The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge
This case is before the court for ruling on two motions filed by Plaintiff, Lincoln Diagnostics, Inc. This court has carefully considered the arguments of the parties and the documents submitted by the parties. Following this careful and thorough consideration, this court rules as follows: (1) Plaintiff's Motion for Reimbursement of Reasonable Expenses, Including Attorney's Fees (#80) is GRANTED; and (2) Plaintiff's Motion for Directions (#81) is GRANTED.
I. REASONABLE EXPENSES AND ATTORNEY'S FEES
On August 8, 2008, Plaintiff filed its Motion for Reimbursement of Reasonable Expenses, Including Attorney's Fees (#80). In its Motion, Plaintiff requested its reasonable costs, including attorney's fees, incurred in responding to Defendant's Motions for Protective Order. This court sets out the following facts which are relevant to the issues raised by Plaintiff's Motion
On May 29, 2008, this court entered a lengthy Opinion (#52). Among other things, this court concluded that Plaintiff had shown "that Defendant has failed to comply with discovery requests so that sanctions are warranted." This court therefore granted Plaintiff's Motion to Compel and Request for Sanctions. This court stated:
Defendant is hereby ordered to respond fully and completely to the Interrogatories and Requests for Production served on it, in compliance with the Federal Rules of Civil Procedure, within 30 days of the date of this Opinion. Defendant is also ordered to produce for deposition corporate representatives who can provide information regarding Defendant's sales and other matters related to recovery and damages within 30 days of the date of this Opinion.
This court also gave Plaintiff 30 days to file an affidavit documenting the attorney's fees and costs it incurred as a result of Defendant's failure to respond to written discovery in a proper and timely manner. In addition, this court allowed Defendant's counsel to withdraw because there was no dispute that there were irreconcilable differences between Defendant and its counsel.
On June 9, 2008, Plaintiff filed its Affidavit (#53) regarding attorney's fees and related costs and sought a total of $2,242.67 in attorney's fees and costs from Defendant. On June 23, 2008, Attorney Paul E. Adami entered his appearance (#55) in this case as counsel for Defendant. Defendant then filed a Response (#56) to Plaintiff's request for attorney's fees and costs and a Motion for Reconsideration (#57) of parts of this court's Opinion. On June 30, 2008, Defendant filed a Motion for Protective Order (#59) and Memorandum in Support (#60). In this Motion, Defendant stated that it "would be a substantial hardship" for Dr. Rayling Hsiao, Defendant's president, to appear outside of his residence in Taiwan for a deposition, in part because of a degenerative disease in his left eye. Defendant stated that Dr. Hsiao had offered to appear by telephone for his deposition. On July 16, 2008, Plaintiff filed a Memorandum in Opposition to Defendant's Motion for Protective Order (#65). Plaintiff noted that this court did not order Defendant to produce Dr. Hsiao for deposition but, instead, ordered Defendant to produce a witness to testify about Defendant's "sales and other matters related to recovery and damages." Plaintiff further stated that it believed that "the time for interposing objections to the deposition(s) -- as ordered by the District Court -- has long since expired."
On July 21, 2008, this court entered an Opinion (#66) which denied Defendant's Motion for Reconsideration and also entered an Order (#67) which ordered Defendant to pay Plaintiff $2,242.67 in attorney's fees and costs. On July 21, 2008, Plaintiff filed a Motion for Sanctions Including Finding of Contempt (#68) and Memorandum in Support (#69). Plaintiff argued that sanctions were warranted because Defendant had not complied with this court's order that Defendant fully comply with discovery requests within 30 days of the date of the May 29, 2008 Opinion. On July 29, 2008, Defendant filed a Second Motion for Protective Order (#71) and Memorandum in Support (#72). Defendant asked this court for an order which prohibited Plaintiff from obtaining customer lists and other documents containing the names of Defendant's customers because Defendant contended sales documents regarding Defendant's customer list was a "trade secret." On July 30, 2008, Plaintiff filed a Second Motion for Sanctions (#73) stating that Defendant has acted in a contumacious manner by its "continued and open refusal" to comply with this court's order. On July 31, 2008, Plaintiff filed a Memorandum in Opposition to Defendant's Second Motion for Protective Order (#76). Plaintiff argued, among other things, that Defendant's "failure to interpose timely objections to the Requests for Production constitutes waiver of any such objections." Plaintiff also stated that Defendant "remains defiant in its refusal to produce any information related to sales of the Panatrex Products."
On July 31, 2008, Magistrate Judge David G. Bernthal held a hearing regarding Defendant's first Motion for Protective Order (#59). Defendant indicated that Dr. Hsiao could not appear for a deposition in Illinois, but did intend to come to Illinois and testify at trial. Plaintiff stated that it did not care who Defendant produced for deposition as a corporate representative, in compliance with this court's order, but that anyone who would not appear for a deposition could not appear for trial. After hearing argument, Judge Bernthal denied Defendant's Motion for Protective Order (#59).
On August 5, 2008, the date originally scheduled for a final pretrial conference in this case, this court held a hearing. This court agreed with Plaintiff that it was much too late for Defendant to make a claim that any documents requested by Plaintiff were privileged and denied Defendant's Second Motion for Protective Order (#71). This court then directed Defendant to produce certain requested documents by August 12, 2008, and scheduled the deposition of Dr. Hsiao for August 25, 2008, at 10:00 a.m. at the U.S. Courthouse.*fn1 This court then continued the final pretrial conference to August 25, 2008, and vacated the bench trial scheduled on that date.
On August 8, 2008, Plaintiff filed its Motion for Reimbursement of Reasonable Expenses, Including Attorney's Fees (#80). Plaintiff is seeking the attorney's fees and expenses it incurred in responding to Defendant's Motion for Protective Order (#59) and Second Motion for Protective Order (#71). On August 25, 2008, Defendant filed its Response in Opposition to Plaintiff's Motion (#83). Defendant argued that Plaintiff's Motion should be denied because its Motions for Protective Orders (#59, #71) were "substantially justified." This court does not agree with Defendant.
Rule 37(a)(5)(B) provides that, when a motion for protective order is denied, this court "must" require the party or attorney who filed the motion to pay the party who opposed the motion "its reasonable expenses incurred in opposing the motion, including attorney's fees." Fed. R. Civ. P. 37(a)(5)(B). However, a court must not order this payment "if the motion was substantially justified or other circumstances make an award of expenses unjust." Fed. R. Civ. P. 37(a)(5)(B). The Seventh Circuit has recognized that this rule "presumptively requires every loser to make good the victor's costs." Rickels v. City of South Bend, Ind., 33 F.3d 785, 786 (7th Cir. 1994); Steadfast Ins. Co. v. Auto Marketing Network, Inc., 1999 WL 446691, at *1 (N.D. Ill. 1999). "The burden of persuasion is on the losing party to avoid assessment of expenses and fees, rather than on the winning party of obtain such an award." Steadfast Ins. Co., 1999 WL 446691, at *1.
In this case, the record shows that Defendant has exhibited a "pervasive course of conduct . . . that can only be described as calculated to frustrate legitimate discovery." See Steadfast Ins. Co., 1999 WL 446691, at *2, quoting Ill. Tool Works, Inc. v. Metro Mark Prods. Ltd., 43 F. Supp. 2d 951, 959 (N.D. Ill. 1999). This "pervasive course of conduct" was continued when Defendant filed Motions for Protective Order, which were found without merit and denied, instead of complying with this court's clear order of May 29, 2008. This court concludes that Defendant has fallen far short of meeting its burden to show that the motions were "substantially justified." This court specifically rejects Defendant's assertion that objections to requests to produce are not waived by failing to assert a timely objection. See Fed R. Civ. P. 34(b) (the "party to whom the request [for production of documents] is directed must respond in writing [including objections] within 30 ...