On July 21, 2023, Justice Cohen of the New York County Commercial Division issued a decision in Barons Media, LLC v. Shapiro Legal Group, PLLC, 2023 NY Slip Op. 32469(U), awarding a non-party costs, including attorney review time, of responding to a non-party subpoena, explaining:
CPLR 3122(d) provides, in relevant part, “[t]he reasonable production of expenses of a nonparty witness shall be defrayed by the party seeking discovery. Section VII(B) of Appendix A to the Commercial Division Guidelines for Discovery of Electronically Stored Information (“ESI”) provides, in relevant part, that a party shall promptly defray the reasonable expenses associated with the non-party’s production of ESI, in accordance with Rules 3111 and 3122(d) and that reasonable expenses may include fees charged by outside counsel and e-discovery consultants.
While the CPLR does not define reasonable production expenses, the First Department has noted the high costs associated with ESI discovery and directed courts to consider relevant factors, including business disruptions, in deciding whether cost-shifting is appropriate. The First Department subsequently held that the Court has broad discretion under article 31 of the CPLR to direct cost shifting and authorized consideration factors identified in the seminal Zubulake case.
More recent cases make clear that reasonable production expenses may include attorney’s fees including those incurred in completing a privilege review .Thus, as recently held by Justice Crane of this Court, reimbursable costs may include vendor and attorney’s fees.
Having sought assignment to the Commercial Division and the issue of expenses – including attorneys’ fees – having been raised by Shapiro in its objections and at the hearing, Barons cannot claim any prejudice or surprise at the fact that vendor and attorney’s fees are sought. The Court has carefully reviewed the parties’ submissions and weighed the relevant factors. The Court finds that Barons’ aggressive approach was not narrowly tailored to discovering information it could only obtain from Shapiro. Although Barons complains bitterly about Shapiro’s conduct, Shapiro remains a non-party that has incurred costs incurred in producing ESI in response to the Subpoena (as opposed to litigating the underlying petition and conducting an initial search). Had Barons served tailored requests, the expenses incurred would likely be lower. On these facts, the Court finds that Shapiro is entitled to recover two-thirds (66%) of its claimed expenses.
(Internal quotations and citations omitted).