Who should pick up the tab for costs incurred in responding to a subpoena to a non-party under Rule 45 of the Tennessee Rules of Civil Procedure?
This case arises from a probate matter. Five years after the decedent’s estate had been closed for the second time, it was reopened again by a grandson, who believed a quarter of a million dollars in assets continued to be held in the decedent’s Merrill Lynch accounts. The grandson was represented by Suzette Peyton and George Copple, Jr. Shortly after re-opening the estate, the attorneys issued a subpoena duces tecum to Merrill Lynch. The subpoena sought several years worth of documents for the decedent’s accounts and it also sought information related to accounts held by both the decedent’s wife and son, both of whom were also deceased.
For several months, the parties negotiated over the scope of the subpoena and the appropriate releases. Ultimately, the administrator filed a motion to enforce the subpoena. Merrill Lynch opposed the motion on several grounds but never sought an advancement of the reasonable costs associated with compliance as was permitted under the 2012 version of Tennessee Rule of Civil Procedure 45.07. Instead, in email communications, Merrill Lynch repeatedly sought assurances from the attorneys that its expenses associated with complying with the subpoena would be paid. After all was said and done, Merrill Lynch produced documents and sought expenses in the amount of $776.00.
After the production, counsel for the grandson moved to withdraw which was permitted but the court held they would continue to be sureties for the costs to date including the $776.00 incurred by Merrill Lynch. As part of this hearing, the court specifically declined to find there was any agreement between Merrill Lynch and the attorneys for payment of the production costs. Instead, the court held the attorneys liable for the costs based upon "the record as a whole in this matter, including, but not limited to, Tennessee Rule of Civil Procedure 45". The attorneys appealed the assessment of costs to them.
At the outset of its opinion, the Court of Appeals was careful to distinguish what was at issue. Specifically, the costs assessed against the attorneys were not court costs, discretionary costs or a sanction related to discovery abuses. Instead, they were merely the costs related to a non-party’s production of documents pursuant to a subpoena. While Rule 45.07 permits a trial court to condition the denial of a motion to quash or modify upon the advancement of the reasonable costs associated with compliance of the subpoena, the Court of Appeals concluded there was no authority in the rule to permit the assessment of the costs against the attorneys of the requesting party.
This is the right result. Merrill Lynch simply did not make the right request at the right time pursuant to Rule 45.
The case is In re Estate of McGinnis. The opinion was authored by Judge Clement of the Tennessee Court of Appeals and was released on December 17, 2013.