July 21, 2006
I adopt Mr. Martin Feinberg's comments opposing the proposed rule. These comments are as follows:
The rule should not require payment for subpoenaed documents. The production of no other discoverable document requires payment. The production of subpoenaed documents should not require payment either.
At the end of the hearing, the arbitrators decide whether to assess costs, and if so, how much to assess. Subpoenaed documents should not be treated differently.
The inevitable consequences of expecting a party to pay "the reasonable costs associated with the production of the copies" is not difficult to foresee. The parties will argue about what a reasonable cost per page is, whether labor costs should be included, and whether
payment must be made before or after the documents are produced. In effect, the documents will be held hostage while the parties argue and time passes. Eventually, the issue will be presented to the arbitrators, and valuable time will again be lost.
The rule creates an opportunity to obstruct the discovery process, and some parties rarely miss opportunities to obstruct.
Accordingly, parties should not have to pay for subpoenaed documents. In this regard, subpoenaed documents should be treated as all other discoverable documents are treated.
I oppose the proposed rule for the reasons stated hereinabove.