USA v. Hulick et al
ORDER as to 89 RESPONSE to 87 Order on Motion to Compel. Plaintiffs explanations are not persuasive. Accordingly, the government is ordered to pay the reasonable expenses, including attorneys fees. So Ordered by Magistrate Judge Landya B. McCafferty.(vln)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
United States of America
Civil No. 08-cv-499-SM
David M. Hulick; Caroline P.
Hulick; and State of New Hampshire
Department of Employment Security
O R D E R
In an order dated March 1, 2012, document no. 87, the
government was directed to show cause why it should not be
required to pay the costs and fees incurred by David and
Caroline Hulick in successfully moving to compel the production
of two revenue officers for depositions.
explanations are not persuasive.
Rule 37(a)(5)(A) of the Federal Rules of Civil Procedure
provides for the payment of reasonable expenses, including
attorney’s fees, by a party that has been the target of a
successful motion to compel.
the court must not order [such a] 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
Fed. R. Civ. P. 37(a)(5)(A).
In its March 1 order, the court
directed the government to explain
why it was necessary for the Hulicks to litigate this
discovery dispute in the face of: (a) the court’s
having granted the parties’ joint request for a
continuance, (b) the court’s subsequent ruling that
the Hulicks’ outstanding request to extend discovery
(to allow for these depositions prior to trial) was
moot, and (c) the government’s agreement in principle,
at an earlier point in this litigation, to extend
discovery to allow for these depositions prior to
Document no. 87, at 1-2.
In other words, the court directed
briefing on the issue addressed by Rule 37(a)(5)(A)(ii).
In its response, the government both exceeded the scope of
the court’s order, by offering unsolicited arguments on the
issues addressed by Rule 37(a)(5)(A)(i) & (iii), and provided
substantially less than what the court asked for with respect to
The government devotes much of its
attention to the court’s first area of concern and argues
logically, if not plausibly, that it did not understand the
court’s continuance to reopen deadlines that had already passed.
But, with regard to the court’s second area of concern, the
government misses the mark.
While it appears to assert that it
was justified in its interpretation of Judge McAuliffe’s order
mooting the Hulicks’ request to extend discovery, it offers no
actual explanation of that position.
Moreover, if Judge
McAuliffe had intended to convey the meaning the government
ascribes to his order, he could have written “Denied as Moot”
rather than “Moot.”
Finally, the government appears to evade
completely the court’s directive that it address its earlier
agreement in principle with the Hulicks that it would agree to
extend discovery to allow for the depositions at issue.
In sum, the government has fallen short in responding to
the court’s order of March 1, 2012.
Accordingly, the government
is ordered to pay the reasonable expenses, including attorney’s
fees, incurred by the Hulicks in moving to compel the government
to produce the two revenue agents for depositions.
United States Magistrate Judge
May 2, 2012
Patrick B. Gushue, Esq.
Andrea A. Kafka, Esq.
Richard J. Lavers, Jr,. Esq.
Gerald C. Miller, Esq.
Daniel E. Will, Esq.
Joshua M. Wyatt, Esq.
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