Proceeding on motion by brokerage firm, which had been served with a subpoena duces tecum requesting names and addresses of stockholders of a certain corporation, to compel plaintiffs to cover costs of production of such information. The District Court, Gurfein, J., held that in view of number of brokerage firms involved in plaintiffs' court-ordered quest for class members' identities and as a matter of discretion, plaintiffs would not be required to pay the firm's expenses in complying with subpoena duces tecum.
Cowan, Liebowitz & Latman, New York City, for plaintiffs, by Alan Latman, New York City, of counsel.
Donovan, Leisure, Newton & Irvine, New York City, for defendant Talley Industries, Inc., by Walter L. Stratton, New York City, of counsel.
Robert A. Foy, New York City, of counsel for Merrill Lynch Pierce Fenner & Smith.
GURFEIN, District Judge.
A subpoena duces tecum having been served on Merrill Lynch Pierce Fenner & Smith, requesting the names and last-known addresses as shown on its records of the stockholders of General Time Corporation as of the close of business on April 13, 1970, that firm on its own behalf and as successor in interest to Goodbody & Co. requested $570 as costs before complying.
Treating this request as a timely motion under Fed.R.Civ.P. 45(b), this Court denies Merrill Lynch's application. See United States v. American Optical Co., 39 F.R.D. 580, 586-587 (N.D.Cal.1966) (Gignoux, J.). In view of the number of brokerage firms involved in the plaintiffs' court-ordered quest for class members' identities, it would be unfair to compel the plaintiffs to cover the costs of the firms' production of information, which costs when cumulated would indeed be burdensome. No other broker has requested reimbursement. In this class action I do not feel compelled in my discretion to require plaintiffs to pay the expenses of Merrill Lynch. These expenses are in the nature of overhead expenses necessary for responding to legitimate court orders involving the customers of stock brokers. Cf. Control Data Corp. v. International Business Machines Corp., 68 Civ. 312 (D.Minn.1971) (pre-trial order no. 9, paragraph 5). Merrill Lynch should provide the required information on or before April 26, 1972.
It is so ordered.