United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
Collins United States Magistrate Judge
the Court is a motion and attached exhibits filed by
Plaintiff Zimmer, Inc. (“Zimmer”), seeking an
award of $52, 689.49 in attorney's fees that it incurred
litigating a motion to compel against Defendants Beamalloy
Reconstructive Medical Products, LLC, and Beamalloy
Technologies, LLC (together “Beamalloy”). (DE
133; see generally DE 131). On March 21, 2019, the
Court granted Zimmer's motion to compel with respect to
all but two documents and gave Zimmer leave to file a motion
for an award of attorney's fees under Federal Rule of
Civil Procedure 37(a)(5)(A). (DE 131 at 31).
filed a response to Zimmer's motion, and Zimmer filed a
reply. (DE 135; DE 137). Thus, the motion is ripe for ruling.
For the reasons discussed below, the Court will grant
Zimmer's motion but reduce the award by $1, 317.98, for a
total award of $51, 371.51.
37(a)(5)(A) provides that “the court must . . . require
the party or deponent whose conduct necessitated the motion .
. . to pay the movant's reasonable expenses incurred in
making the motion, including attorney's fees.” The
rule presumptively requires the loser “to make good the
victor's costs.” Rackemann v. LISNR, Inc.,
No. 117CV00624MJDTWP, 2018 WL 3328140, at *2 (S.D. Ind. July
6, 2018) (citation and internal quotation marks omitted);
see Rickels v. City of S. Bend, Ind., 33 F.3d 785,
786 (7th Cir. 1994). Yet, a court must not order fees 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)(i)-(iii); see Steadfast Ins. Co.
v. Auto Mktg. Network, Inc., No. 97 C 5696, 1999 WL
446691, at *1 (N.D. Ill. June 23, 1999). “The burden of
persuasion is on the losing party to avoid assessment of
expenses and fees, rather than on the winning party to obtain
such an award.” Steadfast Ins. Co., 1999 WL
446691, at *1 (citation omitted); see also Lincoln
Diagnostics, Inc. v. Panatrex, Inc., No. 07-CV-2077,
2008 WL 4330182, at *3 (C.D. Ill. Sept. 16, 2008).
The Email Discovery
Rule 37(a)(5)(A)(ii), a party's resistance to discovery
is “substantially justified” when there is
“a genuine dispute.” Rackemann, 2018 WL
3328140, at *3 (citing Fogel v. Bukovic, No. 11 C
1178, 2011 WL 2463528, at *3 (N.D. Ill. June 20, 2011)). Put
another way, resistance is substantially justified if
“reasonable people could differ as to the
appropriateness of the contested action.” Pierce v.
Underwood, 487 U.S. 552, 565 (1988) (citation omitted).
opposing Zimmer's motion to compel, Beamalloy argued that
the burden of producing the Email Discovery outweighed any
potential relevance. The Court disagreed and determined that
Beamalloy: (1) was aware that the Email Discovery contained
relevant information; (2) did not provide evidence that White
or Lazear went through their email accounts or turned over
all relevant documents contained therein; and (3) did not
provide evidence that it would suffer any undue burden in
producing the Email Discovery. (See DE 131 at 7-9).
In short, Beamalloy failed to substantiate its
Beamalloy contends that its proportionality argument
substantially justified resisting Zimmer's motion to
compel because the argument was made “in good
faith” and was not “frivolous.” (DE 135 at
3). This argument is little more than a repackaged version of
Beamalloy's proportionality argument.
opposing Zimmer's motion to compel, Beamalloy was aware
or should have been aware that the Email Discovery contained
relevant information and that it had not supported its
undue-burden claim. Thus, Beamalloy's proportionality
argument was “entirely without merit, ” for
purposes of Rule 37(a)(5)(A)(ii). Watkins v. Trans Union,
LLC, No. 214CV00135WTLMJD, 2019 WL 336674, at *2 (S.D.
Ind. Jan. 28, 2019), R. & R. adopted, No.
2:14-CV-135-WTL-MJD, 2019 WL 653095 (S.D. Ind. Feb. 15, 2019)
(finding the defendant's argument that certain documents
did not exist was “entirely without merit”
because one of the defendant's witnesses contradicted
this point during a deposition). Consequently, the Court is
not persuaded that “reasonable people could differ as
to the appropriateness” of Beamalloy's withholding
the Email Discovery. Pierce, 487 U.S. at 565
Unjust Under the Circumstances
argument under Rule 37(a)(5)(A)(iii) fares no better. Rule
37(a)(5)(A)(iii) bars awarding attorney's fees if doing
so would be unjust. See Rackemann, 2018 WL 3328140,
at *3. This exception is a “rather flexible catch-all
provision.” Slabaugh v. LG Elecs. USA, Inc.,
No. 1:12-CV-01020-RLY, 2014 WL 6453557, at *2 (S.D. Ind. Nov.
relies on Silicon Graphics, Inc. v. ATI Technologies,
Inc., No. 06-C-611-C, 2008 WL 2857270, at *1 (W.D. Wis.
Jan. 25, 2008), in arguing that “malfeasance or
scienter” are required to find a fee award just.
However, the court in Silicon Graphics, Inc., did
not indicate that a fee award under Rule 37(a)(5)(A)(iii)
requires the opposing party to act with malfeasance or
scienter; rather, the court stated that the opposing party
did not have malfeasance or scienter as one among other
factual determinations. See id.
Silicon Graphics, Inc., is distinguishable from this
case. There, the court concluded that the party withholding
discovery was “unaware that [the discovery]
materials” were in its possession, creating a
“genuine and legitimate difference of opinion”
whether the material fell within the scope of the discovery
request. Id. By contrast, Beamalloy knew that it
could produce the Email Discovery and that White and Lazear
used their third-party email accounts to conduct business
relevant to the issues in this case. (See DE 62-14
at 3; DE 63). Therefore, the Court will grant Zimmer's
award request with respect to the Email Discovery.
The Equipment/IBED Discovery