STEPHENSON v. PFIZER INC.

Filing 46

MEMORANDUM OPINION AND ORDER signed by MAG/JUDGE L. PATRICK AULD on 07/09/2014, as set out herein. ORDERED that Defendant pay Plaintiff $2,919.70 in reasonable expenses, including attorney's fees, incurred inmaking Plaintiff's Motion to Compel (Docket Entry 21 ).(Taylor, Abby)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

WHITNEY STEPHENSON,

)
)
)
)
)
)
)
)
)

Plaintiff,
v.
PFIZER INC.,
Defendant.

1:13CV147

MEMORANDUM OPINION AND ORDER
This case comes before the Court on Defendant’s Memorandum in
Support of Defendant’s Position that it Should Not Be Required to
Pay Plaintiff’s Fees or Expenses (Docket Entry 34) concerning
Plaintiff’s request for expense-shifting in her Motion to Compel
(Docket Entry 21).

For the reasons that follow, the Court will

order Defendant to pay Plaintiff $2,919.70 in reasonable expenses,
including attorney’s fees, incurred in making her Motion to Compel.
I.
Plaintiff’s
employer,

Complaint

failed

to

BACKGROUND
asserts

reasonably

that

Defendant,

accommodate

her

her

disability

required by the Americans with Disabilities Act (ADA).
Entry 1 at 10-12.)

former
as

(Docket

Defendant’s Answer asserted, inter alia, that

“[t]he accommodations requested by Plaintiff were not reasonable”
(Docket Entry 6 at 7) and that “Defendant was not required to make
accommodations because to do so would impose an undue hardship”

(id. at 8).

Plaintiff filed a Motion to Compel as to several

document requests, in which she sought expense-shifting.
Entry 21 at 4.)

(Docket

Defendant responded in opposition (Docket Entry

26), Plaintiff replied (Docket Entry 28), and the Court set the
matter for a hearing on April 4, 2014 (Docket Entry dated Apr. 2,
2014).

At the hearing, the Parties reached an agreement as to

certain discovery requests (i.e., Plaintiff’s document requests
numbered 17, 18, 19, 43, 53, 58, 59, and 62) and the Court then
considered those requests which remained in dispute.
Entry

dated

Apr.

4,

2014.)

After

considering

(See Docket
the

Parties’

arguments, the Court ordered Defendant to respond to all of the
remaining, disputed requests (i.e., Plaintiff’s document requests
numbered 44 through 52), but also narrowed the scope of those
requests.

(See id.; Text Order dated Apr. 4, 2014.)

The Court further directed the Parties to work together to
resolve minor issues as to the scope of certain of the requests, as
well as the issue of expense-shifting, and to inform the Court as
to the outcome of those negotiations. (See Docket Entry dated Apr.
4, 2014; Text Order dated Apr. 4, 2014.) Subsequently, the Parties
informed the Court that they had resolved all outstanding issues as
to the scope of Plaintiff’s discovery requests. (Docket Entry 31.)
The Parties then filed a Notice outlining their disagreement as to
the appropriateness of expense-shifting.

-2-

(Docket Entry 32.)

In response to that Notice, the Court concluded that, because
it only granted Plaintiff’s Motion to Compel in part, it would
consider whether to order partial expense-shifting in this case.
(Docket Entry 33 at 4 (quoting Fed. R. Civ. P. 37(a)(5)(C) for the
proposition that, “‘i]f the motion is granted in part and denied in
part, the court . . . may, after giving an opportunity to be heard,
apportion the reasonable expenses for the motion’”).) Further, the
Court held that, contrary to Defendant’s position, Federal Rule of
Civil

Procedure

37(a)(5)(C)

does

not

preclude

an

award

attorney’s fees as part of a party’s reasonable expenses.

of

(Id. at

6-7.) The Court then directed the Parties to again work to resolve
expense-shifting issues and, absent any agreement, to further brief
the appropriateness and amount of expense-shifting in light of the
Court’s Order.

(Id. at 7.)

The Parties did not reach any further agreement (see Docket
Entry 34 at 1) and instead Plaintiff served Defendant with an
affidavit and statement of expenses (see Docket Entry 34-1).
Accordingly, Defendant filed the instant Memorandum in which it
asserts that Plaintiff has no entitlement to expense-shifting
because Plaintiff failed to confer in good faith before moving to
compel,

because

Defendant

had

substantial

justification

for

objecting to Plaintiff’s discovery requests, and because Defendant
substantially prevailed as to the Motion to Compel.

-3-

(Docket Entry

34 at 6-9.)1

In addition, Defendant contests some specific items

included in Plaintiff’s statement of expenses.

(Id. at 9-10.)

Plaintiff responded in opposition (Docket Entry 42) and Defendant
replied (Docket Entry 43).
II.
A.

DISCUSSION

Appropriateness of Expense-Shifting
Because the Court granted Plaintiff’s Motion to Compel “in

part and denied [it] in part, the [C]ourt may . . . after giving an
opportunity to be heard, apportion the reasonable expenses for the
[M]otion,” Fed. R. Civ. P. 37(a)(5)(C).

However, the Court should

not award expenses to the moving party 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); see also Charter Practices Int’l, LLC
v. Robb, No. 3:12CV1768 (RNC), 2014 WL 273855, at *5 (D. Conn. Jan.
23, 2014) (unpublished) (“Rule 37(a)(5)(C) effectively incorporates
the substantive standards of Rule 37(a)(5)(A)[, in] that expenses

1

Defendant also reiterated its position that Federal Rule of
Civil Procedure 37(a)(5)(C) precludes any award of attorney’s fees
(as part of reasonable expenses) when a court grants in part and
denies in part a motion to compel. (See Docket Entry 34 at 5-6.)
Because the Court has already ruled against Defendant’s position
with respect to that interpretation of Rule 37(a)(5)(C) (see Docket
Entry 33 at 6-7), it will not address that argument further.
-4-

of a discovery motion may be imposed upon a party ordered to
produce discovery where that party’s conduct necessitated the
motion unless the nondisclosure or objection was substantially
justified or other circumstances make an award of expenses unjust.”
(internal quotation marks omitted)); Switch Commn’cns Grp. LLC v.
Ballard, No. 2:11CV285 JCM (GWF), 2011 WL 5041231, at *1 (D. Nev.
Oct. 24, 2011) (unpublished) (“The same factors guide a court’s
decision under both subsection 37(a)(5)(A) and 37(a)(5)(C).”).
As an initial matter, Defendant contends that Plaintiff moved
to compel before conferring in good faith to resolve the issues
without court intervention, as required by Federal Rule of Civil
Procedure 37(a)(1) and Local Rule 37.1(a). (See Docket Entry 34 at
8-9.)

In that regard, Defendant asserts that Plaintiff, after

sending a letter to Defendant outlining Plaintiff’s concerns (on
February 3,

2014),

actually

drafted

the

Motion

to

Compel

on

February 6, 2014, before receiving Defendant’s response on February
7, 2014, upon which date Plaintiff filed said Motion.
9.)

(See id. at

According to Defendant, this sequence of events shows that

Plaintiff improperly “viewed Rule 37(a)(1)’s mandate to confer in
good faith with [Defendant] as a mere formality.”

(Id.)

Given that discovery in this case closed on February 7, 2014
(see Text Order dated Dec. 19, 2013), and that such date also
reflected the default deadline for moving to compel, see Lane v.
Lucent

Techs.,

Inc.,

No.

1:04CV789,

-5-

2007

WL

2079879,

at

*3

(M.D.N.C.

July

17,

2007)

(Osteen,

Sr.,

J.)

(unpublished)

(“Generally, a party must file a motion to compel before the close
of discovery in order for that motion to be deemed timely.”), the
Court finds reasonable Plaintiff’s advance preparation before and
prompt action upon receiving Defendant’s response (which conveyed
Defendant’s blanket refusal to respond to the requests which
remained in dispute at the hearing (see Docket Entry 26-12 at 24)).

The Court thus concludes that, under the facts of this case,

Plaintiff adequately consulted with Defendant, see, e.g., Kidwiler
v. Progressive Paloverde Ins. Co., 192 F.R.D. 193, 197–98 (N.D. W.
Va. 2000) (finding submission of letter detailing disputed issues
sufficient

to

meet

Rule

37’s

consultation

requirement),

particularly given that, even after further negotiations on the
hearing date, Defendant maintained one or more positions that (as
explained both in court on the record and in the discussion which
follows) the Court ultimately found wholly meritless (indicating
that additional consultation efforts by Plaintiff prior to moving
to compel would not have resolved the dispute), see, e.g., Kinetic
Concepts, Inc. v. ConvaTec Inc., 268 F.R.D. 226, 245 n.28 (M.D.N.C.
2010) (rejecting notion that consultation requirement mandated
redundant and likely futile measures).
Next, Defendant contends that Plaintiff has no entitlement to
expense-shifting because Defendant had substantial justification
for opposing Plaintiff’s Motion to Compel. (Docket Entry 34 at 8.)

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“A legal position is ‘substantially justified’ if there is a
‘genuine dispute’ as to proper resolution or if ‘a reasonable
person could think it correct, that is, if it has a reasonable
basis in law and fact.’”

Decision Insights, Inc. v. Sentia Grp.,

Inc., 311 F. App’x 586, 599 (4th Cir. 2009) (quoting Pierce v.
Underwood,

487

U.S.

552,

565-66

n.2

(1988)).

Accordingly,

Defendant asserts that its “objections were based on and supported
by numerous cases throughout the country holding that the type of
financial data sought by Plaintiff is not discoverable in cases
similar to the instant case.”

(Docket Entry 34 at 8.)

In opposing Plaintiff’s Motion to Compel (as to Plaintiff’s
document requests numbered 43 through 52 and 62, specifically),
Defendant

largely

argued

that

its

confidential

financial

information bore no relevance to this case, because “cost was not
the basis for the denial of the requested accommodation.”
Entry 26 at 16.)

(Docket

In support of its position, Defendant cited to

several cases in which courts determined that the fact that a
complaint seeks punitive damages does not alone entitle a plaintiff
to

discovery

information.
cases

concerning

a

defendant’s

confidential

(Id. at 15-16 (citing cases).)

actually

involves

arguments

related

financial

Only one of those
to

the

reasonable

accommodation inquiry and the related employer defense of undue
hardship (in addition to the punitive damages issue); moreover, in
that case, the plaintiff raised such an argument for the first time

-7-

at the hearing and it did not appear to significantly affect the
court’s reasoning.

See EEOC v. D&H Co. Dodge Bros. Giant Oil of

Ark., Inc., No. 6:10CV0672, 2011 U.S. Dist. LEXIS 128996, at *4-6
(W.D. Ark. Nov. 4, 2011) (unpublished).
In

contrast,

persuasive

authority

confirms

the

direct

relevance of a defendant’s financial status to the determination of
whether an accommodation’s cost renders it unreasonable or an undue
hardship on the employer (issues raised by Defendant in this case
(see Docket Entry 6 at 7-8)).

See, e.g., Vande Zande v. State of

Wis. Dep’t of Admin., 44 F.3d 538, 543 (7th Cir. 1995) (“So it
seems that costs enter at two points in the analysis of claims to
an accommodation to a disability.

The employee must show that the

accommodation is reasonable in the sense both of efficacious and of
proportional to costs.

Even if this prima facie showing is made,

the employer has an opportunity to prove that upon more careful
consideration the costs are excessive in relation either to the
benefits of the accommodation or to the employer’s financial
survival or health.”).

Furthermore, the ADA specifically defines

undue hardship as “an action requiring significant difficulty or
expense, when considered in light of the factors set forth . . . .
[including] the nature and cost of the accommodation needed under
this chapter . . . [and] the overall financial resources of the

-8-

covered entity.”
authority

and

the

42 U.S.C. § 12111(10).
defenses

asserted

in

In light of such
Defendant’s

Answer,

Defendant’s argument for the irrelevancy of discovery concerning
its finances to the reasonable accommodation inquiry lacks “a
reasonable basis in law and fact,” Decision Insights, 311 F. App’x
at 599.2
Under these circumstances, and given the absence of argument
by

Defendant

that

other

considerations

would

render

expense-

shifting unjust (see Docket Entry 34 at 7-9), the Court will
exercise its discretion to order Defendant to pay a portion of
Plaintiff’s reasonable expenses pursuant to Federal Rule of Civil
Procedure 37(a)(5)(C).
B.

Amount of Expense-Shifting
Plaintiff’s statement of expenses indicates fees totaling

$8,460 (representing 24.2 hours of attorney time billed at $350 per
hour) and costs totaling $39.20.

(Docket Entry 34-1 at 5.)3

In

disputing the amount of expense-shifting, Defendant contends (1)

2

Defendant’s contention at the hearing that concerns over
liability related to the requested accommodation do not constitute
concerns about cost related to the requested accommodation
similarly defies reasoned analysis, because “liability” simply
represents a mechanism for allocating costs, see, e.g., Pruitt v.
Allied Chem. Corp., 523 F. Supp. 975, 978 (E.D. Va. 1981)
(recognizing consensus “that a principal purpose of tort law is to
maximize social utility: where the costs of accidents exceeds the
costs of preventing them, the law will impose liability”).
3

Based on the rate of $350 per hour claimed by Plaintiff’s
counsel, 24.2 hours of attorney work actually would amount to
$8,470 in fees rather than $8,460.
-9-

that

the

Parties

resolved

several

of

the

disputed

discovery

requests without the Court’s intervention, (2) that, with respect
to Plaintiff’s discovery requests as to which the Court granted
relief, the Court also ruled in Defendant’s favor by narrowing
those requests, and (3) that several items billed by Plaintiff do
not properly reflect reasonable expenses incurred in making her
Motion to Compel.
contest

the

(Docket Entry 34 at 6-9.)

reasonableness

of

the

hourly

Defendant does not
rate

claimed

by

Plaintiff’s counsel or the number of hours spent by counsel for any
particular task.

(Id. at 1-10.)

As to the first of the foregoing matters, Defendant asserts
that the Parties came to an agreement as to 41% of the discovery
requests originally identified in the Motion to Compel and, thus,
the Court should reduce Plaintiff’s expenses accordingly.
Entry 34 at 2-3, 10.)

(Docket

The record reflects that the Parties, in

fact, reached a consensus regarding 47% of the initially disputed
requests (i.e., eight of seventeen) prior to the hearing.
id.)4

(See

Plaintiff does not deny that the Parties resolved those

items without the Court’s intervention.5

Given this negotiated

4

Defendant’s instant Memorandum omits the fact that, prior to
the hearing, the Parties resolved any dispute about Plaintiff’s
document request numbered 58. (See Docket Entry 34 at 2-3.)
5

Plaintiff notes that “Defendant’s numerical tally, claiming
41% victory is misleading to say the least.” (Docket Entry 42 at
5 n.5.)
However, the Court need not attribute “victory” to
Defendant as to the 47% of requests in question to deny expenseshifting for the related portion of Plaintiff’s Motion to Compel.
-10-

production, the Court will exercise its discretion under Rule
37(a)(5)(C) to order the Parties to bear their own expenses for
motion-practice related to those requests.

Accordingly, after

identifying what dollar amount qualifies as reasonable expenses
incurred by Plaintiff in moving to compel, the Court will impose a
reduction of 47%.
Defendant next asserts that it “[p]revailed [w]ith [r]espect
to the [m]ajority of the [i]ssues [r]aised” in connection with
Plaintiff’s requests for Defendant’s financial information because
the Court, in granting relief as to those requests, also narrowed
their scope.

(Docket Entry 34 at 6-7.)

Defendant’s success in

obtaining some narrowing of the requests at issue occurred at the
margins; Plaintiff, by contrast, substantially prevailed as to the
substance

of

the

material

dispute

regarding

those

requests.

Defendant cites to several cases, including two decisions of this
Court,

in

which

a

movant’s

partial

success

requiring both sides to bear their own costs.

led

to

an

order

(Docket Entry 34 at

6-7 (citing Moore v. DAN Holdings, Inc., 2013 WL 1833557, at *17
n.11 (M.D.N.C. Apr. 30, 2013) (unpublished), and Morris v. Lowe’s
Home Ctrs., Inc., 1:10CV388, 2012 WL 5347826, at *13 (M.D.N.C. Oct.
26,

2012)

(unpublished)).)

However,

those

cases

involved

Moreover, Plaintiff provides no explanation as to why the Court
should not exclude from expense-shifting the 47% of disputed
requests originally in her Motion to Compel that she and Defendant
resolved on undisclosed terms. (See id. at 1-7.)
-11-

circumstances in which the conduct of both Parties contributed
(relatively) equally to the discovery litigation and in which both
Parties obtained substantial relief.

Moore, 2013 WL 1833557, at

*17 n.11; Morris, 2012 WL 5347826, at *13.
In the instant case, unlike those cited by Defendant, the
Court found no reasonable basis for Defendant’s position regarding
the purported irrelevance of its finances and ruled that Defendant
had to produce such discovery. Moreover, at the hearing, Plaintiff
expressed
requests

a willingness
while

to

Defendant

narrow
adhered

the
to

scope
its

of

the

position

disputed
that

any

information about its finances bore no relevance to the issue of
reasonable accommodation - a position for which (as discussed
above) Defendant lacked substantial justification.

Finally, the

Court’s direction that Plaintiff narrow the scope of the language
in the requests to avoid overbreadth reflected a comparatively
minor adjustment. Such circumstances warrant some expense-shifting
in Plaintiff’s favor.

See, e.g., Dauska v. Green Bay Packaging

Inc., 291 F.R.D. 251, 263 (E.D. Wis. 2013) (granting motion to
compel in part and awarding partial expenses to substantially
prevailing plaintiff under Rule 37(a)(5)(C), while characterizing
defendant’s arguments in opposition as “baseless” and plaintiff’s
requests as “overly broad”). Nonetheless, because the Court agreed
with Defendant as to the overbreadth of the requests at issue, the
Court will reduce the portion of Plaintiff’s reasonable expenses

-12-

attributable to requests numbered 43 through 52 by 25% to account
for Defendant’s limited success.
Finally, Defendant asserts that several items which appear on
Plaintiff’s statement do not constitute expenses “‘incurred in
making the motion.’”
Civ.

P.

(Docket Entry 34 at 9-10 (quoting Fed. R.

37(a)(5)(A)).)

Specifically,

Defendant

notes

that

Plaintiff has included in her statement work performed prior to
drafting the Motion to Compel as well as work performed after the
Court granted said Motion in part.

(See id. at 10.)

The Court

agrees and accordingly will deduct 1.5 hours spent reviewing
discovery and drafting a letter regarding deficiencies, .6 hours
spent preparing a notice to the Court following the hearing, and
1.4 hours spent preparing a notice to the Court regarding fee
shifting.6

As a result, 20.7 hours represents the reasonable

amount of time spent by Plaintiff making her Motion to Compel.
As discussed above, the Court will reduce that amount by 47%
(to 10.97 hours) to account for the discovery requests resolved by
the Parties prior to the hearing.

From that remaining sum, the

Court will make an additional reduction of 25% (to 8.23 hours)
because Defendant prevailed as to the overbreadth of the remaining
disputed requests, resulting in reasonable attorney’s fees equaling

6

However, the Court will not exclude 1.7 hours spent by
Plaintiff’s counsel preparing for the hearing and preparing a
proposal to resolve the discovery dispute, as requested by
Defendant, because the Court construes those activities as part of
making the Motion to Compel.
-13-

$2,880.50 (i.e., 8.23 hours at $350 per hour).

As a final matter,

the Court will order Defendant to compensate Plaintiff for travel
expenses in connection with attending the hearing in the amount of
$39.20 (see Docket Entry 34-1 at 5).7

Thus, Defendant must pay

Plaintiff reasonable expenses, including attorney’s fees, totaling
$2,919.70.
III.

CONCLUSION

Plaintiff has demonstrated an entitlement to compensation for
a portion of her reasonable expenses, including attorney’s fees,
incurred in making her Motion to Compel.
IT IS THEREFORE ORDERED that Defendant pay Plaintiff $2,919.70
in reasonable expenses, including attorney’s fees, incurred in
making Plaintiff’s Motion to Compel (Docket Entry 21).
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
July 9, 2014

7

Defendant neither challenges Plaintiff’s ability to recover
travel costs (as opposed to attorney’s fees) under Federal Rule of
Civil Procedure 37(a)(5)(C) nor contests the reasonableness of the
costs incurred in that regard. (See Docket Entry 34; Docket Entry
43.)
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