Barnes, J.
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The first issue in this case is whether there was a sound basis upon which the trial court could award Evans over $8000 in attorney fees in relation to the subpoena, where he never sought a protective order with respect to the subpoena. This case requires us to balance the interest in allowing liberal discovery procedures against the competing interest in protecting non-parties to litigation from having to bear the expense of participating in lawsuits in which they are strangers. Ultimately, we conclude that a non-party served with a subpoena for documents may be entitled to collect attorney fees strictly related to complying with the subpoena, but that any additional fees, including those incurred in fights over such fees, are not compensable unless the non-party had a reasonable basis for resisting the subpoena.
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We acknowledge that Indiana follows the American Rule regarding attorney fees, meaning that such fees generally are not considered to be “damages,” in the absence of statutory authority, an agreement between the parties, or an equitable exception such as “obdurate behavior” or “common fund.” Lorapex, LLC v. MPI Release Tech., LLC, 964 N.E.2d 806, 816-17 (Ind. 2012). However, we observe that Trial Rule 34(C)(3) expressly includes as recoverable “damages” attorney fees not only for “reasonable resistance” to a discovery request, but also for such fees “incurred . . . in establishing such threatened damage or damages.” (Emphasis added). A discovery request such as the one in this case carries a “threat” of damages to a subpoenaed party if, for example, privileged material is disclosed. Non-parties subjected to subpoenas, such as when sensitive financial information is sought as in Evans’s case, may reasonably be expected to consult with counsel to ensure compliance with the subpoena without unnecessarily divulging privileged information or to determine whether there is any legal basis to object to the subpoena. We conclude that an award of attorney fees to a non-party associated with attorney review of a discovery request and assistance with complying with that request is within the parameters of the heightened protection provided to non-parties under Trial Rule 34(C)(3).
If, however, such review by counsel fails to divulge a reasonable basis for resisting the subpoena, the requested material should be provided promptly. We conclude Gonzalez did not proximately cause Evans to refuse to turn over the documents he compiled by mid-November, and to withhold them for several months and not release them until the trial court conditionally granted Gonzalez’s motion to compel. Although Evans continues to imply in his brief that Gonzalez’s subpoena was overbroad, he never asked the trial court to find that it was overbroad or to quash the subpoena or to modify it. The trial court, in fact, never did find that the subpoena was overbroad. Evans also does not argue that the subpoena sought information that was privileged, or irrelevant to Gonzalez’s underlying action against her ex-husband, or anything of the kind. The only possible “reasonable” basis Evans had for resisting the subpoena—especially after Evans had already compiled the documents—would have been his insistence upon security in the form of Gonzalez paying attorney fees before the documents would be produced.
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We also hold that Trial Rule 34(C)(3) does not permit a non-party to unilaterally withhold documents requested by a subpoena unless the requesting party first pays attorney fees in an amount demanded by the non-party. The language of the rule suggests that if a non-party objects to a subpoena, it should either make a written objection to the subpoena within thirty days or move to quash the subpoena under Indiana Trial Rule 45(B). Evans did not file a motion to quash. Evans did write two letters to Gonzalez complaining about the subpoena and requesting attorney fees, but no objections were filed with the trial court. Evans never articulated or specified anything more than broad generalities in attempting to explain what was objectionable or onerous about the subpoena aside from the fact that it requested much information. Despite that claim, it ultimately took Evans only about five hours to collect all the information requested by the subpoena. After that, there was no reasonable basis for refusing to give the documents to Gonzalez.
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Conclusion
We interpret Trial Rule 34(C)(3) as permitting non-parties to recover attorney fees associated with complying with a subpoena or other discovery request, but that refusing to comply with a discovery request solely on the basis that the parties cannot agree on an appropriate amount to pay does not constitute reasonable resistance to a discovery request. Evans did not reasonably resist Gonzalez’s subpoena, but he is entitled to some attorney fees associated with complying with the subpoena. Therefore, we reverse the award of $8229.33 in attorney fees to Evans and remand for determination of the amount of attorney fees he incurred in strict relation to complying with the subpoena. We affirm the trial court’s failure to award any attorney fees to Gonzalez upon her motion to compel, given her failure to present any evidence or make any argument to the trial court regarding any such fees despite having an opportunity to do so.
Affirmed in part, reversed in part, and remanded.
VAIDIK, C.J., and BAKER, J., concur.