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Escalera v. Bard Medical

United States District Court, W.D. Kentucky, Owensboro Division

December 18, 2017

RICHARD ESCALERA PLAINTIFF
v.
BARD MEDICAL, A DIVISION OF C.R. BARD, INC. DEFENDANT

          MEMORANDUM, OPINION, AND ORDER

          H. BRENT BRENNENSTUHL UNITED STATES MAGISTRATE JUDGE

         Before 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.

         Background

         Escalera 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 remained.

         Pursuant 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).

         Escalera 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).

         Escalera's Motion

         Escalera 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 rule provides:

(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 action;
(ii) the opposing party's nondisclosure, response, or objection was substantially justified; or
(iii) other circumstances make an award of ...

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