United States District Court, D. Connecticut
IN RE AGGRENOX ANTITRUST LITIGATION THIS DOCUMENT RELATES TO ALL DIRECT PURCHASER ACTIONS
RULING ON MOTION FOR COSTS AND FEES
R. UNDERHILL, UNITED STATES DISTRICT JUDGE.
complex multidistrict case In re Aggrenox Antitrust
Litigation, the recipient of a Rule 45 non-party
subpoena, Gyma Laboratories of America (“Gyma”),
has moved to recover costs and fees from the Direct Purchaser
Plaintiffs (“the DPPs”). Gyma claims that it
incurred $105, 585 in costs and attorneys' fees complying
with the DPPs' subpoena, of which it asks to be
reimbursed $72, 778.20. Mem. Supp. Mot. Attorney Fees, Doc.
No. 597, at 5-6. The DPPs argue that Gyma's claimed
expenses are exaggerated, poorly documented, or incurred as a
result of its own efforts to resist complying with the
subpoena. Mem. Opp'n Mot. Attorney Fees, Doc. No. 601, at
9. The DPPs also argue that the cost of compliance should be
shared with the defendants, and ask that I order Gyma to
return half of the payment that the DPPs already made.
carefully examining the documentation submitted by Gyma's
counsel, I conclude that Gyma's reasonable costs of
compliance total $21, 343.40. In accordance with my earlier
order, see Conf. Mem. & Order, Doc. No. 586, the
DPPs already have made a good-faith payment of $20, 000.
Under the circumstances of the present case, I conclude that
the equities favor placing the remaining $1, 343.40 on Gyma,
and exercise my discretion not to award any further costs or
fees to Gyma for its compliance with the subpoena.
Standard of Review
Rule of Civil Procedure 45 provides that “[a] person
commanded to produce documents or tangible things . . . may
serve on the party or attorney designated in the subpoena a
written objection . . . to producing electronically stored
information in the form or forms requested.”
Fed.R.Civ.P. 45(d)(2)(B). “If an objection is made,
(i) 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
(ii) These acts may be required only as directed in the
order, and the order must protect a person who is neither a
party nor a party's officer from significant expense
resulting from compliance.
Id. The Rule also provides that when a person moves
to “quash or modify [a] subpoena, ” the court may
“order . . . production . . . if the serving party . .
. ensures that the subpoenaed person will be reasonably
compensated.” Fed.R.Civ.P. 45(d)(3)(B)-(C).
have deemed those provisions to “ma[k]e cost shifting
mandatory in all instances in which a non-party incurs
significant expense from compliance with a
subpoena.” Legal Voice v. Stormans, Inc.,
738 F.3d 1178, 1184 (9th Cir. 2013) (citing Linder v.
Calero-Portocarrero, 251 F.3d 178, 182 (D.C. Cir.
2001)). “Rule 45's required protection of a
non-party from significant discovery expenses does not mean
that the requesting party must bear the entire cost of
compliance, ” however. Wells Fargo Bank, N.A. v.
Konover, 259 F.R.D. 206, 207 (D. Conn. 2009). Rather,
“[a] non-party can be required to bear some or all of
the expenses where the equities of the particular case demand
it.” Id. To determine the proper allocation of
costs, the court should consider “(1) whether the
non-party actually has an interest in the outcome of the
litigation; (2) whether the non-party can more readily bear
the costs than the requesting party; and (3) whether the
litigation is of public importance.” Id.
(citing In re Exxon Valdez, 142 F.R.D. 380, 383
(D.D.C. 1992)); In re Honeywell Int'l Sec.
Litig., 230 F.R.D. 293, 303 (S.D.N.Y. 2003).
“only reasonable expenses are compensable” under
Rule 45. G & E Real Estate v. Avison Young-Wash.,
D.C., LLC, 317 F.R.D. 313, 316 (D.D.C. 2016); accord
In re Subpoena of Am. Nurses Ass'n, 924 F.Supp.2d
607, 626 (D. Md. 2013); In re Honeywell Int'l Sec.
Litig., 230 F.R.D. at 303. “The determination of .
. . reasonableness is committed to the sound discretion of
the trial court, ” see Travelers Indem. Co. v.
Metro. Life Ins. Co., 228 F.R.D. 111, 113 (D. Conn.
2005), but with regard to professional expenses, federal
appellate courts have outlined factors that the district
judge should consider when setting a reasonable
For an attorney, “[t]he reasonable hourly rate is the
rate a paying client would be willing to pay.”
Arbor Hill Concerned Citizens Neighborhood Ass'n v.
Cnty. of Albany, 522 F.3d 182, 190 (2d Cir. 2008)
(“Arbor Hill”). Therefore, “in
exercising its considerable discretion, ” the district
court should “bear in mind . . . case-specific
variables, ” id. at 190, including the factors
set forth in Johnson v. Georgia Highway Express, 488
F.2d 714, 717-19 (5th Cir. 1974), abrogated on other
grounds by Blanchard v. Bergeron, 489 U.S. 87, 92-93, 96
(1989). Those factors are:
(1) the time and labor required;
(2) the novelty and difficulty of the questions;
(3) the level of skill required to perform the legal service
(4) the preclusion of employment by the attorney due to
acceptance of the case;
(5) the attorney's customary hourly rate;
(6) whether the fee is fixed or contingent;
(7) the time limitations imposed by the client or the
(8) the amount involved in the case and the results obtained;
(9) the experience, reputation, and ability of the attorneys;
(10) the “undesirability” of the case;
(11) the nature and length of the professional relationship
with the client; and
(12) awards in similar cases.
Arbor Hill, 522 F.3d at 186 n.3. The court
“should also bear in mind that a reasonable, paying
client wishes to spend the minimum necessary to litigate the
case effectively.” Id. at 190.
non-party who moves for costs and fees bears the burden of
demonstrating that those costs and fees are reasonable.
See Blum v. Stenson, 465 U.S. 886, 897 (1984).
Therefore, when claiming attorneys' expenses, the movant
must provide “contemporaneously created time records
that specify, for each attorney, the date, the hours
expended, and the nature of the work done.” Kirsch
v. Fleet Street, Ltd., 148 F.3d 149, 173 (2d Cir. 1998).
The court may deduct from the requested amount “[h]ours
that are ‘excessive, redundant, or otherwise
unnecessary.'” Id. (quoting Hensley v.
Eckerhart, 461 U.S. 424, 434 (1983)). Moreover, the
movant also “has the burden of showing by satisfactory
evidence-in addition to the attorney's own
affidavits”-that the requested rates are those
“prevailing . . . for comparable attorneys of
comparable skill and standing in the pertinent legal
community.” Farbotko v. Clinton Cnty., 433
F.3d 204, 209 (2d Cir. 2005) (quoting Blum, 465 U.S.
at 896 n.11); Kirsch, 148 F.3d at 172. The pertinent
community typically is “the forum of the
litigation”-even if that is not where the
non-party's “counsel has its primary
office”-unless the movant shows that “a
reasonable, paying client would have retained out-of-district
counsel.” Arbor Hill, 522 F.3d at 184 n.2;
Smart SMR of N.Y. v. Zoning Comm'n, 9 F.Supp.2d
143, 149 (D. Conn. 1998).
addition to shifting costs for non-parties' compliance
with a subpoena, Rule 45 directs district courts to
“impose an appropriate sanction-which may include . . .
reasonable attorney's fees-on a party or attorney who
fails to comply” with the Rule's mandate to
“take reasonable steps to avoid imposing undue burden
or expense on a person subject to the subpoena.”
Fed.R.Civ.P. 45(d)(1). That provision authorizes district
courts to “protect non-parties from abusive
subpoenas” by “award[ing] . . . attorneys'
fees for litigating the subpoena.” In re Rule 45
Subpoena Issued to Cablevision Systems Corp. Regarding IP
Address 184.108.40.206, 2010 WL 2219343, at *11 (E.D.N.Y.
Feb. 5, 2010); Stormans Inc. v. Selecky, 2015 WL
224914, at *6 (W.D. Wash. Jan. 15, 2015). Courts have awarded
attorneys' fees for resisting a subpoena if (1)
“the subpoena imposed an undue burden” on a
non-party, and (2) the party requesting the subpoena
“fail[ed] . . . to carry out [its] Rule 45-mandated
duty to ‘take reasonable steps to avoid imposing an
undue burden'” on the non-party. See Molefi v.
Oppenheimer Tr., 2007 WL 538547, at *2 (E.D.N.Y. Feb.
15, 2007). In considering the reasonableness of fees sought
in a sanction motion, courts apply the same factors as used
in the cost-shifting analysis. See Johnson v. N.Y.C.
Transit Auth., 823 F.2d 31, 32-33 (2d Cir. 1987);
Molefi, 2007 WL 538547, at *5.
present discovery dispute arises out of the complex
multidistrict antitrust case, In re Aggrenox Antitrust
Litigation. The DPPs have sued a large manufacturer of
generic drugs, Teva Pharmaceutical Industries, Ltd., and its
various subsidiaries (collectively, “Teva”),
alleging that Teva violated federal antitrust law by entering
into a reverse payment settlement with Boehringer Ingelheim
Pharmaceuticals and its subsidiaries (collectively,
“Boehringer”), in which Teva agreed to delay
producing a generic version of Boehringer's brand-name
anti-stroke medication, Aggrenox. See In re Aggrenox
Antitrust Litig., 94 F.Supp.3d 224, 231-32, 236-37 (D.
Conn. 2015). In its responses to interrogatories, Teva has
told the DPPs that it plans to raise a causation defense to
the antitrust claims, namely, that “it could not
manufacture commercial quantities of generic Aggrenox between
2009 and the present day” because of “problems
obtaining necessary ingredients.” See
DPPs' Mem. Supp. Mot. Compel, Doc. No. 500, at 2. One of
the necessary ingredients is dipyridamole, an active
pharmaceutical ingredient supplied by Gyma. Id. at
1. “Teva specifically implicates quality problems with
Gyma's product” as part of its causation defense.
Id. at 2 (citing Teva's Resp. to DPPs' First
Set of Interrogs., Ex. 5 to Gerstein Decl., Doc. No. 502, at
74-75). To assess Teva's causation defense, in February
2016, the DPPs served a Rule 45 non-party subpoena upon Gyma.
DPPs' Mem. Supp. Mot. Compel, Doc. No. 500, at 3.
The Rule 45 subpoena
Rule 45 non-party subpoena served upon Gyma included four
Request No. 1: Communications, including both your
internal communications and your external communications with
Barr/Teva, relating to Aggrenox or generic Aggrenox.
Request No. 2: Documents regarding any and all
contracts or agreements you entered into, or contemplated
entering into, with Barr/Teva, concerning any aspect of
Aggrenox or generic Aggrenox, including “requests for
proposals” or other bidding solicitations and responses
thereto; drafts of contracts or modifications to contracts;
executed contracts or executed modifications to contracts;
performance under or pursuant to any written or unwritten
agreements; and internal discussions about any such
agreements and performance under such agreements.
Request No. 3: Documents regarding your actual,
proposed, contemplated or forecasted supply of any component
part(s) or ingredient(s) for ...