United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
plaintiff has filed a motion under Fed.R.Civ.P. 37(a)(5)(A)
to recover expenses incurred in filing a motion to compel
discovery. The motion to compel, filed January 23, 2018,
sought a response from each defendant to plaintiff's
Interrogatory No. 1. [Dkt. #43, at 6-9]. That motion stated
at one point that the parties had engaged only in
correspondence over the dispute [Dkt. #43, at 3, 6], and so
it was denied without prejudice for failing to comply with
Local Rule 37.2. [Dkt. # 47]. The plaintiff then filed a
motion for reconsideration, making it clear that the parties
had, indeed, engaged in both correspondence and had a couple
of telephone calls and the motion was reinstated. [Dkt. #52].
Defendant's response would be due February 13, 2018; on
that day, the defendant instead filed a document indicating
that, after a phone call with plaintiff's counsel, they
agreed to supplement their responses to Interrogatory No. 1.
objects to the plaintiff's motion for fees because they
responded to plaintiff's discovery and plaintiff suffered
no prejudice. [Dkt. # 65, at 5, 6]. They submit that
plaintiff's dissatisfaction with defendants' original
responses to Interrogatory No. 1 is not a proper basis for
seeking expenses where the court did not actually grant the
motion to compel. [Dkt. # 65, at 5]. But Rule 37(a)(5)
provides otherwise, namely that:
If the motion [to compel] is granted - or if the
disclosure or requested discovery is provided after the
motion was filed - the court must, after giving
an opportunity to be heard, require the party or deponent
whose conduct necessitated the motion, the party or attorney
advising that conduct, or both to pay the movant's
reasonable expenses incurred in making the motion, including
Fed. R. Civ. P. 37(a)(5)(A). Payment of expenses is not
appropriate, however, if the party who necessitated the
motion to compel can show that its “non-disclosure,
response, or objection was substantially justified . . .
.” Id.; see Rickels v. City of South
Bend, 33 F.3d 785, 787 (7th Cir. 1994) (“A loser
may avoid payment by establishing that his position was
substantially justified.”). Missing from the
defendants' response is any showing that their original
position, which they later recanted, was substantially
justified. [Dkt. # 65, at 5-6].
claim plaintiff suffered no prejudice, but plaintiff did have
to file a motion and, coincidentally, the defendants waited
until the day their response to plaintiff's motion was
due to agree to augment their interrogatory responses. But,
in any case, prejudice, contrary to defendants' response,
isn't part of the calculus. Nor is misconduct. The idea
is that parties should be able to proceed through discovery
without asking the court for intervention. The plaintiff had
to ask for intervention here, and, while the court did not
have to take the time resolve the dispute, the plaintiff did
have to file and the court did have to review the motion.
That means the defendant has to pay. See Rickels;
United States Freight Co. v. Penn Cent. Transp. Co.,
716 F.2d 954, 955 (2nd Cir.1983)(“General deterrence,
rather than mere remediation of the particular parties'
conduct, is a goal under Rule 37; unconditional impositions
of sanctions are necessary to deter ‘other parties to
other lawsuits' from flouting ‘other discovery
orders of other district courts.'”); Sambrano
v. Mabus 663 F.3d 879, 881-882 (7th Cir.
2011)(“Sanctions such as orders to pay the other
side's attorneys' fees may redress injuries done to
being said, the amount must be reasonable. Houston v. C
G. Sec. Servs., Inc.,820 F.3d 855, 859 (7th Cir.
2016); see also Schlacher v. Law Offices of Phillip J.
Rotche & Assocs., P.C,574 F.3d 852, 858-59 (7th
Cir. 2009)(reduction of fees where work was excessive or
redundant). Here, the plaintiff asks for $3, 384 for 9.4
hours work on a rather simple motion to compel. A fair
portion of the motion unnecessarily informed the court of a
number of squabbles the parties resolved on their own. [Dkt.
#43, at 3-6]. Again, that's the idea: parties taking care
of discovery on their own. The court assumes that will be the
rule and not the exception, so the narrative describing the
parties doing what is expected of them adds nothing to the
proceedings. The cases cited in the motion - Vergara,
Scandaglia, Deutsch, Dang, etc. - were all researched as
a part of the plaintiffs responsibility as a party to
litigation handling a discovery dispute [Dkt. #43-4] without
the taxpayer expense of court intervention, see Chapman
v. First Index, Inc.,796 F.3d 783, 787 (7th Cir. 2015);
G & G Closed Circuit Events, LLC v. ...