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ORDER – 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

E.W., a minor, by and through CRAIG

SCHAUERMAN, her Guardian ad Litem,

Plaintiff,

v.

THOMAS HENRY MOODY; BATTLE

GROUND SCHOOL DISTRICT #119, a

public corporation, MARLA D. ERATH, and

CYNTHIA S. LARSON,

Defendants.

CASE NO.: C06-5253-BHS

ORDER DENYING PLAINTIFF’S

SECOND MOTION TO COMPEL

DISCOVERY

This matter comes before the Court on Plaintiff’s Second Motion to Compel Discovery.

(Dkt. 42). The Court has considered the pleadings filed in support of and in opposition to the

motion and the remainder of the file herein and hereby denies the motion for the following

reasons.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff first requested the production of the documents subject to this motion to compel

on September 20, 2006, and filed the first motion to compel the production of these documents

on January 18, 2007. Dkt. 24. Plaintiff’s Motion to Compel Discovery was denied in an order

entered February 7, 2007. Dkt. 30. In that order, the Court found that Plaintiff did not meet her

burden of demonstrating that documents in the possession of general counsel to Defendant Battle

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ORDER – 2

Ground School District (“Defendant”) were in the control of Defendant. Id. As a result, the

Court held that discovery of documents in the control of Defendant’s general counsel needed to

be conducted pursuant to Fed. R. Civ. P. 45. Id. The court further held that information subject

to RCW 10.97.130 and/or 20 U.S.C. § 1232(g) must comply with the confidentiality and/or

notice of disclosure requirements contained therein before the information could be produced. Id. 

Pursuant to the Court’s order, Plaintiff served her subpoena duces tecum on Defendant’s

general counsel, Vandeberg, Johnson, and Gandara, LLP, on February 9, 2007. Dkt. 45 at 1. On

February 28, 2007, Defendant’s general counsel notified Plaintiff that it had turned over the

requested information to Defendant’s counsel of record in the instant litigation in order to

comply with the requirements of the Court’s order. Id at 17. On April 14, 2007 Defendant’s

counsel of record notified Plaintiff that the documents requested had been redacted pursuant to

the Court’s order and could be delivered upon payment, directly to it, of the costs associated with

copying and redacting the documents. Id. at 19. 

Plaintiff filed her Second Motion to Compel Discovery on July 30, 2007, requesting that

the Court issue an order requiring the immediate and unconditional production of the requested

documents. Dkt. 42. Defendant contends that it should not be required to produce these

documents until and unless Plaintiff pays $1917.95, pursuant to Fed. R. Civ. P. 45, as the costs

incurred by Defendant’s general counsel in complying with the Court’s order. Dkt. 44. The

amount requested breaks down to $632.33 for the cost of copying the documents and $1285.62

for Defendant’s counsel of record to review and redact the documents. Id. at 7. 

II. DISCUSSION

Fed. R. Civ. P. 45(c)(2)(B) requires that an order to compel protect a nonparty from

significant expenses resulting from the discovery commanded. Trial courts have “considerable

discretion in determining whether expense-shifting in discovery production is appropriate in a

given case. Spears v. City of Indianapolis, 74 F.3d 153 at 158 (7th Cir. 1996). The Ninth Circuit

has stated:

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ORDER – 3

Nonparty witnesses are powerless to control the scope of litigation and discovery,

and should not be forced to subsidize an unreasonable share of the costs of

litigation to which they are not a party. Although we decline to curtail district

courts’ discretion over the discovery process..., we nevertheless emphasize that a

witness’s nonparty status is an important factor to be considered in determining

whether to allocate discovery cost on the demanding or the producing party. 

U.S. v. Columbia Broadcasting System, Inc., 666 F.2d 364 (9th Cir. 1981). 

In the instant matter, Plaintiff originally attempted to receive the documents that are the

subject of her current motion to compel directly from Defendant. The Court found that Plaintiff

could not sufficiently show that documents held by Defendant’s general counsel were in the

control of Defendant. Plaintiff instead needed to request the documents by subpoena directed to

Defendant’s general counsel. While Plaintiff could not show that Defendant had control of the

documents sought, Defendant’s general counsel created, compiled, and kept these documents at

least in part for the benefit of Defendant in accordance with its duties as general counsel. As a

consequence, Defendant’s general counsel, while not a direct party in this litigation, cannot be

seen as a wholly separate and independent nonparty witness.

As has been noted in the order denying Plaintiff’s first motion to compel, documents

produced must comply with the requirements of RCW 10.97.130 and/or 20 U.S.C. § 1232. 

Defendant’s counsel of record completed this work for Defendant’s general counsel and is now

seeking payment for time spent by a paralegal in reviewing and redacting the documents sought

in order to comply with the Court’s order. The Court does not accept Plaintiff’s argument that

Defendant has misrepresented its lack of control of the documents requested by Plaintiff. 

Pleadings before the Court on the instant motion do not present anything new and that was not

before the Court on the earlier motion to compel. The Court also does not find that the

requirement to comply with the Court’s previous order places an undue burden or expense on a

related nonparty where the work was completed by Defendant’s counsel of record and where the

documents the subject of the discovery request were kept, in part, for the benefit of Defendant in

accordance with the nonparty’s duties as Defendant’s general counsel. 

Other courts have held that copy costs related to a subpoena duces tecum are recoverable

by the nonparty because the nonparty can only be required to produce the documents for

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ORDER – 4

inspection. Windsor v. Martindale, 175 F.R.D. 665, 672 (D. Colo. 1997); see also Wright v. U.S.,

948 F. Supp. 61 (M.D. Fla. 1996). In exercising the Court’s discretion in allocating discovery

costs, the Court finds that the cost of producing copies of the documents requested by Plaintiff

should be borne by Plaintiff in the amount of $632.33.

III. ORDER

Therefore, it is hereby

ORDERED that Plaintiff’s Second Motion to Compel Discovery is DENIED. Plaintiff

is required to pay $632.33 to Vandeberg, Johnson, and Grandara, LLP for the cost of copying the

requested documents which shall be delivered to Plaintiff upon payment.

DATED this 20th day of August, 2007.

A 

BENJAMIN H. SETTLE

United States District Judge

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