Richardson International (US) Limited et al v. Buhler Inc

Filing 45

ORDER -Defendant's Motion for Reasonable Attorney Fees and Costs 40 is granted, in part. Defendant is hereby awarded $2500.00 for the filing of its Motion to Compel and Renewed Motion to Compel. Said amount shall be paid or offset at the conclusion of this litigation. Ordered by Magistrate Judge F.A. Gossett. (MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
RICHARDSON INTERNATIONAL
(US) LIMITED, and NATIONWIDE
A G R I BU S I N E S S I N S U R A N C E
COMPANY,
Plaintiffs,
V.
BUHLER INC,
Defendant.

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8:14CV148
ORDER

This matter is before the Court on Defendant’s Motion for Reasonable Attorney Fees
and Costs. (Filing 40.) For the reasons expressed below, Defendant’s motion will be
granted, in part.
BACKGROUND
On or about September 16, 2014, Defendant served its First Set of Interrogatories and
Requests for Production of Documents (the “discovery requests”). In November, 2014,
Defendant’s counsel contacted Plaintiffs’ counsel and inquired as to the status of Plaintiffs’
past due discovery responses. The attorneys agreed that the response deadline would be
extended to December 12, 2014.
On December 11, 2014, Plaintiffs’ counsel informed Defendant’s counsel that
Plaintiffs required additional time to respond to the discovery requests. In late December,
2014 and early January, 2015, Defendant’s counsel contacted Plaintiffs’ counsel to discuss
Plaintiffs’ continued failure to provide discovery responses. In early February, 2015,

Defendant’s counsel contacted the Court to schedule a conference call regarding the
outstanding discovery. The Court declined to hold a status conference, and informed
Defendant’s counsel to file a motion to compel if necessary to resolve the discovery dispute.
Defendant filed a Motion to Compel (filing 27) on March 20, 2015. Plaintiffs
responded to the motion on April 2, 2015, stating that they intended to serve discovery
responses by April 15, 2015. (Filing 30.) On April 3, 2015, Plaintiffs filed another
document stating that they had provided responses to the requests and that the Motion to
Compel was moot. (Filing 31.)
By letter dated April 8, 2015 (filing 34-1), Defendant’s counsel instructed Plaintiffs’
counsel to provide supplemental discovery responses by April 17, 2015. Defendant’s
counsel explained that supplemental responses were warranted because Plaintiffs improperly
objected to a number of requests, failed to provide a privilege log, failed to answer
Defendant’s contention interrogatories and vaguely referenced thousands of pages of
documents. Defendant’s counsel again contacted Plaintiff’s counsel on April 22, 2015,
asking whether Plaintiffs planned to respond to the letter. Plaintiffs’ counsel indicated that
he would review the April 8, 2015 letter that week. Defendant did not receive any further
response regarding the discovery from Plaintiffs’ counsel. Therefore, Defendant filed a
Renewed Motion to Compel Answers to Written Discovery (filing 32) on April 30, 2015.
In support of its Renewed Motion to Compel, Defendant argued that Plaintiffs’
responses were deficient because Plaintiffs failed to produce a privilege log and did not
identify what specific documents were responsive to each request for production. Defendant
also asserted that Plaintiffs should be ordered to respond to Defendant’s contention
interrogatories and that Plaintiffs’ objection that the contention interrogatories were
premature was without merit, or had been waived by Plaintiffs’ failure to provide timely
responses.
On June 8, 2015, the Court entered an order granting Defendant’s Renewed Motion
to Compel. (Filing 39.) In the order, the Court first noted that, in response to Defendant’s
Renewed Motion to Compel, Plaintiffs had agreed to produce a privilege log and identify
documents by Bates Number. With respect to the contention interrogatories, the Court found
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that Plaintiffs should be able provide responses, while reserving the right to supplement and
provide additional information as it is revealed through discovery. The Court stated that
although there is support for deferring answers to contention interrogatories until after other
discovery has been completed, this case has been pending for over a year and discovery
delays in this case are largely attributable to Plaintiffs’ failure to respond to discovery
requests.
The Court’s June 8, 2015 order directed Defendant to file a motion for attorney’s fees
incurred in connection with the original Motion to Compel and Renewed Motion to Compel
by June 23, 2015. Defendant timely complied with the Court’s order by filing the instant
motion.
DISCUSSION
Federal Rule of Civil Procedure 37(a)(5)(A) provides:
If the motion [to compel] is granted–or if the disclosure or requested discovery
is provided after the motion was filed–the court must, after giving an
opportunity to be heard, require the party or deponent whose conduct
necessitated the motion, the party or attorney advising that conduct, or both to
pay the movant’s reasonable expenses incurred in making the motion,
including attorney’s fees. But the court must not order this payment if:
(I) the movant filed the motion before attempting in good faith to obtain the
disclosure or discovery without court action;
(ii) the opposing party’s nondisclosure, response, or objection was
substantially justified; or
(iii) other circumstances make an award of expenses unjust.
Fed. R. Civ. P. 37(a)(5)(A). Plaintiffs contend that an award of attorney’s fees in this case
would be unjust. The Court disagrees. In this case, there are no circumstances which make
an award of attorney’s fees and costs unjust or otherwise improper.
First, Defendant should not have had to file a motion compelling Plaintiffs to provide
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a privilege log. The Initial Progression Order entered in this case requires the parties to
produce such a log which, for each document withheld, describes “(a) the general nature of
the document; (b) the identity and position of its author; (c) the date it was written; (d) the
identity and position of its addressee; (e) the identities and positions of all persons who were
given or have received copies of it and the dates copies were received by them; (f) the
document’s present location and the identity and position of its custodian; and (g) the specific
reason or reasons why it has been withheld from production or disclosure.” (Filing 21 at
CM/ECF p. 2.) The Court acknowledges that Plaintiffs later agreed to produce a privilege
log, but this was only after Defendants filed motions to compel. Defendant should not have
had to file motions to obtain this information.
Second, as stated in the order on the Motion to Compel, Plaintiffs were given multiple
opportunities to respond to the discovery requests. It was only after Defendant filed motions
to compel did Plaintiffs attempt to provide any responses.
Plaintiffs assert that they should not be punished for their insufficient and untimely
responses because they have engaged in significant discovery while Defendant has
stonewalled discovery efforts. Plaintiffs point out that they provided thousands of documents
with their initial disclosures and Defendant only produced a two-page declaration. Although
Plaintiffs may have produced more information at this point, the fact remains that Plaintiffs
did not comply with the Court’s Initial Progression Order and, despite multiple extensions
given by Defendant, did not provide discovery responses until after a motion to compel was
filed.
Defendant’s counsel has submitted an affidavit itemizing the amount of attorney’s fees
and expenses incurred in connection with the Motion to Compel and Renewed Motion to
Compel. In total, Defendant is requesting an award of $6,457.27. The Court finds this
amount excessive in light of the nature of the discovery dispute. This dispute primarily
involved Plaintiffs’ failure to provide responses, rather than substantive issues of law.
Therefore, the Court finds an award of $2,500.00 reasonable under the circumstances.
Accordingly,

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IT IS ORDERED:
1.

Defendant’s Motion for Reasonable Attorney Fees and Costs (filing 40) is
granted, in part. Defendant is hereby awarded $2,500.00 for the filing of its
Motion to Compel and Renewed Motion to Compel. Said amount shall be
paid or offset at the conclusion of this litigation.

DATED July 31, 2015.
BY THE COURT:
S/ F.A. Gossett
United States Magistrate Judge

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