court was delivered by: Alan Kay United States Magistrate Judge


This case is referred to the undersigned for determination of McKnight and Kennedy, LLC's ("McKnight") Motion for Attorney Fees and Costs [14]. CDW Government, Inc. ("CDW") filed an Opposition [15] and the undersigned held a hearing on January 31, 2012. Plaintiff's Motion will be denied, because Plaintiff has a strong interest in the underlying lawsuit.


The Motion for Attorney Fees followed CDW's Motion for enforcement of a subpoena duces tecum requesting documents from the law firm of McKnight and Kennedy, LLC , and specifically, Mr. Vincent McKnight ("Mr. McKnight"). The requests for documents were part of discovery in a Qui Tam action pending in the Northern District of Illinois, brought by Joseph Liotine ("Liotine suit"). The Liotine suit is one of two Qui Tam lawsuits originally filed against CDW for violations of the Trade Agreement Act, 19 U.S.C. §§ 2501 et seq. The second suit was filed by Brady Folliard in the U.S. District Court for the District of Columbia ("Folliard suit"). McKnight represented Folliard in the Folliard suit.

Both cases were based on the same set of facts alleging that CDW violated the Trade Agreements Act by selling computer products to the U.S. Government that originated from non-trade compliant countries. (Compl. at 5-6.) The filing of the Liotine suit predated the filing of the Folliard suit, leading the trial judge in the District of Columbia to dismiss the Folliard suit on the grounds that if more than one Qui Tam action is filed based on the same facts in different venues, the first-to-file case prevails over any subsequently filed case. The Folliard suit was dismissed on June 28, 2010. (Id. at 6.)

On November 5, 2010, CDW issued identical subpoenas on Brady Folliard ("Folliard") individually and on McKnight for documents relevant to the Liotine suit. (Resp't's Mot. for Attorney Fees and Costs ("Mot. for Attorney Fees")at 6-7.) Folliard and McKnight objected to the subpoenas on privilege grounds. (Id. at 7.) On December 22, 2010, CDW moved to enforce the subpoenas. (Id.) The Court issued an order on April 7, 2011 directing McKnight to produce documents and a privilege log for an in camera review. (Order, Apr. 7, 2011at 12.)

Pursuant to that Order, McKnight produced some responsive documents to CDW and submitted to the Court two privilege logs, 504 e-mails and 200 documents, including a Cooperation and Sharing Agreement between Folliard and Liotine. (Mot. for Attorney Fees at 2.) On May 12, 2011, CDW filed another Motion to Enforce the Subpoenas, arguing that McKnight's submission to the Court contained no evidence of common interest privilege because McKnight had no evidence of a signed Cooperation Agreement. (Movant's Mot. to Enforce April 7, 2011 Order [9].) On August 10, 2011, the Court denied the May 12 motion, noting that documents submitted for the in camera review showed that Folliard and Liotine entered into a Cooperation Agreement in which the parties agreed "to pool information for a common goal" and to have a "coordinated legal strategy." (Order, Aug. 10, 2011 [13] at 6-7.) The Cooperation Agreement, e-mail communications and other documents established a common interest privilege beginning on August 25, 2009, and continuing through the April 7, 2011 Order. (Id. at 7.)

On September 1, 2011, McKnight filed a Motion for Attorneys Fees and Costs. It requests $117,900 for 203.6 hours of work in conjunction with the action to enforce the subpoenas. (Resp't's Notice of Filing Exhibits, Ex. 8 [17-6].) McKnight requests $625 per hour for 166.2 hours of work, and $375 per hour for the remaining 37.4 hours. Id.


a. Federal Rules of Civil Procedure 45(c)(2)(B)

McKnight argues that it should be awarded attorneys fees under Federal Rules of Civil Procedure 45(c)(2)(B). (Mot. for Attorney Fees at 4.) Under Rule 45, a person commanded to produce documents subject to a subpoena may object to production either before the time specified for compliance or 14 days after the subpoena is served. Fed. R. Civ. P. 45(c)(2)(B). The party serving the subpoena may then move for a court order compelling production. Fed. R. Civ. P. 45(c)(2)(B)(i). Where the producing person is a non-party to the suit, any resulting court order commanding compliance must protect the non-party "from significant expense resulting from compliance." Fed. R. Civ. P. 45(c)(2)(B)(ii).*fn1

CDW argues that Rule 45(c)(2)(B) does not apply to McKnight because McKnight did not object to the cost of production until after he had produced the documents pursuant to the April 7, 2011 Order. (Movant's Opp. to Resp't's Mot. for Attorney Fees and Costs ("Movant's Opp.") [15] at 6.) CDW cites In re First American Corp, 184 F.R.D. 234 (S.D.N.Y. 1998), to support its argument. In citing to In re First American, CDW ignores the court's conclusion that if the producing party opposes the subpoena or objects to producing the requested documents, the non-party is not precluded from seeking reimbursement post-production of the documents. Id. at 239 ("[u]nder Rule 45, a nonparty is not rigidly required to seek reimbursement for the costs of compliance prior to responding to a subpoena"). The Court is also aware that had Mr. McKnight given CDW advance notice of his claim for significant attorney fees for producing the requested documents, CDW would have had the opportunity to withdraw or modify its subpoena. See United States v. Columbia Broadcasting System, Inc., 666 F.2d 364, 368 (9th Cir. 1982) (allowing the setting of costs post-production under Rule 45 in part because producing party made clear its intention to seek reimbursement and updated requesting parties periodically such that requesting parties "could easily have modified or limited their discovery demands whenever they felt that their exposure to potential reimbursement exceeded the value of the requested material"). The Court will not preclude McKnight from seeking production costs based on the timing of its request.

Rule 45's protection of a non-party from significant expense does not preclude the non-party from bearing the costs of production. In re Exxon Valdez, 142 F.R.D. 380, 382 (D.D.C. 1992); In re Honeywell Int'l, Inc. Sec. Litig, 230 F.R.D. 293, 302-03 (S.D.N.Y. 2003). Relevant factors in determining which party should bear the costs of production include: (1) whether the non-party has an interest in the outcome of the litigation; (2) whether the non-party can more readily bear the costs of production than the requesting party; and (3) whether the litigation is of public importance. Lindor v. Calero-Portocarrero, 180 F.R.D. 168, 177 (D.D.C. 1998).

Where the non-party was involved in litigation arising out of the same facts or was substantially involved in the underlying transaction, courts have found the non-party to be interested in the outcome of the litigation. See Wells Fargo Bank, N.A., v. Konover, 259 F.R.D. 206, 207 (D. Conn. 2009); In re First American Corp., 184 F.R.D. at 242. McKnight acknowledges that "McKnight & Kennedy does have an interest in the outcome of the Liotine case." (Mot. for Attorneys Fees at 8.) Mr. McKnight stated in a written declaration that Liotine's attorney from Aschemann Keller, LLC, ("Aschemann Keller") retained Mr. McKnight beginning in the summer of 2010 to provide legal services in the Liotine suit. (Resp't's Mot. for an Extension of Time to Respond to CDW's Mot. to Enforce the Subpoenas, Ex. 2 [4-3].) At the January 31, 2012 hearing before the undersigned, Mr. McKnight told the Court that he continues to be involved as a "consultant" to Aschemann Keller. Mr. McKnight stated that at the resolution of the Liotine suit, he expects his hours to be included ...

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