ORDER DENYING MOTION FOR COSTS

(Re: Docket No. 782)

PAUL S. GREWAL, Magistrate Judge.

Last August, the court allowed Plaintiffs Avago Technologies, Inc. et al. to take depositions and secure document production from third parties it had not already deposed, on the condition that Avago bear the burden of fees and costs associated with those depositions and document production.1 Non-party Sumitomo Electric Device Innovations U.S.A., Inc., which Avago did not depose, moves to compel payment of its fees and costs associated with preparing for a deposition that never happened and document production that did.2 SEDU's motion is DENIED.

Between December 2014 and May 2015, Avago served three deposition and document production subpoenas on SEDU.3 As an initial matter, SEDU responded with general objections, one of which stated:

While meeting and conferring on May 29, 2015, Avago explicitly rejected the request that Avago pay these discovery costs5 and never gave SEDU a written commitment that it would.6 Nevertheless, from February to June, Avago and SEDU met, conferred and narrowed the scope of the subpoenas.7 They were able to reach a tentative agreement on the scope of document production,8 and notwithstanding Avago's refusal to pay costs, SEDU produced approximately 47,000 documents from June 12, 2015 to July 24, 2015.9

Talks about the deposition subpoenas were less successful, and on July 29, 2015, Avago moved to compel the deposition of SEDU.10 Meanwhile, SEDU prepared to respond to the subpoena.11

In August, the court ruled on a number of discovery motions together and denied Avago's motion to compel deposition as to SEDU but granted Avago's motions to compel against other entities.12 The court established "ground rules" for the depositions and discovery that it authorized: first, Avago could "only take deposition of third parties it [had] not previously deposed,"13 and second, "Avago shall pay for any fees and costs associated with document production and depositions."14 Avago had previously deposed SEDU in an ITC proceeding,15 and so the court's order prevented Avago from re-deposing SEDU. Nonetheless, SEDU moves under the court's prior order16 and Fed. R. Civ. P. 45(d)(2)(B)(ii) to request a minimum of $426,694.63 in fees and costs incurred in responding to Avago's document production subpoenas and in preparing for a deposition that never occurred.17

The court's prior order plainly does not authorize SEDU to recover its discovery fees and costs. The order allowed Avago to depose third parties it had not previously deposed—which excluded SEDU—and then, to reduce the burden that imposed on those third parties, required Avago to pay fees and costs associated with those depositions and document production. The order did not allow every third party ever involved in this litigation to recover its discovery fees and costs, which is what SEDU's interpretation of the order would require. The court denied Avago's motion to compel a deposition of SEDU, and because SEDU was not deposed, it cannot recover its fees and costs incurred in preparing for and opposing the deposition.

SEDU also cannot recover its fees and costs under Fed. R. Civ. P. 45(d)(2)(B)(ii). This rule states that when a court compels production or inspection, the court's order "must protect a person who is neither a party nor a party's officer from significant expense resulting from compliance." If the court does not issue an order compelling production or inspection, "costs may be shifted under Rule 45(d)(2)(B)(ii) if the requesting party is on notice that the non-party will seek reimbursement of costs."18

Fed. R. Civ. P. 45(d)(2)(B)(ii) does not provide SEDU any relief. The court did not order SEDU's compliance with the deposition or document production subpoenas. In fact, SEDU's document production occurred without a court order. In order for SEDU to recover its fees under this rule, then, Avago would have to have been on notice that SEDU would seek reimbursement of costs. SEDU argues that it put Avago on notice first with its general objection19 and then again during the May 29, 2015 meet and confer.20 However, despite SEDU's general objection "to producing any materials . . . in the absence of Avago's prior written commitment to pay for all reasonable costs of production,"21 Avago's lack of a written commitment22 and Avago's explicit refusal to pay for costs,23 SEDU produced documents.24 SEDU's decision to proceed with production even in the face of Avago's refusal to pay for costs, and in contradiction of its stated objection, did not put Avago on notice that SEDU would seek reimbursement of costs.

SO ORDERED.