By Donna Fisher, Matthew Hamilton and Sandra Adams ( February 12, 2019, 4:04 PM EST) -- Recent case law reveals that courts vary widely in their approaches to shifting the costs and fees incurred in responding to a Federal Rule of Civil Procedure 45 subpoena. Some courts view shifting costs and fees as mandatory in situations where a nonparty is forced to bear "significant" costs. Others may shift costs and fees only to the extent those costs are "unreasonable," which is measured by (1) the nonparty's size and economics, despite its lack of connection to the dispute, (2) defining "reasonable costs" so narrowly that the nonparty bears substantial costs or (3) eliminating attorneys' fees from the cost-shifting calculation. The relief a nonparty may be awarded may depend on factors that are not specifically identified in Rule 45 but that are nonetheless included in the court's concept of fairness. As the cases discussed below demonstrate, nonparties responding to Rule 45 discovery requests should consider the following best practices:...