Legal Voice v. Stormans, Inc.

A non-party may appeal an interlocutory order within thirty days after entry of final judgment to the same extent that a party may appeal such an order.

Stormans, Inc. brought suit to challenge various rules adopted by the State of Washington that "require pharmacies to maintain a representative assortment of drugs for which there patient demand and to dispense prescription drugs and drugs approved by the Food and Drug Administration for 'restricted distribution...'" Stormans served Legal Voice, a non-party who participated in the law making process, with a subpoena duces tecum seeking documents related to Legal Voice communications with various entities, including the State of Washington and other advocacy groups. Legal Voice objected to the subpoena and in the alternative, sought reimbursement of costs under Rule 45(d)(2)(B)(ii). Legal Voice asserted that the costs of complying with the demands of the subpoena had reached $20,000, however, the district court rejected Legal Voice's request for reimbursement. Legal Voice appealed the "district courts denial of costs and sanctions" related to the discovery dispute thirty days after final judgment in the action. On appeal, Stormans asserted that the Ninth Circuit lacked jurisdiction because Legal Voice, as a non-party, was required to "appeal within thirty days of the entry of the respective orders denying costs and sanctions." The Ninth Circuit "held that a non-party may appeal an interlocutory order after the entry of final judgment to the same extent a party can appeal such an order." With regards to the merits of the Legal Voice appeal, the panel held that when determining whether cost shifting under FRCP 45(d)(2)(B)(ii), "the only question before the court...is whether the subpoena imposes significant expense on the non-party." Applying the standard, the panel found the $20,000 spent by Legal Voice was "significant" and "reverse[d] the district court's denial of costs." AFFIRMED in part, REVERSED and REMANDED in part.