COST RECOVERY

Response Fees: Who, When, and How Much

What fees are other companies charging?

Safari provides a system for subpoena response, including collection of response cost reimbursement from serving parties. Every day, we talk with companies about how they handle subpoena cost reimbursement: their policies, practices, and how much they charge. We’ve assembled some FAQs and tips from the companies that have the greatest success in recovering reimbursement.
NOTE: this document primarily contemplates “routine” subpoenas—meaning those that call for objectively identifiable information. Examples include account statements, employee records, transactional information, or video. This document is not a discussion of either eDiscovery process or the law applicable to cost-shifting motions.

What are the rules?

Sometimes we hear from companies that hesitate to ask for reimbursement without conducting a 50-state survey of applicable rules. At last count, 15 state rules specifically require the requesting party to pay the reasonable cost of response.

The challenge, though, is that a fifty-state survey of civil rules doesn’t begin to account for every variable that might apply—for example, the type of proceeding, vertical-specific provision, type of requestor, or type of record.

Here's a place to start: for private-party subpoenas, commit to comply and ask that the requestor voluntarily reimburse your response cost. If your cost to comply were $100,000, you’d start by asking the requesting party to pay. Why not do the same when your cost is $100?

How do we determine a fee?

The criteria will vary, of course, and your best source of information is the team that actually handles these requests—but these are some factors to consider.
  • Number of accounts to be searched
  • Number of systems to be searched
  • Date range, particularly if the range implicates legacy data
  • Number of categories of records requested
  • Response time: flat rate for up to two hours, per hour charges above that
  • System capabilities (especially for legacy systems), for example, lack of batch printing or a need to search for and pull one doc at a time
  • Need to retrieve from offsite storage or other third parties who have custody
  • Issuer: law enforcement versus party to civil litigation
  • Jurisdiction: some state rules impose limits–for example, California caps time at $24/hour
NOTE: Many companies set up exemptions (e.g. for law enforcement) as a cooperative policy or keep a record of allowable or reduced fees when responding to agencies (e.g. for IRS or states governments).

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