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Click here for the full text of this decision FACTS:BASF and ATOFINA are joint venturers in BASF FINA Petrochemicals Ltd. Partnership (BFPLP). BASF and ATOFINA hired a contractor to construct a plant. That contractor ended up in litigation with its subcontractor, H. B. Zachry, though neither BASF, ATOFINA nor BFPLP were named as parties. In April 2002, H. B. Zachry served a subpoena on BFPLP seeking the production of 41 categories of documents, electronic data and other material related to the underlying suit. Though the request was eventually narrowed, BFPLP still would up producing approximately 165 boxes of documents, 30,000 e-mail messages, 70 megabytes of e-mail data and 8,000 spreadsheets. BFPLP filed two motions for costs, requesting the trial court to order H. B. Zachry to reimburse BFPLP for both its legal fees and its costs incurred in gathering, reviewing and producing all of the records. The trial court ordered H. B. Zachry to pay more than $32,000 as reimbursement but denied BFPLP’s request for more than $249,000 in attorneys fees. BFPLP appeals the denial of attorneys’ fees. HOLDING:Affirmed. After first confirming that BFPLP has standing to bring this appeal, the court then looks to how to interpret Texas Rule of Civil Procedure 205.3(f), under which BFPLP made its motion for costs and attorneys’ fees. Rule 205.3(f) states that “[a] party requiring production of documents by a nonparty must reimburse the nonparty’s reasonable costs of production.” Citing the general rule that a parties cannot recover attorneys’ fees absent explicit authority, the court rules that the phrase “costs of production” does not encompass attorneys’ fees. The court observes that in this case, though BFPLP sought legal advice regarding potentially privileged or confidential documents, the expense of obtaining this advice was incurred to protect the interests of BFPLP, not to facilitate compliance with H. B. Zachry’s subpoena and the actual production of the documents in question. Such attorneys’ fees were not, then, strictly speaking, “costs of production.” The court also holds, again, absent express authority to the contrary, that the trial court was not authorized to award BFPLP attorneys’ fees under Texas Rule of Civil Procedure 176.7. That section gives a court discretion to impose reasonable conditions on complying with a subpoena when the party suffers an “undue hardship.” Had the Texas Supreme Court intended for Rule 176.7 to be used to recover attorneys’ fees expended in complying with a subpoena, it would have drafted a such a provision, which is similar to one used in the federal rules. OPINION:Jennings, J.; Taft, Jennings and Bland, JJ.

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