Doe 1 v. Deutsche Bank Aktiengesellschaft

Background

The Epstein Victims’ Compensation Program (EVCP) was a court-approved program that confidentially resolved sexual-abuse claims against Jeffrey Epstein and others. It received claims from 361 individuals and paid approximately $121 million. By April 2022, EVCP had largely stopped operating, although some claims-processing work continued into 2023.

In February 2023, JPMorgan Chase Bank, N.A., and Deutsche Bank served substantially similar subpoenas seeking documents and information about EVCP’s claims program and claimants. The banks intended to use the information in opposing class certification. EVCP objected, principally arguing that information about claimants was protected by mediation confidentiality and raising privacy concerns.

The court previously granted in part and denied in part JPMorgan’s motion to compel. It granted the motion for six requests, granted it in part for two requests, and denied it for five requests. The court rejected EVCP’s mediation-privilege argument and ordered production with personally identifying information redacted and the documents limited to attorneys’ eyes only.

After further negotiations, EVCP, JPMorgan, and Deutsche Bank agreed that EVCP would prepare a spreadsheet instead of producing redacted documents. The agreement preserved EVCP’s right to seek reimbursement and the banks’ right to object. EVCP later requested approximately $1.5 million: $993,698.01 for staff and vendor work preparing subpoena responses, and $568,447.32 for legal fees and other costs related to resisting the subpoena and litigating or negotiating its scope.

Legal standard

Federal Rule of Civil Procedure 45 requires a party or lawyer issuing a subpoena to take reasonable steps to avoid imposing an undue burden or expense on the subpoenaed person. The court may require reasonable reimbursement, but only reasonable expenses are compensable. The nonparty requesting reimbursement bears the burden of showing that its costs and fees were reasonable.

Costs of preparing the subpoena response

The court held that EVCP could not recover excess costs caused by choosing to prepare a spreadsheet rather than produce redacted documents, because the court had already determined that redactions and attorneys’-eyes-only treatment adequately protected claimants’ privacy. But JPMorgan did not prove that the spreadsheet cost more than producing redacted documents, and JPMorgan benefited from EVCP’s work collecting and organizing the information.

The court found the hourly rates charged by most of EVCP’s vendors and staff reasonable. It found that EVCP administrator Jordana Feldman’s fees—$485,088.01 for approximately 485 hours at a rate of at least $1,000 per hour—should be reduced by half. The court therefore granted reimbursement for $751,154.01 in subpoena-compliance expenses.

Legal fees and costs of opposing the subpoena

The court denied reimbursement for $271,333.62 in fees and costs incurred while EVCP resisted JPMorgan’s subpoena and litigated the motion to compel. Although EVCP succeeded on some overly broad requests, JPMorgan prevailed on the core issues, including EVCP’s mediation-privilege argument.

The court also denied reimbursement for $296,115.77 in fees charged by Quinn Emanuel after the motion to compel. The submitted invoices did not adequately describe the work, and the court determined that the fees appeared to involve negotiating an agreement that modified the production process rather than complying with the subpoena. The court also noted that the invoices did not provide enough information to show that the fees were reasonable.

Division between the banks and disposition

The court rejected Deutsche Bank’s argument that it could not be charged because its subpoena had been resolved before the spreadsheet was prepared. The court found that the later agreement revived Deutsche Bank’s role, that Deutsche Bank received the spreadsheet, and that its requested expansion of the timeframe increased EVCP’s work.

The court nevertheless assigned Deutsche Bank a smaller share because JPMorgan drove the subpoena effort and was the only bank that actually used the information. The court ordered JPMorgan to pay three-quarters of EVCP’s allowable compliance costs, or $563,365.51, and ordered Deutsche Bank to pay one-quarter, or $187,788.50. The court granted in part and denied in part EVCP’s reimbursement request and directed the clerk to close the motion docket in the related JPMorgan action.