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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Civil No. 20-mc-80718-MARRA/MATTHEWMAN

RAYMOND JAMES & ASSOCIATES,

INC.,

Petitioner,

vs.

TERRAN ORBITAL CORP.,

Respondent.

_______________________________________/

ORDER GRANTING IN PART AND DENYING IN PART NON-PARTY PREDASAR

CORPORATION’S MOTION FOR REIMBURSEMENT OF FEES, COSTS, AND 

EXPENSES FOR COMPLYING WITH SUBPOENA 

TO PRODUCE DOCUMENTS [DE 30]

THIS CAUSE is before the Court upon Non-party, PredaSAR Corporation’s 

(“PredaSAR”) Motion for Reimbursement of Fees, Costs, and Expenses for Complying with 

Subpoena to Produce Documents (“Motion”) [DE 30]. The Motion was referred to the undersigned 

by the Honorable Kenneth A. Marra, United States District Judge. See DE 5. Raymond James & 

Associates, Inc. (“Raymond James”) filed a response [DE 31], and PredaSAR filed a reply [DE

32]. Thus, this matter is ripe for review. For the reasons that follow, the Court grants in part and 

denies in part the Motion.

I. Background

On April 30, 2020, PredaSAR filed its Motion to Quash Subpoena and for Protective Order 

[DE 1]. The Court held two hearings on the Motions via Zoom Video Teleconference (VTC). 

KJZ Sep 8, 2020 West Palm Beach

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Thereafter, on July 1, 2020, the Court entered an Order Granting in Part Non-Party PredaSAR 

Corporation’s Motion to Quash Subpoena and for Protective Order [DE 26]. The Court ordered 

PredaSAR and Raymond James to confer and submit a proposed agreed protective order and 

ordered PredaSAR to produce responsive documents to certain of the subpoena requests. Id. at pp. 

2-5. Finally, the Court required the parties to confer regarding the reasonable costs and expenses 

incurred by PredaSAR in responding to the subpoena and directed that, if the parties were unable 

to reach an agreement on a portion of or all of the costs and expenses, the parties should file a 

motion, and the Court would rule on the motion promptly. Id. at p. 5. The Court specifically noted

that any costs and expenses claimed by PredaSAR must be reasonable and authorized under 

Federal Rule of Civil Procedure 45 and the applicable case law. Id.

On August 18, 2020, PredaSAR filed the instant Motion, seeking reimbursement from 

Raymond James for $38,637.00 in costs and expenses incurred in complying with the subpoena. 

[DE 30, p. 4]. Raymond James has already agreed to reimburse PredaSAR the total sum of 

$1,800.00. Id. PredaSAR has produced 150 pages of documents to Raymond James, but it is 

withholding another 700 pages of documents until the Court rules on the Motion. Id. at pp. 4-5. 

Attached to the Motion are the Affidavit and of Attorneys’ Fees and Costs filed by Jo-Jean Panton 

Figueira, Esq. [DE 30-1], attorney time records [DE 30-1], and employee time records [DE 30-2].

In response to the Motion, Raymond James argues that PredaSAR has “failed to adhere to 

this Court’s rules and directives, and its reimbursement requests are contrary to well-established 

law. Because PredaSAR’s motion is the culmination of its unreasonable discovery positions, the 

Court should issue sanctions against PredaSAR to remedy the flawed discovery process that 

PredaSAR’s conduct has engendered.” [DE 31, p. 1]. Raymond James contends that PredaSAR 

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failed to confer in compliance Local Rule 7.3 before filing its Motion. Id. at pp. 4-6. It also asserts 

that the fees and costs claimed by PredaSAR are not recoverable or reasonable. Id. at pp. 6-13. 

In reply, PredaSAR first argues that Local Rule 7.3 is inapplicable here. [DE 32, p. 3]. 

PredaSAR next contends that the fees, expenses, and costs it seeks to recover are both recoverable 

and reasonable. Id. at pp. 3-10.

II. Legal Standard

“Under Rule 45(d) (formerly 45(c)), there are two related avenues by which a person 

subject to a subpoena may be protected from the costs of compliance: sanctions under Rule 

45(d)(1) and cost-shifting under Rule 45(d)(2)(B)(ii).” In re: Modern Plastics Corp., 890 F.3d 

244, 250 (6th Cir. 2018) (internal quotation marks and citations omitted). A non-party subject to 

subpoena is entitled to protection from “significant expense resulting from compliance.” Fed. R. 

Civ. P. 45(d)(2)(B)(ii). 

“The degree to which the non-party is reimbursed, however, remains within the court’s 

discretion.” In re Gladstone Consulting, Inc., No. 17-80845-CIV, 2018 WL 7820218, at *2 (S.D. 

Fla. Sept. 21, 2018) (citing Under v. Calero-Portocarrero, 180 F.R.D. 168, 177 (D.D.C. 1998))

(“Protection from significant expense does not mean that the requesting party necessarily must 

bear the entire cost of compliance.”) (internal quotations and citations omitted). “Despite the 

required protection from significant expense, [a] non-party can be required to bear some or all of 

its expenses where the equities of a particular case demand it.” Sun Capital Partners, Inc. v. Twin 

City Fire Ins. Co., 2016 WL 1658765, at *7 (S.D. Fla. Apr. 26, 2016) (internal citations and 

quotations omitted). “Courts have used a balancing approach to examine the equities of each 

particular case in order to determine how much cost to shift from the non-party to the discovering 

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party, including whether the non-party actually has an interest in the outcome of the case, whether 

the non-party can more readily bear its cost than the requesting party, and whether the litigation is 

of public importance.” Id.

Rule 45(d)(2) contemplates that, after a non-party subpoena recipient objects to a 

subpoena, the court in the district where compliance is required may enter an order compelling 

the production, but such order must protect the non-party from “significant expense resulting from 

compliance.” Fed. R. Civ. P. 45(d)(2)(B)(ii). “The rule draws no distinction between 

compliance costs incurred before the court’s order and those incurred after.” In re Gladstone 

Consulting, Inc., 2018 WL 7820218.

III. Analysis and Discussion

The parties do not dispute PredaSAR’s right to reimbursement from Raymond James for 

PredaSAR’s “reasonable” fees, costs, and expenses. Rather, they disagree on the reasonableness, 

necessity, and amount of those costs. Thus, the Court focuses its analysis on the two disputed cost 

categories: A) PredaSAR’s outside counsel fees, and B) its internal invoices.

The Court must note as an initial matter, however, that it is displeased with and frustrated 

by the conduct of PredaSAR and PredaSAR’s counsel. First, despite her protestations to the 

contrary, PredaSAR’s counsel was clearly obligated to confer in a more meaningful way with 

counsel for Raymond James before filing PredaSAR’s Motion. The Court instructed the parties to 

confer about costs in its prior Order and assumed that the parties would do so in good-faith. 

Moreover, while PredaSAR is correct that it was not required to comply with Local Rule 7.3, 

which is inapplicable to the procedural posture of this case, PredaSAR was still required to comply 

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with Local Rule 7.1(a)(3), which requires good-faith conferral before filing a motion. Good faith 

conferral is expected by all counsel who practice before this Court, and it was required here.

Second, the Court clearly never intended for PredaSAR to withhold production of any 

documents until after the issue of costs was decided by the Court. The Court stated in its prior 

Order that it would promptly rule on any motion for costs not because it intended for PredaSAR 

to withhold production, but because the Court wanted to be fair to PredaSAR and wanted 

PredaSAR to be reimbursed quickly. PredaSAR’s unilateral and unauthorized decision to withhold 

documents until the costs issue is decided by this Court is not appreciated by this Court, and any 

further refusal by PredaSAR to comply with a Court Order will result in sanctions.

Third, as further discussed below, it seems to the Court that PredaSAR and its counsel have

greatly inflated PredaSAR’s claimed costs and have disregarded the Court’s statement in its prior 

Order that PredaSAR is entitled to costs that are reasonable and authorized under Federal Rule of 

Civil Procedure 45 and the applicable case law. 

A. Outside Counsel Fees

PredaSAR seeks reimbursement for $34,620.00 in attorney’s fees for work performed by 

its outside counsel, Jo-Jean Panton Figueira, P.A., as well as $47.00 in costs incurred in filing the 

Motion to Quash Subpoena and for Protective Order. [DE 30-1, p. 2]. PredaSAR’s outside counsel 

claims she spent 115.40 hours in complying with the subpoena. Id. She bills at an hourly rate of 

$300.00. Id. According to PredaSAR, it was “forced to hire outside legal counsel” to carry out all 

of the tasks related to fighting and responding to the subpoena. [DE 30, p. 7]. 

The Court agrees, and Raymond James does not dispute, that PredaSAR is permitted to 

seek fees for attorney time related to the data production. Courts have awarded labor costs incurred 

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to convert and produce data, Jardin v. DATAllegro, Inc., No. 8-1462, 2011 WL 4835724, at *9 

(S.D. Cal. 2011), and for attorney’s and paralegal’s fees incurred in producing documents, U.S. v. 

Columbia Broadcasting Sys., Inc., 666 F.2d 364, 366-67 (9th Cir. 1982). However, Rule 45 “does 

not establish a blanket requirement that all of a nonparty’s legal fees are reimbursable so long as 

they are somehow related to its efforts in responding to a subpoena.” In re: Am. Hous. Found., No. 

2:12-cv-00222, 2013 WL 2422706, at *2 (N.D. Tex. June 4, 2013). “Reimbursable fees are those

that are necessary to the third party’s compliance and thus benefit the requesting party or are of

assistance to the court.” Id.

“The plain language of Rule 45 provides that non-parties must be protected from 

significant expenses resulting from compliance [with a court order or subpoena]. It is a tenuous 

proposition, at best, that attorneys’ fees incurred resisting a subpoena are expenses resulting from

compliance.” Stormans Inc. v. Selecky, No. C07-5374 RBL, 2015 WL 224914, at *5 (W.D. Wash. 

Jan. 15, 2015); see also In re Aggrenox Antitrust Litig., No. 3:14-MD-02516 (SRU), 2017 WL 

4679228, at *9 (D. Conn. Oct. 18, 2017) (finding that legal fees incurred related—directly or 

indirectly—to its efforts to resist the subpoena were not recoverable). 

When considering fee-shifting, “the issue is one of judicial discretion balanced against the 

reasonableness of the fees claimed.” Western Ben. Solutions, LLC v. Gustin, No. 11-0099, 2012 

WL 4417190, at *5 (D. Idaho Sept. 24, 2012). Here, the Court will not reduce counsel’s hourly 

rate. Raymond James does not object to counsel’s rate, and the Court finds it to be reasonable.

However, upon very careful review of counsel’s time entries, and in light of all the facts of 

this case, including those discussed above which relate to reasonableness, the Court finds that 

counsel’s fees should be dramatically reduced. First, much of the time billed was for legal work 

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related to resisting the subpoena rather than complying with it. For example, the billing entries 

between March 27, 2020, and June 4, 2020 (the date of the first hearing on the motion to quash), 

relate to resisting the subpoena. This time period alone resulted in over $14,00.00 in attorney’s 

fees, which is more than one-third of the total attorney’s fees claimed by outside counsel. Second, 

the time records include administrative tasks, such as e-filing documents and inserting Bates 

stamps, billed at an attorney rate; block billing; vague billing; and other issues that make it 

impossible for the Court to decipher which time was actually reasonable and which was not. Third, 

it appears to the Court that the time billed for legal work related to actually complying with the 

subpoena is excessive, especially in light of the fact that PredaSAR’s employees also spent so 

much time searching for, locating, and compiling documents responsive to the subpoena, as 

discussed below. Fourth, PredaSAR and its counsel have caused the production of relevant 

documents to be unnecessarily difficult and litigious, which necessarily increased their fees 

incurred. Fifth, the touchstone here is reasonableness and the Court finds that the attorney’s fees 

sought by PredaSAR are not reasonable. Accordingly, and in light of the Court’s own experience,

the Court finds that a 75% reduction in the fees claimed by PredaSAR’s outside counsel fees is 

warranted. This results an attorney’s fee award of $8,655.00.

With regard to the $47 fee for filing PredaSAR’s Motion to Quash Subpoena and for 

Protective Order, the Court finds that the fee is not reimbursable as it clearly pertains to resisting, 

rather than complying with, the subpoena.

B. PredaSAR’s Internal Invoices

PredaSAR is also seeking $3,970.00 (a total of $5,770.00 minus the $1,800.00 already 

reimbursed by Raymond James) in costs incurred by five of its employees since they were forced 

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to take time away from their day-to-day activities to search for, locate, identify, and copy the 

documents responsive to the subpoena. [DE 30, pp. 7-8]. The hourly rates charged by the 

employees range from $75-$300. Id. at p. 8. PredaSAR argues that the rates are reasonable given 

that PredaSAR is a high-tech company involved in building and operating a satellite constellation. 

Id. PredaSAR also explains in its reply that the hourly rates were calculated using the employees’ 

annual salaries and that the five employees were the only ones who could have searched for the 

documents as they are the sole custodians of the documents. [DE 32, p. 7]. 

Pursuant to Rule 45, in order to avoid undue burden or expense, “[t]he court for the district 

where compliance is required must enforce this duty and impose an appropriate sanction--which 

may include lost earnings and reasonable attorney’s fees--on a party or attorney who fails to 

comply.” Fed. R. Civ. P. 45(d)(1); see also Miami-Dade Cty. v. Johnson Controls, Inc., No. 10-

20881-CIV, 2011 WL 1548969, at *4 (S.D. Fla. Apr. 21, 2011) (requiring the party that issued a 

subpoena to reimburse the subpoenaed party “at the regular hourly salary rate for each employee 

who is reasonably and necessarily involved in the production of the requested documents.”).

Raymond James does not argue that this type of costs reimbursement is impermissible

pursuant to Rule 45. Rather, Raymond James argues that $5,770.00 for approximately 36 hours of 

employee time associated with responding to the subpoena in this particular case is not reasonable 

or reimbursable “because the rates are excessive[,] and the time claimed for the collection and

production of less than 1,000 pages of documents is unreasonable.” [DE 31, p. 11]. Raymond 

James has cited cases supporting its position that the rates claimed by the employees are excessive. 

Id. at pp. 11-12. 

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One of the cases relied on by Raymond James, Siltronic Corp. v. Employers Ins. Co. of 

Wausau, No. 3:11-CV-1493-ST, 2014 WL 991822 (D. Or. Mar. 13, 2014), is particularly relevant. 

In that case, a business “proffered a general explanation for its charges, including the need to obtain 

documents and emails from 31 current and former employees and the need for some of the search 

to be done by scientists in order to identify responsive documents.” Id. at *2. The court noted that 

the hourly rates for those employees ranged from $65.00 to $160.00 and found that “[a] minimum 

charge of $65.00 per hour to search and copy documents is inherently unreasonable and cannot be 

justified.” Id. 

The Court has carefully reviewed the time billed by the employees. [DE 30-2]. It appears 

that the five employees billed at rates varying from $75 to $350. Id. They billed approximately 36 

hours to search for and locate approximately 850 pages of documents. Id. The billing entries are 

slightly deficient in that they are vague, and it appears that in-house counsel and outside counsel 

may have completed some duplicative work in complying with the subpoena. 

On the other hand, the Court understands the nature of PredaSAR’s business and finds that 

the employee rates, while on the high side of reasonable, should not be greatly reduced. The 

Siltronic case is now six years old and is different from the case at hand where PredaSAR only has 

six employees, and five of them had to participate in complying with the subpoena because each 

was the custodian of some portion of the documents. This clearly had a major effect on the 

productivity of PredaSAR’s business for a short period of time. Raymond James was also aware 

before PredaSAR searched for the documents of the nature of the company, the fact that there are 

few employees, that complying with the subpoena would be burdensome for PredaSAR, and that 

the Court would be awarding PredaSAR reasonable costs. In light of all of these considerations, 

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the Court will reduce the $3,970.00 currently being claimed by PredaSAR (as Raymond James has 

already paid $1,800.00) by 20%. This 20% reduction is due to the rates of the employees, which 

are on the high side of reasonable, and the vague billing entries that prevent the Court from fully 

determining if the fees are completely reasonable. A reduction of 20% results in a total of 

$3,176.00 in costs for the internal invoices.

IV. Conclusion

In light of the foregoing, it is hereby ORDERED and ADJUDGED as follows:

1. The Court GRANTS IN PART and DENIES IN PART PredaSAR’s Motion for 

Reimbursement of Fees, Costs, and Expenses for Complying with Subpoena to Produce 

Documents [DE 30]. 

2. PredaSAR shall produce the withheld 700 pages of documents on or before September 

14, 2020. No further production delays shall be tolerated by the Court.

3. The Court ORDERS Raymond James to further reimburse PredaSAR for its costs for 

subpoena compliance in the amount of $11,831.00. This amount is comprised of 

$8,655.00 in costs for the fees incurred by outside counsel and $3,176.00 in costs for 

the internal invoices. Full payment in the amount of $11,831.00 shall be made by 

Raymond James within 30 days of the date of this Order. Payment shall be made to the 

Trust Account of PredaSAR’s counsel. 

4. Raymond James’ request for sanctions against PredaSAR is DENIED WITHOUT 

PREJUDICE. The Court will not award costs under Federal Rule of Civil Procedure 37 

or its inherent powers at this juncture. However, if PredaSAR fails to comply with this 

Order, the Court will not hesitate to sanction PredaSAR and its counsel. 

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DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County, in the 

Southern District of Florida, this 8th day of September, 2020.

WILLIAM MATTHEWMAN 

United States Magistrate Judge

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