New Products Corporation, et al. v. Dickinson Wright, PLLC, et al.

If a subpoena recipient objects to a subpoena under Rule 45(d)(2)(B), its duty to respond to the subpoena ceases until a court enters an order compelling compliance, and determining who shall pay the costs of compliance. The questions presented in this appeal concern a situation in which non-party subpoena recipients objected to subpoenas, but nevertheless proceeded to incur significant expenses in responding to the subpoena without seeking any judicial relief or waiting for a court order compelling compliance. The recipients—having objected to the subpoenas—had no legal obligation to comply with the subpoena, and had no legitimate expectation that they would be reimbursed for costs incurred before a court order. By putting the cart before the horse, the subpoena recipients deprived the court of the opportunity to “protect them” from the costs of compliance through, for example, limiting the scope of production. Therefore, the subpoena recipients waived the right to request reimbursement. Based on a gross misreading of the Federal Rules of Civil Procedure, the Sixth Circuit held that a nonparty subpoena recipient is automatically entitled to recover “significant expenses” it incurs in responding to a subpoena before any involvement by the court. This decision resulted in improperly shifting $166,187.50 in attorney fees and costs for subpoena compliance from large corporations, including Bank of America and the Dickinson Wright law firm, onto a small Michigan corporation and its attorney. Virtually all of the fees awarded to Bank of America and the other corporations were incurred before any court involvement, and before any invoice or estimate of the cost of subpoena compliance was