Dickinson Frozen Foods, Inc. v Food Process Solutions Corporation

Filing 123

MEMORANDUM DECISION AND ORDER. FPSs Motion for Attorney Fees and Costs (Dkt. 97 ) is GRANTED in PART and DENIED in PART. FPS is awarded a total of $29,126.05 in fees and $2,152.18 in costs. Dickinsons Motion to Take Trial Preservation Depositions of Colmac Coil Employees (Dkt. 100 ) is GRANTED; FPSs Motion to Strike or Disregard Reply Brief Arguments (Dkt. 108 ) is MOOT and is therefore DENIED. Signed by Judge David C. Nye. ((alw)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
DICKINSON FROZEN FOODS, INC.,
Plaintiff,

Case No. 1:17-cv-00519-DCN
MEMORANDUM DECISION AND
ORDER

vs.
FPS FOOD PROCESS SOLUTIONS
CORPORATION,
Defendant.
I. INTRODUCTION
Pending before the Court are Defendant FPS Food Process Solutions Corporation’s
(“FPS”) Motion for Attorney Fees and Costs (Dkt. 97); Plaintiff Dickinson Frozen Foods,
Inc.’s (“Dickinson”) Motion to Take Trial Preservation Depositions (Dkt. 100); and FPS’s
Motion to Strike (Dkt. 108).
Having reviewed the record and briefs, the Court finds the facts and legal arguments
are adequately presented. Accordingly, in the interest of avoiding further delay, and
because the Court finds that the decisional process would not be significantly aided by oral
argument, the Court will rule on the motions without oral argument. Dist. Idaho Loc. Civ.
R. 7.1(d)(1)(B). Upon review, and for the reasons set forth below, the Court GRANTS in
PART and DENIES in PART FPS’s Motion for Attorney Fees and Costs, GRANTS
Dickinson’s Motion to Take Trial Preservation Depositions, and DENIES FPS’s Motion
to Strike.

MEMORANDUM DECISION AND ORDER – 1

II. BACKGROUND
The background of this case is well known to the parties and the Court, has been set
forth in previous orders, and is incorporated by reference. Dkts. 69, 93. The pending
motions relate to a discovery dispute that arose when Dickinson scheduled various
depositions in preparation for seeking reconsideration of the Court’s order granting
sanctions for Dickinson’s spoliation of the industrial freezer that is the subject of this suit
(“Sanctions Order”). Dkt. 69.
Prior to the Sanctions Order, Dickinson took the depositions of six fact witnesses,
including depositions of various employees or executives of FPS, as well as of FPS’s
independent consultant. After the Sanctions Order, the parties scheduled an additional five
depositions: one of FPS’s expert witness, and Federal Rule of Civil Procedure 30(b)(6)
depositions of Kemper Northwest, Inc, Nestle USA, GEA Food Solutions North America,
and Colmac Coil Manufacturing, Inc.1
On July 24, 2019, Dickinson served FPS with Dickinson’s Notice of a Rule 30(b)(6)
Deposition of Colmac Coil Manufacturing, Inc. (“Colmac Coil”), scheduling the
deposition to take place at 9:00 a.m. on August 12, 2019, in Spokane, Washington.2
Dickinson’s Notice included a “Rider” with a detailed list of topics upon which Dickinson
intended to inquire at the Colmac Coil deposition, and also identified the potential

1

A deposition under Rule 30(b)(6) is, for purposes of Federal Rule of Civil Procedure 30’s limit of ten
depositions per side (absent stipulation or leave of the court) treated as a single deposition even though
more than one person may be designated to testify. Fed. R. Civ. P. 30(a)(2)(A) Advisory Committee Notes
to 1993 Amendment.

2

The parties and Colmac Coil mutually agreed to this schedule and location before Dickinson sent out its
Notice.

MEMORANDUM DECISION AND ORDER – 2

involvement of several key Colmac Coil employees, including (but not limited to) Bruce
Nelson, Trevor Pope, and Joe Fazzari. After it sent out the Notice, Dickinson had several
phone calls with Colmac Coil regarding the upcoming deposition. Colmac Coil advised
Dickinson that it intended to produce only Fazzari as Colmac Coil’s Rule 30(b)(6)
designee. Dickinson was concerned this could be problematic since a review of the record
indicated Fazzari might lack personal knowledge of certain key events and/or documents.
Dickinson and Colmac Coil (without the involvement of FPS) decided to vacate the
Colmac Coil Rule 30(b)(6) deposition and instead notice up individual depositions of
Nelson, Pope, and Fazzari, to occur on the same agreed-upon date, time, and place.
On August 5, 2019, Dickinson vacated the Colmac Coil 30(b)(6) deposition and sent
FPS deposition notices for the individual depositions of Nelson, Pope, and Fazzari. On
August 6, 2019, FPS objected to the individual depositions. Over the next few days, the
parties communicated via email and phone regarding FPS’s objection. FPS’s counsel
contends he tried to “resolve the issue prior to incurring the potentially needless expense
of flying to Spokane, Washington for the Nelson, Pope, and Fazzari depositions, given that
these depositions exceeded the 10 depositions allowed under Rule 30 and violated the 14day notice requirement in Rule 32.” Dkt. 97-1, at 3–4.3 Dickinson counters that “nowhere
[in the attorneys’ communications regarding the issue] did FPS’s counsel ever argue or
assert any objection regarding a lack of sufficient or timely notice as to the depositions of
Nelson, Pope, or Fazzari.” Dkt. 99, at 5 (emphasis in original).

3

Page citations are to the ECF-generated page number.

MEMORANDUM DECISION AND ORDER – 3

On August 9, 2019, when it became clear the attorneys had reached a stalemate,
FPS’s counsel contacted the Court’s chambers to explain the issue and request
authorization to file a motion for protective order. Because the Nelson, Pope, and Fazzari
depositions were scheduled to take place the next business day, there was not enough time
to follow the Court’s discovery dispute process. 4 The Court’s Law Clerk authorized motion
practice.
FPS filed its Third Motion for Protective Order at 5:29 p.m. on Friday, August 9,
2019. Dkt. 73. Dickinson filed a Motion for Leave to Take Additional Depositions later
the same evening. Dkt. 74. The depositions of Nelson, Pope, and Fazzari started at 9:00
a.m. on Monday, August 12, 2019, before the Court could address the pending motions.
The parties subsequently completed briefing on the Third Motion for Protective Order and
Motion to for leave to Take Additional Depositions. Dickinson also submitted its Motion
for Reconsideration (Dkt. 81), which necessitated an additional round of briefs regarding
the appropriate standard of review. Dkt. 88.
On June 1, 2020, the Court denied Dickinson’s Motion for Reconsideration, granted
FPS’s Third Motion for Protective Order in part, and denied Dickinson’s Motion for Leave
to Take Additional Depositions as moot. Dkt. 93. The Court granted FPS’s Third Motion
for Protective Order to the extent it sought exclusion of the Nelson, Pope, and Fazzari
depositions pursuant to Federal Rule of Civil Procedure 32, which mandates a deposition
“must not be used against a party who, having received less than 14 days’ notice of the

4

See https://id.uscourts.gov/district/judges/nye/Discovery_Disputes.cfm.

MEMORANDUM DECISION AND ORDER – 4

deposition, promptly moves for a protective order under Rule 26(c)(1)(B) requesting that
it not be taken or be taken at a different time or place—and the motion was still pending
when the deposition was taken.” Fed. R. Civ. P. 32(a)(5)(A).
Because, after exclusion of the Nelson, Pope, and Fazzari depositions, Dickinson
had only taken ten depositions, the Court denied both Dickinson’s Motion for Leave to
Take Additional Depositions, and FPS’s Third Motion for Protective Order (to the extent
it sought enforcement of the ten-deposition limit of Federal Rule of Civil Procedure
30(a)(2)) as moot. Dkt. 93, at 18. However, since it partially granted FPS’s Third Motion
for Protective Order, the Court held it would award FPS “the reasonable fees incurred in
making the motion, including attorney’s fees” pursuant to Federal Rule of Civil Procedure
37(a)(5). Id. at 19. The Court directed FPS to file a short brief documenting the reasonable
expenses it incurred in making its Third Motion for Protective Order. Id.
Rather than incurring the time and expense associated with further briefing, the
parties attempted to informally resolve the fee issue for several weeks. During such
discussions, Dickinson’s counsel notified FPS’s counsel of Dickinson’s intent to file a
motion for leave to take trial preservation depositions of Nelson, Pope, and Fazzari.
Because the Court struck the aforementioned depositions, and because such witnesses live
outside of the Court’s subpoena power and will not agree to appear voluntarily at trial,
Dickinson suggested it would need to obtain the Court’s leave to take trial preservation
testimony from Nelson, Pope, and Fazzari, unless FPS would agree to stipulate to use their
deposition transcripts for trial. As a compromise, Dickinson offered to stipulate to allow
FPS to re-open such depositions. Dickinson also stated it would bear some responsibility
MEMORANDUM DECISION AND ORDER – 5

for a reasonable portion “of those costs and fees for FPS to complete their crossexamination and additional questioning (to remedy any purported prejudice from FPS
allegedly not having sufficient time to prepare for the depositions).” Dkt. 99, at 7. FPS
rejected Dickinson’s proposal. The parties were also unable to agree on the fee issue.
On July 29, 2020, FPS filed its Motion for Attorney Fees and Costs. Dickinson later
filed its Motion to Take Trial Preservation Depositions.5 After the briefing on FPS’s
Motion for Award of Attorney Fees and Costs and Dickinson’s Motion to Take Trial
Preservation Depositions was complete, FPS filed a Motion to Strike certain portions of
Dickinson’s Reply brief in support of its Motion to Take Trial Preservation Depositions.
All three motions are now ripe for the Court’s review. 6
III. ANALYSIS
Since there are three pending motions, with different applicable legal standards, the
Court sets forth the appropriate legal standard(s) when addressing each motion.
A. Motion for Attorney Fees and Costs (Dkt. 97)
1. Legal Standard
a. Fee awards under Rule 37
With respect to the payment of expenses incurred in obtaining a discovery order,
Federal Rule of Civil Procedure 37(a) provides: “If the motion is granted . . . the court

Dickinson also filed a Motion for Leave to File First Amended Complaint on August 5, 2020. Dkt. 98.
The latter motion will be addressed in a separate decision.
5

6

On September 24, 2020, the Court entered an order holding all remaining case deadlines, including the
deadline for completion of fact discovery, in abeyance until the Court could rule on the pending motions.
Dkt. 107. Such deadlines will remain stayed after today’s decision until the three other pending motions
(Dkts, 98, 112, and 114) are resolved.

MEMORANDUM DECISION AND ORDER – 6

must, after giving an opportunity to be heard, require the party or deponent whose conduct
necessitated the motion . . . to pay the movant’s reasonable expenses incurred in making
the motion, including attorney’s fees.” Fed. R. Civ. P. 37(a)(5)(A). However, Rule 37 also
states the court must not order expenses and fees 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.” Id. at (a)(5)(A)(i)–(iii). “The
burden of establishing this substantial justification or special circumstances rests on the
party being sanctioned.” Infanzon v. Allstate Ins. Co., 335 F.R.D. 305, 311 (C.D. Cal. 2020)
(citing Hyde & Drath v. Baker, 24 F.3d 1162, 1171 (9th Cir. 1994)).
If a discovery motion is granted in part and denied in part, the court may also
apportion the reasonable expenses for the motion. Fed. R. Civ. P. 37(a)(5)(C). The
exceptions to Rule 37(a)(5)(A) are applicable to a court’s determination of whether
attorney fees should be apportioned under Rule 37(a)(5)(C). Aevoe Corp. v. AE Tech Co.,
Ltd., No. 2:12-cv-00053-GMN-NJK, 2013 WL 5324787, at *1 (D. Nev. Sept. 20, 2013).
The primary difference between Rule 37(a)(5)(A) and (a)(5)(C) is that an award is
discretionary under Rule 37(a)(5)(C), while, absent one of the Rule 37(a)(5)(A)(i)–(iii)
exceptions, a fee award is mandatory under Rule 37(a)(5)(A). W. Mortg. & Realty Co. v.
KeyBank Nat’l Ass’n, No. 1:13-cv-00216-EJL-REB, 2016 WL 11643651, at *1 (D. Idaho
Jan. 4, 2016).
b. Calculation of Attorney’s Fees
Courts use the “lodestar” method to calculate the amount of reasonable fees awarded
MEMORANDUM DECISION AND ORDER – 7

under Rule 37. See, e.g. Marrocco v. Hills, 291 F.R.D. 586, 587 (D. Nev. 2013); Raygoza
v. City of Fresno, 297 F.R.D. 603, 608 (E.D. Cal. 2014) (“This Court has applied the
‘lodestar’ method to the award of attorney fees under Rule 37”) (citations omitted). The
lodestar amount is “calculated by multiplying the number of hours reasonably expended
on the litigation by a reasonable hourly rate.”7 Vogel v. Harbor Plaza Ctr., LLC, 893 F.3d
1152, 1160 (9th Cir. 2018) (emphasis in original) (quoting Costa v. Comm’r of Soc. Sec.
Admin., 690 F.3d 1132, 1135 (9th Cir. 2012)).
“Generally, when determining a reasonable hourly rate, the relevant community is
the forum in which the district court sits.” Camacho v. Bridgeport Fin., Inc., 523 F.3d 973,
979 (9th Cir. 2008) (citing Barjon v. Dalton, 132 F.3d 496, 500 (9th Cir. 1997)). In
addition, the court must consider the “rate prevailing in the community for similar work
performed by attorneys of comparable skill, experience, and reputation.” Barjon, 132 F.3d
at 502 (quoting Chalmers v. City of Los Angeles, 796 F.2d 1205, 1210–11 (9th Cir. 1986)).
A court may exclude from the fee calculation hours that were not “reasonably
expended,” such as hours which are “excessive, redundant, or otherwise unnecessary[.]”
Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). The “fee applicant bears the burden of
documenting the appropriate hours expended in the litigation and must submit evidence in
support of those hours worked.” Gates v. Deukmejian, 987 F.2d 1392, 1397 (9th Cir. 1992)
(citing Hensley 461 U.S. at 437). “The party opposing the fee application has a burden of

7

A court may adjust the lodestar figure based on a number of additional factors not subsumed in the initial
lodestar calculation. Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975). As neither party
argues for an adjustment, the Court will not address such factors here.

MEMORANDUM DECISION AND ORDER – 8

rebuttal that requires submission of evidence to the district court challenging the accuracy
and reasonableness of the hours charged or the facts asserted by the prevailing party in its
submitted affidavits.” Gates, 987 F.2d at 1397–98 (citations omitted).
“The calculation of the amount of a ‘reasonable attorney’s fee’ is not a precise
science.” Green v. Baca, 225 F.R.D. 612, 614 (C.D. Cal. 2005). Still, there is a “strong
presumption” that the lodestar figure “represents a reasonable” fee. Jordan v. Multnomah
Cty., 815 F.2d 1258, 1262 (9th Cir. 1987).
2. Discussion
FPS seeks an award of $36,181.50 in attorneys’ fees and $2,152.18 in costs. Dkt.
97-1, at 16. Before turning to the reasonableness of FPS’s fee request, the Court must first
address Dickinson’s contention that the Court should decline to award FPS any fees and
costs.
a. Rule 37(a)(5)(A)(i)–(iii)
Dickinson argues the Court failed to consider the Rule 37(a)(5)(A)(i)–(iii) factors
when finding FPS is entitled to fees. Dickinson contends:
[T]he Court appears erroneously to have overlooked the mandatory
exception expressly stated in Rule 37(a)(5)(A), whereby a reviewing court
must not award a party its fees and costs if: 1) the party filed its motion before
attempting in good faith to resolve the discovery dispute without court action;
2) the opposing party’s response to the moving party’s position was
substantially justified; or 3) other circumstances make the award of expenses
unjust.
Dkt. 99, at 8–9 (emphasis in original). Dickinson suggests the Court should deny FPS an

MEMORANDUM DECISION AND ORDER – 9

award of fees and costs under any of these three criteria. The Court disagrees.8
Dickinson first argues FPS must not be awarded fees and costs under Rule
37(a)(5)(A)(i) because FPS never mentioned its objection regarding “a purported lack of
14-days’ notice until it raised the issue for the first time in its actual motion.” Dkt. 99, at 9.
The text of Rule 37 requires only that the movant “attempt[]” to confer in good faith
without court action. Fed. R. Civ. P. 37(5)(A)(i); see also Fed. R. Civ. P. 37(a)(1) (requiring
that the movant have “in good faith conferred or attempted to confer with the person or
party failing to make disclosure or discovery in an effort to obtain it without court action.”).
Although Dickinson acknowledges the parties had “repeated exchanges” regarding FPS’s
objections to the Nelson, Pope, and Fazzari depositions, Dickinson maintains such
exchanges involved only FPS’s objection to Dickinson’s attempt to take more than ten
depositions, and that FPS never mentioned its objection to Dickinson’s failure to provide
timely notice. Dkt. 99, at 5. Dickinson also suggests FPS’s counsel never asked Dickinson
to postpone or reschedule the Nelson, Pope, and Fazzari depositions and “instead solely
demand[ed] that Dickinson stipulate that it could not use the deposition transcripts of the
Colmac employees (and others) at trial for purportedly failing to seek leave to exceed the
presumptive ten-deposition limit.” Id. at 6.
However, in its Third Motion for a Protective Order, FPS argued the Nelson, Pope,

8

Incidentally, although FPS requested fees pursuant to Rule 37(a)(5) in its Third Motion for Protective
Order (Dkt. 73, at 8–9) Dickinson did not address FPS’s fee request in its Response to FPS’s Motion. See
generally Dkt. 79. The Court did not “erroneously overlook” factors Dickinson did not raise when the Court
decided FPS was entitled to fees. Rather, the Court did not find the Rule 37(a)(5)(A)(i)–(iii) factors
applicable when it granted FPS’s Motion for a Protective Order and request for fees, and it does not find
them applicable now.

MEMORANDUM DECISION AND ORDER – 10

and Fazzari depositions were noticed just six days before they were scheduled to occur,
that FPS did not have adequate time to prepare for the depositions, and that the late noticed
depositions must not be used against FPS pursuant to Rule 32(a)(5)(A). Dkt. 73-1, at 8.
FPS specifically stated it would be amenable to the depositions taking place “if properly
noticed and not in excess of the 10-deposition limit.” Id. FPS’s counsel also certified that
he had attempted to resolve the dispute in good faith and submitted a declaration in support.
Id. at 9; Dkt. 73-2.
Despite having notice of FPS’s Rule 32(a)(5)(A) argument and its objection to the
late notice when FPS filed its Third Motion for Protective Order on August 9, 2019,
Dickinson did not offer to reschedule the August 12, 2019 depositions in order to provide
sufficient notice, and instead filed its Motion for Leave to Take Additional Depositions
later the same evening. While the Court understands Dickinson was concerned it could not
take the Nelson, Pope, and Fazzari depositions in time if they were rescheduled given the
August 30, 2019 deadline for its Motion for Reconsideration, Dickinson could have simply
asked the Court for an extension to this deadline. Although Dickinson suggests FPS did
not offer to stipulate to an extension, the Court has repeatedly granted extensions in this
case and, even if FPS would not so stipulate (which is unclear from the record), the Court
would have welcomed a Motion to Extend the deadline. Such motion would have saved
the parties and the Court a great deal of time—particularly in the alternative to the Third
Motion for Protective Order and Motion for Leave to Take Additional Depositions, which
are now essentially being litigated again after the Court first decided them.
Dickinson cites two cases in support of its claim that fees are inappropriate because
MEMORANDUM DECISION AND ORDER – 11

the notice issue was not raised before FPS filed its Motion. Dkt. 99, at 10 (citing Santiago
v. Select Portfolio Servicing, No. 07-cv-262-S-EJL, 2008 WL 130922, at *2 (D. Idaho Jan.
10, 2008) and Ferrell v. Speer, No. C17-5276 BHS, 2018 WL 3303144, at *8 (W.D. Wash.
July 5, 2018)). Both are inapposite because they involved attorneys’ failure to meet and
confer on different discovery requests. Santiago, 2008 WL 120922, at *2 (awarding fees
for plaintiff’s failure to provide initial disclosures where defense counsel had two
conversations with plaintiff’s counsel regarding the missing initial disclosures, but denying
fees for plaintiff’s missing discovery responses where defense counsel never conferred
with plaintiff’s counsel regarding plaintiff’s failure to respond to the discovery requests);
Ferrell, 2018 WL 3303144, at *8 (denying fees where counsel did not object to certain
specific discovery responses at all during the meet and confer process).
Here, both parties contend they made multiple attempts, including at least one phone
call, to resolve FPS’s opposition to the Pope, Nelson, and Fazzari depositions. Dkt. 99, at
5–6; Dkt. 103, at 2. During such exchanges, FPS argued the depositions were improper and
Dickinson maintained they should go forward. See, e.g., Dkt. 73-17. The Court was
obviously not privy to the parties’ final attempt to resolve the issue over the phone on
August 9, 2019, but there is no dispute the parties ultimately determined they could not
agree on whether or not the depositions should occur and would both proceed with motion
practice. Dkt. 73-2, at ¶ 30; Dkt. 74-2, at ¶ 40; Dkt. 79, 8–9.
Even if FPS did not voice each of its objections when discussing the depositions
with Dickinson, it is clear both parties repeatedly attempted to resolve the issue of whether
or not the depositions should occur before seeking the Court’s intervention. The Court
MEMORANDUM DECISION AND ORDER – 12

accordingly finds FPS attempted to confer with Dickinson in good faith in order to resolve
its objection to the Nelson, Pope, and Fazzari depositions before filing the Third Motion
for Protective Order. See, e.g., E.E.O.C. v. Global Horizons, Inc., 287 F.R.D. 644, 648
(E.D. Wash. 2012) (finding the parties sufficiently conferred prior to filing motion to
compel once it was clear the parties could not agree on a specific discovery issue); V5
Technologies v. Switch, Ltd., 334 F.R.D. 297, 302 (D. Nev. 2019) (holding plaintiff at least
“attempted” to confer by discussing specific discovery issue with opposing counsel and
noting “litigants should not expect courts to look favorably on attempts to use the prefiling
conference requirements as procedural weapons through which to avoid complying with
their discovery obligations.”).
Dickinson next argues fees must not be awarded pursuant to Rule 37(a)(5)(A)(ii)
because its opposition to FPS’s notice argument was substantially justified. Dickinson
notes a party’s opposition to a discovery dispute or motion is substantially justified where
it had a reasonable basis in law and fact. Dkt. 99, at 10 (citing Ulrich v. Schweiker, 548 F.
Supp. 63, 65 (D. Idaho 1982)).
Dickinson suggests its opposition to FPS’s objection that it had less than fourteen
days’ notice had a reasonable basis in law because, while some federal case law holds Rule
32(a)(5)(A)’s notice requirement is mandatory, other federal courts have held the rule still
vests courts with discretion to decide whether a deposition taken on short notice should be
permitted. In support, Dickinson cites Mezu v. Morgan State Univ., No. CV WMN-092855, 2014 WL 12734011, at *1 (D. Md. May 13, 2014) and Landis v. Galarneau, No.
2:05-CV-74103, 2010 WL 446445, at *2 (E.D. Mich. Jan. 28, 2010).
MEMORANDUM DECISION AND ORDER – 13

Although both the Mezu and the Landis courts stated Rule 32(a)(5)(A) does not
remove the discretion of the court to permit depositions on short notice, neither case
supports Dickinson’s position because both courts had the opportunity to rule on a party’s
motion for protective order before the contested depositions occurred. Crucially, unlike in
this case, a motion for a protective order was not pending in either Mezu or Landis when
the late-noticed depositions took place. For instance, in Mezu, a motion for protective order
was not pending at the time of the contested deposition because the court denied the motion
the morning the deposition was scheduled to occur. Mezu, 2014 WL 12734011, at *2
(noting the parties were informed by telephone call from chambers the morning of the
short-noticed deposition that the motion for protective order was denied and the deposition
would go forward); see also Landis, 2010 WL 446445, at *2 (denying Motion to Quash
the day of the deposition). As both the Mezu and Landis courts explained, Rule 32(a)(5)(A)
“provides that if a deposition is scheduled on short notice and a prompt motion for a
protective order is filed requesting that the deposition not be taken or be taken at a different
time or place, and this motion was still pending when the deposition was taken, then the
deposition may not be used against the objecting party.” Landis, 2010 WL 446445, at *2
(emphasis in original); Mezu, 2014 12734011, at *2.
The decisions in Landis and Mezu illustrate that a court does not lack discretion to
allow a short-noticed deposition to move forward if a motion for protective is not pending
at the time of the deposition. However, where, as here, a motion for protective order is
pending at the time of a short-noticed deposition, then “the deposition must not be used”
against the objecting party. Fed. R. Civ. P. 32(a)(5)(A) (emphasis added).
MEMORANDUM DECISION AND ORDER – 14

Dickinson vacated Colmac Coil’s 30(b)(6) deposition, and noticed the depositions
of Nelson, Pope, and Fazzari, on August 5, 2019. The depositions were scheduled to start
at 9:00 a.m. on Monday, August 12, 2019. Thus, when FPS filed its Third Motion for
Protective Order at 5:29 p.m. on Friday, August 9, 2019, it was not substantially justified
for Dickinson to respond with its own Motion for Leave to Take Additional Depositions at
9:53 p.m. the same night, and to move forward with the depositions at 9:00 a.m. the next
business day. Even if the Court would have exercised its discretion to allow the shortnoticed depositions to move forward had it had time to address the Third Motion for
Protective Order before the depositions took place, the Court lacked such discretion once
the depositions started on August 12, 2019.
Dickinson also contends its opposition to FPS’s Third Motion for Protective Order
was substantially justified because, in a case cited by this Court when granting the
protective order, King v. O’Reilly Automotive Stores, Inc., No. C13-1220JLR, 2013 WL
4511476, at *2 (W.D. Wash. Aug. 22. 2013),9 the court held Rule 32(a)(5)(A) did not apply
when the parties informally agreed to schedule a deposition, even though the objecting
party lacked at least fourteen-days “formal notice.” Dickinson suggests FPS had informal
notice of the Nelson, Pope, and Fazzari depositions because Dickinson sent its Rule
30(b)(6) Notice of Colmac Coil’s deposition nineteen days before August 12, 2019.
However, the defendant in King agreed to the deposition of specific witness, on a

9

In King, the court stated, “Rule 32(a)(5) is the only provision of the Federal Rules that affirmatively
requires exclusion of a deposition taken on short notice.” Id. The Court cited King for this proposition in
granting FPS’s Third Motion for Protective Order. Dkt. 93, at 14.

MEMORANDUM DECISION AND ORDER – 15

specific date, more than fourteen days prior to the deposition, and was also aware the
plaintiff would not send formal notice of the deposition until approximately nine days
before the deposition, when plaintiff’s counsel returned from vacation. Id. at *2. The King
court explained:
Under these circumstances, where [defendant’s] counsel agreed to the
scheduling of a disputed deposition on a particular date and that agreement
occurred more than fourteen days prior to the deposition, and where
[defendant’s] counsel was informed that formal notice of the deposition
would be served on less than fourteen days’ notice and did not object, the
court finds that [defendant] did have more than fourteen days’ notice of the
deposition—even if formal notice was sent less than fourteen days prior to
the deposition. Accordingly, the court cannot conclude that the affirmative
prohibition against using the deposition contained in Rule 32(a)(5)(A)
applies[.]
Id.
By contrast, here FPS did not consent to Nelson, Pope, or Fazzari’s depositions, and
instead strongly opposed them. Although FPS agreed to Colmac Coil’s 30(b)(6) deposition,
it never agreed to individual depositions of three of Colmac Coil’s employees. While
Dickinson suggests notice of Colmac Coil’s 30(b)(6) deposition provided informal notice
of the individual depositions of Nelson, Pope, and Fazzari, a Rule 30(b)(6) deposition is
substantially different from the testimony of an individual. See, e.g., Louisiana Pac. Corp.
v. Money Market Institutional Inv. Dealer, 285 F.R.D. 481, 487 (N.D. Cal. 2012); Doe v.
Trump, 329 F.R.D. 262, 273 (W.D. Wash. 2018) (explaining the deposition of an individual
and a deposition of the representative of an organization, even if they are the same person,
“are two distinct matters and can be utilized as distinct forms of evidence.”).
Although FPS consented to, and had more than fourteen days’ notice of, Colmac

MEMORANDUM DECISION AND ORDER – 16

Coil’s 30(b)(6) deposition, it did not have any notice of the depositions of Nelson, Pope,
and Fazzari as individuals until six days before the depositions were scheduled to occur.
As FPS argued in its Reply in support of the Third Motion for Protective Order, the Court
cannot accept Dickinson’s “argument that, because the names of Fazzari, Pope, and Nelson
were mixed in with some of the 42 different Rule 30(b)(6) topics provided to Colmac, FPS
should have divined that Dickinson was going to ‘swap’ the single 30(b)(6) deposition for
these three fact witnesses mere days before the depositions were to occur and in violation
of the Rules[.]” Dkt. 87, at 5. Under such circumstances, the Court rejects Dickinson’s
argument that its opposition to FPS’s Third Motion for Protective Order was substantially
justified because FPS purportedly had informal notice of the Nelson, Pope, and Fazzari
depositions.
Dickinson also argues its opposition to FPS’s Third Motion for Protective Order
had a reasonable basis in fact because “FPS suffered no prejudice from the purportedly late
notice, and, in fact, under the circumstances, received greater notice of what questions
would be asked at the deposition than if Dickinson had noticed the witnesses individually
to begin with.” Dkt. 99, at 11 (emphasis in original). Dickinson highlights its 30(b)(6) Rider
“expressly referenced Nelson, Pope, and Fazzari by name,” and suggests FPS thus had an
outline of what Dickinson would ask Nelson, Pope, and Fazzari nineteen days before their
depositions took place. Dkt. 99, at 11–12.
Although prejudice is not a factor in the Rule 37(a)(5)(A)(i)–(iii) analysis, FPS
explained in its Third Motion for Protective Order that due to Dickinson’s improper notice,
it was unable to adequately prepare for the Nelson, Pope, and Fazzari depositions. Dkt. 73MEMORANDUM DECISION AND ORDER – 17

1, at 8 (“Because he was attending to other depositions out of state (that Dickinson had
previously noticed), counsel for FPS has not had sufficient time to properly prepare for
these new fact depositions in just six days’ time.”). In its Reply brief, FPS also highlighted
it did not have time to adequately question Nelson, Pope, and Fazzari, or to participate fully
in their depositions, since all three depositions occurred in one day and Dickinson took the
majority of the time with its own questions. Dkt. 87, at 4–5. Despite Dickinson’s unilateral
assessment of FPS’s ability to adequately prepare and participate in the Nelson, Pope, and
Fazzari depositions, parties are required to comply with the Federal Rules of Civil
Procedure and Dickinson’s failure to do so was not factually justified.
Finally, Dickinson suggests awarding FPS fees would be unjust under Rule
37(a)(5)(A)(iii) because FPS failed to meet and confer on the notice issue and because
Dickinson’s position was substantially justified. As explained above, the Court finds FPS
did attempt to resolve its objection to the depositions in good faith before seeking the
Court’s intervention, and Dickinson’s opposition to FPS’s Third Motion for Protective
Order was not legally or factually justified.
Dickinson also contends it would be particularly unjust to award FPS its fees and
costs because Dickinson offered to mitigate prejudice to FPS “from allegedly having
inadequate time to prepare for the Colmac depositions by offering to stipulate to allow FPS
to re-open the Colmac Coil depositions and that Dickinson would bear some responsibility
for a reasonable portion of those costs and fees for FPS to complete its cross-examination
and additional questioning.” Dkt. 99, at 12 (emphasis in original). However, Dickinson
appears to have first offered to so stipulate on July 2, 2020, almost a year after FPS filed
MEMORANDUM DECISION AND ORDER – 18

its Third Motion for Protective Order on August 9, 2019, and only after the Court had
already ruled FPS was entitled to reasonable fees. Dkt. 93, at 19; Dkt. 99-2, Ex. D. Because
FPS incurred the fees associated with its Third Motion for Protective Order long before
Dickinson made the aforementioned offer, it would be unjust to deny FPS its fees and costs.
In short, none of the Rule 37(a)(5)(A)(i)–(iii) exceptions apply. The Court
accordingly turns to Dickinson’s argument that the Court should drastically reduce FPS’s
requested fees and costs.
b. Scope of Available Fees
Dickinson notes sanctions under Rule 37(a)(5) are “limited to only those costs
‘incurred in bringing the motion.’” Dkt. 99, at 13–14. While the Court agrees with this
general proposition, federal courts have interpreted expenses and fees “incurred in making
the motion” more expansively than Dickinson suggests. Fed. R. Civ. P. 37(a)(5)(A). For
instance, in a case Dickinson cites—Morgan Hill Concerned Parents Ass’n v. Cal. Dep’t
of Educ., No. 2:11-cv-03471-KJM-AC, 2017 WL 2492850, at *3 (E.D. Cal. June 9,
2017)—the court held plaintiffs were entitled to recover fees “related to bringing their
motion to compel.” While the Morgan Hill court explained plaintiffs were not entitled to
recover fees for “everything they have ever done related to discovery in this case,”10
plaintiffs were permitted to recover for 263.83 attorney hours and 62.66 paralegal hours in
“fees related to actually litigating their motion to compel.” Id. Although the Morgan Hill
10

The Morgan Hill court held plaintiffs could not recover for discovery time entries dating back several
months before their motion to compel was brought, including hours for general discovery tasks and case
preparation. Here, FPS does not seek to recover for general discovery or case preparation, and instead
requests compensation for expenses incurred as a result of litigating the specific discovery issue of the
Nelson, Pope, and Fazzari depositions.

MEMORANDUM DECISION AND ORDER – 19

court did not delineate the specific tasks related to “actually litigating the motion to
compel,” plaintiffs’ counsel and paralegal clearly could not have spent nearly 330 hours—
approximately two months of working hours—simply briefing a motion to compel.
In Liew v. Breen, 640 F.2d 1046, 1051 (9th Cir. 1981), the Ninth Circuit explained
a party may recover under Rule 37(a)(5) for “expenses resulting from efforts to secure an
order compelling discovery.” While some federal courts have held such expenses include
only those related to drafting and arguing a discovery motion, Brown v. City of Glendale,
No. CV-18-01267-PHX-DWL, 2019 WL 3412585, at *4 (D. Ariz. July 29, 2019), others
have interpreted “expenses resulting from efforts to secure” a discovery order more
broadly. Liew, 640 F.2d at 1051. For instance, judges in the District of Idaho have held
such expenses include, inter alia, fees for time spent trying to resolve a discovery issue
prior to bringing a discovery motion, costs associated with attending a disputed deposition,
fees for time spent preparing for a contested deposition, and fees responding to the
opposing party’s corresponding motion on the same issue. See W. Mortg. & Realty Co.,
2016 WL 11643651, at *2 (explaining “[t]he Court disagrees with Defendants’
characterization that only the fees incurred in the actual drafting of a motion to compel are
recoverable” and awarding fees “directly related” to the Court’s discovery order, including
fees for time spent meeting and conferring prior to filing the motion to compel) (emphasis
in original); Hunzeker v. Butler, No. 4:12-cv-00421-BLW, 2013 WL 3976280, at *3 (D.
Idaho Aug. 5, 2013) (“[T]he Court will order [Defendant] and her attorney to pay Plaintiff’s
costs and fees associated with the motion to compel, including counsel’s time spent
informally trying to mediate the issue and the cost of the transcript and recorder travel
MEMORANDUM DECISION AND ORDER – 20

fees”); Britton v. Dallas Airmotive Inc., No. 07-cv-547-S-EJL-LMB, 2008 WL 11348499,
at *3 (D. Idaho Oct. 30, 2008) (awarding fees for time spent preparing for a deposition);
Nelson-Ricks Cheese Co. v. Lakeview Cheese Co., No. 4:16-cv-00427-DCN, 2020 WL
1465738, at *4 (D. Idaho Mar. 25, 2020) (“Nelson-Ricks II”) (awarding fees for expenses
incurred in both defending against motion to quash and bringing corresponding motion to
compel). The Court accordingly rejects Dickinson’s narrow interpretation of the
appropriate definition of “expenses incurred in making the motion” under Rule 37(a)(5).
Having considered Dickinson’s contention regarding the appropriate scope of FPS’s
fee award, the Court will assess each category of fees Dickinson argues the Court should
exclude.
i. Fees for Portions of FPS’s Motion the Court Denied
Federal Rule of Civil Procedure 37(a)(5)(C) provides the Court may “apportion the
reasonable expenses” for a motion that is granted in part and denied in part. Pursuant to
Rule 37(a)(5)(C), Dickinson maintains FPS may not recover the portion of FPS’s Third
Motion for Protective Order that the Court denied. Dickinson suggests:
In reviewing FPS’s Motion and related briefing and materials, a substantial
majority of FPS’s drafting and arguments focus solely on arguments that the
Court denied. Indeed, of the eighteen (18) pages of briefing that FPS
submitted, at best for FPS, only five (5) pages of that briefing (or 27%) relates
to the insufficient notice argument. Accordingly, the Court can and should
assess an appropriate 73% reduction of FPS’s time entries for that Motion
practice (i.e., award at most 27% of those entries) to reflect those portions of
FPS’s Motion that this Court denied as moot.
Dkt. 99, at 15. Again, the Court disagrees.
In its Third Motion for Protective Order, FPS argued both that: (1) the Nelson, Pope,

MEMORANDUM DECISION AND ORDER – 21

and Fazzari depositions were improperly noticed under Rule 32(a)(5)(A); and (2) the
depositions improperly exceeded the ten-deposition limit under Rule 30(a)(2). Because the
Court granted FPS relief under Rule 32(a)(5)(A), it denied FPS’s Rule 30(a)(2) argument
as moot since, without the depositions of Nelson, Pope, and Fazzari, Dickinson had only
taken a total of ten depositions. Yet, as FPS highlights, “the Court did not have to reach the
second issue precisely because it ruled in favor of FPS on the first.” Dkt. 103, at 5
(emphasis in original).
Thus, this is not a case where apportionment is appropriate because the Court
rejected certain arguments or only awarded FPS a portion of the relief it sought in filing its
discovery motion. See W. Mortg. & Realty Co., 2016 WL 11643651, at *1 (awarding 78%
of the fees requested where the court ordered defendants to produce 78% of the documents
plaintiffs sought in motion to compel). Instead, because it prevailed on its Rule 32(a)(5)(A)
argument, FPS achieved 100% of the relief it sought in the Third Motion for Protective
Order: preclusion of the August 12, 2019 Nelson, Pope, and Fazzari depositions. That the
Court did not need to address every argument FPS presented in its motion does not mean
FPS cannot recover fees for the entirety of its briefing on the Third Motion for Protective
Order. See, e.g., Signatours Corp. v. Hartford, No. C14-1581-RSM, 2016 WL 4533048, at
*2 (W.D. Wash. June 14, 2016) (rejecting party’s request to reduce fee award based on
portion of the motion to compel that was the “relevant or winning argument.”).
The Court exercises its discretion under Rule 37(a)(5) and declines to apportion the
reasonable expenses FPS incurred in making the Third Motion for Protective Order.

MEMORANDUM DECISION AND ORDER – 22

ii.

Fees Associated with Opposing Dickinson’s Motion for Leave to Take
Additional Depositions

Dickinson similarly suggests FPS is not entitled to recover fees associated with
opposing Dickinson’s Motion for Leave to Take Additional Depositions (“Dickinson’s
Motion”) since the Court denied Dickinson’s Motion as moot. Yet, the Court only
determined Dickinson’s Motion was moot because it granted FPS’s Third Motion for
Protective Order. Since FPS was successful in excluding the Nelson, Pope, and Fazzari
depositions, the Court did not need to substantively rule on Dickinson’s Motion. Dkt. 93,
at 18.
Due to Dickinson’s decisions to vacate Colmac Coil’s 30(b)(6) deposition and to
move forward with the Nelson, Pope, and Fazzari depositions after having notice of FPS’s
objection, FPS was essentially forced to brief the same issues twice. Further, Dickinson’s
failure to comply with Federal Rules of Civil Procedure 32(a)(5)(A) and 30(a)(2)
necessitated both FPS’s Third Motion for Protective Order and its opposition to
Dickinson’s Motion. Rule 30(a)(2) requires either leave of the Court or a written stipulation
of the parties in order to take more than ten depositions. Dickinson had neither prior to
noticing (and taking) the depositions of Nelson, Pope, and Fazzari. Dkt. 93, at 16–18. As
such, the Court finds FPS is entitled to recover the expenses it incurred in responding to
Dickinson’s Motion. See Nelson-Ricks II, 2020 WL 1465738, at *4 (awarding defendant
fees associated with both defending against plaintiff’s motion to quash and bringing its
own motion to compel, and noting such motions “all could have been avoided had
[plaintiff] been willing to adhere to notions of fair play and courtesy in litigation”).

MEMORANDUM DECISION AND ORDER – 23

iii.

Fees for Traveling to and Attending the Nelson, Pope, and Fazzari
Depositions

Dickinson also argues the fees associated with traveling to and attending the Nelson,
Pope, and Fazzari depositions should be excluded from FPS’s fee award. In support,
Dickinson cites American Hangar, Inc. v. Basic Line, Inc., 105 F.R.D. 173, 175 (D. Mass.
1985). Dkt. 99, at 15–16. In American Hangar, defense witnesses refused to answer certain
questions during a deposition, and plaintiff subsequently filed a motion to compel requiring
the witnesses’ responses. The court granted the motion and awarded fees, but excluded the
costs for attending the deposition from the award, holding “there is no power to include in
[a fee award under Rule 37(a)] the costs associated with taking the deposition at which the
refusal to answer occurred.” American Hangar, 105 F.R.D. at 175.
In a more recent District of Massachusetts case, the court held expenses incurred in
making a motion for a protective order under Rule 30(a)(2) included both those “incurred
by [counsel] in participating in the eleventh and twelfth depositions,” as well as those
incurred in drafting the motion. Advanced Sterilization Products, etc. v. Jacobs, 190 F.R.D.
284, 287 (D. Mass. 2000). The distinction between the holding in American Hangar and
that in Advanced Sterilization makes sense because, in American Hangar, the deposition
would have occurred, and plaintiff would have incurred expenses for it, regardless of
whether the defense witnesses refused to answer certain questions during the deposition.
However, in Advanced Sterilization, and here, the party who moved for a protective order
sought to preclude the contested depositions from occurring at all.
FPS would not have attended the Nelson, Pope, and Fazzari depositions, and would

MEMORANDUM DECISION AND ORDER – 24

not have incurred the fees and costs associated with such attendance, if it had been able to
obtain the protective order the Court ultimately granted prior to such depositions. The
Court accordingly exercises its discretion under Rule 37(a)(5) to include fees related to
traveling to and attending the Nelson, Pope, and Fazzari depositions in FPS’s fee award.
Hunzeker, 2013 WL 3976280, at *3; Britton, 2008 WL 11348499, at *3 (awarding fees
under Rule 37(a)(5)(A) not just for the expenses related to drafting the motion for
protective order, but also costs for “arranging the deposition, booking travel, and preparing
for the deposition again”).
iv.

Fees for FPS’s Attempts to Meet and Confer

Dickinson next contends the Court should decline to award FPS fees incurred for
“meet and confer” or “other informal attempts to resolve the discovery dispute.” Dkt. 99,
at 16–17. Courts are divided on the compensability of time spent trying to meet and confer
prior to filing a discovery motion. Infanzon, 335 F.R.D. at 314; DCD Partners, LLC v.
Transamerica Life Co., No. 2:15-cv-03238-CAS, 2018 WL 6252450, at *3 (C.D. Cal.
2018) (highlighting conflict and citing cases). As Dickinson points out, some federal courts
have held such fees are not recoverable because the moving party would have had to incur
such expenses regardless of whether that party ultimately filed a discovery motion. Dkt.
99, at 17 (citing Manning v. Soo Line R.R. Co., 16-cv-1011-LTS, 2017 WL 811903, at *2
(N.D. Iowa Mar. 1, 2017)). Other federal courts—including the District of Idaho—have
found such fees are compensable costs incurred in obtaining a discovery order. See, e.g.,
W. Mortg. & Realty Co., 2016 WL 11643651, at *2 (“The expense of a lawyer’s time spent
informally trying to resolve the matter prior to filing of a motion to compel is recoverable
MEMORANDUM DECISION AND ORDER – 25

under Rule 37(a)(5), and such informal attempts to resolve such disputes are strongly
encouraged by the rules and the Court”); Hunzeker, 2013 WL 3976280, at *3 (awarding
“costs and fees associated with the motion to compel, including counsel’s time spent
informally trying to mediate the issue”); DCD Partners, 2018 WL 6252450, at *3
(affirming Magistrate Judge’s determination that such costs were allowable because
“[m]eeting and conferring (and preparing for it) is no less important and no less the result
of discovery misconduct than legal research, drafting a joint stipulation, or satisfying any
other prerequisite to filing a motion to compel”).
In this case, FPS would not have incurred fees associated with its attorney’s attempt
to meet and confer if Dickinson had provided appropriate notice and obtained either FPS’s
stipulation or leave of the Court prior to taking the depositions of Nelson, Pope, and
Fazzari. Dickinson did not do so, and also did not postpone the depositions once FPS
objected. The Court finds FPS incurred the expenses for its attorney’s attempts to meet and
confer in obtaining the protective order and will accordingly award FPS expenses for the
time spent attempting to resolve its objection to the Nelson, Pope, and Fazzari depositions.
v.

Costs of Travel Expenses and Computerized Research

District Courts within the Ninth Circuit have held “reasonable expenses” under Rule
37(a)(5) can include an award of costs. Aevoe Corp., 2013 WL 5324787, at *8 (holding the
expenses allowed under Rule 37 “include both attorneys’ fees and costs reasonably
incurred in bringing the motion to compel.”). Dickinson suggests FPS cannot recover the
costs of its travel expenses because FPS would have been obligated to attend the Nelson,
Pope, and Fazzari depositions regardless of whether further examination of such witnesses
MEMORANDUM DECISION AND ORDER – 26

is necessary. Dkt. 99, at 18. However, as mentioned, FPS would not have attended the
Nelson, Pope, and Fazzari depositions had it obtained the protective order the Court
ultimately granted prior to such depositions.
Dickinson also cites a District of North Carolina case holding “computerized legal
research” was not recoverable under the “plain language” of Rule 37(a)(5). Id. (citing
Raynor v. G4S Secure Solutions (USA) Inc., 327 F. Supp. 3d 925, 950 (W.D.N.C. 2018)).
As explained above, courts within this circuit have interpreted expenses incurred in making
a motion under Rule 37(a)(5) more broadly than simply drafting the motion, and have also
specifically awarded costs for computerized legal research. Aevoe Corp., 2013 WL
5324787, at *8; see also Sure Safe Indus., Inc. v. C & R Pier Mfg., 152 F.R.D. 625, 626
(S.D. Cal. 1993) (finding fees associated with bringing motion to compel “properly
included . . . out-of-pocket expenses, including travel, telephone, mailing, copying and
computerized legal research expenses”). The Court will thus award FPS the costs it would
not have incurred but for Dickinson’s discovery misconduct, including the costs of travel
and computerized legal research.
vi.

Fees for drafting Motion for Award of Attorney’s Fees and Costs

Finally, Dickinson argues FPS cannot recover the expenses associated with drafting
its fee petition because federal case law “supports that fees incurred solely after the Court
issues its ruling on a contested discovery motion are not recoverable.” Dkt. 99, at 17
(emphasis in original) (citing Lorillard Tobacco Co. v. Elston Self Serv. Wholesale
Groceries, Inc., 259 F.R.D. 323, 329 (N.D. Ill. 2009)).
Federal courts within the Ninth Circuit, including the District of Idaho, have held
MEMORANDUM DECISION AND ORDER – 27

the fees incurred in preparing a fee application are recoverable when a party seeks
reasonable expenses associated with bringing a successful motion under Rule 37(a)(5). W.
Mortg.& Realty Co., 2016 WL 11643651, at *2 (finding attorney fees were compensable
where, as here, a party complied “with the request of the Court in filing a separate fees
petition”); Sure Safe, 152 F.R.D. at 627 (holding attorneys’ fees in preparation of fee
petition are recoverable under Rule 37(a)); Matlink, Inc. v. Home Depot U.S.A., Inc., No.
07-cv-1994-DMS, 2008 WL 8504767, at *6 (S.D. Cal. Oct. 27, 2008) (“Contrary to
Plaintiffs’ assertion, time spent litigating a fee petition [for successful motion to compel]
is compensable”); TVI, Inc. v. Harmony Enterprises, Inc., No. C18-1461-JCC, 2019 WL
5213247, at *1 (W.D. Wash. Oct. 16, 2019) (explaining a party may be awarded reasonable
fees in preparing a subsequent fee application once it obtains an order compelling discovery
under Rule 37(a)(5)). As the Southern District of California highlighted when awarding
expenses associated with preparing a fee petition under Rule 37(a)(5), “compensation for
time spent litigating a fee petition ‘must be included in calculating a reasonable fee because
uncompensated time spent on petitioning for a fee automatically diminishes the value of
the fee eventually received.’” Matlink, 2008 WL 8504767, at *6 (quoting Anderson v. Dir.,
Office of Workers Comp. Programs, 91 F.3d 1322, 1325 (9th Cir. 1996)).
The Court finds such cases persuasive and exercises its discretion under Rule
37(a)(5) to award FPS the fees associated with bringing its Motion for Attorney Fees and
Costs.
c. Reasonable Hourly Rates and Amount of Hours Reasonably Expended
Dickinson also challenges the rates and number of hours FPS seeks to collect. The
MEMORANDUM DECISION AND ORDER – 28

Court agrees that certain rates FPS seeks, as well as hours it expended for which it requests
compensation, are not reasonable.
i.

Reasonable Hourly Rates

It is undisputed that the relevant community for assessing the reasonable hourly rate
is Boise, Idaho, where this Court sits. Dkt. 97-1, at 13; Dkt. 99, at 19. However, the relevant
community alone does not establish a reasonable hourly rate. Instead, “‘the burden is on
the fee applicant to produce satisfactory evidence—in addition to the attorney’s own
affidavits—that the requested rates are in line with those prevailing in the community for
similar services by lawyers of reasonably comparable skill, experience and reputation.’”
Camacho, 523 F.3d at 980 (quoting Blum, 465 U.S. at 895 n. 11). Conclusory affidavits as
to what constitutes a reasonable rate, even if from other attorneys working in the same area
of law, are insufficient to establish the prevailing market rate. See Widrig v. Apfel, 140 F.3d
1207, 1209–10 (9th Cir. 1998).
Here, FPS requests the following hourly rate for the Stoel Rives, LLP attorneys and
paralegal who worked on this matter:
Name

Title

Experience

Hourly Rate

Elijah M. Watkins

Partner

11 years

$370

Anna E. Courtney

Associate

6 years

$340

Jennifer S. Palmer

Associate

5 years

$340

Megan A. Olmstead

Associate

1 year

$245

Rollo M. Scott

Associate

<1 year

$245

Jacqueline Franolich

Paralegal

23 years

$220

MEMORANDUM DECISION AND ORDER – 29

Although FPS submitted the declaration of Aaron Chandler, Of Counsel for Holland
& Hart LLP, to support such rates, Mr. Chandler simply concludes: “It is my opinion that
the hourly rates for the aforementioned attorneys and paralegals are (a) similar to the rates
charged by commercial litigation attorneys and paralegals with similar reputations,
experience, and expertise in Boise, including attorneys at Holland & Hart; and (b)
reasonable for this type of case.” Dkt. 97-7, at ¶ 10. Mr. Chandler identifies the years of
experience and position of each of the aforementioned professionals but does not specify
the rates Holland & Hart charges for the same positions and levels of experience. Instead,
Mr. Chandler generally notes “Holland & Hart charges between $280 and $600 for
litigation services of attorneys in the Boise office, depending on various factors [including]
the nature of the litigation and experience of the attorney.” Id. at ¶ 8. In the absence of any
delineation between the amounts charged for specific experience levels or types of
litigation, the Court cannot assess how Holland & Hart distinguishes between hourly rates,
or where FPS’s fees should fall within the wide range of $280 to $600 per hour charged by
Holland & Hart.
FPS also submitted the declaration of Elijah Watkins, its lead counsel on this case.
Dkt. 97-2. Mr. Watkins provided additional information about himself, including his legal
and educational background. Mr. Watkins also detailed the educational backgrounds and
legal experience of the other attorneys and paralegal who worked on this matter. While
such information provides a more complete picture of FPS’s attorneys’ and paralegal’s
skill, experience, and reputation, it lacks any information regarding rates charged by
comparable attorneys within the Boise area.
MEMORANDUM DECISION AND ORDER – 30

In its Motion for Attorney Fees and Costs and Reply brief, FPS also compares its
requested rates with other hourly rates awarded by the undersigned and other judges in the
District of Idaho. Dkt. 97-1, at 13–15; Dkt. 103, at 9–10. While such cases are helpful, they
do not shed light on whether FPS’s attorneys and paralegal possess experience comparable
with the attorneys discussed in such decisions. For instance, FPS cites cases awarding rates
between $225 and $290 an hour for associates but does not identify the years of experience
associated with such awards. Dkt. 97-1, at 13–14. Nor does FPS explain why it seeks the
significantly higher rate of $340 an hour for two of its associates.
FPS also cites Balla v. Idaho State Board of Corr., No. 81-cv-1165-BLW, 2016 WL
6762651, at *12 (D. Idaho Feb. 1, 2016) for the general proposition that, in 2016, Holland
& Hart (a firm FPS characterizes as “comparable to Stoel Rives”) charged between $195
and $495 an hour for the litigation services of the attorneys in its Boise office. Dkt. 97-1,
at 13–14. FPS does not provide further details regarding how such fees were delegated
based on experience level or any other criteria.
FPS similarly cites a prior decision where this Court awarded a rate of $435 an hour
for an Of Counsel attorney at Holland & Hart, and $225 an hour for an associate. Id. (citing
Nelson-Ricks Cheese Company, Inc. v. Lakeview Cheese Co., LLC, 4:16-cv-00427-DCN,
2018 WL 2248588, at *2 (D. Idaho May 15, 2018) (“Nelson-Ricks I”). FPS does not
compare the experience of Mr. Watkins with the Holland & Hart attorney awarded “the
higher end of the Boise legal market” in Nelson-Ricks I, and does not explain why the Court
should award a higher 2019 rate for each of its associates than the $225 an hour awarded
to a Holland & Hart associate with approximately eight-years of experience in 2018.
MEMORANDUM DECISION AND ORDER – 31

Nelson-Ricks I, 2018 WL 2248588, at *2. See https://hollandandhart.com/boise#people.
While the Court does not expect a detailed comparison between specific attorneys
or law firms, FPS’s citation to general billing ranges awarded in a few cases (without any
identification of the experience associated with the attorneys who billed such rates) is not
nearly as helpful as would be a comparison between the experience levels and billing rates
of Stoel Rives’ attorneys with those of other regional Boise law firms. Evidence that rates
as high of $495 were charged by one firm, or that a rate as high as $435 was awarded in
one case, does not establish the prevailing rates in Boise. Barjon, 132 F.3d at 502.
Dickinson argues the rates FPS requests exceed the prevailing market rates for
commercial litigation attorneys in Boise, and submitted the declaration of Merlyn W. Clark
in support. Dkt. 99-2, Ex. F. Mr. Clark, a senior litigation partner with Hawley Troxell
Ennis & Hawley LLP, has fifty-six years of litigation experience, and has also determined
and awarded reasonable attorney fees as an approved arbitrator for Idaho state and federal
courts. In his declaration, Mr. Clark detailed specific billing rates, associated with specific
levels of experience, for various Boise law firms engaged in commercial litigation services.
Mr. Clark also reviewed and relied upon the declarations submitted by FPS, as well as on
fee awards in seven cases within the District of Idaho, including several of the cases FPS
cites, to identify the prevailing market rates.
Mr. Clark concluded the prevailing 2019 attorney fee rates for litigation attorneys
in Boise were: $320 to $375 an hour for senior litigation attorneys with more than fifteen
years of experience; $195 to $320 an hour for junior litigation attorneys with five to fifteen
years of experience; and less than $195 per hour for attorneys with less than five years of
MEMORANDUM DECISION AND ORDER – 32

experience. Based on such rates, Mr. Clark determined the following are reasonable 2019
rates for FPS’s attorneys and paralegal:
Name

Title

Experience

Requested Rate

Proposed Rate

Elijah M. Watkins

Partner

11 years

$370

$300

Anna E. Courtney

Associate

6 years

$340

$225

Jennifer S. Palmer

Associate

5 years

$340

$220

Megan A. Olmstead

Associate

1 year

$245

$190

Rollo M. Scott

Associate

<1 year

$245

$190

Jacqueline Franolich

Paralegal

23 years

$220

$175

Id.
In its Reply brief, FPS faults Mr. Clark for relying on rates from four law firms that
are “smaller and more local than Stoel Rives and would therefore tend to charge lower
rates.” Dkt. 103, at 10. While the Court does believe an upward adjustment to Dickinson’s
proposed hourly rates is appropriate because “regional firms typically bill at higher hourly
rates than smaller Boise firms,” the Court also does not have sufficient information
regarding the rates charged by FPS’s attorneys and paralegal—when compared to similarly
situated attorneys in Boise—to approve the rates FPS seeks. Sparks v. Allstate Med. Equip.,
Inc., No. 1:14-cv-00166-EJL-CWD, 2016 WL 5661758, at *3 (D. Idaho Sept. 29, 2016).
Ultimately, FPS has not met its burden of producing satisfactory evidence that the
requested rates are in line with those prevailing in the community for similar services by
lawyers of reasonably comparable skill, experience, and reputation. Camacho, 523 F.3d at
980. The Court will accordingly rely on Dickinson’s suggested rates, as well as “its own
MEMORANDUM DECISION AND ORDER – 33

familiarity with the legal market,” to determine the prevailing market rates. Ingram v.
Oroudjian, 647 F.3d 925, 928 (9th Cir. 2011).
The Court adjusts the hourly rate for Ms. Olmstead and Mr. Scott from $245 to $200
per hour. This accounts for Stoel Rives’ higher billing rate as a large regional firm and is
also above hourly rates for attorneys with more experience that this Court has authorized
for associates of smaller Boise law firms. Fuller v. State of Idaho, Dep't of Corr., 1:13-cv00035-DCN, 2019 WL 6332850, at *3 (D. Idaho Nov. 26, 2019), Dkt. 164, at 6 (approving
$175 an hour for an associate of small regional firm with three years of experience); Norton
v. Maximus Inc., No. 1:14-cv-30-WBS, 2016 WL 6247004, at *2, Dkt. 141-2, at ¶ 20
(awarding $180 hourly rate for associate of small Boise law firm with more than two years
of experience).
The Court also adjusts the hourly rate for Ms. Courtney and Ms. Palmer from $340
to $250 per hour. Although well below the $340 an hour FPS requests, awarding $250 per
hour for associates with five to six years of experience is significantly more than the rate
charged for attorneys with comparable experience at the Boise law firms Mr. Clark cites.
Dkt. 99-2, Ex. F. It is also higher than hourly rates this Court has previously awarded for
associates with similar experience levels. See, e.g., Gonzales on behalf of A.G. v. Burley
High School, No. 4:18-cv-00092-DCN, 2020 WL 7047747, at *4 (D. Idaho Nov. 30, 2020),
(approving award of $225 per hour for Of Counsel at a small Boise firm with seven years
of experience); Nelson-Ricks I, 2018 WL 2248588, at *2 (approving $225 hourly rate for
Holland & Hart associate with approximately eight years of experience); Latta v. Otter,
No. 1:13-cv-00482-CWD, 2014 WL 7245631, at *6 (D. Idaho Dec. 19, 2014) (approving
MEMORANDUM DECISION AND ORDER – 34

hourly rate of $175 for staff attorney with five years of experience).
The Court adjusts Mr. Watkins’ hourly rate from $370 to $330 per hour. In 2020,
this Court approved a $315 hourly rate for a partner with twenty-one years of experience,
and $300 per hour for a partner with twenty years of experience, in U.S. ex rel. Madsen v.
St. Luke’s Health Sys., Ltd., 1:15-cv-00210-DCN, 2020 WL 873911, at *2, Dkt. 95-1, at ¶
5; Dkt. 96-1, at ¶ 9 (D. Idaho Feb. 21, 2020). Although FPS highlights the attorneys
awarded such rates were with small Boise firms, such attorneys had also practiced
approximately ten years longer than had Mr. Watkins in 2019. The Court finds an
adjustment to $330 an hour adequately reflects Stoel Rives’ position as a large regional
firm and prevailing market rates for partners with eleven years of experience.11
Finally, FPS seeks an hourly rate of $220 for Ms. Franolich, a paralegal with twentythree years of experience. Paralegal fees are recoverable using the lodestar analysis.
Nelson-Ricks I, 2018 WL 2248588, at *3; Balla, 2016 WL 6762651, at *6 (“[A]warding
paralegals their standard hourly rate makes a great deal of economic sense” and
“encourages cost-effective delivery of litigation services.”) (cleaned up)). Dickinson
suggests Ms. Franolich’s hourly rate should be reduced to $175 based upon the paralegal
rates at the four Boise law firms Mr. Clark cites.
The Court finds $190 is the prevailing market rate for paralegals of firms

FPS notes this Court also awarded $350 per hour for an attorney at a small Boise firm in Madsen, 2020
WL 873911, at *2. Dkt. 103, at 9. Notably, the attorney who was awarded $350 an hour had twenty-eight
years of experience. 1:15-CV-00210-DCN, at Dkt. 96-1, at ¶ 8. Similarly, FPS highlights that Mr. Clark,
who is with an attorney with a smaller Boise firm than Stoel Rives, charges $375 an hour—a rate higher
than that sought for Mr. Watkins. However, Mr. Clark has been practicing commercial litigation in Boise
for forty-two years, and has been a litigator for fifty-six years. Dkt. 99-2, Ex. F, at ¶¶ 6, 16.
11

MEMORANDUM DECISION AND ORDER – 35

comparable in size to Stoel Rives and given Ms. Franolich’s current experience level. Dkt.
99-2, Ex. F (noting Givens Pursley charges between a $174-185 hourly rate for paralegals);
Balla, 2016 WL 6762651, at *12 (awarding Ms. Franolich her 2016 hourly rate of $165
and another Stoel Rives’ paralegal a $190.50 hourly rate); Nelson-Ricks I, 2018 WL
2248588, at *2 (awarding $190 hourly rate for paralegal at Holland & Hart). This amount
is also significantly higher than that this Court has awarded for paralegals of smaller Boise
firms. See, e.g., Gonzales, 2020 WL 7047747, at *7 (awarding $120 hourly rate for
paralegal with small Boise firm); Fuller, 2019 WL 6332860, at *3 (same).
A “district court has a great deal of discretion in determining the reasonableness” of
a requested hourly fee. Gates, 987 F.2d at 1398. This discretion “is appropriate in view of
the district court’s superior understanding of the litigation and the desirability of avoiding
frequent appellate review of what essentially are factual matters.” Hensley, 461 U.S. at
437. The Court finds the following adjusted rates are in line with its former decisions and
are the prevailing market rates for attorneys of regional firms in Boise, Idaho:
Name

Title

Experience

Proposed Rate

Reasonable Rate

Elijah M. Watkins

Partner

11 years

$370

$330

Anna E. Courtney

Associate

6 years

$340

$250

Jennifer S. Palmer

Associate

5 years

$340

$250

Megan A. Olmstead

Associate

1 year

$245

$200

Rollo M. Scott

Associate

<1 year

$245

$200

Jacqueline Franolich

Paralegal

23 years

$220

$190

MEMORANDUM DECISION AND ORDER – 36

The Court’s adjustment to the requested hourly rates results in a $5,522.50 reduction
to FPS’s fee award.12
ii.

Reasonable Fees

FPS has the burden of submitting detailed time records to support its claim for fees.
Chalmers, 796 F.2d at 1210. Although courts have a “strong preference” for
contemporaneous time records, reconstructed time records are not per se impermissible and
do not preclude an award of fees. United States v. $12,248 U.S. Currency, 957 F.2d 1513,
1521 (9th Cir. 1991). Claimed hours “may be reduced by the court where documentation
of the hours is inadequate; if the case was overstaffed and hours are duplicated; if the hours
expended are deemed excessive or otherwise unnecessary.” Chalmers, 796 F.2d at 1210.
“But the Court’s discretion to reduce claimed hours is not unbounded, nor does it provide
an opportunity for second-guessing when counsel exercises sound billing judgment.” Latta,
2014 WL 7245631, at *6.
In addition to its objection to the various categories of work FPS seeks to recover
(which the Court has rejected for the reasons explained above) Dickinson also suggests
almost all of FPS’s time entries are unreasonable because they are either excessive, vague,
inaccurate, or duplicative. Apart from contending its time entries “were not excessive or
duplicative in counsel’s professional judgment, but rather necessary to address Dickinson’s

12

Mr. Watkins billed a total of 59.8 hours; (59.8 x 370) - (59.8 x 330) = $2,392 less in fees awarded for Mr. Watkins’
time. Ms. Courtney billed a total of 3.4 hours; (3.4 x 340) - (3.4 x 250) = $306 less in fees awarded for Ms. Courtney’s
time. Ms. Palmer billed a total of 18.6 hours; (18.6 x 340) - (18.6 x 250) = $1,674 less in fees awarded for Ms. Palmer’s
time. Ms. Olmstead billed a total of 12.9 hours; (12.9 x 245) - (12.9 x 200) = $580.5 less in fees awarded for Ms.
Olmstead’s time. Mr. Rollo billed a total of 9 hours; (9 x 245) - (9 x 200) = $405 less in fees awarded for Mr. Rollo’s
time. Ms. Franolich billed a total of 5.5 hours; (5.5 x 220) - (5.5 x 190) = $165 less in fees awarded for Ms. Franolich’s
time.

MEMORANDUM DECISION AND ORDER – 37

multiple discovery abuses and refusals to work with counsel in good faith to resolve them,”
FPS does not respond to Dickinson’s specific objections to various time entries. Dkt. 103,
at 8.
The Court has reviewed each of FPS’s time entries and finds they are generally
reasonable. However, there are some entries which appear to be duplicative or inaccurate.
For instance, on August 9, 2019, Ms. Olmstead billed .5 hours for a conference with
opposing counsel Dickinson maintains (and FPS does not rebut) Ms. Olmstead did not
attend. FPS also billed an hour for a conference with the Court’s chambers on August 9,
2019. This entry appears to be in error, as the conference lasted ten minutes or less, and
was likely meant to be billed at .1 hours.
Other entries appear excessive. For example, FPS spent a total of 40.3 hours on its
fee petition. A great deal of this time was incurred for legal research (by three different
attorneys), review of various case documents and billing records, communications among
FPS’s legal team, and preparation of declarations and exhibits in support of the fee petition.
Dkt. 97-5, Ex. C. Some of this time was excessive because “[t]he applicable law is wellsettled, and the most important supporting documents—billing records and statements of
counsel’s experience—should have been readily available.” Latta, 2014 WL 7245631, at
*9. Further, some of the work was administrative or, at a minimum, could have been
handled by attorneys with a lower billing rate than Mr. Watkins.13 Further, time for other

13

For example, Mr. Watkins spent over six hours reviewing, analyzing, revising, and gathering invoices and/or other
“fee issue” documents and corresponding with accounting and the legal team regarding the same. Dkt. 97-5, Ex. C.
While the Court accepts a portion of this time was necessary so Mr. Watkins could exercise his billing judgment, some
of this work could have been handled by a paralegal, and some of it also appears to have been duplicative of additional
time Ms. Palmer spent preparing exhibits to submit with the fee petition.

MEMORANDUM DECISION AND ORDER – 38

entries—such as the nearly seven hours FPS billed for travel time from Spokane to Boise
(a one hour flight)—also appear excessive.
Rather than undertaking an hour-by-hour assessment of each of the entries
Dickinson identifies as excessive, vague, inaccurate, or duplicative, the Court will exercise
its discretion and reduce FPS’s total fee award by five percent. Gates, 987 F.2d at 1399.
The Court imposes this “haircut” to account for the excessive, vague, inaccurate and/or
duplicative entries Dickinson has identified and FPS has not addressed. Moreno v. City of
Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008) (“[T]he district court can impose a small
reduction, no greater than 10 percent—a ‘haircut’—based on its exercise of discretion and
without more specific explanation.”). A five percent reduction to FPS’s fee award (after
taking into account the $5,522.50 reduction to reflect the prevailing market rates in Boise)
results in an additional $1,532.95 reduction in fees. In its attempt to fairly compensate FPS
while also reducing Dickinson’s liability for unreasonable fees, the Court will neither
address Dickinson’s additional objections to FPS’s time entries, nor entertain any further
requests by FPS for fees incurred in litigating its fee motion. Gates, 987 F.2d at 1400
(finding a district court is not required to expressly rule on each of defendant’s specific
objections to plaintiff’s fee request).
d. Conclusion
“The district court has a great deal of discretion in determining the reasonableness
of the fee and, as a general rule, [an appellate court will] defer to its determination,
including its decision regarding the reasonableness of the hours claimed by the prevailing
party.” Prison Legal News v. Schwarzenegger, 608 F.3d 446, 453 (9th Cir. 2010) (quoting
MEMORANDUM DECISION AND ORDER – 39

Gates, 987 F.2d at 1398). After considering the parties’ briefing, assessing FPS’s time
entries, and determining the prevailing market rate, the Court awards FPS $29,126.05 in
fees and $2,152.18 in costs.
B. Dickinson’s Motion to Take Trial Preservation Depositions (Dkt. 100)
Dickinson seeks leave to take the trial preservation depositions of Nelson, Pope, and
Fazzari. Such witnesses live outside of the Court’s subpoena power, do not regularly
transact business within this Court’s 100-mile subpoena power, and will not agree to testify
at trial voluntarily or to waive objections to a trial subpoena.
1. Legal Standard
Federal Rule of Civil Procedure 30 provides a party must obtain leave of the court
to take a deposition if the parties have not stipulated to the deposition where the “deposition
would result in more than 10 depositions being taken under this rule or Rule 31 by the
plaintiffs, or by the defendants, or by the third-party defendant,” or if “the deposition has
already been taken in the case.” Fed. R. Civ. P. 30(a)(2)(A)(i) and (ii).
When assessing whether leave should be given, the court must grant leave to the
extent consistent with Federal Rule of Civil Procedure 26(b)(1) and (2). Fed. R. Civ. P.
30(a)(2). As such, the court should consider the relevance of the deposition, whether the
deposition would be unreasonably cumulative or duplicative, if the information would be
better obtained from another source, whether the party seeking discovery has had the
opportunity to obtain the information pursuant to prior discovery in the action, and whether
the burden or expense of the proposed discovery outweighs its likely benefit, taking into
account the needs of the case, the amount in controversy, the parties’ resources, the
MEMORANDUM DECISION AND ORDER – 40

importance of the issues at stake in the litigation, and the importance of the proposed
discovery in resolving the issues. Thykkuttathil v. Keese, 294 F.R.D. 601, 602 (W.D. Wash.
2013); see also Fed. R. Civ. P. 26(b)(1) and (2).
The party seeking leave to take additional depositions has the burden of establishing
that its request satisfies the relevancy requirements of Rule 26(b)(1). Soto v. City of
Concord, 162 F.R.D. 603, 610 (N.D. Cal. 1995). In turn, the party opposing the depositions
has the burden of showing that discovery should not be allowed, and also has the burden
of clarifying, explaining, and supporting its objections with competent evidence.
DIRECTTV, Inc. v. Trone, 209 F.R.D. 455, 458 (C.D. Cal. 2002).
2. Analysis
Dickinson has already taken ten depositions and has also already taken the
depositions of Nelson, Pope, and Fazzari. However, because such witnesses are beyond the
Court’s subpoena power and will not agree to testify at trial, and because the Court
precluded the use of their deposition testimony pursuant to Rule 32(a)(5)(A), Dickinson
seeks leave to either retake or reopen the Nelson, Pope, and Fazzari depositions in order to
preserve their testimony for trial.
a. Relevance of the Depositions
Colmac Coil designed and manufactured the evaporator coils used in the industrial
freezer (“FPS Freezer”) at issue in this case. Dickinson argues the design and subsequent
performance of the evaporator coils are critical aspects of this dispute since an “evaporator
coil is a heat-transfer device where the refrigeration system and the freezing tunnel
interface.” Dkt. 100-1, at 2. Because FPS argues Dickinson’s Refrigeration System was
MEMORANDUM DECISION AND ORDER – 41

inadequate, while Dickinson contends the FPS Freezer was deficient, Dickinson argues the
design and subsequent performance of the evaporator coils are critical components of this
case. Dickinson also suggests Nelson, Pope, and Fazzari have personal knowledge
regarding conversations with FPS witnesses concerning the performance of the evaporator
coils, including statements FPS employees made regarding why the FPS Freezer failed to
achieve certain performance metrics. Nelson, Pope and Fazzari also purportedly have
personal knowledge regarding performance tests that were run on the Freezer and
Refrigeration system before they were disassembled. Dickinson suggests such facts are
“critical in supporting Dickinson’s case-in-chief as well as rebutting FPS’s defenses and
defending FPS’s counterclaim.” Dkt. 100-1, at 14.
FPS counters that the depositions are irrelevant because any information regarding
the performance of the FPS Freezer is “information the jury specifically should not hear
based on the Court’s Adverse Jury Instruction.” Dkt. 105, at 6. Specifically, as a sanction
for Dickinson’s spoliation of the FPS Freezer, the Court held it would instruct the jury to
presume the following:
Dickinson has failed to preserve relevant evidence for FPS’s use in this
litigation. This is known as the “spoliation of evidence” Specifically,
Dickinson destroyed the FPS Freezer and Refrigeration System after its duty
to preserve this evidence arose. As a result of this spoilation, you are to
presume that had Dickinson not destroyed the FPS Freezer and Refrigeration
System, FPS would have been able to prove that the FPS Freezer was capable
of performing at the levels specified by the Parties Agreement.14
Dkt. 69, at 39. FPS suggests any information about the performance of the FPS Freezer is

14

The Court based this instruction on language proposed by FPS in its Motion for Sanctions. Dkt. 39-1, at
20.

MEMORANDUM DECISION AND ORDER – 42

directly contrary to this jury instruction, and, as such, the Nelson, Pope, and Fazzari
depositions would be futile and irrelevant.
As Dickinson notes, although the Court awarded a non-rebuttable jury instruction
in its Sanctions Order, it also denied FPS’s request to preclude Dickinson from introducing
evidence at trial regarding the performance of the Freezer and Refrigeration System
because such an exclusion of evidence would be “tantamount to dismissal,” which the
Court determined was unwarranted since Dickinson did not act in bad faith when it
destroyed the unit. Id. at 31–37. The Court also held that although FPS was prejudiced by
Dickinson’s conduct, FPS was not without evidence to support its claims because “[m]uch
of the evidence regarding the respective performance issues associated with the FPS
Freezer and with the Refrigeration System, and the parties’ interpretations of each, is
already in the record,” and “will undoubtedly be supplemented at trial.” Id. at 31. FPS’s
argument that any evidence regarding the Freezer’s performance is irrelevant and futile is
contrary to the Court’s Sanctions Order.
FPS’s contention is also somewhat disingenuous since FPS previously argued—in
its response to Dickinson’s Motion for Reconsideration—that the adverse jury instruction
only “directly impact[ed]” Dickinson’s breach of contract claim. Dkt. 90, at 23. As such,
FPS stated Dickinson’s case was “not dead” and that Dickinson was “also free to try and
amend its Complaint ” Id. FPS now takes the opposite position and claims the adverse jury
instruction bars Dickinson from presenting any evidence or testimony regarding the
Freezer’s performance at trial. However, the Court has twice held Dickinson is not barred
from presenting evidence in support of its claims. Dkt. 69, at 30–31, 37–38; Dkt. 93, at 40.
MEMORANDUM DECISION AND ORDER – 43

FPS’s argument ignores both its own previous interpretation of the Court’s adverse jury
instruction and the Court’s prior rulings. Dkt. 90, at 23.
The Court finds the testimony of Nelson, Pope, and Fazzari is potentially relevant
to all but Count One of Dickinson’s Complaint.15 Further, given the Court’s prior orders
and FPS’s inconsistent positions, the Court rejects FPS’s claim that any evidence regarding
the FPS Freezer and Refrigeration system is irrelevant and futile.
b. Additional Rule 26(b) Factors
Allowing Dickinson to take the trial preservation depositions of Nelson, Pope, and
Fazzari also satisfies the other factors identified in Rule 26(b)(1) and (2). Such discovery
is not duplicative or cumulative since Dickinson has been precluded from using the
deposition transcripts from its initial depositions of these witnesses. Dickinson also cannot
obtain the information from another source since Nelson, Pope, and Fazzari were involved
in designing and manufacturing the evaporator coils and in conducting performance tests
prior to the deconstruction of the FPS Freezer and Refrigeration System. However, FPS
suggests the burden of the proposed discovery outweighs its benefits due to Dickinson’s
conduct and the prejudice FPS will suffer if such depositions are allowed. The Court
addresses each contention in turn.

As the Court noted in its Order denying reconsideration, the parties have not briefed whether Dickinson’s
other three claims rest on the FPS Freezer’s ability to meet the performance metric of operating 20-22 hours
a day. Dkt. 93, at 40. As such, at this point, Dickinson can still claim that FPS breached an express warranty
under Idaho law, can argue it was damaged under a good faith and fair dealings theory, and can attempt to
assert promissory estoppel against FPS. Id. Dickinson has also filed a Motion to File First Amended
Complaint (Dkt. 98) and Supplemental Motion for Leave to File First Amended Complaint (Dkt. 112).
Although the Court has not ruled on such motions and does not address them further herein, it notes that
Nelson, Pope, and Fazzari’s testimony may be relevant to Dickinson’s new claims if Dickinson’s motion
to amend is granted.
15

MEMORANDUM DECISION AND ORDER – 44

c. Dickinson’s Conduct
FPS argues Dickinson should not be allowed to re-depose Nelson, Pope, and Fazzari
because Dickinson caused its own problems and delays related to the first depositions of
such witnesses, and that the Court rightly excluded the depositions under Rule 32. The
purpose of Rule 32(a)(5)(A) is to protect a party against prejudice associated with a shortnoticed deposition. There is nothing in the Rule, and FPS does not cite any authority to
suggest, that a party who violates Rule 32 may not seek leave to re-depose, with proper
notice, a witness whose first deposition was precluded under Rule 32(a)(5)(A). Although
the initial Nelson, Pope, and Fazzari depositions may not be used against FPS, this does
not mean Dickinson is barred from ever taking the depositions of such witnesses.
Further, Rule 30 provides the court must grant leave to take a deposition to the extent
consistent with the principles stated in Rule 26(b)(1) and (2). Fed. R. Civ. P. 30(a)(2)
(emphasis added). The wording of the rule “creates a default position” that a second
deposition “must” be allowed, absent some affirmative reason to preclude it. Estate of Cay
Bich Tran v. City of San Jose, No. 03-04997 JW-PVT, 2005 WL 8162714, at *1 (N.D. Cal.
Mar. 23, 2005). This construction is consistent with the history of Rule 30, which, prior to
1993, put no limit on the number of times a person could be deposed. Id. “If the deponent
wished to avoid being deposed again, the burden was on the deponent to obtain a protective
order from the court upon a showing of good cause. The fact the person had already been
deposed did not per se entitle him to a protective order.” Id. Although, after the 1993
amendments, a party is now required to seek leave to take a second deposition, “the burden
is, at most, a minimal requirement that the moving party articulate why the further
MEMORANDUM DECISION AND ORDER – 45

deposition is consistent with Rule 26(b)(2).” Id. (cleaned up). The burden then shifts “to
the non-moving party to show why [Rule 26(b)] protections are in fact required.” Id.
Here, Dickinson has shown the discovery is potentially relevant to its three
remaining claims and is neither cumulative, duplicative, nor obtainable from another
source since the Court has precluded Dickinson from using Nelson, Pope, and Fazzari’s
initial depositions against FPS and because such witnesses are beyond the Court’s
subpoena power. Fed. R. Civ. P. 45(c)(1). Dickinson has also proposed an alternative to
alleviate the expense and burden of taking second depositions. Specifically, Dickinson
suggests that in lieu of retaking the depositions in their entirety, the Court should reopen
the depositions to remedy any prejudice to FPS and to allow FPS to complete its crossexamination of Nelson, Pope, and Fazzari.16 Dkt. 100-1, at 18. Under such circumstances,
Dickinson has articulated why second depositions are consistent with Rule 26(b)(1) and
(2) and FPS’s argument regarding Dickinson’s delay in noticing the Nelson, Pope, and
Fazzari depositions in 2019 does not fall under any of the protections granted against
discovery under Rule 26(b)(1) or (2).
d. Prejudice to FPS
For several reasons, FPS also argues it would be substantially prejudiced if the
depositions are allowed to go forward. First, FPS suggests because “the Court has already
ruled that the jury will be instructed that the Freezer’s performance meets the requirements
of the Agreement,” the information Dickinson seeks from Nelson, Pope, and Fazzari is

16

While the Court will not require FPS to so stipulate, FPS is encouraged to consider this option in lieu of
incurring the time and expense associated with taking new depositions of Nelson, Pope, and Fazzari.

MEMORANDUM DECISION AND ORDER – 46

“per se irrelevant.” Dkt. 105, at 11. As explained above, this argument disregards the
Court’s prior rulings that Dickinson is not precluded from presenting evidence, as well as
FPS’s prior position that the adverse jury instruction only impacts Dickinson’s breach of
contract claim.
Next, FPS argues the second depositions will cause undue financial burden, and
notes Dickinson only offered to compensate FPS for part of its fees if FPS stipulated to
reopening the depositions. It is unclear if Dickinson will still compensate FPS for three
hours of attorney time if FPS stipulates to reopening the depositions (rather than retaking
them) after this decision. Regardless, the Court has determined Dickinson is responsible
for the fees and costs associated with the first depositions, so allowing Dickinson to retake
the Nelson, Pope, and Fazzari depositions will not force FPS to twice incur expenses for
the same depositions.
Third, FPS contends the second depositions will cause undue delay. However, the
discovery deadline and deadline for dispositive motions have been suspended and will not
be reset until the multiple pending motions in this case are addressed. There is also no trial
date set in this case. As such, FPS’s contention that the second depositions will result in
undue delay lacks merit.
Fourth, FPS argues the proposed depositions would unnecessarily burden Nelson,
Pope, and Fazzari. As Dickinson notes, FPS could avoid this burden if FPS agreed to
stipulate to reopen the depositions without requiring the depositions to be retaken. Given
Dickinson’s violation of Rule 32(a)(5)(A), it is up to FPS to decide whether to reopen or
retake the depositions. However, the undue prejudice to third parties is ultimately an
MEMORANDUM DECISION AND ORDER – 47

unfortunate consequence of the parties’ contentious relationship and joint decision to resort
to motion practice rather than simply seeking an extension so Dickinson could properly
notice and obtain the Court’s leave before it took Nelson, Pope, and Fazzari’s depositions
the first time.
Finally, FPS maintains it would be prejudiced if Dickinson is allowed to use the
existing transcripts. Due to the significant time that has passed since the first depositions
of Nelson, Pope, and Fazzari, FPS argues its “counsel will be required to review the
thousands of pages of documents that apply to these witnesses, as well as their testimony
from the 2019 depositions—a costly effort bound to take far longer than the three hours
Dickinson proposes.” Dkt. 105, at 13. FPS contends “memories also fade, which means
these non-parties and their counsel will have to take on the burden of re-reading their
transcripts to avoid being impeached, which will likely still happen, not because of the
honesty of the witnesses, but just because of their memory.” Id. at 13–14. As Dickinson
counters, such problems “are an inherent part of preparing for the trial testimony of any
previously deposed witness.” Dkt. 106, at 8. Such problems are not “‘prejudicial’ as
asserted by FPS, but rather are a routine cost of trial preparation.” Id.
e. Conclusion
The Court finds allowing Dickinson to retake the depositions of Nelson, Pope, and
Fazzari is consistent with Rule 26(b)(1) and (2) and will not substantially prejudice FPS.
This decision applies only to the Nelson, Pope, and Fazzari depositions. Dickinson has not
sought, and has not been granted, leave to take additional depositions beyond the thirteen
it will have taken once the aforementioned witnesses are deposed. Further, because the
MEMORANDUM DECISION AND ORDER – 48

Court has held the initial depositions of Nelson, Pope, and Fazzari must not be used against
FPS, it is up to FPS to decide whether to stipulate to reopen the depositions or to instead
retake them.
C. FPS’s Motion to Strike or Disregard Reply Brief Arguments (Dkt. 108)
FPS argues the Court should strike and/or disregard Dickinson’s reference to
specific testimony offered by Nelson and Pope in their initial depositions. FPS also
suggests the Court should not address Dickinson’s insinuation in its reply brief that the
Sanctions Order was wrong or unclear as to its meaning. Id.
a. Legal Standard
“The Federal Rules of Civil Procedure do not provide for a motion to strike
documents or portions of documents other than pleadings.” United States. v. Crisp, 190
F.R.D. 546, 550 (E.D. Cal. 1999). Further, “motions to strike are generally disfavored and
rarely granted.” Utley v. Continental Divide Outfitters, No. 07-cv-264-LMB, 2009 WL
631465, at *2 (D. Idaho Mar. 10, 2009) (citations omitted). Still, “a motion to strike is not
totally irrelevant,” and may be “regarded as an invitation by the movant to consider whether
[proffered material] may properly be relied upon.” Id. (quoting Nat. Res. Defense Council
v. Kempthorne, 539 F. Supp. 2d 1155, 1161 (E.D. Cal. 2008)).
b. Analysis
In addressing Dickinson’s Motion for Leave to Take Additional Depositions, the
Court has relied on its familiarity with the case and with Colmac Coil’s role in the parties’
dispute, as well as upon Dickinson’s summary of the topics upon which Nelson, Pope, and
Fazzari have knowledge. The Court has not read Nelson, Pope, or Fazzari’s deposition
MEMORANDUM DECISION AND ORDER – 49

transcripts—nor the specific testimony Dickinson cites—because the Court previously
held such depositions must not be used against FPS. The Court has also not considered
Dickinson’s contention that the Sanctions Order was wrong or unclear. Dkt. 106, at 3–4.
The Court has already assessed the Sanctions Order twice, both when writing it and when
denying Dickinson’s Motion for Reconsideration, and declines any invitation by Dickinson
(whether merely perceived by FPS or actual) to do so again.
In short, the Court will deny FPS’s Motion to Strike as moot and will not spill further
ink on the issues of whether or not Dickinson’s citation to the transcripts, or argument
regarding the meaning of the Sanctions Order, were proper.
IV. ORDER
1. FPS’s Motion for Attorney Fees and Costs (Dkt. 97) is GRANTED in PART
and DENIED in PART. FPS is awarded a total of $29,126.05 in fees and
$2,152.18 in costs;
2. Dickinson’s Motion to Take Trial Preservation Depositions of Colmac Coil
Employees (Dkt. 100) is GRANTED;
3. FPS’s Motion to Strike or Disregard Reply Brief Arguments (Dkt. 108) is
MOOT and is therefore DENIED.

DATED: June 15, 2021
_________________________
David C. Nye
Chief U.S. District Court Judge

MEMORANDUM DECISION AND ORDER – 50