Virginia Magistrate Judge Finds Reasonableness Paramount When Awarding Discovery Sanctions

As any experienced litigation attorney will tell you, the discovery process is where many cases are won and lost. Consequently, the process is often contentious and characterized by wild fishing expeditions, invasion of privacy, and abusive tactics. The Federal Rules of Civil Procedure, however, allow judges to sanction attorneys who cross the line between aggressive, zealous representation and outright discovery abuse. A recent decision out of the United States District Court for the Eastern District of Virginia lays out the guidelines for whether to punish such tactics by awarding attorneys’ fees to the other side, and if so, how much to award.

In Rutherford Controls Int’l Corp. v. Alarm Controls Corp., both the plaintiffs (“Rutherford”) and the defendants agreed to an extended deadline by which the defendants would produce all documents responsive to Rutherford’s discovery requests. The day of the deadline came, and by the close of business, the plaintiffs had not received the promised documents. Rutherford promptly filed a motion to compel the required discovery. The defendants did produce some material prior to receiving notice of the motion to compel, but the production was minimal. The court heard arguments, and while it did not officially grant Rutherford’s motion, the judge expressed serious dissatisfaction with the defendants’ discovery responses (calling them “absolute nonsense”) and commanded them to answer all of the requests more thoroughly and accurately. The defendants, without protest, complied with the judge’s demands.

Rutherford proceeded to move for sanctions in the form of reimbursement of the $11,858.07 in attorneys’ fees it incurred in connection with the motion. Rule 37(a)(5)(A) specifically permits the recovery of “reasonable expenses” incurred in moving toPaper Dump.jpg compel discovery, “including attorney’s fees.” The court quickly determined that an award of attorneys’ fees was appropriate. Rutherford made a good faith attempt to obtain the discovery without court action, the defendants’ inadequate response was not substantially justified, and there were no extenuating circumstances that would make an award of expenses unjust. The real question was whether it would be reasonable to award Rutherford the full amount of fees they incurred.

The court clarified that even where the attorneys’ fees incurred are reasonable on their face, an analysis still must be performed to determine what amount would be reasonable to assess against the party whose discovery conduct necessitated the motion. The opinion recites all the key legal precedent for performing this analysis, ultimately identifying 22 separate, enumerated considerations. Attorneys will find the opinion a useful reference when moving for an award of fees.

In this particular case, while the court found the amount of the claimed fees to be reasonable (including the hourly billing rates of Rutherford’s attorneys, which ranged from $410 to $510), the court nevertheless awarded only half of them as a discovery sanction, reasoning that an award of nearly $12,000 would not be appropriate where the majority of the late production involved material from third party sources for whom Rutherford could have issued subpoenas, and where the defendant ultimately prevailed in the litigation.

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