1

Filed 12/27/21

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

JOHN PARK,

Plaintiff and Appellant,

v.

LAW OFFICES OF TRACEY 

BUCK-WALSH et al.,

Defendants;

DEPARTMENT OF JUSTICE,

Real Party in Interest and 

Respondent.

 A161672

 (Sonoma County

 Super. Ct. Nos. SCV-2599791 & 

 SCV-261163)

John Park is engaged in litigation against his former attorneys, 

prompting this collateral dispute between Park and the California 

Department of Justice (the DOJ) over his subpoena duces tecum requiring 

the DOJ to produce electronically stored documents. (Civ. Proc. Code, 

§ 1985.8; statutory references are to this code unless otherwise specified.) 

The DOJ reportedly reviewed several hundred thousand electronic 

documents but produced fewer than a hundred. Partway through the 

production, the trial court ordered Park to pay $32,836.25 to defray the 

“undue burden or expense” of the DOJ’s compliance with Park’s subpoena. 

(§ 1985.8, subd. (l) (§ 1985.8(l)).) When the production was complete, the trial 
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court ordered Park to pay the DOJ an additional $111,618.75. Park appeals 

the later order. We affirm.

BACKGROUND

In 2016, Park sued his former counsel for breach of fiduciary duty and 

intentional interference with Park’s plan to purchase a cardroom casino in 

San Jose. That action was consolidated with a similar case Park filed against 

the same defendants for interfering with his plan to purchase a cardroom 

casino in Gardena. Park alleges that from 2003 until 2012, defendants 

provided legal services for Park’s gaming businesses, representing Park 

before the California Gambling Control Commission and the Bureau of 

Gambling Control. This attorney-client relationship ended due to a dispute 

about defendants’ monthly billing rates. Thereafter, defendants allegedly 

thwarted Park’s efforts to secure ownership interests in the two cardroom 

casinos by using Park’s confidential information, assisting his competitors,

and making disparaging remarks about Park to regulators and others. 

In September 2018, Park issued third party subpoenas duces tecum to 

the DOJ and to Deputy Attorney General William Torngren, who represents 

the Bureau of Gambling Control. Both subpoenas sought production of 19 

categories of documents generated between January 2014 and the present. 

Park requested communications and documents pertaining to Park and the

casinos at issue in the litigation, including emails from the accounts of 17 

DOJ employees, several of whom are attorneys representing the Bureau in 

gambling control matters. The subpoenas had a return date of September 28, 

2018.

As of February 2019, Torngren had produced text messages responsive 

to Park’s subpoena but no emails, taking the position those belong to the 
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Bureau of Gambling Control, which is part of the DOJ. The DOJ had not 

produced any documents or otherwise responded to Park’s subpoena.

I. Discovery Order No. 1

On February 25, 2019, Park filed a motion to compel the DOJ to comply 

with his subpoena. The trial court appointed the Honorable William Elfving 

(Retired) as discovery referee for all discovery disputes in this action. Park’s 

motion to compel became the subject of Referee’s Report and Recommended 

Discovery Order No. 1, submitted to the court and counsel on July 23, 2019. 

In his motion to compel, Park sought an order requiring the DOJ to 

produce documents responsive to his subpoena within 60 days, arguing that 

more than nine months had passed without the DOJ producing a single 

document. Opposing this motion, the DOJ reported its computer search had 

identified over 600,000 potentially responsive documents that had to be 

reviewed individually for relevancy and privilege, and it anticipated this

process could take up to another year. Park balked at this claim, arguing 

that the DOJ did not use proper search terms, a manual search of documents 

for responsiveness and privilege was less efficient than computer-assisted 

methods, and the DOJ had not assigned enough people to respond to his

subpoena. 

The referee recommended a partial grant of Park’s motion. Park had 

narrowed the scope of his requests, but the DOJ continued to claim the 

subpoena was overbroad. The referee concluded that the number of 

documents at issue was not unmanageable as compared to the average 

complex civil case and that “[t]he DOJ must devote sufficient resources to 

this production.” He recommended ordering the DOJ to produce all 

responsive, nonprivileged emails, and a privilege log if applicable, within 120 
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days. On August 20, 2019, the trial court adopted the referee’s report after 

independently reviewing the matter and the parties’ objections to the report. 

II. Discovery Order No. 2

On July 25, 2019, the DOJ filed a motion for an “Order Protecting it 

from Undue Burden or Expenses Incurred in Responding to Plaintiff John 

Park’s Subpoena Duces Tecum.” The DOJ sought to require Park to pay: 

(1) $108,543 for costs incurred by the DOJ through July 25, 2019; and (2) all 

additional costs the DOJ would incur to comply with the order to produce 

documents. This motion was made pursuant to section 1985.8(l), which 

states: “An order of the court requiring compliance with a subpoena issued 

under this section shall protect a person who is neither a party nor a party’s 

officer from undue burden or expense resulting from compliance.” 

The DOJ relied on cases applying rule 45 of the Federal Rules of Civil 

Procedure (rule 45). Rule 45(d)(2)(B)(ii) states that an order requiring 

compliance with a third party subpoena “must protect a person who is 

neither a party nor a party’s officer from significant expense resulting from 

compliance.” Federal courts apply a two-part test for shifting costs pursuant 

to this rule, considering (1) whether a given expense resulted from 

compliance with the subpoena, and (2) whether the expense is significant. 

(Valcor Engineering Corp. v. Parker Hannifin Corp. (C.D. Cal., July 12, 2018, 

No. 8:16-cv-00909-JVS-KESx) 2018 U.S.Dist. Lexis 142120, p. *4 (Valcor).) 

Some federal courts consider additional equitable factors, but others deem

equitable considerations irrelevant. (Id. at pp. *6–*7.) 

The DOJ argued that it had already incurred $108,543 in costs in order 

to comply with the subpoena, which should be shifted to Park because they

were significant. (Citing Valcor, supra, 2018 U.S.Dist. Lexis 142120.) In 

addition, the DOJ argued that equitable factors weighed in its favor as 
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neither Torngren nor the DOJ have any interest in Park’s dispute with his 

former counsel. 

Park also relied on cases applying rule 45, arguing that expenses 

claimed by the DOJ should not be reimbursed because they were 

unreasonable. (Citing U.S. v. McGraw-Hill Companies, Inc. (2014) 302 

F.R.D. 532, 536 (McGraw).) According to Park, the document production was 

expensive because the DOJ’s review procedures were overly complicated, and 

equitable factors weighed in Park’s favor because his theory in the 

underlying litigation is that these nonparties played a role in the defendants’ 

wrongdoing, and because the government has ample financial resources to 

bear the expense of producing documents. Park also argued that even if the 

referee found compliance caused an “undue burden or expense” (§ 1985.8(l)), 

most of the DOJ’s expenses were not compensable because they were 

unnecessarily incurred or had not been verified. (Citing Nitsch v. 

Dreamworks Animation SKG Inc. (N.D. Cal. Mar. 9, 2017, No. 5:14-cv-04062-

LHK (SVK)) 2017 U.S.Dist. Lexis 34106, p *2.)

On September 3, 2019, the referee issued Referee’s Report and 

Recommended Discovery Order No. 2, which recommended granting in part 

the DOJ’s motion for a protective order. Like the parties, the referee found 

guidance in federal law applying rule 45, reasoning that there is a dearth of 

California case law construing section 1985.8; the two cost-shifting standards 

are similar; and both provisions use mandatory language. The referee 

reported finding no authority for distinguishing between the terms “undue 

burden or expense” (§ 1985.8(l)) and “significant expense” (rule 45).

Ultimately, the referee recommended ordering Park to pay $32,836.25 

to the DOJ for its costs of complying with Discovery Order No. 1. This figure 

reflects two related findings the referee made: First, only $65,672.50 of the 
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claimed $108,543 in costs were compensable. Second, these “conditionally 

allowed” fees should be reduced by 50 percent because the DOJ failed to carry 

its burden of proving its claimed costs were reasonable, and its supporting 

documentation was vague. (Citing Michael Wilson & Partners, Ltd. v. Sokol 

Holdings, Inc. (10th Cir. 2013) 520 Fed. Appx. 736.) 

The referee went on to conclude that because the DOJ’s reduced costs 

“are significant and represent an undue burden and expense to the DOJ,” 

they should be shifted to Park. The referee also found that, although 

equitable factors were “only marginally instructive,” they weighed in favor of 

the DOJ. Finally, the referee recommended denying as premature the 

request for an order requiring Park to reimburse all further reasonable costs 

incurred to comply with the subpoena. On September 16, 2019, the trial 

court adopted Referee’s Report and Recommended Discovery Order No. 2. 

III. Discovery Order No. 3

On December 3, 2019, Park filed a motion for sanctions against the 

DOJ for failing to comply with the November 2019 deadline for producing 

documents. The DOJ opposed the motion on the ground that it had made a 

good faith effort to comply and requested that the deadline be extended. The 

DOJ reported it had assigned both an attorney and a paralegal to the matter,

and that they had already spent more than 600 hours and reviewed more 

than 14,000 documents in order to produce 23 unique documents. The DOJ

reported more than 36,900 documents still needed to be reviewed. 

The referee addressed Park’s sanctions motion in Referee’s Report and 

Recommended Discovery Order No. 3, recommending sanctions. The referee 

found that the DOJ failed to allocate sufficient resources to comply with the 

deadline; he declined to support the DOJ’s request to extend the deadline;

and he recommended the DOJ be ordered to pay reasonable attorney fees and 
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expenses to Park in the amount of $9,747.16. On February 19, 2020, the trial 

court adopted the referee’s recommendations. 

IV. Discovery Order No. 4

On March 2, 2020, Park filed a motion for an order of contempt and

further sanctions against the DOJ, as there was “no completion date in sight” 

and he faced the prospect of going to trial “without critical evidence.”

The DOJ opposed Park’s motion on multiple grounds, including that it 

anticipated fully complying with the subpoena before this most recent motion 

could be adjudicated. Then on March 20, 2020, the DOJ reported that it had

produced its final set of documents, a privilege log, and an affidavit of no 

records for certain DOJ employees, thus completing its response to the

subpoena. 

In Referee’s Report and Recommended Discovery Order No. 4, the 

referee recommended the motion be granted in part, requiring the DOJ to 

pay attorney fees and costs for Park having to bring the motion because Park 

had a legitimate concern over the DOJ’s delays. On May 14, 2020, the trial 

court adopted the referee’s recommendations. 

V. Discovery Order No. 5

On April 7, 2020, the DOJ filed the motion at issue in the present 

appeal, seeking a second order protecting it from undue burden or expense 

incurred in responding to the Park subpoena, this time for the period from 

July 23, 2019 to March 18, 2020. The DOJ reported that during this period, 

it spent 998.75 hours on the subpoena and the value of this work totaled 

$223,237.50. The DOJ supported its motion with a declaration from Deputy 

Attorney General Bart Hightower, which incorporated time reports for 

himself and a staff of lawyers and other professionals. 
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Opposing this motion, Park argued that compliance with his subpoena 

did not subject the DOJ to undue burden or expense. First, he relied on the 

trial court’s prior finding that compliance with the subpoena would not 

impose an undue burden on the DOJ to argue that the cost-shifting motion 

failed as a matter of law. Alternatively, Park argued that the claimed 

expenses should be rejected or substantially reduced because the number of 

hours the DOJ claimed to have spent on the subpoena was patently 

unreasonable, the DOJ’s supporting documentation was inadequate, and the 

methods employed to conduct the document review were overly complicated 

and time-consuming. 

The referee addressed the DOJ’s motion in Referee’s Report and 

Recommended Discovery Order No. 5, applying the same principles used to 

resolve the DOJ’s prior motion for a protection order. The referee found that 

the DOJ failed to demonstrate its claimed costs were all reasonable, in that it 

employed review methods that were overly complicated and time consuming,

failed adequately to document actual costs incurred, and appeared to seek 

compensation for some non-compensable time. For these deficiencies, the 

referee recommended reducing the amount of potentially recoverable costs by 

half, to $111,618.75. The referee found these costs were significant, 

represented an undue expense, and should be shifted to Park. 

On October 27, 2020, the trial court adopted Referee’s Report and 

Recommended Discovery Order No. 5 after independently reviewing the 

matter (hereafter, the October 2020 order). An amended notice of entry of 

the October 2020 order was served and filed on December 11, 2020. This 

timely appeal followed. 
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DISCUSSION

I. The October 2020 Order Is Appealable 

Park contends the October 2020 order is appealable under section 

904.1, subdivision (a)(12), as an order directing a party to pay a monetary 

sanction in an amount that exceeds $5,000. We reject this argument because 

the October 2020 order does not impose a monetary sanction; it implements a 

fee-shifting mechanism intended to protect nonparties from undue burden or 

expense in responding to a third party subpoena. (§ 1985.8(l).) But we accept 

Park’s alternative theory, that the October 2020 order is appealable as a final 

determination of a collateral matter resolving all issues between Park and 

the DOJ. The order fits within an exception to the one final judgment rule 

because it is collateral to the subject matter of the main litigation; it is final 

as to that collateral matter; and it directs the payment of money by the 

appellant. (See Marsh v. Mountain Zephyr, Inc. (1996) 43 Cal.App.4th 289, 

297; People v. Hernandez (2009) 172 Cal.App.4th 715, 720; see also 

Conservatorship of Rich (1996) 46 Cal.App.4th 1233, 1237.)

II. Park Fails to Demonstrate Reversible Error 

We review the October 2020 order under the abuse of discretion 

standard governing appeals from trial court rulings on discovery matters. 

(Curtis v. Superior Court (2021) 62 Cal.App.5th 453, 467.) Under this 

standard, the “ ‘ “trial court’s findings of fact are reviewed for substantial 

evidence, its conclusions of law are reviewed de novo, and its application of 

the law to the facts is reversible only if arbitrary and capricious.” ’ ” (Ellis v. 

Toshiba America Information Systems, Inc. (2013) 218 Cal.App.4th 853, 882.) 

Here, Park contends that the trial court abused its discretion by (1) applying 

the wrong legal standard for shifting costs pursuant to section 1985.8(l), and 

(2) permitting recovery of costs that were inflated and not adequately proven. 
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A. Statutory Overview

In 2009, the California Legislature passed the Electronic Discovery Act 

“[i]n order to eliminate uncertainty and confusion regarding the discovery of 

electronically stored information [(ESI)], and thereby minimize unnecessary 

and costly litigation that adversely impacts access to the courts.” (Stats 

2009, ch. 5, § 23.) The Act added several provisions to the Code of Civil 

Procedure to integrate ESI into the discovery law, including section 1985.8, 

which establishes procedures for subpoenaing ESI. (See Vasquez v. 

California School of Culinary Arts, Inc. (2014) 230 Cal.App.4th 35, 41 

(Vasquez).)

Several provisions of section 1985.8 address problems that arise when 

the propounding party seeks discovery of ESI “that is not reasonably 

accessible because of undue burden or expense.” (See e.g. § 1985.8, subds. (e), 

(f).) This circumstance is a ground for opposing a subpoena. (Id. at subd. (e).) 

But even where undue burden or expense is established, the court “may 

nonetheless order discovery” upon a showing of good cause and subject to the 

limitations of subdivision (i). (Id. at subd (f).) Where a source “is not 

reasonably accessible,” the court may attach conditions to the discovery, 

including allocating the expense of production. (Id. at subd. (g).) Under 

subdivision (i), even where a source “is reasonably accessible,” the court must

“limit the frequency or extent of discovery” if it finds “[t]he likely burden or 

expense of the proposed discovery outweighs the likely benefit, taking into 

account the amount in controversy, the resources of the parties, the 

importance of the issues in the litigation, and the importance of the requested 

discovery in resolving the issues.” (Id. at subd. (i)(4).) “A party serving a 

subpoena . . . shall take reasonable steps to avoid imposing undue burden or 

expense” on the responding party. (Id. at subd. (k).) And most importantly 
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for our case, any “order of the court requiring compliance with a subpoena 

issued under this section shall protect a person who is neither a party nor a 

party’s officer from undue burden or expense resulting from compliance.” (Id. 

at subd. (l).) In other words, in the face of an “undue burden or expense” the 

court “may” order a person to comply with a subpoena for ESI, but any such 

order “shall protect” a stranger to the litigation from that undue burden or 

expense. (Id. at subds. (f), (l).)

Neither Park nor the DOJ cite any authority construing section 

1985.8(l). Thus, we apply settled rules governing statutory construction. We 

“ ‘ “begin with the plain, commonsense meaning of the language used by the 

Legislature. [Citation.] If the language is unambiguous, the plain meaning 

controls.” ’ ” (Riverside County Sheriff’s Dept. v. Stiglitz (2014) 60 Cal.4th 

624, 630.) If the statutory language is ambiguous, permitting “ ‘ “more than 

one reasonable interpretation,” ’ ” we may look “ ‘ “ ‘to a variety of extrinsic 

aids, including the ostensible objects to be achieved, the evils to be remedied, 

the legislative history, public policy, contemporaneous administrative 

construction, and the statutory scheme of which the statute is a part.’ ” ’ ” 

(DiCampli-Mintz v. County of Santa Clara (2012) 55 Cal.4th 983, 992.)

Section 1985.8(l) uses the word “shall,” which connotes a mandatory 

duty or directive. (Woodbury v. Brown-Dempsey (2003) 108 Cal.App.4th 421, 

432 [noting that the distinction between “ ‘may’ ” and “ ‘shall’ ” is 

“particularly acute when both words are used in the same statute”]; see also 

Toshiba America Electronic Components v. Superior Court (2004) 124 

Cal.App.4th 762, 769.) Thus, by its plain language, section 1985.8(l) 

mandates that courts protect nonparties from “undue burden or expense” 

when ordering them to comply with a subpoena to produce ESI. 
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The term “undue burden or expense” is not defined in the statute. In

common parlance, the word “undue” connotes a judgment call about whether 

some action or result exceeds what is reasonable or fair. Such an inquiry by 

a factfinder would necessarily require a case-specific consideration of the 

factual circumstances. (Cf. Atkins v. City of Lost Angeles (2017) 

8 Cal.App.5th 696, 733 [under Fair Employment and Housing Act, whether 

an accommodation will impose an undue hardship is a case-specific, “ ‘multifaceted, fact-intensive inquiry’ ”].) Thus, the plain language of section 

1985.8(l) appears to grant courts discretion to determine whether the burden 

or the expense of complying with a third party subpoena is undue in light of 

the facts of the particular case. 

This interpretation of the undue burden or expense standard is 

consistent with other provisions in section 1985.8 that require the trial court 

to make similarly fact-specific assessments in deciding whether to limit 

discovery or shift costs. (See Weatherford v. City of San Rafael (2017) 

2 Cal.5th 1241, 1246–1247 [statute’s structure and text of surrounding 

provisions can impart more precise meaning to text being interpreted].) For 

example, a trial court may decline to enforce a subpoena for ESI if the source 

“is not reasonably accessible because of undue burden or expense” (§ 1985.8, 

subds. (e) & (f), italics added); a subpoenaing party may be ordered to bear 

“the reasonable expense” of translating data compilations into useable form 

(§ 1985.8, subd. (h), italics added); and discovery of even accessible ESI may 

be curtailed where the “burden or expense of the proposed discovery 

outweighs the likely benefit” (§ 1985.8, subd. (i)(4), italics added).

Legislative history pertaining to the Electronic Discovery Act adds 

little but is consistent with this interpretation of the statute. For example, 

the legislative history reflects an intention that any court order requiring 
13

compliance with a subpoena to produce ESI “shall protect a non-party from 

undue burden or expense resulting from compliance.” (Senate Judiciary 

Committee Report, AB 5, 2009–2010 Reg. Sess., Comment 12, p. 10.) We 

have not found, and the parties have not pointed us to, any material in the 

legislative history that defines undue burden or expense, but there is 

evidence of the Legislature’s intention to preserve the court’s discretion, both 

to order discovery upon a showing of good cause and to “consider all relevant 

factors in determining whether and in which circumstances a protective order 

should be issued.” (Senate Judiciary Committee Report, AB 5, 2009–2010 

Reg. Sess., Comment 7, pp. 7–8.) 

B. The Trial Court Did Not Misconstrue the Statute

Park makes three arguments that the trial court incorrectly applied 

section 1985.8.(l)’s cost-shifting standard. His primary argument is that the 

trial court erred in ordering Park to pay the DOJ’s costs of complying with 

the subpoena based solely on the referee’s finding that those costs constitute 

a “significant expense.” According to this argument, the court erred as a 

matter of law because it applied the rule 45 test for cost-shifting, which is 

materially different from the “undue burden or expense” standard in section 

1985.8(l). 

Park mischaracterizes the October 2020 order granting in part the 

DOJ’s second request for an order protecting it from the undue burden or 

expense of responding to Park’s subpoena. The order is not based solely on a 

finding that compliance with the subpoena amounted to a significant 

expense. The referee—like the DOJ and Park—did look to federal law 

construing rule 45 for guidance as to the proper application of the “undue . . . 

expense” language in section 1985.8(l), noting that section 1985.8 does not 

define the term, there is little California law interpreting section 1985.8, and 
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the phrase “significant expense” in rule 45 is similar. (See Vasquez, supra,

230 Cal.App.4th at pp. 42–43 [“ ‘ “Because of the similarity of California and 

federal discovery law, federal decisions have historically been considered 

persuasive absent contrary California decisions” ’ ”].) In finding that the 

state statute and the federal rule “appear” to be similar, the referee observed 

that both provisions use mandatory language, and both “appear to be an 

effort to balance the interests that litigating parties have in discovering 

relevant information from third parties, and the interests third parties have 

in being protected from unduly burdensome, costly and involuntary 

involvement in the legal affairs of others.” But the referee did not conflate 

the state and federal rules. He expressly found that the costs he 

recommended shifting to Park are significant and “represent an undue 

expense to the DOJ.” The trial court did not abuse its discretion by adopting 

recommendations that were based in part on this reasoning.

Park insists that the referee’s reliance on federal case law undermines 

the integrity of the October 2020 order because of a “critical difference” 

between the federal and California cost-shifting standards: the word 

“ ‘significant’ ” is a quantitative measure, making equitable factors irrelevant 

under rule 45, and the word “ ‘undue’ ” is a qualitative measure, making 

equitable factors the focus of section 1985.8(l). In presenting this argument, 

Park posits that “ ‘significant’ ” costs, which must be shifted under the federal 

standard, may not be shifted under the California rule unless the expense is 

so unfair as to constitute an undue burden. 

Park may or may not be correct about federal law. Some federal courts 

applying rule 45 do consider “equitable factors such as the public importance 

of the litigation, the invasiveness of the request, the reasonableness of the 

costs of production, the relative ability of the parties to bear the costs, and 
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the non-party’s interest, if any, in the outcome of the case.” (Valcor, supra,

2018 U.S.Dist. Lexis 142120, at p. *3; see also McGraw-Hill, supra, 302 

F.R.D. at p. 534.) But whether or not equitable factors are relevant under the 

federal test, the referee here did explicitly consider equitable factors when he 

made recommendations as to both of the DOJ’s cost-shifting motions in this 

case. The referee found those factors were only “marginally instructive” but 

weighed in favor of the DOJ because the DOJ does not have any interest in 

this litigation, the DOJ did not engage in aggressive litigation tactics, and 

both Park and the DOJ appear to have sufficient economic resources to bear 

the costs of responding to the subpoena. 

We also disagree with Park to the extent he suggests that the question 

whether the expense of responding to a subpoena is “significant” is irrelevant 

to the determination whether the expense is “undue.” As a matter of common 

sense, the more significant an expense is, the more likely it is to be undue. In 

applying section 1985.8(l), the court should look to qualitative factors such as 

the relationship of the subpoenaed person to the dispute and the resources of 

the subpoenaed person and the requesting party (see § 1985.8, subds. (i) & 

(l)), but this is in addition to, not instead of, examining how significant the 

expense of responding to the subpoena is.

Park’s secondary argument that the trial court misconstrued section 

1985.8 is that the DOJ’s cost-shifting motion should have been denied 

because, in granting Park’s motion to compel the DOJ to comply with the 

subpoena, the trial court necessarily found that compliance does not 

constitute an undue burden. This time seeking support from federal law, 

Park posits that federal courts refuse to shift attorney fees under rule 45

when a subpoena does not subject the nonparty to an “undue burden.”

(Citing e.g. In re Globalstar Secs. Litig. (S.D. Cal. June 7, 2005, 
16

No. 04cv1394-B (BLM)) 2005 U.S.Dist. Lexis 52125, p. *8 (Globalstar).) 

According to Park, the fact that the trial court ordered the DOJ to comply 

with the subpoena proves that the subpoena is not unduly burdensome and 

thus precludes shifting attorney fee costs even under cases applying rule 45. 

This argument fails because it is squarely contrary to California law, 

which requires courts to protect nonparties from “undue burden or expense.” 

(§ 1985.8(l), italics added.) At the hearing on Park’s motion to compel, the 

DOJ argued that the subpoena was both overbroad and imposing an undue 

expense on a nonparty with no interest in the litigation. The referee rejected 

only the first argument, concluding the number of documents was not 

unmanageable and they should be produced. (See Discovery Order No. 1.) 

Though this may be characterized as an implied finding that the burden of 

compliance was not undue, the referee at the same time mentioned but 

reserved for another day the possibility that the cost-shifting statute could

protect the DOJ from the full cost of complying with the subpoena. Thus,

Park has always been on notice that the order compelling the DOJ to comply 

with the subpoena was subject to the court’s obligation to protect the DOJ 

from the undue expense of compliance. 

Moreover, Park’s argument conflates two different concerns addressed 

by distinct provisions in rule 45. Rule 45 “provides 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).” (Legal Voice v. Stormans Inc. (9th Cir. 2013) 738 F.3d 1178, 

1184 (Legal Voice).) 

Park relies on Globalstar, in which nonparty Qualcomm moved for an 

order requiring plaintiffs to pay sanctions under former rule 45(c)(1) (now 

rule 45(d)(1)). (Globalstar, supra, 2005 U.S.Dist. Lexis 52125 at p. *10.) 
17

Qualcomm sought to recover all costs it incurred to comply with a third party 

subpoena on the ground that the plaintiffs violated their duty under rule 45 

to “ ‘take all reasonable steps to avoid imposing undue burden or expense on 

a person subject to that subpoena.’ ” (Id. at p. *12.) The district court 

exercised its discretion to transfer some but not all of Qualcomm’s costs of 

complying with the subpoena, declining to assess Qualcomm’s attorney’s fees 

as a sanction because the subpoena was not issued “in bad faith or for an 

improper purpose.” (Id. at pp. *13 & *14–*16.) However, because the 

subpoena was overbroad and both sides engaged in unnecessary 

gamesmanship, the court required plaintiffs to pay half of the costs 

Qualcomm incurred before the subpoena was adequately narrowed. (Id. at

pp. *13 & *16–*24.) Park errs in relying on cases like Globalstar because the 

appealed order in this case does not involve a discovery sanction. (See also 

Balfour Beatty Infrastructure v. PB&A (2017) 319 F.R.D. 277, 283 & 284 

[after finding that cost of compliance with third party subpoena was not

significant, court declined to impose attorney fee sanction].) 

Federal cases that may provide some guidance are those that address

rule 45’s cost-shifting provision, which protects nonparties from significant 

expense resulting from compliance with a subpoena even if compliance with 

the subpoena is not unduly burdensome. (Legal Voice, supra, 738 F.3d at 

p. 1184.) Legal Voice arose out of a dispute over compliance with a subpoena 

duces tecum seeking documents from a law center that was a nonparty to the 

plaintiffs’ underlying lawsuit. (Legal Voice, supra, 738 F.3d 1178.) The law 

center challenged the subpoena on numerous grounds, including that 

plaintiffs sought documents that were protected from disclosure by the First 

Amendment and the attorney-client privilege. (Id. at p. 1181.) The trial

court required the law center to respond to some categories of documents but
18

also denied some of plaintiffs’ requests, and then ordered the law center to 

bear all costs it incurred in connection with the protracted discovery dispute. 

The Ninth Circuit affirmed the denial of the law center’s motion for sanctions

under rule 45(d)(1) but reversed the denial of costs to the law center under 

rule 45(d)(2), acknowledging that different standards apply to the separate 

inquiries and pointing out that rule 45(d)(2)’s cost-shifting provision “is 

mandatory.” (Legal Voice, at p. 1184.) 

Thus, Park’s theory that the October 2020 order cannot be affirmed 

absent a finding that the subpoena was unduly burdensome is not supported 

by federal law or by California law. As the referee in this case explained, 

“[g]iven the issues framed by the pleadings in this lawsuit, Park was entitled 

to the documents requested by the subpoena,” notwithstanding the fact that

the limitations of the DOJ’s technology systems and the complex privilege 

issues made compliance with Park’s subpoena “a very labor-intensive 

process.” The DOJ’s inability to prove that this burden excused it from 

having to respond at all to the subpoena did not preclude the DOJ from 

“seeking reimbursement for ‘undue expense’ incurred in responding to the 

subpoena.” 

Park offers a third theory about how the trial court misconstrued 

section 1985.8.(l), this time relying on a federal case to support an overly 

narrow view of what constitutes undue burden or expense. He argues that 

“the burden of compliance is ‘undue’ only when a [subpoena] requires 

something beyond the mere production of relevant documents” and, relatedly, 

that costs should not be shifted when the “ ‘producing party has the exclusive 

ability to control’ ” them, as when it chooses to undertake an exacting review 

for privilege. (Quoting US Bank Nat. Assn. v. PHL Variable Ins. Co., 
19

(S.D.N.Y. Nov. 5, 2012, No. 12 CIV. 6811 CM JCF) 2012 U.S.Dist. Lexis 

158448, p. *4.)

California law does not support Park’s extreme view. The Electronic 

Discovery Act clearly contemplates that subpoenaed parties will review ESI 

before producing it in order to protect information that “is subject to a claim 

of privilege or of protection as attorney work product.” (§ 1985.8, subd. (j).) 

And the statute mandates cost shifting whenever necessary to protect 

nonparties “from undue burden or expense resulting from compliance” with a 

subpoena. (§ 1985.8 (l).) The statutory language is not limited to—nor does 

it exclude—particular reasons for a burden or expense being undue. In one 

case the hurdle may be the technical challenge of extracting information from 

older computer systems or storage media, in another the complexity of the

required privilege review or the sheer volume of information potentially 

responsive to a subpoena. Or, as in this case, all three of these factors may

contribute to the undue expense of a document production. We decline Park’s 

invitation to read into the statute constraints that would cabin and distort 

the trial court’s consideration of all relevant circumstances, and we find no 

abuse of discretion in the way that the referee and the trial court exercised 

that discretion here. 

C. Shifting Fifty Percent of Costs Was No Abuse of Discretion 

We turn now to Park’s second claim of error. He contends that, even if 

cost shifting could be proper on an appropriate record, the trial court abused 

its discretion by ordering Park to pay 50 percent of the DOJ’s claimed costs

here after finding that some of those costs were not reasonable and others 

were not properly verified. According to Park, a 50 percent reduction is 

insufficient because the DOJ inflated its costs, and its billing records are so 

vague that it is not possible to determine what time is compensable. 
20

The referee’s recommendation regarding the amount the DOJ should 

recover from Park was based on a comprehensive, even-handed analysis. He 

took account of the DOJ’s failure to demonstrate that all of its claimed costs 

were reasonable and to provide documentation of some costs. He also 

considered that the DOJ claimed some costs that were not compensable. The 

referee also explained why denying the DOJ’s second compensation request 

in its entirety would “not be in the interests of justice.” The DOJ is a third 

party with no stake in this litigation, who did not engage in aggressive 

litigation tactics and whose ability to bear the expense of compliance is no 

greater than Park’s. Equally important, the DOJ is a law enforcement 

agency that serves as counsel for state agencies that regulate the activities of 

Park and others involved in the gaming industry. The DOJ has an obligation 

to protect privileged communications and data from disclosure in Park’s 

litigation, notwithstanding its antiquated computer system. The DOJ was 

too slow to respond to the subpoena, but it did ultimately allocate “sufficient 

staff to the project in order [to complete] production.” 

Despite deficiencies in its motion, the DOJ established that its costs of 

compliance with the subpoena were “significant and represent[ed] an undue 

expense to the DOJ.” Taking account of all relevant facts (including the 

DOJ’s deficiencies), the referee recommended reducing the amount of the 

DOJ’s potentially recoverable costs by 50 percent to $111,618.75. The trial 

court adopted that recommendation after independently considering the 

matter, and Park fails to carry his burden to demonstrate that this decision 

was an abuse of discretion.

DISPOSITION

The judgment is affirmed. The DOJ is awarded costs on appeal.
21

TUCHER, P.J.

WE CONCUR:

FUJISAKI, J.

RODRÍGUEZ, J.

Park v. California Department of Justice (A161672)
22

Trial Court: Sonoma County Superior Court

Trial Judge: Hon. Patrick M. Broderick

Counsel: Umberg Zipser, Scott B. Garner, Todd W. Smith, and Hon. 

Halim Dhanidina (Ret.) for Plaintiff and Appellant

Rob Bonta, Attorney General of California, Chris A. 

Knudsen, Senior Assistant Attorney General, Andrea R. 

Austin, Supervising Deputy Attorney General, Bart E. 

Hightower, Deputy Attorney General for Real Party in 

Interest and Respondent

Willoughby, Stuart & Benning, Bradley A. Benning, and 

Charles Richard Hellstrom for Defendants