TERRY GRAHAM, ELIZABETH ERKLENS, and EDD BIEL, Plaintiffs, v. RATIONAL VACCINES, INC., Defendant Case No. 18-3096 United States District Court, C.D. Illinois August 09, 2019 Counsel Alan C. Milstein, Sherman, Silverstein, Kohl, Rose & Podolsky, P.A., Moorestown, NJ, Louis A. DePaepe, DePaepe Law Office, Taylorville, IL, for Plaintiffs Terry Graham, Elizabeth Erkelens, Biel, Edd. Philip Carmine Semprevivo, Jr., Svetlana Vladimirovna Siforova, George Peter Cornell, Biedermann Hoenig Semprevivo P.C., New York, NY, for Defendant. Long, Eric I., United States Magistrate Judge ORDER *1 This matter is before the Court on non-party Southern Illinois University's (“SIU”) Motion to Limit Plaintiffs' Non-Party Subpoena and for Protective Order (#25) as well as Plaintiffs Terry Graham, Elizabeth Erklens, and Edd Biel's (“Plaintiffs”) Cross-Motion to Compel Compliance with Subpoena (#27). On July 31, 2019, after discussion with the Court, the parties filed a Status Report (#32) indicating that they have reached an agreement on the scope and production of documents that were subject to the cross-motions. The Status Report indicates that the only issue remaining unresolved is who should bear the cost of compliance with the subpoena. Therefore, this is the only issue the Court will address. “[T]he few reported cases that have addressed the acquisition of ESI from non-parties “recognize that the costs and burdens of preservation and production that the law imposes on litigants should not be the same for non-parties.” DeGeer v. Gillis, 755 F. Supp. 2d 909, 918 (N.D. Ill. 2010). “Third parties should not be required to subsidize litigation to which they have no stake in the outcome.” Id. The party issuing the subpoena “must take reasonable steps to avoid imposing undue burden or expense” on the party subject to the subpoena. FED. R. CIV. P. 45(d)(1). “When a third-party is ordered to produce documents pursuant to a subpoena, ‘the presumption is that the responding party must bear the expense of complying with discovery requests,’ including requests for electronic data.” United States v. Cardinal Growth, L.P., 2015 U.S. Dist. LEXIS 22577, *5 (N.D. Ill. 2015) (citing DeGeer, 755 F. Supp. 2d at 928). “In the subpoena context, cost-shifting should occur when an order requiring compliance subjects a non-party to significant expense.” DeGreer, 755 F. Supp. 2d at 928 (citing FED. R. CIV. P. 45(c)(2)) (stating that an order compelling production “must protect a person who is neither a party nor a party's officer from significant expense resulting compliance.”) “Courts have considered three equitable factors when considering cost-shifting and non-parties: (1) whether the nonparty has an interest in the outcome of the case; (2) whether the nonparty can more readily bear its costs than the requesting party; and (3) whether the litigation is of public importance.” Id. “Ultimately, the decision whether to award costs is a matter of the Court's discretion.” Cardinal Growth, 2015 U.S. Dist. LEXIS at *6 (citing Spears v. City of Indianapolis, 74 F.3d 153, 158 (7th Cir. 1996)). While the Court starts with the presumption that SIU must bear the expense of compliance, Cardinal Growth, 2015 U.S. Dist. LEXIS at *5, SIU has demonstrated that compliance subjects them to a significant expense. After weighing the DeGreer factors, the Court finds that Plaintiffs should bear a portion of the expense associated with compliance. The first factor, whether SIU has any interest in the outcome of the case, is the factor that Plaintiffs believe best supports their argument that SIU should bear the cost of compliance. Plaintiffs' Opposition to SIU's Motion to Limit Subpoena (#26) states that SIU is one of the owners of the patent for the vaccine at issue (and thus, partial owner of rights to any profits from its sale). Presumably, Plaintiff means to point out that SIU is not a “disinterested” party as it claims to be, and thus has an “interest in the outcome of the case.” DeGreer, 755 F. Supp. 2d at 928. *2 For its part, SIU contends that it has no interest in the outcome of the case against Rational Vaccines, Inc. and three private individuals (not mentioning its financial interest in the patent). SIU's Motion to Limit Plaintiff's Subpoena, d/e #25. Even if SIU has no direct interest in the outcome of this particular case, SIU has a marginal interest in the outcome of any case involving the patent for this particular vaccine due to its ownership interest and its right to profit from the sale of the vaccine. Accordingly, the Court finds that factor one weighs in favor of SIU bearing at least a portion of the cost of compliance. As to factor two, SIU argues that it should not be forced to bear the cost of complying with a subpoena in litigation between private parties. d/e #25. Put another way, SIU argues that as a public university with limited resources, Plaintiffs can more readily bear the cost of compliance. Plaintiffs argue that identification and collection of the requested documents will not be difficult because the FDA has already subpoenaed virtually the same documents, and thus SIU will simply have to replicate the FDA production that it has already completed. d/e #26. SIU responds that the FDA production was different because those documents were not subject to redaction or review. SIU's Reply, d/e #31. Thus, SIU argues that their required use of a third-party vendor to host the data, and their need to review the documents for redaction, make compliance with the instant subpoena different (and more costly and difficult) than compliance with the FDA subpoena. The Court, exercising its discretion, Cardinal Growth, 2015 U.S. Dist. LEXIS at *6, finds that factor two weighs in favor of SIU. Considering SIU's status as a publicly funded university, coupled with the understanding that compliance with the instant subpoena will require substantially more time, effort, and money than compliance with the FDA subpoena, Plaintiffs are in a better position to shoulder the costs. The Court agrees with SIU that Plaintiffs can more readily bear the cost of compliance than a publicly funded university. DeGreer, 755 F. Supp. 2d at 928. Plaintiffs offer no argument as to the third factor. SIU argues that a lawsuit by three plaintiffs filed against a private LLC has little to no public importance. d/e #25. While the Court expresses no opinion as to the importance of this case, Plaintiff offers no argument that any members of the public have a “significant” interest in this case, and the Court is not aware of any particular reason why this case would generate “significant public importance.” Thus, factor three also favors shifting the cost of compliance to Plaintiffs. The Court finds that SIU should bear at least a portion of the cost of compliance. Accordingly, the Court finds that Plaintiffs shall be responsible for 75% of the cost of compliance with the subpoena, while SIU is responsible for the remaining 25% of the cost. While SIU has estimated that the cost will be “approximately” $6,500, the exact cost shall be determined after compliance has been completed. Once SIU provides Plaintiffs with the exact cost of compliance, Plaintiffs will then be responsible for reimbursing SIU for 75% of that cost, excluding attorney fees. SIU shall bear the cost of its own attorney fees. The parties have also requested that the Court enter the Protective Order (#25-9) attached to SIU's Motion. This request is granted, and the Court will enter the proposed Protective Order (#25-9) as a separate docket entry. As the Court stated, the parties have already reached an agreement regarding scope and production of documents. Therefore, the Motion for Protective Order (#25) and the Cross Motion to Compel (#27) are DENIED as moot. Production shall be completed in compliance with the agreement reached by the parties, with the cost of compliance to be allocated as stated above. *3 ENTERED this 9th day of August, 2019.