Jeune v. Westport Axle Corp.
Filing
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MEMORANDUM OPINION. Signed by Magistrate Judge Robert S. Ballou on 4/8/16. (eot)
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
HUBERT JEUNE, et al,
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Plaintiffs,
v.
WESTPORT AXLE CORP.,
Defendant.
Civil Action No. 7:14-CV-617
MEMORANDUM OPINION
This consolidated case is before the court on nonparty Volvo Group North America’s
(“Volvo”) motion to tax costs. Dkt. No. 54. Volvo and Defendant Westport Axle Corporation
(“Westport”) unsuccessfully moved to quash Plaintiffs’ Hubert Jeune, Willio Basilage, and
Fernando Balthazar (collectively, “Plaintiffs”) subpoena duces tecum they had served upon
Volvo. See Dkt. Nos. 40, 50. Having produced the documents that were the subject of the
subpoena, Volvo now seeks to recover the costs of production from Plaintiffs pursuant to Federal
Rule of Civil Procedure 45(d)(1). I have considered the pleadings and applicable law in this case
and find that a hearing on the motion will not aid in the decisional process. For the reasons more
fully outlined below, I will DENY Volvo’s motion. Dkt. No. 54.
BACKGROUND
Plaintiffs are Seventh-day Adventists whose religious beliefs prohibit them from working
on Saturdays. When they began their employment, Plaintiffs were not required to work on the
weekends. However, due to an increase in production demands from Wesport’s sole customer,
Volvo, Westport began requiring employees, including Plaintiffs to work overtime on
Saturdays. Plaintiffs have alleged that they were terminated when they accumulated too many
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absences for their refusal to work on Saturday. Plaintiffs filed this action alleging religious
discrimination in employment.
During the course of discovery, Plaintiffs issued a subpoena duces tecum to Volvo
seeking information related to Volvo’s increased demands that triggered Westport’s mandatory
overtime requirement. Volvo objected to the subpoena, but produced the documents pursuant the
court’s order and now seeks to recover its costs of $20,767.39.
In the course of producing the required documents, Volvo hired the Atlanta law firm of
Kilpatrick Townsend (“Kilpatrick”) to conduct legal research and document review. The entirety
of the amount Volvo seeks to recover consists of the fees Kilpatrick charged Volvo. See Dkt. No.
56-1 p. 5 (invoice for $15,603.39); 56-2 p. 4 (invoice for $2,491); 56-3 p. 3 (invoice for $2,673).
These invoices primarily include charges for document review (charged at $176.47 per hour) and
for attorney R.J. Keshian’s time ranging from $495 per hour to $530 per hour. Mr. Keshian’s
charges include billing for research on the motion to tax costs, conferences with IT
representatives and others concerning the production of the documents, review of a proposed
protective order, and preparation of the motion to tax costs.
STANDARD OF REVIEW
A third party commanded to produce records by subpoena may object, and if ordered to
comply with the subpoena, the court must protect the person “‘from significant expense resulting
from compliance’ if the nonparty filed an objection to the subpoena.” Bell v. GE Lighting, LLC,
2014 WL 1630754, * 11 (W.D. Va. April 23, 2014) (quoting Fed. R. Civ. P. 45(d)(2)(B)). The
party issuing the subpoena “‘must take reasonable steps to avoid imposing undue burden or
expense on a [nonparty] subject to the subpoena.’” Id. (quoting Fed. R. Civ. P. 45(d)(1)).
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When handling potentially costly discovery disputes between parties, courts in this
district have shifted the costs of production (but not of privilege review), limited the scope of the
requested discovery, and ordered production under clawback provisions of a protective order. Id.
at *12 (internal citations omitted). However, courts in the Western District of Virginia and
elsewhere have “found it untenable for a party to insist on individually reviewing all documents
for privilege and responsiveness rather than producing documents under a protective order with a
clawback provision.” Id. at *12 (citing Adair v. EQT Prod. Co., 2012 WL 2526982 (W.D. Va.
June 29, 2012); Zublake v. UBS Warburg LLC, 216 F.R.D. 280, 290 (S.D.N.Y. 2003); Rajala v.
McGuire Woods, LLP, 2010 WL 2949582, at *5 (D. Kan. July 22, 2010)).
In protecting nonparties from undue burden and costs required to respond to a subpoena,
the court must balance a party’s legitimate need for discovery against Rule 45’s additional
protections for nonparties subjected to subpoenas to which they must respond. In doing so, the
court must consider the following factors: (1) whether the nonparty has an interest in the
outcome of the case; (2) whether the nonparty’s financial status allows it to more easily bear the
costs than the requesting party; and (3) whether the litigation is of public importance. Bell, 2014
WL 1630754, at *12 (citing DeGeer v. Gillis, 755 F. Supp. 2d 909, 928–29 (N.D. Ill. 2010)).
ANALYSIS
Interested Party
“When the nonparty producing materials has a potential interest in the underlying
litigation, courts have weighed that interest against shifting costs.” Bell, 2014 WL 1630754, at *
13 (citing Wells Fargo Bank, N.A. v. Knover, 259 F.R.D. 206, 206-07 (D. Conn. 2009); Miller
v.Allstate Fire & Cas. Ins. Co., 73 Fed. R. Serv. 3d, at *4–5 (W.D. Pa. 2009); Behrend v.
Comcast Corp., 248 F.R.D. 84, 85–87 (D. Mass. 2008)). An “interested party” is a party who
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“has a recognizable stake (and therefore standing) in a matter.” Black’s Law Dictionary (10th ed.
2014). An “innocent party” is a “party who did not consciously or intentionally participate in an
event or transaction.” Id.
Westport is an automotive components company which operates an assembly plant in
Roanoke, Virginia. Its business involves manufacturing, assembly, and logistics, and its Roanoke
plant produces assembled axles for Volvo’s production facility in Dublin, Virginia. Westport
defends this action, claiming that Volvo’s production forecasts required that it increase its
production and thus required all manufacturing employees, including Plaintiffs, to work
Saturdays. Neither party has suggested that Volvo has a financial stake in the litigation or that it
had any knowledge of the impact its production requirement would have upon Westport’s
staffing of its labor force. As such, I find that Volvo is not an interested party in this litigation,
which is a factor in favor of Volvo.
Financial State of Nonparty
Volvo is a world-recognized manufacturer of automobiles and construction equipment.
Volvo Group Global, About Us, http://www.volvogroup.com/group/global/engb/volvo%20group/pages/aboutus.aspx (last visited Jan. 18, 2016). Volvo is a publicly-held
company headquartered in Sweden that employs approximately 100,000 people, has production
facilities in 19 countries, and in 2014, had approximately SEK 238 billion (approximately $32
billion USD) in net sales. Id. Plaintiffs, on the other hand, are individuals who currently earn
approximately $11 to $13 per hour.
At the hearing held on Volvo’s motion to quash the subpoena, Volvo provided the court
with no evidence, and in fact did not know, the extent to which complying with the subpoena
would affect its business, how long it would take to comply or the likely cost of compliance.
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Nevertheless, the court, to streamline discovery as much as possible, limited the subpoena time
period by almost one year.
It appears Volvo made no attempt to discuss these costs with Plaintiffs before
undertaking production, despite their involvement with Kilpatrick as early as August 27, 2015.
Dkt. No. 56-3, p. 3. Instead, when Plaintiffs asked for a cost estimate, Kilpatrick responded on
September 30, 2015, that the costs were likely to be between $3,000 and $5,000, but could be
higher. Dkt. No. 57-1, p. 1. An attorney for Kilpatrick provided this estimate despite the fact that
Kilpatrick had already billed Volvo for $5,164 in legal fees (Dkt. Nos. 56-2; 56-3) – though the
actual privilege review had not yet begun – and despite having provided Volvo an estimated cost
of $12,000 plus attorney’s fees. Dkt. Nos. 56-2; 56-3; 56, p. 3. Volvo did not make these cost
estimates known to the court during its consideration of the motion to quash.
I find that Volvo is in a better financial position than Plaintiffs to assume more than
$20,000 in costs that it negotiated without input from Plaintiffs. This factor weighs heavily in
favor of Plaintiffs.
Public Importance
This case is an employment discrimination case alleging that Plaintiffs were
discriminated against based on their religious beliefs. While not particularly wide-reaching given
the limited number of Plaintiffs and the involvement of a local employer, the issue of religious
discrimination is an issue of moderate public importance. This factor weighs slightly in favor of
Plaintiffs.
CONCLUSION
Given the vast disparity between the financial abilities of Volvo and Plaintiff, and
Volvo’s failure to raise the issue of costs at the hearing on the motion to quash or to come to
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some agreement with Plaintiffs’ counsel prior to production, I find that cost shifting in this case
is not warranted. Volvo is much better suited to bear the costs of production in this case than
Plaintiffs.
Enter: April 8, 2016
Robert S. Ballou
Robert S. Ballou
United States Magistrate Judge
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