United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND ORDER
L. PATRICK AULD, Magistrate Judge.
This case comes before the Court on Defendant's Memorandum in Support of Defendant's Position that it Should Not Be Required to Pay Plaintiff's Fees or Expenses (Docket Entry 34) concerning Plaintiff's request for expense-shifting in her Motion to Compel (Docket Entry 21). For the reasons that follow, the Court will order Defendant to pay Plaintiff $2, 919.70 in reasonable expenses, including attorney's fees, incurred in making her Motion to Compel.
Plaintiff's Complaint asserts that Defendant, her former employer, failed to reasonably accommodate her disability as required by the Americans with Disabilities Act (ADA). (Docket Entry 1 at 10-12.) Defendant's Answer asserted, inter alia, that "[t]he accommodations requested by Plaintiff were not reasonable" (Docket Entry 6 at 7) and that "Defendant was not required to make accommodations because to do so would impose an undue hardship" (id. at 8). Plaintiff filed a Motion to Compel as to several document requests, in which she sought expense-shifting. (Docket Entry 21 at 4.) Defendant responded in opposition (Docket Entry 26), Plaintiff replied (Docket Entry 28), and the Court set the matter for a hearing on April 4, 2014 (Docket Entry dated Apr. 2, 2014). At the hearing, the Parties reached an agreement as to certain discovery requests (i.e., Plaintiff's document requests numbered 17, 18, 19, 43, 53, 58, 59, and 62) and the Court then considered those requests which remained in dispute. (See Docket Entry dated Apr. 4, 2014.) After considering the Parties' arguments, the Court ordered Defendant to respond to all of the remaining, disputed requests (i.e., Plaintiff's document requests numbered 44 through 52), but also narrowed the scope of those requests. (See id.; Text Order dated Apr. 4, 2014.)
The Court further directed the Parties to work together to resolve minor issues as to the scope of certain of the requests, as well as the issue of expense-shifting, and to inform the Court as to the outcome of those negotiations. (See Docket Entry dated Apr. 4, 2014; Text Order dated Apr. 4, 2014.) Subsequently, the Parties informed the Court that they had resolved all outstanding issues as to the scope of Plaintiff's discovery requests. (Docket Entry 31.) The Parties then filed a Notice outlining their disagreement as to the appropriateness of expense-shifting. (Docket Entry 32.)
In response to that Notice, the Court concluded that, because it only granted Plaintiff's Motion to Compel in part, it would consider whether to order partial expense-shifting in this case. (Docket Entry 33 at 4 (quoting Fed.R.Civ.P. 37(a)(5)(C) for the proposition that, "i]f the motion is granted in part and denied in part, the court... may, after giving an opportunity to be heard, apportion the reasonable expenses for the motion'").) Further, the Court held that, contrary to Defendant's position, Federal Rule of Civil Procedure 37(a)(5)(C) does not preclude an award of attorney's fees as part of a party's reasonable expenses. ( Id. at 6-7.) The Court then directed the Parties to again work to resolve expense-shifting issues and, absent any agreement, to further brief the appropriateness and amount of expense-shifting in light of the Court's Order. ( Id. at 7.)
The Parties did not reach any further agreement (see Docket Entry 34 at 1) and instead Plaintiff served Defendant with an affidavit and statement of expenses (see Docket Entry 34-1). Accordingly, Defendant filed the instant Memorandum in which it asserts that Plaintiff has no entitlement to expense-shifting because Plaintiff failed to confer in good faith before moving to compel, because Defendant had substantial justification for objecting to Plaintiff's discovery requests, and because Defendant substantially prevailed as to the Motion to Compel. (Docket Entry 34 at 6-9.) In addition, Defendant contests some specific items included in Plaintiff's statement of expenses. ( Id. at 9-10.) Plaintiff responded in opposition (Docket Entry 42) and Defendant replied (Docket Entry 43).
A. Appropriateness of Expense-Shifting
Because the Court granted Plaintiff's Motion to Compel "in part and denied [it] in part, the [C]ourt may... after giving an opportunity to be heard, apportion the reasonable expenses for the [M]otion, " Fed.R.Civ.P. 37(a)(5)(C). However, the Court should not award expenses to the moving party 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 expenses unjust.
Fed. R. Civ. P. 37(a)(5)(A); see also Charter Practices Int'l, LLC v. Robb, No. 3:12CV1768 (RNC), 2014 WL 273855, at *5 (D. Conn. Jan. 23, 2014) (unpublished) ("Rule 37(a)(5)(C) effectively incorporates the substantive standards of Rule 37(a)(5)(A)[, in] that expenses of a discovery motion may be imposed upon a party ordered to produce discovery where that party's conduct necessitated the motion unless the nondisclosure or objection was substantially justified or other circumstances make an award of expenses unjust." (internal quotation marks omitted)); Switch Commn'cns Grp. LLC v. Ballard, No. 2:11CV285 JCM (GWF), ...