Layne Christensen Company v. The Purolite Company

Filing 286

MEMORANDUM AND ORDER denying Defendant's request for reasonable expenses incurred in connection with the filing of its motion for protective order prohibiting Plaintiffs from deposing its counsel of record. Although the motion was granted (ECF No. 199), the Court finds that Plaintiffs were substantially justified in opposing the motion for protective order, and sanctions should not be imposed under Fed. R. Civ. P. 37(a)(5)(A). Signed by Magistrate Judge Gerald L. Rushfelt on 5/25/2011. (byk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
LAYNE CHRISTENSEN COMPANY,
and DR. ARUP SENGUPTA,
Plaintiffs,

CIVIL ACTION

v.

No. 09-2381-JWL-GLR

BRO-TECH CORPORATION, d/b/a
THE PUROLITE COMPANY,
Defendant.
MEMORANDUM AND ORDER
On March 29, 2011, the Court granted Defendant’s Motion for Protective Order, prohibiting
Plaintiffs from deposing Defendant’s counsel of record, Robert C. Sullivan, Jr. (ECF No. 199). The
Court also ordered Plaintiffs to show cause in writing why sanctions should not be imposed,
pursuant to Federal Rules of Civil Procedure 26(c)(3) and 37(a)(5), for opposing the motion.
Plaintiffs filed their Suggestion in Opposition to the Imposition of Sanctions under Fed. R.
Civ. P. 26(c)(3) and 37(a)(5) (ECF No. 230) on April 18th. They argue that sanctions against them
are not warranted, because they had a duty to protect their interests and explore an apparent conflict
of interest, arising from the representation of Defendant by Mr. Sullivan and his law firm. Despite
several requests to discuss the issue with defense counsel, Plaintiffs could not obtain adequate
information to resolve the issue. They suggest it could have been resolved it without Court
intervention had they received the Declaration of Robert C. Sullivan, Jr. (ECF No. 119) (“Mr.
Sullivan’s Declaration”) prior to Defendant filing the motion. Instead, Defendant filed the motion
for protective order and withheld Mr. Sullivan’s Declaration until after the motion was fully briefed.
In its response (ECF No. 253), Defendant contends that Plaintiffs fail to demonstrate

substantial justification for opposing the motion for protective order. Specifically, they provided
no declaration from Dr. SenGupta, who allegedly had an attorney-client relationship with Mr.
Sullivan. Nor did they pursue written discovery to determine if Mr. Sullivan had a conflict of
interest. Plaintiffs even passed up two opportunities to withdraw their deposition notice for Mr.
Sullivan.
In their Reply Suggestions (ECF No. 273), Plaintiffs argue that the good faith requirement
of Rule 37(a)(5)(A)(i) applied to the motion and that Defendant’s failure to meet that requirement
makes the imposition of sanctions inappropriate. Plaintiffs contend they had a reasonable basis to
oppose the motion and, therefore, the imposition of sanctions is inappropriate under the
“substantially justified” requirement of Rule 37(a)(5)(A)(ii).
The Court finds that an award of reasonable expenses under Fed. R. Civ. P. 37(a)(5)(A) is
not warranted. Although the motion for protective order was granted, Plaintiffs had a reasonable
basis to oppose the motion. When they responded to it, they had not been able to obtain adequate
information to determine the possibility of a potential conflict of interest between Mr. Sullivan and
Dr. SenGupta. It was only after the motion was fully briefed that Defendant filed Mr. Sullivan’s
Declaration, which provided information about the involvement of Mr. Sullivan and his former law
firm with the foreign counterpart patent applications. Based upon the limited information they had
at the time they filed their response, the Court finds Plaintiffs were substantially justified in
opposing the motion for protective order.
IT IS THEREFORE ORDERED THAT Defendant’s request for costs and fees incurred
in connection with filing the motion for protective order prohibiting Plaintiffs from deposing its
counsel of record is denied. Although the motion was granted, the Court finds that Plaintiffs were

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substantially justified in opposing the motion for protective order, and sanctions should not be
imposed under Fed. R. Civ. P. 37(a)(5)(A).1
Dated in Kansas City, Kansas on this 25th day of May, 2011.

S/ Gerald L. Rushfelt
Gerald L. Rushfelt
United States Magistrate Judge

1

See Fed. R. Civ. P. 37(a)(5)(A)(ii)-(iii) (“But the court must not order [the payment of
reasonable expenses incurred in making the motion] if the opposing party’s . . . response, or
objection was substantially justified; or . . . other circumstances make an award of expenses
unjust.”).
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