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Western Benefit Solutions, LLC, An Idaho Limited Liability Company v. John Gustin

September 24, 2012




Pending before the Court is a motion to renew and motion to quash ("Motion") filed by Ada County, who was not a party to this now resolved lawsuit. The Motion has been fully briefed, and is ripe for review. The Court conducted a status conference regarding the Motion, and concluded no further hearings were necessary because written transcripts of the hearings conducted by the state court judge were available to this Court.*fn1


On November 8, 2010, Western Benefit Solutions ("WBS"), the Plaintiff in this case, personally served Robert Perkins, Ada County*fn2 Purchasing Manager, with notice and a Deposition Subpoena Duces Tecum ("First Subpoena"). The First Subpoena sought "[a]ny and all Ada County emails and attachments thereto [which may pertain to the selection of Moreton as Ada County's human resource and benefits management broker] that contain any of the following terms and each of them; a. Moreton b. Gustin c. WBS." On December 2, 2010, WBS filed notice vacating the First Subpoena. On January 5, 2011, WBS personally served Mr. Perkins with another Subpoena Duces Tecum ("Renewed Subpoena"). Perkins Aff. ¶ 4. The Renewed Subpoena sought the same material as the First Subpoena.

On January 14, 2011, Ada County filed a motion to quash or modify and condition compliance with the Renewed Subpoena. Ada County asked the court, in part, to condition compliance with the Renewed Subpoena upon the advancement of the reasonable costs of production, pursuant to Idaho R. Civ. P. 45(b)(2). On February 3, 2011, WBS filed a motion for a non-summary contempt proceeding against Ada County.

Judge Hansen, the presiding judge in the state district court, conducted a hearing on the two motions on February 22, 2011. During that hearing, the court granted Ada County's motion to modify the Renewed Subpoena, and found that WBS must pay Ada County the reasonable costs of production. The court set the matter for a further evidentiary hearing regarding what costs are included in "costs of production" under the applicable rules. The court ruled also that WBS's motion for non-summary contempt proceeding was moot. Finally, the court directed Ada County to prepare a proposed order related to the ruling.

On March 3, 2011, WBS and Ada County presented oral arguments regarding "costs of production" under Idaho R. Civ. P. 45(b)(2). At the conclusion of those arguments, Judge Hansen took the case under advisement, stating that he preferred to issue a written decision rather than rule from the bench.

Ada County prepared and submitted a proposed order to the state court regarding Judge Hansen's first ruling. However, on March 11, 2011, this matter was removed to this Court before Judge Hansen could either approve the proposed order or issue a written ruling regarding what fell within the scope of the "costs of production" pursuant to the Renewed Subpoena.

The Motion to Quash was filed in this matter upon removal. (Dkt. 9, 22.) The Court conducted a status conference on July 28, 2011, regarding Ada County's motion and the proceedings that had occurred in state court, indicating an order would be forthcoming. Several discovery related motions were filed, and before the Court could issue an order regarding Ada County's motion, the Court was informed on November 8, 2011, that the case had been settled in its entirety. On November 14, 2011, the Court granted the parties' stipulation of dismissal, and concurrently deemed the Motion to Quash moot, without prejudice to renew the motions upon request. (Dkt. 47.)

On November 14, 2011, Ada County filed a motion seeking to renew its motion, which the Court granted by reinstating the motion and reopening the case. (Dkt. 51.) WBS filed a brief in opposition to the reopening of the case, arguing that the motion was moot now that the case had been settled. (Dkt. 52.) Ada County replied, arguing that it was not seeking costs of production for future discovery, but costs that already had been expended, and therefore the motion was not moot. (Dkt. 56.) WBS represents that, after it filed its motion to quash, Ada County has not produced any documents in response to the Renewed Subpoena.

According to the record, Ada County conducted a database search spanning March 1, 2009, through August 31, 2009, to comply with the Renewed Subpoena. The search produced 1,056 e-mails. After attorney review, forty-four e-mails were determined to be responsive and not protected from production or disclosure by privilege. The forty-four e-mails were sent to WBS on a compact disk on January 11, 2011. Ada County represented that, to conduct this search, its attorneys spent 59.24 hours for a cost of $8,293.60 at an hourly billing rate of $140 per hour.*fn3 Ada County further represented that its IT Department spent 77.5 hours on the project for a total cost of $3,487.50, an additional $292.50 for another project related to the search, and incurred data storage costs in the amount of $1,994.75. (Mem. in Support of Mtn to Dismiss at 5-6, Dkt. 1.) Thus, Ada County asserts it expended costs in the amount of $14,068.35 to comply with the subpoena prior to filing the motion to quash and conducting an additional search.*fn4 Ada County sought to condition further compliance with the subpoena on the advancement of additional costs estimated to continue its search, which it estimated at roughly $13,790.00. Total costs in the amount of $28,036.10 were sought.



WBS asserts two arguments in support of its contention that the Motion and the underlying subpoena it seeks to quash are moot. First, WBS asserts that, upon removal, the Renewed Subpoena became null and ineffective, and therefore the Motion is moot. Second, WBS contends that the settlement and dismissal of this action render the Motion ...

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