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Weaver v. Stringer

United States District Court, S.D. Alabama, Southern Division

April 4, 2019

SIERRA D. WEAVER, as Administratrix for the Estate of Tracie P. Weaver, Plaintiff,
RICHARD STRINGER, Sheriff of Washington County, et al., Defendants.



         This action is before the Court on the Plaintiff's motion for reasonable expenses under Federal Rule of Civil Procedure 37(a)(5). (Doc. 58). The Defendants have timely filed a response (Doc. 65) in opposition to the motion, and the Plaintiff has timely filed a reply (Doc. 66). The Plaintiff subsequently filed a corrected supplemental motion for expenses under Rule 37(a)(5) (Doc. 71), to which the Defendants filed no response.[1] The Plaintiff has also submitted a notice of additional authority under S.D. Ala CivLR 7(f)(3) (Doc. 81).[2]

         I. Background

         On September 27, 2018, the Plaintiff file a renewed motion to compel disclosures and discovery responses from the Defendants under Federal Rule of Civil Procedure 37(a). (Doc. 39). Following briefing (Docs. 42, 43, 45), the Court set a hearing on the motion, which was continued several times. (See Docs. 46, 47, 51, 52). In the meantime, the Plaintiff filed three additional motions to compel (Docs. 48, 53, 54), with the Defendants responding to one (see Doc. 50). A hearing addressing all motions to compel was held with counsel for the parties on November 30, 2018. On December 11, 2018, the Court entered an order granting the motions to compel in part, finding that the Plaintiff was entitled to relief on certain issues, and otherwise mooting the motions due to supplemental discovery responses served by the Defendants after the motions to compel were filed. (See Doc. 60). On the Plaintiff's motion, an amended version of that order was entered December 18, 2018, granting additional relief. (See Docs. 62, 63, 64). The Plaintiff now seeks an award of reasonable expenses under Rule 37(a)(5) in connection with the motions to compel.

         II. Analysis

         If a Rule 37(a) motion to compel “is granted--or if the disclosure or requested discovery is provided after the motion was filed--the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees. But the court must not order this payment if: (i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action; (ii) the opposing party's nondisclosure, response, or objection was substantially justified; or (iii) other circumstances make an award of expenses unjust.” Fed.R.Civ.P. 37(a)(5)(A). The Plaintiff's initial motion seeks an award of $8, 186.80 in reasonable expenses under Rule 37(a)(5), consisting of $8, 140 in attorney fees and $46.80 in copy fees. Her corrected supplemental motion seeks an additional $2, 559.50 in attorney and copy fees expended litigating the initial motion for Rule 37(a)(5) expenses.

         The Defendants first argue that the Plaintiff should not be awarded any expenses because their objections to the Plaintiff's “vague, unduly burdensome, and overbroad interrogatories” discovery requests were substantially justified.[3] (Doc. 65 at 2 - 4). However, the Defendants did not substantively argue those objections in any of their briefing submitted in response to the Plaintiff's motions to compel (Docs. 42, 45, 50), instead repeatedly and conclusorily asserting that they had produced all information known to them.[4] “If objections are made, the burden is on the interrogating party to move under Rule 37(a) for a court order compelling answers[;]” however, that “does not alter the…obligation of an objecting party to justify his objections.” Fed.R.Civ.P. 33(a) advisory committee's note to 1970 amendment. See also Fed. R. Civ. P. 34(b) advisory committee's note to 1970 amendment (“The procedure provided in Rule 34 is essentially the same as that in Rule 33, as amended, and the discussion in the note appended to that rule is relevant to Rule 34 as well.”). Indeed, it was not until the hearing on the Plaintiff's motions to compel that the Defendants attempted to justify their objections. However, the entire purpose of Rule 37(a)'s sanctions provisions are “to deter a party from pressing to a court hearing frivolous requests for or objections to discovery.” Fed.R.Civ.P. 37(a) advisory committee's note to 1970 amendment. See also id. (“The proposed change provides in effect that expenses should ordinarily be awarded unless a court finds that the losing party acted justifiably in carrying his point to court.”). Because the Defendants did not rely on their objections in resisting the Plaintiff's motions to compel until the Court found it necessary to call a hearing, they should not now be allowed to rely on those same objections to claim that their position with regard to those motions was substantially justified. Regardless, having given thorough consideration to the parties' briefing and the arguments made at the motions hearing, the Court finds that the Defendants' position in opposing the motions was not substantially justified.

         The Defendants also argue that the Plaintiff's motion for expenses should be denied because “the Plaintiff never attempted to dispute or work through the Defendant's objections without court assistance…” (Doc. 65 at 4). However, the Plaintiff's three subject motions to compel, when considered together, [5] contain sufficient allegations indicating that the Plaintiff “attempt[ed] in good faith to obtain the disclosure or discovery without court action[.]” Fed.R.Civ.P. 37(a)(5)(A)(i). The Defendants never argued otherwise in opposing the motions to compel (despite a good-faith conferencing certification being a requisite to any motion to compel under both Rule 37(a)(1) and the Court's scheduling order (Doc. 18, as modified by Docs. 37, 75)), and nothing in their response to the present motion refutes the Plaintiff's representations of good-faith conferencing attempts.

         The Defendants also claim that the following “other circumstances” would “make an award of expenses unjust”: “the Defendants acted in good faith and dutifully attempted to work with Plaintiff's counsel to insure amicable discovery was completed;” “Plaintiff's counsel previously and unsuccessfully filed a previous motion to compel;” “Plaintiff's counsel's issue with discovery was a matter of form over substance;” and “the Plaintiff has not been prejudiced in any manner by the delay.” (Doc. 65 at 4). The Court disagrees.

         The Defendants' claim that the Plaintiff has not been prejudiced by any delay caused by their deficient responses is doubtful. Regardless, in making this argument, the Defendants diminish the primary purpose of Rule 37(a)(5)'s fee-shifting provisions, which is to minimize courts becoming involved in the discovery process and encourage all parties to be as forthcoming as possible during the discovery process. See 8B The Late Charles Alan Wright, et al., Fed. Prac. & Proc. Civ. § 2288 (3d ed.) (“A major purpose of the 1970 revision of the discovery rules was to encourage extrajudicial discovery with a minimum of court intervention. One means of accomplishing that was to tighten the judicial sanctions with respect to unjustified insistence upon or objection to discovery.” (footnote omitted)); Fed.R.Civ.P. 37(a) advisory committee's note to 1970 amendment (“the potential or actual imposition of expenses is virtually the sole formal sanction in the rules to deter a party from pressing to a court hearing frivolous requests for or objections to discovery” and is “the most important available sanction to deter abusive resort to the judiciary”). Cf. McCarthy v. Ameritech Pub., Inc., 763 F.3d 488, 494 (6th Cir. 2014) (“an ‘important purpose' of the expense-shifting sanction codified in Rule 37(c)(2) is to establish incentives for litigants ‘to respond reasonably and in good faith to appropriate requests for admissions' ” (quoting 7 Moore's Federal Practice § 37.70 (3d ed. 2013)). “Prejudice to the merits of the party's cause is not required” to be entitled to Rule 37(a)(5) expenses. Cal Dive Int'l, Inc. v. M/V Tzimin (ex Stena Seahorse), 127 F.R.D. 213, 217 (S.D. Ala. 1989). Indeed, forcing parties to resort to the courts to resolve discovery disputes, and forcing courts to do so, are their own “prejudices” that Rule 37(a)(5) sought to deter. Similarly, the Defendants' assertions that they “acted in good faith” in attempting to resolve the discovery disputes does not absolve them from liability under Rule 37(a)(5). See Marquis v. Chrysler Corp., 577 F.2d 624, 642 (9th Cir. 1978) (“Although the failure to produce may not have been in bad faith, the presence or absence of bad faith is relevant to the choice of sanctions rather than to the question whether a sanction should have been imposed. In view of the range of sanctions available, even negligent failures to allow reasonable discovery may be punished.”); Tamari v. Bache & Co. (Lebanon) S.A.L., 729 F.2d 469, 473-74 (7th Cir. 1984) (“The Firm next contends that a court may not impose Rule 37(b) sanctions on a party unless that party violates a court order because of wilfullness, bad faith, or fault. The weight of authority, however, holds that the culpability of a party who fails to comply with a court order determines only which sanctions the court should impose and not whether any sanctions are appropriate at all. Courts thus have held that negligent failure to follow discovery proceedings may trigger sanctions.” (citations omitted)).

         With regard to the Plaintiff's first motion to compel, which was denied without prejudice 4 days after it was filed for failure to include an adequate good-faith conferencing certification (see Docs. 21, 22), the Defendants complain that, because the Court did not award them reasonable expenses under Rule 37(a)(5)(B) in connection with the denial, [6] it would be unjust to now award the Plaintiff reasonable expenses here. However, the Defendants have never moved for such an award, and nothing in the Court's order denying the first motion compel precluded them from doing so. At most, this could entitle the Defendants to an off-set on the expenses that will be awarded to the Plaintiff here, but the Defendants have presented no evidence indicating what “reasonable expenses” they incurred in opposing the first motion, instead only vaguely suggesting that they might have incurred “time and expense by preparing to oppose the Plaintiff's motion.” (Doc. 65 at 6). Moreover, it is doubtful that the Defendants incurred significant expenses as a result of the motion, given that it involved only two discrete issues regarding the sufficiency of the Defendants' initial disclosures under Federal Rule of Civil Procedure 26(a)(1), and was denied by the Court sua sponte only four days after being filed. (See Doc. 21).

         The Defendants' assertion that the Plaintiff's complaints about their discovery responses was “a matter of the form of the answers rather than the substance of the Defendants' answers” is unconvincing. The Defendants claim that, because the additional discovery they were compelled by the Court to produce “did not provide new information or discovery to the Plaintiff[, and] since the Plaintiff's [sic] already possessed all information necessary to answer the Plaintiff's interrogatories[, ]” the Plaintiff should not be awarded reasonable expenses. (Doc. 65 at 6). However, as the Defendants' counsel was informed at the hearing, a “document dump” does not satisfy a party's obligation to provide clear responses to discovery requests, and it was not the Plaintiff's responsibility to piece together the Defendants' interrogatory responses for them. See Fed. R. Civ. P. 37(a)(4) (“For purposes of this subdivision (a), an evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond.”). Moreover, what a discovery response does not say can be just as important as what it does. See Fed. R. Civ. P. 33(b)(3) (“Each interrogatory must, to the extent it is not objected to, be answered separately and fully in writing under oath.” (emphasis added)); Fed.R.Civ.P. 26(g)(1) (by signing a Rule 26(a)(1) disclosure or a discovery response, the signatory “certifies that to the best of the person's knowledge, information, and belief formed after a reasonable inquiry[, ]” the disclosure “is complete and correct as of the time it is made[, ]” and the discovery response is, inter alia, “consistent with these rules…” (emphasis added)).

         The Defendants also claim that the Plaintiff was “only forty-five percent successful” on the relief requested in her motions to compel, and that therefore she should only be awarded a similar proportion in reasonable expenses. (Doc. 65 at 9). The Court disagrees, as it did not deny any of the Plaintiff's requested relief in its order ruling on the motions; rather, the motions were “GRANTED in part and [found] MOOT in part, ” with the moot issues being “due to the Defendants' production of responsive material after the motions were filed.” (Doc. 64). Rule 37(a)(5)(A) mandates an award of reasonable expenses if a motion to compel “is granted[]or if the disclosure or requested discovery is provided after the motion was filed…” (emphasis added).[7]

         Finally, the Defendants challenge the reasonableness of various time entries and other expenses billed by Plaintiff's counsel, Henry Brewster, Esq., and S. Joshua Briskman, Esq. (See Doc. 65 at 9 - 13 [Section IV of “Argument, ” Defendants' Response Brief])).[8] Initially, the Court finds that the Plaintiff's corrected supplemental motion (Doc. 71), seeking expenses incurred in bringing the initial Rule 37(a)(5) motion and in replying to the Defendants' response (sometimes called “fee-defense litigation, ” or “fees for fees”), is due to be DENIED. Contrary to the Plaintiff's assertion, it is not clear that “[t]ime spent litigating a fee award under Fed.R.Civ.P. 37(a)(5)(A) is presumably reimbursable as a reasonable expense arising out of the motion to compel…” (Doc. 71 at 2).[9] The plain terms of Rule 37(a)(5)(A) allow for reasonable expenses “incurred in making the motion [to compel]…” Since a ...

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