concurring specially.
I concur but do not “reluctantly” or “regretfully” reach the conclusion drawn by the majority. The legislature in its wisdom deliberately confined redress for improper subpoenas to two remedies: complete quashing or at least modifying to legitimacy, and casting of the *531expense of production by the requesting party. OCGA § 24-10-22 (b). This applied to both civil and criminal cases. It gave the court control over what otherwise might be unreasonable, oppressive, or overly expensive demands. The recipient had only to complain to the court, which was done in this case.
Of course, a cost is incurred when the subpoena recipient is forced to seek judicial redress, and the legislature took steps in 1986 to alleviate what it regarded as an unfair economic burden. It enacted OCGA § 9-15-14, which added the award of attorney fees as an additional method of redress, but it expressly limited this remedy to civil cases.
The limitation was not mere oversight. It reflected a weighing and balancing of competing interests and values in criminal cases. On the one hand is the time and trouble and expense of curtailing an unwarranted subpoena duces tecum, and on the other hand is the protected opportunity for a defendant who faces a possible conviction and imprisonment to marshal all relevant evidence. Obviously there will be at times a difference of opinion regarding what is relevant, and the legislature leaves it to the court to decide, without sanctioning the criminal defendant with the costs engendered by the dispute.
The right to competent counsel is jealously guarded by both the State and Federal Constitutions (Ga. Const. 1983, Art. I, Sec. I, Par. XIV; U. S. Const., Amend. VI), and that competency is not infrequently attacked for what counsel did not do in gathering evidence.
In addition to the values which caution against allowing attorney fees as a sanction for unjustified subpoenas duces tecum is the practical problem of the potential for assessment against an indigent defendant. Imposing them on the indigent defendant’s court-appointed counsel would also be problematic. If it cannot realistically be imposed on such a person or his counsel, would it be fair to impose attorney fees on a non-indigent defendant or his retained counsel?1
To this consideration are added others, such as the constitutional and statutory rights to confrontation contained in OCGA § 24-9-64; Ga. Const. 1983, Art. I, Sec. I, Par. XIV; and U. S. Const., Amend. VI. A dispute over the legitimate reach of a subpoena duces tecum in a criminal case was resolved on this basis in favor of the defendant in Eason v. State, 260 Ga. 445 (396 SE2d 492) (1990).
A recognition of these countervailing factors leads me to the conclusion that the legislature’s choice of policy was not unwise.
*532Decided January 21, 1992. Virgil L. Brown & Associates, Virgil L. Brown, Bentley C. Adams III, for appellants. Adams, Barfield & Dunaway, David B. Dunaway, Richard H. Bishoff, for appellees.In the instant case both the defendant and his retained counsel were individually charged.