Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

G & E Real Estate, Inc. v. Avison Young-Washington, D.C. LLC

United States District Court, District of Columbia

March 30, 2016

G&E REAL ESTATE, INC., Plaintiff
v.
AVISON YOUNG-WASHINGTON, D.C., LLC, et al., Defendants

MEMORANDUM OPINION AND ORDER

COLLEEN KOLLAR-KOTELLY United States District Judge.

Before the Court is movant Offit Kurman, P.A.’s [130] Second Motion for Payment of Legal Fees and Electronic Discovery Vendor Fees in Compliance with Order Granting Motion for Subpoena Issued to Vornado/Charles E. Smith, L.P. Dated April 2, 2014. This motion pertains to a subpoena served on Vornado by Plaintiff in connection with the lease by Vornado, a landlord, to Defendant Analytic Services. The Court notes that, while Vornado is not a party to this case and does not appear to have any financial stake in its outcome, neither is Vornado a stranger to this case. Indeed, it is Vornado’s lease to Defendant Analytic Services that is at the core of this case. Offit Kurman represented Vornado in the matters relating to the subpoena and now seeks to recover attorney’s fees in the amount of $145, 843.50 for the work that it did on Vornado’s behalf. Offit Kurman also requests that Plaintiff be required to pay the invoices issued by LightSpeed LLC, the electronic discovery vendor used by the parties. The invoices directed to Offit Kurman amount to $2, 010.94.[1] Offit Kurman seeks to require Plaintiff to bear all of these expenses under Federal Rule of Civil Procedure 45(d)(2)(ii), which contains certain protections for non-parties who have been served with a subpoena.

Upon consideration of the pleadings, [2] the relevant legal authorities, and the record as a whole, the Court GRANTS IN PART and DENIES IN PART Offit Kurman’s [130] Second Motion. The Court will GRANT the motion as to the $2, 010.94 in invoices, requiring Plaintiff to pay those invoices, and as to $1, 137.50 in attorney’s fees, requiring Plaintiff to reimburse Vornado for those services. The Court otherwise DENIES Offit Kurman’s request.

I. BACKGROUND

The Court has previously set out and discussed the facts underlying this case. See generally G&E Real Estate, Inc. v. Avison Young-Washington, D.C., LLC, No. CV 14-418 (CKK), 2016 WL 777908 (D.D.C. Feb. 26, 2016). Furthermore, given the issues presented in the pending motion, there is no need to present the factual background of this case prior to addressing the issues raised in the pending motion. Instead, the Court reserves presentation of the relevant background for the issues discussed below.

II. LEGAL STANDARD

Under Federal Rule of Civil Procedure 45, a party may serve a subpoena on a non-party. However, if that non-party objects and if a court orders compliance with the subpoena, the court “must protect a person who is neither a party nor a party’s officer from significant expense resulting from compliance.” Fed.R.Civ.P. 45(d)(2)(ii). Under Rule 45, as significantly revised in 1991, “the questions before the district court are whether the subpoena imposes expenses on the non-party, and whether those expenses are ‘significant.’ ” Linder v. Calero-Portocarrero, 251 F.3d 178, 182 (D.C. Cir. 2001) (quoting Fed.R.Civ.P. 45(c)(2)(B) (1991)). “If they are, the court must protect the non-party by requiring the party seeking discovery to bear at least enough of the expense to render the remainder ‘non-significant.’ ” Id. In other words, if expenses are significant, the district court must shift the expenses above the level of “significance” to the party serving the subpoena.

A final point is regrettably necessary regarding the text of the rule itself. Both parties persist in quoting the 1991 version of Rule 45 which required protection from “significant expense resulting from inspection and copying commanded.” Id. (emphasis added). The final words in this provision of Rule 45 appear to have been amended several times since 1991, ultimately resulting in the simple language, “resulting from compliance, ” that is now in effect. Fed.R.Civ.P. 45(d)(2)(ii). It is true that the decision of the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) in Linder remains the principal case on the subject of Rule 45 in this Circuit. However, the language of this rule that this Court must apply is the current language, not the language from a quarter-century ago. Both parties’ reliance on the final words of the applicable clause in the 1991 rule is ill-advised, particularly insofar as they suggest that the former words have particular relevance to their arguments. That said, the Court concludes that the change in the provision ultimately has no material impact on the outcome of the pending motion and will proceed to apply Rule 45 in its current form.

III. DISCUSSION

Before proceeding to the substance of the pending motion, the Court notes that it appears unusual that the law firm Offit Kurman is seeking fees on its own behalf, not on behalf of its client, Vornado, albeit in connection to work that it did for that client. That is unusual because Rule 45 affords protections to non-parties who have been served with subpoenas, not to their lawyers. In other words, the rule provides no direct protection to Offit Kurman. In any event, because Offit Kurman seeks fees for work done for Vornado pertaining to the subpoena, the Court addresses the motion on the merits.

The primary question facing the Court in this motion is whether the expenses for which Offit Kurman seeks reimbursement constitute “significant expense[s] resulting from compliance.” Fed.R.Civ.P. 45(d)(2)(ii). In terms of the dollar figure of the total request- $145, 843.50 in attorney’s fees and $2, 010.94 in LightSpeed invoices-there is no doubt that this amount would be significant. See Linder, 251 F.3d at 191 (having “no trouble” concluding that $199, 537.08 in expenses are significant and relying on case where $9, 000 was deemed significant). However, that is not the end of the inquiry. The Court must determine whether these are “expense[s] resulting from compliance” in the first instance.

The Court understands Plaintiff to be arguing, essentially, that (1) attorney’s fees are per se non-compensable and (2) the amount of attorney’s fees are grossly excessive and do not qualify as expenses that result from the required compliance with the subpoena. As to the former, the Court agrees with Offit Kurman that attorney’s fees may be compensable. But as to the latter, the Court agrees with Plaintiff that the fees requested are excessive and that it cannot be said that the fees, as a whole, resulted from the requirement that Vornado comply with the subpoena issued. Pursuant to the Court’s analysis below, the Court concludes that all but a small fraction of the fees requested are unreasonable and thus non-compensable. The Court concludes that the small subset of fees that resulted from compliance, together with the invoices issued to Offit Kurman, are significant and warrant compensation.

A. Legal Framework under Rule 45

The Court begins with text of Rule 45. As stated above, a non-party ordered to comply with a subpoena must be protected from any “significant expense resulting from compliance.” Fed.R.Civ.P. 45(d)(2)(ii). It is critical, therefore, that only expenses that result from, and therefore, are caused by, the order of compliance are potentially compensable. Simply because a non-party undertook certain tasks and incurred associated expenses in the aftermath of an order compelling compliance with a subpoena does not mean that those costs resulted from that order. In other words, only reasonable expenses are compensable. An unreasonable expense, even undertaken in some sense as a response to a subpoena, does not result from that subpoena. Instead, it results from whatever set of decisions by and on behalf of the non-party led to those unreasonable expenses being incurred. This understanding-that only reasonable expenses qualify under Rule 45-has been adopted by a significant number of courts across the country. See, e.g., In re Application of Michael Wilson & Partners, Ltd., for Judicial Assistance Pursuant to 28 U.S.C. 1782, 520 F. App’x 736, 739 (10th Cir. 2013) (citing United States v. Columbia Broadcasting Sys., Inc., 666 F.2d 364, 371 n.9 (9th Cir. 1982)) (“Although Rule 45(c)(2)(B)(ii) protects a nonparty subpoena respondent from ‘significant expense, ’ expenses, including attorney’s fees, must be reasonable.”); In re Modern Plastics Corp., 536 B.R. 783, 788 (Bankr. W.D. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.