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 PETITIONER'S REQUEST FOR EXPENSES PURSUANT TO INDIANA
TRIAL RULE 37(A)(4)
Blood Wentworth, Judge.
Popovich has requested expenses in the amount of $51,210.29
for successfully prosecuting his first motion to compel. See
generally Popovich v. Indiana Dep't of State Revenue
(Popovich I), 7 N.E.3d 406 (Ind.Tax Ct. 2014). The Court
finds that Popovich is entitled to be reimbursed for
reasonable expenses and awards him $24,963.00.
February 20, 2012, just 10 days before the hearing on
Popovich's first motion to compel, the Court ordered the
Department to provide " a discrete and numbered list of
each item it [sought] to be protected from discovery[.]"
(See Order, Feb. 20, 2012.) The Department's response
indicated that it was raising about 418 separate objections
to nearly all of Popovich's interrogatories and requests
for production. (See generally Resp't Resp. Item No. 2,
Feb. 29, 2012.) (See also Pet'r Mot. Compel, Ex. A at
15-70 and Ex. G at 9-103, Nov. 22, 2011; Pet'r Reply
Supp. Mot. Compel, Ex. L at 1-98 and Ex. N at 1-7, Jan. 17,
2012.) For example, the Department claimed that
Popovich's discovery requests were not relevant and
violated both the deliberative process privilege and the
general bar against probing the mental processes of
administrative decision-makers. (See, e.g., Pet'r Mot.
Compel, Ex. A at 15-70; Pet'r Reply Supp. Mot. Compel,
Ex. L at 1-98.) The Department also claimed that
Popovich's discovery requests violated the work-product
and attorney-client privileges and that they were oppressive,
ambiguous, and unduly burdensome; contained compound
questions; posed hypothetical questions; and improperly
sought legal conclusions. (See, e.g., Pet'r Mot. Compel,
Ex. A at 15-70.)
April 24, 2014, the Court issued an order that rejected the
Department's claims regarding:
1) the relevance of Popovich's discovery requests because
they concerned the subject-matter of the case;
2) the deliberative process privilege because the Department
failed to show that " Indiana recognize[d] a
deliberative process privilege applicable to the discovery
3) the general bar against probing the mental processes of
administrative decision-makers because Popovich expressly
stated that he was not seeking to pry into the hearing
officer's mental processes and the bar simply did not
apply to the Department's audit process; and
4) the work-product privilege, the attorney-client privilege,
and all of the Department's remaining objections because
it had done nothing more than assert a series of blanket
See Popovich I, 7 N.E.3d at 412-19.
October 22, 2014, the Court conducted a hearing on
Popovich's request for expenses as required by Indiana
Trial Rule 37(A)(4). ...