BOSTON SCIENTIFIC CORPORATION ET AL V. COOK GROUP INCORPORATED ET AL

Filing 693

ORDER granting in part and denying in part Cook Defendants' 580 Motion for Attorney Fees. See Order. Signed by Magistrate Judge Mark J. Dinsmore on 6/21/2022. (SWM)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
BOSTON SCIENTIFIC CORPORATION, et al.,
Plaintiffs,
v.
COOK GROUP INCORPORATED, et al.,
Defendants.

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No. 1:17-cv-03448-JRS-MJD

ORDER ON DEFENDANTS' MOTION FOR ATTORNEYS' FEES
This matter is before the Court on Defendants Cook Group Incorporated and Cook
Medical LLC's ("Cook") Motion for Attorneys' Fees, [Dkt. 580]. For the reasons set forth below,
Cook's motion is GRANTED IN PART and DENIED IN PART.
I. Discussion
The facts underlying the current dispute are detailed, at length, in the Court's Order on
Defendants' Motion to Strike, Defendants' Motion to Seal, and Plaintiffs' Motion to Compel,
[Dkt. 572], and need not be repeated here. Cook now seeks an award of attorneys' fees in the
total amount of $73,157.38 for expenses incurred in bringing its motion to strike, opposition to
Boston Scientific's motion to compel, and the instant motion for attorneys' fees. [Dkt. 580.]
A. Cook's Motion to Strike
On December 2, 2021, Cook filed its Motion to Strike Boston Scientific's Improper
Disclosure and Use of Information Identified as Privileged, [Dkt. 498]. After finding that counsel
for Boston Scientific blatantly disregarded the Court's case management plan, as well as Federal
Rule of Civil Procedure 26(b)(5)(B), the Court granted the motion to strike on January 20, 2022.

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[Dkt. 572 at 4-5.] Pursuant to Federal Rule of Civil Procedure 37(b)(2)(C), where a party fails to
comply with a Court order, "the court must order the disobedient party, the attorney advising that
party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure,
unless the failure was substantially justified or other circumstances make an award of expenses
unjust." Fed. R. Civ. P. 37(b)(2)(C).
Here, Cook seeks $21,173.09 in attorneys' fees as a result of 62.4 hours spent bringing
the motion to strike. See [Dkt. 580-1 at 6]. Boston Scientific does not object to Cook's request,
stating that, "[a]lthough Boston Scientific has good-faith arguments to challenge the fees and
their magnitude, it agrees to pay this amount to Cook." [Dkt. 592 at 4.] Accordingly, the Court
GRANTS Cook's motion in this regard; Boston Scientific shall pay the $21,173.09 in fees
incurred by Cook in bringing its motion to strike.
B. Cook's Opposition to Boston Scientific's Motion to Compel
On December 21, 2021, Boston Scientific filed its Motion to Compel Production of
Clawed Back Documents, Documents and Communications Regarding Cook's Reliance on
Advice of Counsel, and for Leave to Continue Fact Depositions Regarding the Same, [Dkt. 537].
After finding that the exhibits at issue were protected by the attorney-client privilege and that
Cook was not asserting an advice-of-counsel defense to Boston Scientific's willful infringement
claim, the Court denied the motion to compel on January 20, 2022. [Dkt. 572 at 16.]
Pursuant to Federal Rule of Civil Procedure 37(a)(5)(B), where a motion to compel is
denied, the Court
must, after giving an opportunity to be heard, require the movant, the attorney filing
the motion, or both to pay the party or deponent who opposed the motion its
reasonable expenses incurred in opposing the motion, including attorney's fees. But
the court must not order this payment if the motion was substantially justified or
other circumstances make an award of expenses unjust.

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Fed. R. Civ. P. 37(a)(5)(B). A motion to compel was "substantially justified," such that an award
of fees is not appropriate, when the positions taken by the movant were such that reasonable
people could disagree about the proper outcome of the motion. See Tecnomatic, S.P.A., v. Remy,
Inc., 2013 WL 6665531, at *1 (S.D. Ind. Dec. 17, 2013) ("Substantial justification exists if the
Motion posited a 'genuine dispute' or if reasonable people could differ as to the appropriateness
of the contested action.") (citing Fogel v. Bukovic, 2011 WL 2463528, at *3 (N.D. Ill. June 20,
2011)).
Here, Cook seeks $39,940.67 in attorneys' fees as a result of 93.2 hours spent opposing
Boston Scientific's motion to compel. See [Dkt. 580-1 at 6]. In response, Boston Scientific does
not claim that Cook's requested expenses are unreasonable. Rather, Boston Scientific argues that
its motion to compel was substantially justified, and thus the Court should decline Cook's fee
request, on the ground that it "involved a fair fight" as demonstrated by "the detail of both
parties' briefs and the length of the Court's opinion, as well as the volume of case law discussed
in those papers." [Dkt. 592 at 6.] This argument is partially persuasive.
Boston Scientific's motion to compel concerned two primary issues: "(1) whether Exhibit
218, COOKMED0202784, and Exhibit 203 [were] protected by the attorney-client privilege and,
consequently, whether Cook's claw back of the exhibits was appropriate; and (2) whether Cook
waived the attorney-client privilege by asserting an advice-of-counsel defense." [Dkt. 572 at 7.]
As to the first issue, the Court noted that, "[w]hile determining whether Exhibit 218 and
COOKMED0202784 were privileged communications required some debate, Exhibit 203 is
quite clearly protected by the attorney-client privilege." Id. at 11. As to the second issue, the
Court noted that "Boston Scientific's argument fundamentally mischaracterizes Ms. Martinez's
testimony in an attempt to stretch the advice-of-counsel waiver." Id. at 13. Thus, the Court finds

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that Boston Scientific was substantially justified in bringing its motion to compel regarding
Exhibit 218 and COOKMED0202784, but not with regard to Exhibit 203 or the advice of
counsel waiver.
For these reasons, Cook's motion is GRANTED IN PART in this regard; Boston
Scientific and its counsel shall pay $19,970.34—half of the $39,940.67 requested—in fees
incurred by Cook in opposing Boston Scientific's motion to compel.
C. Cook's Motion for Attorneys' Fees
Cook additionally seeks $12,043.65 in attorneys' fees as a result of 25.7 hours spent
bringing the instant Motion for Attorneys' Fees, [Dkt. 580], and requests permission to file a
supplemental brief in order to update its fee request once briefing has concluded. [Dkt. 581 at
17.] In response, Boston Scientific argues, in its entirety, that,
[d]uring the meet and confer, Boston Scientific offered to pay Cook in full for its
fees relating to the Motion to Strike. Boston Scientific also offered an additional
$10,000 to avoid motions practice and further burdening the Court relating to the
Motion to Compel. Cook did not accept this offer. Now that Boston Scientific has
spent at least that amount to oppose the present motion, it respectfully asks that
Cook's motion for fees for the instant Motion for Fees be denied.
[Dkt. 592 at 6.] However, as Cook points out, "Cook's decision not to accept Boston Scientific's
lopsided offer is not a reason to deny Cook its reasonable fees under Fed. R. Civ. P. 37." [Dkt.
606 at 5.]
Accordingly, the Court GRANTS Cook's motion in this regard; Boston Scientific and its
counsel shall pay $12,043.65 in fees incurred by Cook in filing the instant motion for attorneys'
fees, plus the reasonable fees expended by Cook on its reply brief. If the parties are unable to
reach agreement on Cook's reply brief fees, Cook may file a supplement with an updated fee
request.

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II. Conclusion
For the reasons set forth above, Cook's Motion for Attorneys' Fees, [Dkt. 580], is
GRANTED IN PART. Cook is awarded fees in the amount of $53,187.08 ($21,173.09 with
respect to the motion to strike; the reduced amount of $19,970.34 with respect to opposing the
motion to compel; and $12,043.65 with respect to the instant motion for attorneys' fees), plus the
reasonable fees expended by Cook on its reply brief in support of the instant motion. The parties
are directed to confer and attempt to agree upon that additional amount; if they cannot agree,
Cook may file a motion seeking those fees within 21 days of the date of this Order.
SO ORDERED.

Dated: 21 JUN 2022

Distribution:
Service will be made electronically
on all ECF-registered counsel of record
via email generated by the Court's ECF system.

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