COSTS — subpoenas — motion seeking access to documents produced under subpoena — costs and expenses of compliance — privilege claims belonging principally to former client — former solicitors no longer acting for plaintiff — whether former solicitors were a necessary party to the motion — whether conduct of former solicitors disentitled them to compliance costs — assessment of reasonable loss or expense on a broad brush basis
Quick Take
1Where a former solicitor produces documents under subpoena and withholds or redacts material on the basis of client legal privilege belonging to the former client, that conduct does not constitute disentitling conduct capable of defeating a claim for reasonable compliance costs under UCPR r 33.11, even where the former solicitor did not first obtain the client's instructions to maintain the privilege claim.
2A former solicitor who is no longer acting for a party and whose role in a privilege dispute is limited to having physical custody of documents should file a submitting appearance once it is clear that the substantive privilege claim is a matter for the former client; the proper respondent to a motion challenging privilege over documents produced under subpoena is the party holding the privilege, not the subpoenaed producer.
3Compliance costs under UCPR r 33.11 may be assessed on a broad brush basis, and costs of extensive pre-production correspondence and post-production correspondence that are disproportionate to the nature of the subpoena may be substantially reduced.
