In a December 31, 2013 decision, Legal Voice v. Stormans, Inc., the US Court of Appeals for the Ninth Circuit held that a non-party recipient of a subpoena may appeal an interlocutory order denying costs and sanctions associated with complying with the discovery request either immediately or after entry of final judgment. (No. 12-35224, (9th Cir. Dec. 31, 2013)). The court also held that the costs of a non-party's compliance with a subpoena duces tecum must shift to the requesting party if the costs of complying with the subpoena are significant.

The plaintiffs/appellees filed a lawsuit challenging Washington's rules that require pharmacies to maintain a representative assortment of drugs for which there is patient demand and to dispense prescription drugs approved by the FDA for "restricted distribution" unless one of several exemptions apply. The plaintiffs served a subpoena duces tecum on Legal Voice (Law Center), a non-party, seeking production of fourteen categories of documents including internal and external communications about the challenged regulations. The Law Center objected to the subpoena. In response to the plaintiffs' motion to compel, the Law Center raised its objections and requested in the alternative that, if it is required to produce the requested documents, the plaintiffs should be required to reimburse the Law Center for the costs of compliance under FRCP 45(d)(2)(B)(ii). On October 28, 2008, the district court granted the motion to compel and ordered that each party will bear its own costs. On March 3, 2009, after months of wrangling and after the Law Center spent an estimated $20,000 in complying with the subpoena, the court denied the plaintiffs' second motion to compel and denied the Law Center's request for costs and sanctions.

On March 22, 2012, thirty days after the final judgment in the action was entered, the Law Center appealed the district court's denial of costs and sanctions. The plaintiffs argued that the Ninth Circuit lacks jurisdiction over the appeal because it was filed more than thirty days after the entry of the respective orders denying costs and sanctions, making the appeal untimely.

The Ninth Circuit answered an open question in the circuit and held that the Law Center's appeal was timely because a non-party may appeal an interlocutory order within 30 days of the entry of either:

The court also held that FRCP 45(d)(2)(B)(ii) requires the district court to shift a non-party's costs of compliance with a subpoena to the requesting party if the costs are significant. Therefore, when a non-party is ordered to comply with a subpoena, the only question before the court when considering whether to shift costs is whether compliance with the subpoena imposed a significant expense on the non-party. In this case, the court held that the Law Center's $20,000 expense was significant and remanded the case to the district court for its determination of the proper allocation of costs.

Practitioners in the Ninth Circuit should be aware that: