NELSON GAMACHE, et al., individually and on behalf of a class of all others similarly situated, Plaintiffs, v. JOHN F. HOGUE, JR., et al., Defendants CASE NO.: 1:19-CV-21 (LAG) United States District Court, M.D. Georgia, Albany Division Signed March 21, 2022 Counsel Colin M. Downes, Washington, DC, R. Joseph Barton, Washington, DC, Daniel Mark Feinberg, Nina R. Wasow, Feinberg Jackson Worthman & Wasow LLP, Berkeley, CA, William S. Stone, Atlanta, GA, for Plaintiffs. Joelle C. Sharman, Atlanta, GA, Robert E. Lesser, Covington, GA, for Defendants John F. Hogue, Jr., Graham Thompson, Technical Associates of Georgia Inc. Employee Stock Ownership Plan, John Does 1-20, Administrative Committee of the Technical Associates of Georgia, Inc. Employee Stock Ownership Plan. Joelle C. Sharman, Atlanta, GA, for Defendants James Urbach, Glenn Kirbo, Randy Hall. Gardner, Leslie A., United States District Judge ORDER *1 Before the Court is Plaintiffs’ Motion to Compel Third-Party Moore Clarke DuVall & Rodgers, P.C. to Comply with Subpoena (Doc. 98). For the reasons stated below, Plaintiffs’ Motion is GRANTED. BACKGROUND Plaintiffs filed this class action pursuant to the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq., against Defendants John F. Hogue, Jr., Graham Thompson, James Urbach, Glenn Kirbo, Randy Hall, and the Administrative Committee of the Technical Associates of Georgia, Inc. Employee Stock Ownership Plan. (Doc. 1). Plaintiffs amended their Complaint on April 19, 2019. (Doc. 30). Plaintiffs, all of whom are former employees of Technical Associates of Georgia., Inc. (TAG) and participants in the TAG Employee Stock Ownership Program, allege that Defendants engaged in prohibited transactions and breached fiduciary duties in violation of 29 U.S.C. §§ 1104(a)(1), 1105, 1106(a)(1)(D), and 1106(b). (Id. at 26–33). On June 1, 2020, Plaintiffs served a document subpoena on non-party Moore Clark DuVall & Rodgers, P.C. (MCDR), seeking documents related to the 2011 refinancing at issue in this case. (See Doc. 98-2). On June 10, 2020, MCDR objected to the subpoena on multiple grounds, claiming that: (1) the documents requested were protected by attorney-client privilege and the work-product doctrine, (2) the requests were overly broad and sought documents that were irrelevant, (3) the requests were vague and ambiguous, and (4) it would be burdensome for MCDR to produce documents responsive to the subpoena. (See Doc. 98-1 ¶ 3; Doc. 98-3). On July 16, 2020, Plaintiffs’ Counsel offered to narrow the scope of the subpoena and agreed to exclude emails internal to MCDR, to use search terms and custodian lists to narrow searches for electronically stored information, and to permit MCDR to eliminate duplicative responsive electronically stored information if it was already produced by TAG. (See Doc. 98-4 at 1). Pursuant to Local Rule 37, Counsel met and conferred to resolve the dispute. (See generally Docs. 98-3 to 98-6). During these discussions, MCDR requested that Plaintiffs bear MCDR's “charges for compliance with the subpoena.” (See Doc. 98-5 at 3). On April 1, 2021, the Court held a discovery conference and ordered the Parties to confer again to determine the scope of the subpoena, but granted Plaintiffs leave to file a motion to compel if an agreement was not reached. (Doc. 91). After re-conferring, the Parties agreed on the scope of the subpoena but could not agree on who should bear the costs of compliance. (See Doc. 94-1 ¶¶ 2–3; Doc. 98-1 ¶ 3; Doc. 98-6). On May 6, 2021, Plaintiffs filed the instant Motion. (Doc. 98). After an extension, MCDR filed its Response on Juen 10, 2021. (Doc. 110). On June 22, 2021, Plaintiffs filed their Reply, after the Clerk of Court granted an extension. (Doc. 111). Plaintiffs’ Motion is now ripe for review. See M.D. Ga. L.R. 7.3.1(A). LEGAL STANDARD “Federal Rule of Civil Procedure 45 ‘permits a party to procure discovery from a non-party through the issuance and service of a subpoena.’ ” KMC Acquisition Corp. v. Escoe Indus. Mech., Inc., No. 3:15-CV-119 (CAR), 2017 WL 354852, at *2 (M.D. Ga. Jan. 24, 2017) (citation omitted). Rule 45 also sets forth the procedures for a party seeking to obtain an order of compliance from a non-party: “At any time, on notice to the commanded person, the serving party may move the court for the district where compliance is required for an order compelling production or inspection.” Fed. R. Civ. P. 45(d)(2)(B)(i). *2 The general rules of discovery outlined in Rule 26 govern the scope of a Rule 45 subpoena. “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case....” Fed. R. Civ. P. 26(b)(1). Courts must employ a liberal discovery standard in keeping with the spirit and purpose of the discovery rules. See Akridge v. Alfa Mut. Ins., 1 F.4th 1271, 1276–77 (11th Cir. 2021). Rule 26 also states that “[i]nformation within this scope of discovery need not be admissible in evidence to be discoverable.” Fed. R. Civ. P. 26(b)(1); see also Fed. R. Evid. 401. This requires that discovery be provided if the information has some bearing on the claims or defenses in the case. See Akridge, 1 F.4th at 1276 (quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978)); Dunkin’ Donuts, Inc. v. Mary's Donuts, Inc., No. 01-0392-CIV-GOLD, 2001 WL 34079319, at *2 (S.D. Fla. Nov. 1, 2001). In addition to Rule 26, the Court must also consider whether compliance with a subpoena imposes an undue burden. Rule 45(d)(1) provides that “[a] party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena.” Fed. R. Civ. P. 45(d)(1). Thus, the Court must balance the requesting party's need for the discovery against the burden imposed on the subpoenaed party. See Jordan v. Comm'r, Miss. Dep't of Corr., 947 F.3d 1322, 1337 (11th Cir. 2020) (citations omitted). DISCUSSION Plaintiffs argue that MCDR should bear its own cost of compliance with the subpoena because MCDR: (1) has not made an adequate showing to support cost-shifting, (2) cost-shifting is not appropriate because MCDR is an interested non-party and is better able to bear the cost of reviewing documents, and (3) MCDR did not make a good-faith effort to reach a cost-sharing agreement. (See generally Docs. 98, 110). MCDR argues that: (1) the cost of compliance is significant, (2) it is not an interested non-party, and that Plaintiffs are better able to bear the costs, and (3) it negotiated in good faith over the cost-sharing agreement. (See generally Doc. 110). “When discovery is sought from a non[-]party, ... [t]he Court has an obligation to protect the non[-]party ‘from significant expense resulting from compliance.’ ” S.E.C. v. Avent, No. 1:16-CV-2459-SCJ, 2018 WL 8996272, at *1 (N.D. Ga. Apr. 26, 2018) (quoting Fed. R. Civ. P. 45(d)(2)(B)(ii)). Courts must shift costs to the party seeking production if a “non-party's subpoena compliance costs ... are significant.” Hernandez v. Hendrix Produce, Inc., No. CV613-053, 2014 WL 953503, at *2 n.5 (S.D. Ga. Mar. 10, 2014) (first citing Fed. R. Civ. P. 45(d)(2)(B)(ii); and then citing Legal Voice v. Stormans Inc., 738 F.3d 1178, 1184 (9th Cir. 2013)). “Despite the required protection from significant expense, ‘[a] non-party can be required to bear some or all of its expenses where the equities of a particular case demand it.’ ” Sun Cap. Partners, Inc. v. Twin City Fire Ins., No. 12-CIV-81397-Marra/Matthewman, 2016 WL 1658765, at *7 (S.D. Fla. Apr. 26, 2016) (alteration in original) (first quoting In re Honeywell Int'l, Inc. Sec. Litig., 230 F.R.D. 293, 303 (S.D.N.Y. 2003); and then citing In re Seroquel Prods. Liab. Litig., No. 6:06-md-1769-Orl-22DAB, 2007 WL 4287676, at *2 (M.D. Fla. Dec. 6, 2007)). “[T]o determine how much cost to shift from the non-party to the discovering party,” courts consider three factors: (1) “whether the non-party actually has an interest in the outcome of the case,” (2) “whether the non-party can more readily bear its cost than the requesting party,” and (3) “whether the litigation is of public importance.” Id. (citation omitted). *3 Furthermore, [w]hen discovery is ordered against a non-party, the only question before the court in considering whether to shift costs is whether the subpoena imposes significant expense on the non-party. If so, the district court must order the party seeking discovery to bear at least enough of the cost of compliance to render the remainder non-significant. Monitronics Int'l, Inc. v. Hall, Booth, Smith, P.C., No. 1:15-cv-3927-WSD, 2016 WL 7030324, at *13 (N.D. Ga. Dec. 2, 2016) (emphasis added) (citation omitted). Under Rule 45, “[r]easonable compensation includes payment for out-of-pocket production expenses.” In re Hornbeam Corp., No. 14-CV-24887-LOUIS, 2019 WL 5106768, at *5 (S.D. Fla. Sept. 27, 2019) (emphasis added) (first citing Fed. R. Civ. P. 45(d)(3)(C)(ii); and then citing Cohen v. City of New York, 255 F.R.D. 110, 126 (S.D.N.Y. 2008)). Generally, cost-shifting occurs after the non-party complies with the subpoena so that courts have enough information to understand what expenses were incurred and whether they were reasonable. See, e.g., id. at *2–6 (ordering the requesting party to pay a portion of the non-party's costs for compliance after the non-party produced documents); Hyundai Motor Am., Inc. v. Pinnacle Grp., LLC, No. SACV 14-0576-CJC (JPRx), 2016 WL 6208313, at *1–2 (C.D. Cal. Apr. 20, 2016) (finding that there was “no basis for finding that [the non-party] ha[d] incurred ‘significant expense’ ” when the non-party did not “itemize[ ] its expenses” or provide the court with information regarding its financial ability to bear the costs). In fact, as noted by our sister court, “it may be preferable to leave uncertain costs to be determined after the materials have been produced, provided that the risk of uncertainty is fully disclosed to the discovering party.” Goshawk Dedicated, Ltd. v. Am. Viatical Servs., LLC, No. 1:05-CV-2343-RWS, 2010 WL 11549740, at *4 (N.D. Ga. Mar. 9, 2010) (emphasis added) (quoting Fed. R. Civ. P. 45 advisory committee's note to 1991 amendment), R. & R. adopted, 2010 WL 11549741 (N.D. Ga. Apr. 22, 2010). “Although a court asked to take protective action under Rule 45 need not calculate compliance expenses before production is complete (and typically cannot), the subpoenaed party must raise the issues of cost and reimbursement before the fact.” Id. Here, the subpoenaed party has raised the issue in a timely fashion. Moreover, the Parties do not dispute the relevance of the documents requested that fall within the parameters agreed to when the Parties conferred. The only outstanding question is who will pay for the production. As discussed above, the Court need not make the requisite findings before compliance.[1] Accordingly, Plaintiffs’ Motion (Doc. 98) is GRANTED, and MCDR may file a motion seeking costs pursuant to Rule 45 within forty-five days of production. See Fed. R. Civ. P 45(d)(1), (3)(C)(ii). CONCLUSION *4 Accordingly, Plaintiffs’ Motion to Compel Third-Party MCDR (Doc. 98) is GRANTED. MCDR is hereby ORDERED to comply with Plaintiffs’ subpoena (Doc. 98-2) dated May 21, 2020 and, within thirty (30) days of this Order, produce all nonprivileged documents in its possession, custody, and control that are responsive to the subpoena, subject to the Parties’ agreement on scope. SO ORDERED, this 21st day of March, 2022. Footnotes [1] The Court frequently has observed that, when the specter of cost-shifting looms, parties tend to be more reasonable and responsible in conducting discovery. This is to say that the requesting party is more specific and focused when there is a possibility that it may have to bear the cost of the discovery production, and the responding party is much more efficient and economical. See, e.g., Eley v. Hayes, No. 404CV192, 2007 WL 2462638, at *2 n.2 (S.D. Ga. Aug. 27, 2007) (noting that cost-shifting generally makes the requester “more inclined to make narrowly-tailored requests reflecting a reasonable balance between the likely relevance of the evidence that will be discovered and the costs of compliance” (citation omitted)), reconsideration in part on other grounds, 2007 WL 2593429 (S.D. Ga. Sept. 4, 2007).