United States District Court, S.D. Indiana, Indianapolis Division
ORDER ON PLAINTIFF'S PETITION FOR FEES AND EXPENSES
MARK K. DINSMORE, Magistrate Judge.
This matter comes before the Court on Plaintiff's Motion for Fees and Expenses Pursuant to the Court's Order of May 1, 2014, [Dkt. 181], and supplemental request for fees. [Dkt. 187.] For the reasons set forth below, the Court GRANTS the motion.
Malibu Media, LLC, ("Plaintiff") filed suit against Michael Harrison ("Defendant") and others, alleging direct and contributory copyright infringement. [Dkt. 59 at 1.] Plaintiff alleged that Defendant downloaded a BitTorrent client on his computer and accessed torrent websites to upload and download Plaintiff's copyrighted files, including those related to Plaintiff's X-Art website. [ Id. at 4-5.]
On December 4, 2013, the Court held a conference to discuss a dispute over Defendant's request for production of documents. [Dkt. 142.] The Court ordered Plaintiff to produce any documents it had agreed to produce by December 13, 2013. [ Id. ] It also "authorized [Defendant] to file a motion to compel with regard to all remaining disputed issues as those issues become ripe." [ Id. ]
On January 9, 2014, Defendant filed a Motion to Compel Discovery asking the Court to compel responses to Defendant's Requests for Production Nos. 6, 7, 9, 21, and 23. [Dkt. 151 at 3.] The Magistrate Judge denied the motion to compel on May 2, 2014 and directed Plaintiff to submit a petition for its fees and expenses pursuant to Fed.R.Civ.P. 37(a)(5)(B). Plaintiff did so on May 15, 2014. [Dkt. 181.]
The same day, Defendant filed an objection to the Magistrate Judge's denial of his motion to compel. [Dkt. 180.] He specifically objected to the Court's denial of his request to compel production responsive to Request No. 6. [ Id. at 1.] Plaintiff responded to this objection on June 6, 2014 and included an updated petition for fees. [Dkt. 187 at 9-10.] The Court overruled Defendant's objection on October 15, 2014. [Dkt. 253.] The Court now considers Plaintiff's petition for fees, [Dkt. 181], including Plaintiff's update to this petition. [Dkt. 187.]
II. Legal Standard
If a court denies a motion to compel, the court "must... 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, " unless the motion was "substantially justified or other circumstances make an award of expenses unjust." Fed.R.Civ.P. 37(a)(5)(B). The Rule "presumptively requires every loser to make good the victor's costs." Rickels v. City of S. Bend, Ind., 33 F.3d 785, 786 (7th Cir. 1994). The burden of persuasion is on the losing party to avoid assessment of fees, rather than on the winning party to obtain such an award. Lincoln Diagnostics, Inc. v. Panatrex, Inc., No. 07-CV-2077, 2008 WL 4330182, at *3 (C.D. Ill. Sept. 16, 2008).
1. Substantial Justification
"Substantial justification exists if the Motion posited a genuine dispute or if reasonable people could differ as to the appropriateness of the contested action." Tecnomatic, S.p.A. v. Remy, Inc., No. 1:11-CV-00991-SEB, 2013 WL 6665531, at *1 (S.D. Ind. Dec. 17, 2013) (citations omitted). Plaintiff asserts that there was no "substantial justification" for any of the requests in Defendant's Motion to Compel. The Court addresses each request in turn.
A. Request No. 6
Defendant's Request No. ...