United States District Court, W.D. Kentucky, Owensboro Division
MEMORANDUM, OPINION, AND ORDER
BRENT BRENNENSTUHL UNITED STATES MAGISTRATE JUDGE
the Court is the motion of Plaintiff Richard Escalera for an
award of fees and expenses against Defendant Bard Medical, A
Division of C.R. Bard, Inc. (DN 37). Bard has responded in
opposition (DN 38), and Escalera has replied (DN 39). The
motion is ripe for adjudication. For the reasons that follow,
Escalera's motion is granted.
seeks to recover his legal fees and expenses associated with
pursuing a motion to compel Bard's responses to discovery
requests. On January 11, 2017, Escalera served
interrogatories and requests for production of documents on
Bard. Bard served responses and objections on February 13,
2017 and subsequently served amended responses and objections
on March 2, 2017. Escalera believed that Bard's discovery
responses were deficient. The parties were successful in
resolving some of the issues, and on May 24, 2017, Bard
served a second amended set of responses and objections.
Escalera believed that deficiencies in the responses
to the requirement in the scheduling orders that the parties
participate in an informal telephone conference with the
undersigned before filing any motions related to discovery,
the Court conducted a telephonic conference on April 20,
2017. The parties resolved some of the disputed issues during
the conference, but as to others on which the parties were
unable to agree, the undersigned authorized Bard to file
motions for protective orders (DN 20). The undersigned
conducted another telephonic conference on June 7, 2017, at
the conclusion of which the undersigned authorized Escalera
to file a motion to compel (DN 22).
filed a motion to compel on July 7, 2017 (DN 23). Bard
responded in opposition (DN 27), and Escalera replied (DN
32). The undersigned issued a memorandum opinion and order on
September 12, 2017 granting Escalera's motion to compel
and directing Bard to supplement its response to
Escalera's discovery requests (DN 33). Bard subsequently
filed an objection to the ruling (DN 36), and the district
judge overruled the objection (DN 41).
brings his motion under Fed.R.Civ.P. 37(a)(5)(A) for an award
of expenses and attorney fees in the sum of $19, 385.00
incurred in the course of filing of the motion to compel. The
(5) Payment of Expenses; Protective Orders.
(A) If the Motion Is Granted (or Disclosure or Discovery Is
Provided After Filing). If the motion 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 attorney's fees.
But the court must not order this payment if:
(i) the movant filed the motion before attempting in good
faith to obtain the disclosure or discovery without court
(ii) the opposing party's nondisclosure, response, or
objection was substantially justified; or
(iii) other circumstances make an award of ...