Rules of Civil Procedure

Regarding the ability to demand payment “in advance” of document production –
My concern is three fold – (1) the “in advance” language should be made more clear (especially for counsel representing the subpoenaed parties); (2) how does this affect the response period; and (3) as proposed, the language doesn’t do enough to protect the subpoenaing party from fee abuse by the subpoenaed party.
(1) The “in advance” language is not sufficiently clear.
As counsel for businesses that are subpoenaed for large document productions, the new ability to demand “advance” payment is intriguing. But it begs several questions, including the basic question – in advance of what? – in advance of having to incur any costs in connection with complying with the subpoena, or in advance of actually handing over the documents? Let me give you an example:
Often in commercial cases, the subpoenaed party is called upon to produce thousands of documents. This often requires the employer to take several of its staff and assign them to this project. This is costly, and aggravating to the employer. As counsel for the employer (subpoenaed party), does the amended rule mean that the producing party need not begin efforts (labor costs, etc) to begin the document copying/collection until it is actually paid some amount of anticipated reasonable fees, or, does the amended rule merely mean that the employer can only hold back the copies/production until it is paid for the reasonable fees already incurred in the gathering/copying process?
This difference matters a great deal in advising business clients going forward who call upon us after being asked to comply with subpoenas that call for large document productions that are costly to the business itself. As written, there is room to argue that reasonable payment can be demanded before the subpoenaed party must begin to incur costs associated with complying with the subpoena request. Whereas, the latter scenario, which is the scenario I assume is likely intended, requires the business to swallow the business costs up front, and only gives it the ability to withhold actual production until payment is made.
Language should be added to make the ability to demand advance payment, more clear.
(2) Response time to subpoenas
If a demand for advance payment on document production is made, is the 14 day period to comply tolled until payment is made? Or, must the 14 day period be complied with, so long as payment is received by the subpoena deadline?
This question may be made moot depending on how the issue above is treated, as the two issues overlap somewhat. However, here is an example – let’s say a business owner is subpoenaed, and called upon to copy or produce roughly 2,000 pages of documents. Upon being served, the subpoenaed party demands payment in advance. However, because the subpoenaed party does not hear from the issuing party, and has not received any payment, the subpoenaed party does not begin efforts to gather/copy the voluminous documents. Then, on the 14th day, the subpoenaed party receives a check for the demanded amount, leaving the subpoenaed party unable to meet the 14 day deadline. Is he/she exposed to contempt?
Language should be added to make clear whether the response date, after a demand is made, is tolled or otherwise affected, until the payment demanded is received.
(3) Justification for the “advance payment” demand
Currently, we are typically billed after or concurrent with the production, with a price per page or number of documents produced to support the amount charged. Since payment may be demanded in advance, and must be paid in advance if so demanded, we should ensure that there are sufficient steps required of the subpoenaed party to justify the amount demanded before it is actually paid.
I acknowledge that there is a requirement for the producing party to execute a declaration under penalty of perjury regarding the reasonableness of the fees demanded. However, the timing of the submission of this declaration appears to be concurrent with production itself. Language should be added to clarify that the subpoenaed party should send a declaration concerning the reasonableness of the fees demanded, at the time of the advance fee demand, if so demanded, not concurrent with production. Moreover, it should be required that the declaration include a specific reference to the price per page charged, or the total number of documents being paid for, as justification for the amount so demanded.
In sum, although the subpoenaed party may be entitled to advance payment prior to production to protect itself, the subpoenaing party should be assured that the fees demanded are indeed “reasonable,” prior to having to make payment.