Certain factors are important in determining issues of nonparty witnesses' reimbursement for costs in complying with discovery requests. These factors are: (1) the scope of discovery; (2) the invasiveness of the request; (3) the extent to which the party must separate responsive information from privileged or irrelevant material; and (4) the reasonableness of the costs of production. In addition, a court should consider the relative recalcitrance of the defendants and nonparty witnesses and whether the defendants can be considered to have prevailed. Finally, the nonparty witnesses' interest in the outcome of this litigation has "some bearing" on reimbursement.
The United States filed virtually identical anti-trust complaints against CBS, Inc. (CBS), American Broadcasting Companies, Inc. (ABC), and National Broadcasting Company (NBC), charging defendants with illegal practices in connection with their acquisition of prime-time programming from independent producers. The complaints charged, inter alia, that defendants had engaged in practices which eliminated buyers other than themselves from the prime-time programming market. CBS and ABC served subpoenas duces tecum and ad testificandum on five motion picture studios (Nonparty Witnesses). The Nonparty Witnesses filed a Motion for Costs seeking to recover $2,250,548 in costs, which had been incurred in connection with defendants' subpoenas. The motion was denied by the district court but on appeal, the Court of Appeals remanded back to the trial court.
Were the Nonparty Witnesses entitled to recover of costs for incurred answering their subpoenas?
The court held that the nonparty witnesses were entitled to reimbursement for a portion of the costs incurred. These costs included the costs of hiring additional personnel, the costs of paying permanent personnel for their work on the document production, the costs of supplies, equipment and transportation, the costs incurred in altering space to make it useable for office space, and the costs of accountants' fees incurred by the nonparty witnesses in complying with the subpoenas served directly on them. Costs for office space, outside accountants' fees incurred by the accountants in responding to subpoenas served on them, and outside counsel fees were not required to be reimbursed by the television networks. In addition, the government was not required to bear the burden of any of the costs reimbursed by the television networks.