On October 24, 2024, the First Department issued a decision in Matter of Barons Media, LLC v. Shapiro Legal Group, PLLC, 2024 NY Slip Op. 05301, holding that a non-party was entitled to reimbursement of reasonable attorneys’ fees in responding to a subpoena, explaining:
The court providently exercised its discretion in partially granting respondent’s motion for reimbursement as a nonparty witness seeking to recover reasonable production expenses incurred while producing electronically stored information (ESI) pursuant to a subpoena from petitioner. Reasonable production costs may include reasonable fees charged by outside counsel and e-discovery consultants for gathering and reviewing documents for relevance and privilege before production, in addition to those charged by vendors involved in the harvesting and storage of ESI. Respondent provided a detailed schedule based on invoices submitted by counsel and ESI vendors, which reflected that the costs were largely incurred by the review, organization, and compilation of responsive materials by outside counsel. Insofar as some of the entries reflect activities associated with withholding materials and that outside counsel’s billing rate may have been unreasonable, the court weighed all relevant factors and appropriately determined that respondent was only entitled to recover two-thirds of the claimed expenses. The fact that petitioner subsequently instituted separate litigation against respondent does not render respondent a party that may not recover production expenses under CPLR 3122(d).
(Internal quotations and citations omitted).