United States District Court, D. Colorado
LAMBLAND, INC., a Colorado Corporation doing business as A-1 Organics, Inc., Plaintiff,
HEARTLAND BIOGAS, LLC, a Delaware limited liability company, Defendant.
KRISTEN L. MIX MAGISTRATE JUDGE
matter is before the Court on Nonparty Board of County
Commissioners of Weld County's (“BOCC”)
Motion for Shifting of Fees and Costs
[#69] (the “Motion”). Defendant
filed a Response [#76] in opposition to the Motion, and the
BOCC filed a Reply [#78] and a Notice of Supplementation of
the Motion [#87] (the “Notice”). The Court has
reviewed the Motion, the Response, the Reply, the Notice, the
entire docket, and the applicable law, and is sufficiently
advised in the premises. For the reasons set forth below, the
Motion [#69] is GRANTED in part and DENIED in
brings this diversity action based on a claim of breach of
contract by Defendant. See generally Second Am.
Compl. [#102]. In the present Motion [#69], Nonparty
BOCC seeks to shift attorney's fees and costs of
production to Defendant in connection with the BOCC's
compliance with Defendant's Subpoena [#27-5] (the
“Subpoena”). See Motion [#69].
here was also the sole plaintiff in Civil Action No.
16-cv-03183-RM-NYW, Heartland Biogas, LLC v. The Board of
County Commissioners of Weld County
(“Heartland v. BOCC”). Order
[#59] at 2. In that case, Defendant first sued the BOCC, the
Colorado Department of Agriculture (“CDA”), the
Colorado Department of Public Health and Environment
(“CDPHE”), and four employees of CDPHE before
dismissing claims against CDA and CDPHE and filing an action
against those same entities in Denver County District Court
(the “State Court Action”). Id.
(citations omitted). The remaining parties in Heartland
v. BOCC then exchanged initial disclosures pursuant to
Fed.R.Civ.P. 26(a)(1), wherein the BOCC produced more than 2,
600 pages of documents. Id. On December 4, 2018,
Defendant voluntarily dismissed the federal case.
in the State Court Action, Defendant served the BOCC with a
Subpoena to Produce Documents on June 20, 2018.
BOCC's Ex. D [#27-4]. The BOCC objected to the
subpoena, arguing that Defendant sought “duplicative
information that would impose an undue burden on BOCC wholly
disproportionate to the needs of the State Court Action and
that would be burdensome and oppressive to the BOCC.”
Order [#59] at 3. The presiding judge overruled the
BOCC's objections and ordered it to comply.
BOCC's Ex. H [#27-8]. Instead, the BOCC
requested that Defendant pay the estimated cost in advance of
production pursuant to the Colorado Open Records Act, Colo.
Rev. Stat. § 24-72-205(1)(b) (“CORA”) and
Colo. R. Civ. P. 26. See BOCC's Ex. I [#27-9];
see BOCC's Ex. J [#27-9]. Defendant refused to
pay those costs, and the BOCC refused to produce any
documents. Id. Ultimately, the BOCC's second
motion to quash was mooted by the court when the BOCC was
added as a defendant in the State Court Action.
Response [#78] at 8. The BOCC subsequently filed a
motion to dismiss, which the court denied. Second Motion
for Protective Order [#115] at 7. The most current
information the Court has from the parties is that, at least
as of November 5, 2019, discovery in the State Court Action
is stayed because the BOCC filed an interlocutory appeal
pursuant to Colo. Rev. Stat. § 24-10-108. Id.
instant case, Defendant served the BOCC with a Subpoena to
Produce Documents [#27-5] (the “Subpoena”) on
August 7, 2018. The BOCC filed a Motion to Quash
Defendant's Subpoena to Produce [#27] (the “Motion
to Quash”) on August 24, 2018, and requested that the
Court enter a protective order, quash the Subpoena, and shift
costs related to the BOCC's compliance with the Subpoena
to Defendant because “[d]oing so is the only way to
protect the BOCC from being subjected to the undue burden and
costs associated with providing unnecessary and duplicative
response to a burdensome and oppressive subpoena . . .
.” [#27] at 12-13.
November 29, 2018, the Court entered an Order [#59] which
denied in part and denied without prejudice in part the
BOCC's Motion to Quash [#27]. The Court found that the
BOCC had not “satisfied its burden of showing that the
Subpoena is unduly burdensome” and denied the request
to quash the Subpoena. Order [#59] at 10. Next, the
Court denied without prejudice the BOCC's request for a
protective order because it had failed to show that “it
will suffer a serious injury in the absence of a protective
order covering the subpoenaed materials.” Id.
at 11. Finally, the Court denied without prejudice the
BOCC's request to shift the cost of production because it
was unclear whether the BOCC's estimate was accurate and
because it made more sense to determine the issue of seeking
cost-shifting “once an actual cost of production was
determined rather than a mere estimate.” Order
[#59] at 12. At that time, the BOCC estimated the
cost of compliance to be $8, 350.20, totaling $4, 545.00 in
time costs and $3, 805.20 in technology costs. Id.
January 10, 2019, the BOCC began a rolling production to
Defendant of “almost 35, 000 pages of documents and
communications, while at the same time raising and preserving
various objections to each of the categories of documents and
communications sought.” Motion [#69] at 2
(citations omitted). On January 31, 2019, the BOCC began its
second rolling production to Defendant of “more than
31, 000 pages of additional documents and communications
along with the BOCC's Initial Privilege Log” and
noted that “a supplemental log would be forthcoming on
or before February 21, 2019.” Id. (citation
omitted). Finally, on March 8, 2019, the BOCC submitted to
Defendant the “full, 210-page version of its First
Supplemental Privilege Log . . . .” Id. at 3.
March 12, 2019, four days after it produced the First
Supplemental Privilege Log, the BOCC filed the instant Motion
seeking “the shifting of fees and costs so incurred in
at least the amount of $84, 896.31.” [#69] at 1. The
BOCC asserts that “the internal cost [it] incurred in
generating a Response to the Subpoena to Produce . . . is
$18, 556.31” which includes “$15, 496.31
attributable to the cost of hosting and uploading the massive
volume of potentially responsive material with a third-party
vendor . . . .” Id. at 3-4 (citation omitted).
Further, the BOCC claims that “the external cost 
incurred . . . in terms of being billed the reasonable and
customary fees of Hall & Evans, L.L.C. to perform a
reasonably necessary second round of review for
responsiveness and privilege, and for generation of the
BOCC's voluminous Privilege Log in this matter, is $66,
340.00.” Id. at 4.
23, 2019, the BOCC filed its Notice requesting additional
external attorney's fees. [#87] at 2. However, the BOCC
fails to state the precise amount it claims in the Notice,
although it attaches a bill for an additional $20, 616.50 in
external attorney's fees, which it is presumably seeking
in full. Billing Records [#87-2] at 38. Thus, in
short, the BOCC seeks to shift a total of $86, 956.50 in
external attorney's fees consisting of $66, 340.00 from
the Motion [#69] and $20, 616.50 from the Notice [#87], in
addition to $18, 556.31 in internal and third-party vendor
costs, for a total of $105, 512.81 in attorney's fees and
costs. The BOCC requests that the Court shifts these fees and
costs in an amount appropriate under the circumstances
pursuant to Fed.R.Civ.P. 45. Motion [#69].
Civ. P. 45 governs the issuance of subpoenas to non-parties
and provides that the serving party “may, at any time,
move the issuing court for an order compelling production or
inspection, ” but the order “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 (c)(2)(B). If the cost of compliance is
significant, courts “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.'” Linder v.
Calero-Portocarrero, 251 F.3d 178, 182 (D.C. Cir. 2001).
However, this does not necessarily mean that the requesting
party must bear the entire cost of compliance. Id.
determine whether, and to what extent, attorney's fees
and costs should be shifted from a nonparty responding to a
subpoena to the party seeking discovery, courts generally
examine the following factors: (1) whether the nonparty
actually has an interest in the outcome of the case; (2)
whether the nonparty can more readily bear the expense than
the requesting party; (3) whether the litigation is of public
importance; (4) the scope of discovery and the extent to
which the nonparty was required to separate responsive
information from privileged or irrelevant material; and (5)
the reasonableness of attorney's fees and costs of
production incurred. In re Application of Michael Wilson
& Partners, Ltd., No. 06-cv-02575-MSK-KMT, 2012 WL
1901217, at *4 (D. Colo. May 24, 2012), aff'd,
520 Fed.Appx. 736 (10th Cir. 2013); see also Crandall v.
City & Cty. of Denver, Colo., No.
05-cv-00242-MSK-MEH, 2007 WL 162743 (D. Colo. Jan. 17, 2007)
(adopting same factors). The party seeking reimbursement has
the burden of establishing “the existence and
reasonableness of the costs or fees incurred, and that these
expenses should be shifted.” In re Michael Wilson
& Partners, Ltd., 2012 WL 1901217, at *4.
BOCC requests that the Court shift fees and costs in an
amount “appropriate under the circumstances”
pursuant to Fed.R.Civ.P. 45 based on the following: (1)
Defendant failed to take reasonable steps to avoid imposing
undue burden or expense on the BOCC; (2) the BOCC, as a
nonparty, ought to be protected from the significant expense
resulting from its compliance with the Subpoena; and (3)
compliance with the Subpoena would have “required the
disclosure of privileged or other protected material under
several well-recognized privileges.” Motion
[#69] at 2.
Response [#76], Defendant asks the Court to deny the Motion
[#69] for the following reasons: (1) the Subpoena did not
impose an undue burden on the BOCC; (2) the costs incurred by
the BOCC in resisting the disclosure of documents were
unreasonable and unnecessary and thus not recoverable under
Fed.R.Civ.P. 45; (3) the cost of production was not
significant when compared to the BOCC's financial status;
and (4) the equities do not favor any shifting of costs.
[#76] at 3-13. In short, Defendant requests that the ...