Opinion
CIVIL ACTION NO. 03-0018; SECTION "K" (4)
October 22, 2003
ORDER AND REASONS
Before this Court is defendant Jen Marine, L.L.C.'s ("Jen Marine") Motion for Review and to Set Aside of the Magistrate Judge's Order awarding attorney fees. (Rec.Doc. 35). For the following reasons the Court finds that the Magistrate Judge's findings are not clearly erroneous and, therefore, and DENIES defendant's motion.
1. Background
On January 3, 2003, plaintiff Kelly Guidry filed a Complaint (Rec. Doc. No. 1) in the instant Jones Act suit alleging that Larry Kerner was injured when the M/V ERIN ELIZABETH, owned by defendant Jen Marine, sank in Lake Pontchartrain.
On June 10, 2003, the Plaintiff issued a subpoena to defendant's insurer, Jack Hoyle, requesting that Hoyle produce his entire file in this matter. Defendant responded to the subpoena by producing partial responses and a privilege log that detailed those requested documents which it felt were not subject to discovery.
Subsequently, Plaintiff filed a Motion to Compel (Rec. Doc. No. 15) seeking, inter alia, production of those documents listed on the privilege log. Defendant opposed the Motion to Compel on the basis that the documents were covered by either work-product or attorney-client privilege. Defendant offered an in camera review of the disputed documents.
A hearing on the motion was held and, on August 25, 2003, Magistrate Judge Roby issued an Order (Rec. Doc. No. 31) that granted in part and denied in part the requested relief sought by Plaintiff. On August 29, 2003, defendant filed the instant Motion to Review and Set Aside Magistrate Judge's Order.
2. Standard of Review
The District Court may reconsider a magistrate judge's determination of non-dispositive pre-trial matters where it has been shown that the magistrate judge's order is "clearly erroneous or contrary to law." See 28 U.S.C. § 636(b)(1)(a); Fed.R.Civ.P. 72(a).
3. Objections and Responses
Defendant moves the Court to review the Order and set aside that portion of the Order pertaining to the award of attorney's fees on any of the following three grounds:
1) Pursuant to Rule 37(a)(2)(B), plaintiff failed to file a certification that it had in good faith conferred or attempted to confer with defendant in an effort to secure the information or material without court action;
2) Pursuant to Rule 37(a)(4)(A), defendant's nondisclosure, response, or objection to the discovery request was "substantially justified"; or
3) Pursuant to Rule 37(a)(4)(A), "other circumstances" make an award of expenses unjust. Plaintiff disputes defendant's initial objection, asserting that the requisite certification
under Rule 37(a)(2)(B) was satisfied in two respects. First, in filing the Motion to Compel, plaintiff's counsel certified that he had discussed all discovery disputes with defendant's counsel, and that defendant refused to respond to the discovery. Second, at the deposition of Jack Hoyle, which was attached to the Motion to Compel, plaintiff' counsel adjourned the deposition to apply for an order to compel the discovery requests.
As to defendant's second objection, plaintiff contends that Magistrate Judge Roby's Rule 37(a)(4)(A) "substantially justified" determination satisfies the clearly erroneous standard. Defendant argues that the Order was clearly erroneous in stating "Hoyle testified during deposition that . . . he had no reason to believe that Kernels accident would result in litigation." Magistrate Judge's Order at 7-8. Hoyle made no such statement according to defendant. However, plaintiff asserts that defendant's argument is misplaced because when read in context, the entirety of pages 38-40 of Hoyle's deposition clearly indicate that Hoyle gave a "flip" answer in stating that he "always anticipates litigation" and there was no particular cause to think that the matter would be litigated.
Finally, in response to defendant's third objection, the Rule 37(a)(4)(A) argument that "other circumstances" make an award of expenses unjust, plaintiff asserts that defendant's conduct did in fact constitute abusive practices.
4. Law and Analysis
Motions to compel discovery responses are governed by Federal Rule of Civil Procedure 37. That rule provides that "[i]f a party fails to make a disclosure required by Rule 26(a), any other party may move to compel disclosure and for appropriate sanctions." Fed.R.Civ.P. 37(a)(2). Subsection (a)(4) of rule 37 specifically governs the award of expenses and sanctions under the rule and provides three different standards:
(A) If a motion is granted or if the disclosure or requested discovery is provided after the motion was filed, the court shall, after affording an opportunity to be heard, require the party or deponent whose conduct necessitated the motion or the party of attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in making the motion, including attorney's fees, unless the court finds that the motion was filed without the movant's first making a good faith effort to obtain the disclosure or discovery without court action, or that the opposing party's nondisclosure, response, or objection was substantially justified, or that other circumstances make an award of expenses unjust.
(B) If the motion is denied [not applicable here]
(C) If the motion is granted in part and denied in part, the court may enter any protective order authorized under Rule 26(c) and may, after affording an opportunity to be heard, apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner.
Fed.R.Civ.P. 37(a)(4)(A)-(C) (emphasis added). In the case at hand, subsection (a)(4)(C) of Rule 37, which provides the court with more discretion than subsection (a)(4)(A), provides the basis for Magistrate Judge Roby's award of reasonable attorney's fees and costs for plaintiff. Subsection (a)(4)(C) relates to the award of expenses where a motion has been granted in part and denied part, as is the case here:
IT IS ORDERED that the Motion to Compel response to Subpoena and to Compel Responses to Questions Presented to Jack Hoyle and Neil Wiseman at their Depositions, and for Attorney's Fees, Costs and Discovery Sanctions is GRANTED IN PART, DENIED IN PART and CONTINUED IN PART as follows:
1. GRANTED to the extent the plaintiffs seek to re-depose Jack Hoyle.
2. GRANTED as to the documents the defendant identified with bates numbers 000001,000002,000003,000004,000005,000006,000007, 000008,000009,000010,000011,000012,000013,000014, 000016,000017,000018,000019,000020,000021, and 000022.
3. DENIED as to the documents identified with bates number 000015.
4. CONTINUED to the extent the plaintiff seek attorney's fees and costs.
Magistrate Judge's Order at 9.
Defendant's Motion to Review and Set Aside Magistrate Judge's Order was based on justifications provided by Rule 37(a)(4)(A). That subsection applies to motions granted in full, which is not the case here. Where a motion is granted in part and denied in part, subsection (a)(4)(C) of Rule 37 does not provide exceptions to the award of expenses where a Defendant's nondisclosure, response, or objection to the discovery request was "substantially justified" or where "other circumstances" make an award of expenses unjust. See Fed.R.Civ.P. 37(a)(4)(C). Rule 37(a)(4)(C) allows the court to exercise more discretion in apportioning the reasonable expenses incurred in relation to the motion. See Bernofsky v. Tulane University Medical School, 1996 WL 198118, at *4 (E.D.La.).
After reviewing the pleadings and circumstances, Magistrate Judge Roby found that attorney's fees were warranted. This Court has demonstrated that it will give deference to a magistrate judge's order provided that it is not clearly erroneous or contrary to law. See Giardina v. Lockheed Martin Corp., 2003 WL 1338826 (E.D.La.) Defendant has not met its burden of showing that the Magistrate Judge's decision was clearly erroneous or contrary to law. Consequently, even if the Court were to review the Order under the constraints of subsection (a)(4)(A) of Rule 37, defendant's Motion for Review and Set Aside of the Magistrate Judge's Order would still be denied. Accordingly,
IT IS ORDERED that the defendant's Motion for Review, and Set Aside of the Magistrate Judge's Order, (Rec.Doc. 35), is hereby DENIED.