ATTORNEYS FOR PETITIONER: RANDAL J. KALTENMARK ZIAADDIN
MOLLABASHY BARNES & THORNBURG LLP Indianapolis, IN
THEODORE R. BOTS JENNY A. AUSTIN BAKER & MCKENZIE LLP
Chicago, IL SCOTT L. BRANDMAN BAKER & MCKENZIE LLP New
ATTORNEYS FOR RESPONDENT: CURTIS T. HILL, JR. ATTORNEY
GENERAL OF INDIANA JESSICA R. GASTINEAU WINSTON LIN PARVINDER
K. NIJJAR DEPUTY ATTORNEYS GENERAL Indianapolis, IN
ORDER ON PETITIONER AND RESPONDENT'S REQUESTS FOR
EXPENSES PURSUANT TO INDIANA TRIAL RULE 37(A)(4)
Blood Wentworth Judge
having successfully defended against and prosecuted discovery
enforcement motions either in whole or in part, both the
University of Phoenix, Inc. and the Indiana Department of
State Revenue claim that an award of expenses pursuant to
Indiana Trial Rule 37(A)(4) is warranted. The Court agrees.
events giving rise to the filing of the Department's
first discovery enforcement motion may be traced back to
October 13, 2016: the day the University issued a non-party
subpoena to the former Commissioner of the Indiana Department
of State Revenue directing him to appear for a deposition.
Shortly thereafter, the Department moved for a protective
order explaining that information on Section 14 of House Bill
1349, the September 2014 Tax Competitiveness and
Simplification Report, and a presentation on the Report
(collectively, the "deposition topics") was not
relevant and was most likely obtainable from
"lesser-ranking officials[.]" (See
Pet'r Br. Supp. Award Expenses Pursuant To Ind. Trial
Rule 37(A)(4) For Its Resp. To Resp't Mots. For
Protective Order & Mot. To Compel ("Pet'r
Br."), Ex. E at 2-5 ¶¶ 3-21.) On October 27,
2016, the Court denied the Department's motion for
protective order, quashed the subpoena, and advised the
parties that the University could depose the former
Commissioner at a later date. (See Pet'r Br.,
meantime, the University deposed the Department's three
Trial Rule 30(B)(6) witnesses who provided scant information
on the deposition topics. As a result, the University issued
a second subpoena to the former Commissioner on November 1,
2016. Just over a week later, the Department filed its second
motion for a protective order that, in addition to restating
its prior arguments, explained that the University "had
unfettered access to [the Department's] three extremely
qualified [30(B)(6)] witnesses" to discuss the
"irrelevant" deposition topics, and therefore, the
Court should end the University's "fishing
expedition." (See Pet'r Br., Ex. D ¶
7.) On November 28, 2016, the Court denied the
Department's second motion for protective order.
University of Phoenix, Inc. v. Indiana Dep't of State
Revenue, 64 N.E.3d 1271, 1274 (Ind. Tax Ct. 2016).
time, however, the University had filed its own discovery
enforcement motion that sought to compel the Department to
produce documents regarding the deposition topics and to
designate a proper 30(B)(6) witness. The Court subsequently
granted in part and denied in part the University's
motion to compel. University of Phoenix, Inc. v. Indiana
Dep't of State Revenue, Cause No.
49T10-1411-TA-00065, 2017 WL 475839, at *6 (Ind. Tax Ct. Feb.
January 17, 2017, the Court conducted an evidentiary hearing
on the parties' requests for expenses as required by
Trial Rule 37(A)(4). The University submitted two affidavits
that provided its expenses totaled $159, 446.40. (See
generally Pet'r Br., Exs. C, F.) In turn, the
Department's affidavit stated that its expenses totaled
$12, 900.00. (See generally Resp't Aff. Supp.
Award Expenses.) Additional facts will be supplied as
Trial Rule 37(A)(4) states that when a court grants or denies
a discovery enforcement motion, it shall require the party
whose conduct necessitated the motion
or the party or attorney advising such conduct or both of
them to pay to the moving party the reasonable expenses
incurred in obtaining the order, including attorney's
fees, unless the court finds that the opposition to[ or the
making of] the motion was substantially justified or that
other circumstances make an award of expenses unjust.
Trial Rule 37(A)(4). Accordingly, when discovery enforcement
motions, like those at issue here, are granted or denied, a
presumption arises that the Court will order the
reimbursement of the prevailing party's reasonable
expenses. Popovich v. IndianaDep't of State
Revenue, 50 N.E.3d 407, 411 (Ind. Tax Ct. 2016).
"The award of expenses is mandatory unless the losing
party either demonstrates that he was substantially justified
in making or opposing the motion or shows that other
circumstances make an award of expenses unjust."
Id. (citation omitted). "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 ...