What’s the average charge?

The short answer is that the average per-response fee, across all serving parties, Safari customers, and matters, is just over $100. But the average isn’t particularly informative here because numerous criteria come into play, and in particular, low-end outliers skew the average downward. For example, some agencies impose a per-response cap, and a few states cap hourly rates. These numbers fall far short of reflecting a company’s actual response cost.

We usually find that when people ask about averages, what they really want to know is, what are others doing, and what is reasonable for us?

How do we arrive at a fee?

If you decide to take an “it’s reasonable to ask” approach, it follows that you might also take the approach of asking for a reasonable amount—that is, an amount corresponding to your estimated response cost. No one is suggesting that you turn subpoena response into a profit center; only that you make some effort to recoup the costs your company that these matters represent.

Determining response cost

You should see consistency in the steps required to collect and prepare different types of responses and the time that work takes. Your front-line team is your best source of this information.

For routine private-party subpoenas, our customers typically start with an assessment of how long it takes to gather and produce specific types of responsive information. Based on that, they categorize requests according to the cost they impose.

Factors when determining cost:

• Number of accounts (e.g. it takes 15 minutes to look up and export information for each account requested)
• Number of systems required to be searched (e.g. an employee record request requires searching payroll, timekeeping, and performance management systems)
• System capabilities (e.g. your customer records have to be exported one record at a time)
• Date range: if a request calls for data before a system upgrade or new implementation, it may implicate legacy systems that take longer to access.
• Storage fees: do any request types implicate material in offsite storage?

Next, determine your fully burdened hourly cost for the people doing the work. (Remember that employees outside immediate team may also work on subpoena response—a common example being employees who serve as the contact for specific record request.) Multiply that by the number of hours associated with each request type. To that, add any additional out of pocket costs—for example, shipping fees or any records that come from offsite storage.

Create a flat-fee schedule that corresponds to your cost

The next step is to create one or more form invoices corresponding to the number of hours spent and cost in employee time. Rather than itemizing at the line-item level, use the formula above to arrive at a flat fee schedule.

An important benefit of this flat-fee approach is that you can recover a reasonable fee without anyone having to keep time or create matter-specific invoices. For routine requests, the amount at stake (usually a few hundred dollars) doesn’t justify that time. More importantly, there is a sameness to these requests and the time it takes to respond to them, and you can make that consistency work for you. If you know that a specific request type entails the same steps and takes a specific amount of time, why create a custom invoice for each?

What should an invoice look like?

A key to success in this approach is to avoid creating a specific, detailed invoice for every matter. Instead, as much as possible, categorize routine response types and create a fee schedule that reflects reasonable cost, using "custom" invoices only as needed.

For routine private-party subpoenas, our customers typically start with an assessment of how long it takes to gather and produce specific types of responsive information. Based on that, they categorize requests according to the cost they impose.

What about specific caps?

When a state civil rule or other provision imposes a cap on hourly fees, we suggest a variation: figure out your typical hours for a routine request, multiply that by the hourly cap, and create a form invoice that reflects that number and generally describes the work involved in responding. In other words, honor the hourly cap without tracking time for every routine response.