ATTORNEY FOR PETITIONER: JAMES K. GILDAY, GILDAY &
ASSOCIATES, P.C., Indianapolis, IN.
FOR RESPONDENT: GREGORY F. ZOELLER, INDIANA ATTORNEY GENERAL;
JOHN P. LOWREY, DEPUTY ATTORNEY GENERAL, Indianapolis, IN.
ON RESPONDENT'S REQUEST FOR EXPENSES PURSUANT TO INDIANA
TRIAL RULE 37(A)(4)
Blood Wentworth, Judge.
Indiana Department of State Revenue argues that it is
entitled to expenses in the amount of $5,175.25 for
successfully defending against Nick Popovich's second
motion to compel. See generally Popovich v. Indiana
Dep't of State Revenue (Popovich II), 7 N.E.3d 419
(Ind.Tax Ct. 2014), reh'g denied. The Court agrees.
December of 2011, Popovich subpoenaed the Department's
designated Trial Rule 30(B)(6) witness, directing him to
bring several pages of original documentation to a
deposition. Less than 24 hours before the deposition, the
Department emailed Popovich to explain that it would bring
only copies of the requested documentation to the deposition
because the original documents could not be removed from its
offices. That same afternoon, Popovich stated that he would
file another motion to compel if the Department did not bring
at least 27-pages of specified original documentation to the
deposition. When the Department's witness appeared at the
deposition without any original documents, Popovich promptly
adjourned the deposition. Approximately two weeks later, in
January of 2012, Popovich filed his second motion to compel
the production of original documents.
April 24, 2012, after conducting a hearing, the Court denied
Popovich's second motion to compel because Popovich did
not document his attempts to resolve the matter informally as
required by Indiana Trial Rule 26(F). See Popovich
II, 7 N.E.3d at 422-23. Popovich subsequently filed a
motion to reconsider, arguing that the Department's
obdurate behavior throughout the discovery process had made
complying with Trial Rule 26(F) futile. On June 2, 2014, the
Court denied that motion. See Popovich v. Indiana
Dep't of State Revenue (Popovich III), No.
49T10-1010-TA-00053, 13 N.E.3d 954, at *2 (Ind.Tax Ct. 2014).
October 22, 2014, the Court conducted a hearing on the
Department's request for expenses as required by Indiana
Trial Rule 37(A)(4). Additional facts will be supplied as
Trial Rule 37(A)(4) concerns the awarding of expenses for
successfully defending against discovery enforcement motions.
The Rule, in relevant part, states:
If [a] motion is denied, the court shall, after opportunity
for hearing, require the moving party or the attorney
advising the motion or both of them to pay to the party or
deponent who opposed the motion the reasonable expenses
incurred in opposing the motion, including attorney's
fees, unless the court finds that the making of the motion
was substantially justified or that other circumstances make
an award of expenses unjust.
Ind. Trial Rule 37(A)(4) (emphasis added). Thus, when a
discovery enforcement motion, like Popovich's second
motion to compel, is denied, a presumption arises that the
Court will also order the reimbursement of the prevailing
party's reasonable expenses. See Penn Cent.
Corp. v. Buchanan, 712 N.E.2d 508, 511 (Ind.Ct.App.
1999), trans. denied; Georgetown Steel Corp. v.
Chaffee, 519 N.E.2d 574, 576 (Ind.Ct.App. 1988), trans.
denied. This award of expenses is mandatory, subject only to
a showing that the losing party's conduct was
substantially justified or that other circumstances make an
award of expenses unjust. Penn Cent., 712 N.E.2d at 511.
" [A] person is 'substantially justified' in
seeking to compel or in resisting discovery, for purposes of
avoiding the sanctions provided by [Trial Rule 37(A)(4)], if
reasonable persons could conclude that a genuine issue
existed as to whether a person was bound to comply with the
requested discovery." Id. at 513.
issue before the Court is whether the Department is entitled
to be reimbursed for expenses incurred in successfully
defending against Popovich's second motion to compel. The
resolution of this issue depends on the answers to the
following questions: 1) whether Popovich was substantially
justified in filing the second motion to compel; and ...