CHAPTER 13 - 13-8 The Nonparty's Document-Production's Costs

• Jurisdiction: United States

13-8 The Nonparty's Document-Production's Costs

Under Texas Rule 205.3(f), the requesting party must reimburse the nonparty's "reasonable costs of production,"⁹² but not its attorneys' fees.⁹³ One recent case suggests that such costs include compensation for the time spent by the nonparty and its employees in locating and reviewing the requested documents.⁹⁴

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^[92] Tex. R. Civ. P. 205(f); see Wichita Cnty. v. Envtl. Eng'g & Geotechnics, Inc., 576 S.W.3d 851, 860 (Tex. App.—Austin 2019, no. pet.) (noting that the cost reimbursement is "mandatory—i.e., that the requesting party 'must reimburse' the nonparty—distinguishing this rule from other contexts in which a trial court may or may not make an award or reach a certain conclusion" (quoting Tex. R. Civ. P. 205.3(f)). See also In re K & L Auto Crushers, LLC, 627 S.W.3d 239, 254 (Tex. 2021) (noting that Texas Rule 205.3's purpose is to address the third party's burden in responding to the subpoena).

^[93] BASF Fina Petrochemicals L.P. v. H.B. Zachry Co., 168 S.W.3d 867, 872-73 (Tex. App.—Houston [1st Dist.] 2004, pet. denied) (holding that "costs of production" under Texas Rule 205.3(f) does not include attorney's fees), cited with approval in Wichita Cnty. v. Envtl. Eng'g & Geotechnics, Inc., 576 S.W.3d 851, 862 (Tex. App.—Austin 2019, no. pet.).

^[94] In Wichita County v. Environmental Engineering & Geotechnics, Inc., 576 S.W.3d 851 (Tex. App.—Austin 2019, no. pet.), the trial court awarded a nonparty $11,283.89 as "reasonable costs" for the production of documents in response to the County's document subpoena with most of the costs related to the search for, and review of, documents responsive to the subpoena. Wichita Cnty. v. Envtl. Eng'g & Geotechnics, Inc., 576 S.W.3d 851, 854-56 (Tex. App.—Austin 2019, no. pet.). On appeal, the Austin Court of Appeals reversed the award and remanded the determination of the amount of such costs to the trial court because the nonparty's invoice improperly included time spent before the subpoena was...