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Plaintiff To Receive FRCP 37 Attorney Fees After Defeating Defendant’s Unjustified Motion To Compel

Posted on November 19th, 2014

Under Federal Rule of Procedure 37(a)(5)(B), a court denying a motion to compel may award attorney fees to the prevailing party provided that the court does not conclude that the motion to compel was “substantially justified” or that “other circumstances [would] make an award of expense unjust.”  The party who lost the motion bears the burden of persuasion to avoid having the fees assessed.

In Malibu Media v. Harrison, No. 1:12-cv-01117-WTL-MJD (S.D. Ind. Oct. 23, 2014), Defendant filed a motion to compel seeking Plaintiff ‘s electronically stored information (ESI).  The magistrate judge denied Defendant’s motion to compel.  When considering whether it could properly award Plaintiff its attorney fees, the court considered the following to determine if Defendant’s motion was “substantially justified” under Rule 37(a)(5)(B) even though the court had denied the motion:

  1. Defendant sought ESI regarding one of Plaintiff’s copyright infringement claims, but by the time Defendant filed its motion to compel, Plaintiff had already filed a m0tion to amend its complaint that proposed to entirely remove the copyright infringement claim from the complaint, making the discovery request moot.
  2. Defendant sought data regarding Plaintiff’s online security arrangements but Plaintiff did not dispute that it would produce that information provided it secured a proper protective order.  At the time Defendant filed its motion to compel, Plaintiff had already filed a motion for a protective order regarding the online security arrangements.
  3. Defendant sought documents and data that were publicly available online, and Plaintiff had already informed Defendant of that fact before Defendant filed its motion to compel.
  4. Defendant requested ESI regarding online statistics.  Plaintiff informed Defendant that no such information existed but Defendant still sought to compel production of the information.

Given the clearly unnecessary motion, the court concluded that Defendant’s motion was not “substantially justified.”  The court then considered whether, pursuant to Rule 37, the attorney fee award would otherwise be “unjust.”  The court concluded that because Plaintiff had not engaged in any abusive discovery practices, nothing would make the fee award “unjust.”  Accordingly, the court entered a fee award to Plaintiff of $7,016 to compensate it for having to respond to Defendant’s motion to compel.

ILS – Plaintiff eDiscovery Experts

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