O P I N I O NWichita County, Texas filed this appeal challenging the district court’s order directing the County to pay $11,283.89 to Environmental Engineering & Geotechnics, Inc. (EEG, a nonparty to the underlying suit) as “reasonable costs” for the production of documents in response to the County’s subpoena. See Tex. R. Civ. P. 205.3(f). In two issues, the County challenges the district court’s order: (1) refusing to permit the County to conduct discovery as to the reasonableness of EEG’s costs, and (2) awarding EEG $11,283.89 “based upon the limited evidence presented” to the court at the hearing. For the reasons that follow, we will affirm the district court’s order in part, reverse and render in part, and reverse and remand in part for further proceedings.BACKGROUNDIn the underlying suit, the County sought civil penalties under the Texas Water Code against Southwest Convenience Stores (SCS), alleging that SCS was responsible for three leaking underground storage tanks that polluted the groundwater in Wichita County for over nineteen years. See Tex. Water Code § 7.351. The State of Texas appeared in the suit as a “necessary and indispensable party” under the Water Code and aligned itself with the County as a party plaintiff, requesting a portion of all civil penalties awarded in the case. See id. §§ 7.353, .107. EEG was the environmental consultant for SCS between 1997 and 2016 and was involved with the “South Beverly Site” where the tanks were located. EEG was not a party to the County’s suit.The County served a subpoena on EEG requesting production of documents related to the South Beverly Site. EEG raised no objections to the County’s requests. EEG responded to the subpoena by providing the County with electronic copies of documents in a DropBox folder. EEG also filed a motion for costs seeking to recoup costs associated with its document production and set the motion for hearing without conferring with the County in violation of the local rules.At the start of the hearing, the County announced that it had not been consulted about the setting and that it was not ready to proceed if EEG intended to present witness testimony on the motion for costs. If EEG intended to present witnesses, the County requested the opportunity to depose them about the basis for the claimed costs of $13,916. The district court asked EEG whether it would present witness testimony, and EEG responded that it would. Having originally stated that it would grant a continuance to the County if it was not ready to proceed due to EEG’s failure to consult with the County on a hearing date, the district court nevertheless proceeded to conduct an evidentiary hearing. The only witness to testify was EEG’s chief operating officer, Mark Owens. The only documents offered into evidence were an invoice from EEG and two Office Depot receipts.Owens testified that he received a call from SCS’s “parent company” on April 20, 2018, asking whether he “had any information on a particular site,” and that he began researching it. At the time of the call, he was not told whether the parent company had been sued, and he did not know whether to expect service of a subpoena. Owens spent “probably half an hour” researching from April 20 to April 25. He recalled being served with the County’s subpoena on April 25, 2018.Owens testified that he, EEG’s executive vice president, Bruce Britten, and EEG’s president/chief executive officer, Kimberly Millette, conducted the search for documents pertaining to the South Beverly site because they would know what to look for and where to look for it and because EEG had no administrative staff. Owens noted that he was the only person who had been with EEG “the entire length of time that this [site] was a project for the company.” Owens said that Britten was involved with the site as the manager of this project from 2007 to 2016. Owens focused his search on “the stuff that predated [Britten],” but there was some overlapping effort, as Owens recalled “looking for some of the things that [Britten] was involved in, but [Britten] predominantly did the stuff he was in charge of from 2007 [forward].” Owens stated that Millette, who was in charge of “overall accounting functions and invoicing,” would have searched for all the pertinent accounting records. Owens testified that he took the responsive documents to Office Depot/Office Max[1] for copying and scanning, and his wife retrieved the documents on May 7, 2018. An Office Depot receipt admitted into evidence shows that the May 7 transaction occurred at 11:20 a.m.During Owens’s testimony, EEG offered into evidence its $13,916.95 invoice:Bill ToBaker Wotring LLP 700 J I’Morgan Chase Tower 600 Travis Street Houston, TX 77002
TermsEE&G Project Number
