Resorts World Las Vegas LLC v. Rock Fuel Media, Inc.

1                       UNITED STATES DISTRICT COURT                         
2                            DISTRICT OF NEVADA                              
3                                                                            
   Resorts World Las Vegas LLC,                                 No. 2:21-cv-02218-JAD-MDC 
4                                                                            
                                     Plaintiff,  ORDER DENYING MOTION FOR   
5                                                                            
                                      ATTORNEY’S FEES AND COSTS OF          
   vs.                                                                      
                                      COMPLIANCE (ECF NO. 146)              
6                                                                            

7   Rock Fuel Media, Inc.,                                                   
8                                     Defendant.                             
9                                                                            
10      Non-party IGT (“IGT”) filed a Motion for Attorney’s Fees and Costs of Compliance with Rock 
11  Fuel's Subpoena (“Motion”) (ECF No. 146). I DENY the Motion for the reasons below. 
12  I.   BACKGROUND                                                          
13      This is a Federal Trade Secrets case. Defendant Rock Fuel (“Rock Fuel”) served an Amended 
14  Subpoena Duces Tecum & for Testimony (“Amended Subpoena”) on IGT. See ECF No. 100-2.1 Rock 
15  Fuel subpoenaed IGT to produce documents and send a representative to appear as a witness in a Rule 
16  30(b)(6) deposition. See ECF No. 100-2. After resolution efforts were unsuccessful, Rock Fuel served a 
17  revised subpoena (“Revised Subpoena”) to IGT that reflected a new deposition date but was otherwise 
18  was identical to the Amended Subpoena. See ECF Nos. 100-7; 100-2; see also ECF No. 100 at 6. IGT 
19  filed a Motion to Quash the Revised Subpoena. ECF No. 100.               
20      On December 11, 2024, I granted in part IGT’s Motion to Quash and quashed the Revised 
21  Subpoena as to the documents sought but denied the motion in part as to the deposition requested. ECF 
22  No. 107. On January 21, 2025, the District Judge affirmed my order over IGT’s objection (ECF No. 
23                                                                           

24  1 IGT explained that Rock Fuel served the Amended Subpoena to correct an “erroneously-named entity 
  to which the original Subpoena was directed” and to address IGT’s objections to the original Subpoena. 
25  ECF No. 100 at 2 n.1.                                                    
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1  116). IGT also filed a Motion to Modify Deposition Topics (ECF No. 118), which the District Judge 
2  granted in part (ECF No. 120) and modified some of the deposition topics listed in the Revised 
3  Subpoena.                                                                 
4       Following the deposition, IGT filed its Motion for fees and costs under Rule 45(d) associated 
5  with: (1) complying with the Revised Subpoena as tailored by the Court; (2) litigating against the 
6  Revised Subpoena; and (3) bringing forth this Motion. ECF No. 146. IGT originally brought this Motion 
7  against Rock Fuel and plaintiff Resorts World Las Vegas LLC (“Resorts World”) but later filed a Notice 
8  stating that it only seeks relief against Rock Fuel. ECF No. 159. Rock Fuel opposes the Motion. ECF 
9  No. 154. IGT filed a reply addressing Rock Fuel’s opposition. ECF No. 160.   
10  II.   GENERAL LEGAL PRINCIPLES                                           
11       “Rule 45(d) provides two related avenues by which a person subject to a subpoena may be 
12  protected from the costs of compliance: sanctions under Rule 45(d)(1) and cost-shifting under Rule 
13  45(d)(2)(B)(ii).” Legal Voice v. Stormans Inc., 738 F.3d 1178, 1184 (9th Cir. 2013). Since Rule 
14  45(d)(2)(B)(ii) was amended in 1991, courts in the Ninth Circuit analyze if the subpoenaed non-party 
15  incurred “significant” expenses complying to the subpoena to determine if and how cost-shifting applies. 
16  Id. at 1184-85. Some district courts use the following factors in determining how much of a significant 
17  expense to shift: “‘(1) whether the nonparty has an interest in the outcome of the case; (2) whether the 
18  nonparty can more readily bear its costs than the requesting party; and (3) whether the litigation is of 
19  public importance.’” See, e.g., Callwave Communications, LLC v. Wavemarket, Inc., No. C 14–80112 
20  JSW (LB), 2014 WL 2918218, at *3 (N.D. Cal. June 26, 2014) (quoting In Re Exxon Valdez, 142 F.R.D. 
21  380, 383 (D.D.C. 1992)). Courts have also considered when apportioning a significant expense: “‘(1) the 
22  scope of the discovery; (2) the invasiveness of the request; (3) the extent to which the producing party 
23  must separate responsive information from privileged or irrelevant material; and (4) the reasonableness 
24                                                                           
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1  of the costs of production.’” Id. (quoting United States v. Columbia Broadcasting System, Inc., 666 F.2d 
2  364, 371 n.9 (9th Cir.1982)).                                             
3       Under Rule 45(d)(1), “[a] court [has discretion to] impose sanctions when a party issues a 
4  subpoena in bad faith, for an improper purpose, or in a manner inconsistent with existing law.” Id. Rule 
5  (d)(1) sanctions may be issued when a subpoena is issued “in bad faith, for an improper purpose, or in a 
6  manner inconsistent with existing law.” Legal Voice, 738 F.3d at 1185.    
7  III.   ANALYSIS                                                           

8       A.   IGT Is Not Entitled To Attorneys’ Fees or Costs In Complying To The Revised 
            Subpoena                                                        
9                                                                            
       IGT claims that it is entitled to fees under Rule 45(d) because the preparation of the subpoenaed 
10                                                                           
  Rule 30(b)(6) witness encompassed identifying and reviewing a significant number of documents, 
11                                                                           
  resulting in “significant” expense. ECF No. 146. Alternatively, IGT argue that it is entitled to its fees 
12                                                                           
  and costs as sanctions under Rule 45. IGT, however, is not entitled to attorneys' fees or costs under 
13                                                                           
  either Rule 45 avenue.                                                    
14                                                                           

            i.   Cost-Shifting Under Rule 45 Does Not Apply Because IGT Did Not Produce 
15                                                                           
                 Any Documents When Complying To The Revised Subpoena       
16                                                                           
       While IGT argues that it reviewed numerous documents to prepare for the deposition, it neither 
17                                                                           
  produced documents pursuant to the Revised Subpoena nor did the subpoena require IGT to do so. The 
18                                                                           
  plain text of Rule 45(d)(2)(B)(ii) limits cost-shifting only for “protecting a person subject to a subpoena” 
19                                                                           
  that provides a “command to produce materials or permit inspection.” Id. By its own terms, Rule 
20                                                                           
  45(d)(2)(B)(ii) “shifts costs for complying with document subpoenas, not deposition subpoenas.” Sec. & 
21                                                                           
  Exch. Comm'n v. Prakash, 23-CV-03300-BLF (SVK), 2025 WL 786351, at *3 (N.D. Cal. Mar. 12, 
22  2025) (emphasis in original).2 IGT does not cite any case supporting its position that a non-party subject 
23                                                                           

24  2 IGT claims that Prakesh does not apply here because it “solely involved a non-party deposition 
  subpoena and there was as no document component at issue.” ECF No. 160 at 7. However, IGT also 
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1  to a deposition subpoena is entitled to cost-shifting because they incurred significant expenses in 
2  preparing for a deposition. Instead, IGT argues that such limitation is “an overly technical reading of the 
3  rule.” ECF No. 160 at 2. IGT also argues that the Rule 45 Advisory Committee notes to the 1991 
4  amendments state that such amendments were intended to enlarge the rule’s protections3 and thus, 
5  intended to reach deposition subpoenas. Id. at 3. IGT’s arguments are not persuasive.  
6       First, while IGT takes issue with reading Rule 45 too technically, it ultimately does not dispute 
7  the plain language of Rule 45(d)(2)(B)(ii) applies only to subpoenas for the production of documents, 
8  not depositions. Second, while the advisory notes to Rule 45 may provide insight in interpreting the rule, 
9  the Ninth Circuit has held that the text of the rule controls and “‘the [n]otes cannot ... change the 
10  meaning that the Rules would otherwise bear.’” In re Kirkland, 75 F.4th 1030, 1043 (9th Cir. 2023) 
11  (citing Tome v. United States, 513 U.S. 150, 168, 115 S.Ct. 696 (1995)); see also Hamilton v. Wal-Mart 
12  Stores, Inc., 39 F.4th 575, 590 n.7 (9th Cir. 2022) (although “Advisory Committee notes are ‘of weight’ 
13  in interpreting the Rules, the notes cannot add to the Rule.”). Notwithstanding, IGT points to no 
14                                                                           

  only had to comply with a deposition in the Revised Subpoena and I noted that IGT’s preparation for the 
15  deposition was necessary to conduct the deposition (see ECF No. 121 at 20:01-20:05).

  3 In Legal Voice, the Ninth Circuit agreed with D.C. Circuit’s notation in Linder v. Calero–
16                                                                           
  Portocarrero, 251 F.3d 178 (D.C.Cir.2001), that the Rule 45 Advisory Committee notes to the 1991 
17  amendments provide that such amendments were intended to enlarge the rule’s protections. Legal Voice, 
  738 F.3d at 1184. However, neither Legal Voice nor Linder concluded that such intention meant 
18  enlarging the application of Rule 45(d) to deposition subpoenas. Both Legal Voice and Linder were 
  based only on subpoenas duces tecum and Linder’s conclusion was expressly limited to such context, 
19  i.e.,:                                                                   

20          As amended in 1991, FED.R.CIV.P. 45(c)(2)(B) provides that when a district 
           court compels production by a non-party the court “shall protect” that person 
21          from “significant expense resulting from the inspection and copying 
           commanded.” Before the amendment, costs could be shifted, but the decision 
22                                                                           
           to do so was within the discretion of the district court…. As the notes to the 
           amendment explain, the 1991 changes were intended “to enlarge the 
23                                                                           
           protections afforded persons who are required to assist the court.” 
24          FED.R.CIV.P. 45, advisory committee notes.                       

25  Linder, 251 F.3d at 182 (citations omitted).                             
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1  language from the Advisory Committee Notes to the Rule 45 amendments of 1991 (or any subsequent 
2  amendment) that expands the cost-shifting protection of Rule 45(d)(2)(B)(ii) to deposition subpoenas. 
3  Third, while Legal Voice relied on the 1991 Advisory Committee notes to interpret the cost-shifting 
4  application of Rule 45(d)(2)(B)(ii) as mandatory, it was in the context of a subpoena duces tecum and 
5  Legal Voice did not interpret such notes as changing the text of Rule 45 to expand the scope and 
6  application of Rule 45(d)(2)(B)(ii) to reach deposition subpoenas.        
7       IGT’s argument that it is entitled to all its attorney fees expended in complying with Revised 
8  Subpoena under the factors identified in Callwave Communications is similarly unpersuasive because 
9  those factors apply only when considering shifting the “cost of producing documents” under Rule 45. 
10  Callwave Communications, 2014 WL 2918218, at *3. Contextually, Callwave Communications further 
11  compels denial IGT’s fees and costs. Similar to the subpoena here, Callwave Communications also dealt 
12  with blended subpoena, which required the recipient there to “testify about 13 topics and produce 
13  documents responsive to 45 requests” but applied the cost-shifting provisions of Rule 45(d) only to the 
14  “cost of producing documents” requested by the subpoena. Callwave Communications, 2014 WL 
15  2918218, at *1, 3.                                                       
            ii.  IGT Not Entitled to Fees and Costs As A Sanction Or For Litigating The  
16                Revised Subpoena                                           
17      Awarding attorneys’ fees and costs as sanctions under Rule 45(d)(1) is discretionary. Legal 
18  Voice, 738 F.3d at 1185. Such sanctions may be appropriate if a subpoena is issued in bad faith, for an 
19  improper purpose, or in a manner inconsistent with existing law. Id. Winning a motion to quash, in 
20  whole or in part, does not expose the losing party to sanctions. Cf. Legal Voice, 738 F.3d at 1185 
21  (“Merely losing a motion to compel does not expose a party to Rule 45 sanctions”). The record does not 
22  support sanctions under Rule 45(d). The Revised Subpoena was not issued in bad faith, for an improper 
23  purpose, or in a manner inconsistent with existing law.                  
24  //                                                                       
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1         I am also not persuaded to award IGT attorneys’ fees and costs in litigating the Revised 
2 || Subpoena, including fees in connection with its Motion. First, Rule 45 does not protect against zealous 
3 || advocacy against compliance to subpoenas. See G & E Real Estate, Inc. v. Avison Young-Washington, 
4 || D.C, LLC, 317 F.R.D. 313, 319 (D.D.C. 2016) (determining that, while a non-party has the right to 
5 || vigorously and painstakingly challenge a subpoena “if it believes that doing so serves its own interests 
6   ||... it may not then charge Plaintiff with the costs of this effort.”). Second, IGT did not prevail in its 
7 || Motion. Finally, the circumstances in this case make an award of fees and expenses unjust. See Fed. R. 
8 || Civ. P. 37(a)(5). The record shows that Rock Fuel acted in good faith relative to the Revised Subpoena. 
9 || Among other things, Rock Fuel met and conferred several times with IGT to resolve disputes and 
10 || narrow the subpoena and first attempted to obtain some of the information at issue from plaintiff / 
11 || counter-defendant Resorts World. See e.g.,  ECF No. 103 at 3-4. Ultimately, Resort World concurred 
12 || with Rock Fuel that a deposition of IGT would be most helpful and efficient. See  ECF No. 109 at 17-18. 
13            CONCLUSION 
14         For the reasons stated above, 
15         IT IS ORDERED that Plaintiff's Motion for Attorney’s Fees and Costs of Compliance (ECF 
16 || No. 146) is DENIED. 
17         Dated: October 22, 2025. 

50                                                   United Spe  pes Judge 
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