On July 1, 2025, the First Department issued a decision in Board of Mgrs. of 252 Condominium v. World-Wide Holdings Corp., 2025 NY Slip Op. 03968, holding that a non-party was entitled to recover its expenses in responding to a subpoena even though it later became a party, explaining:
We disagree with the court’s conclusion that RAI was not entitled to costs because it became a defendant subsequent to moving for costs. Indeed, Commercial Division Rule 11-c(e) echoes this, adding principles for lessening burdens in producing Electronically Stored Information (ESI). Appendix A states that reasonable production expenses to be reimbursed may include fees charged by outside counsel and e-discovery consultants, and costs to identify, preserve, collect, process, host, review for relevance and privilege, and produce ESI.
Nevertheless, RAI’s motion was properly denied, since it offered no evidence that it made any productions, only now referring to productions that are not in the record. However, RAI may renew its application for costs based on a proper showing.
(Internal quotations and citations omitted).