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DIRECTV, INC. v. ROWLAND

June 10, 2005.

DIRECTV, INC., Plaintiff,
v.
TIMOTHY ROWLAND, Defendant.



The opinion of the court was delivered by: HUGH SCOTT, Magistrate Judge

Order

Before the Court is plaintiff's motion for sanctions against defense counsel Michael Morse ("Morse" or "defense counsel") under Federal Rule of Civil Procedure 30(d) and 28 U.S.C. § 1927 and its motion to compel the re-examination of defendant (Docket No. 31). The motion was argued on May 13, 2005 (see Docket No. 42), but defendant indicated that he had filed for bankruptcy earlier that morning. See In re Rowland, No. 1:05-14127 (Bankr. W.D.N.Y. 2005). Invoking the automatic stay under 11 U.S.C. § 362(a), defendant argued that this motion was stayed by the filing of the bankruptcy petition. Following argument, the Court ordered briefing on the impact of the bankruptcy stay on this motion (Docket No. 42). After the parties submitted on this question (see Docket Nos. 43, 44), the Court issued an Order (Docket No. 45) granting plaintiff's motion as against Morse only under Rule 30 (but not under 28 U.S.C. § 1927), requiring plaintiff to file an affidavit identifying its motion costs, "namely plaintiff's attorneys' fees equal to time for conducting examination plus time in preparing and arguing this motion and the costs of transcription of the initial examination of its reasonable motion expenses" (id. at 12, 13). Plaintiff filed such an affidavit (Docket No. 47)*fn1 and defense counsel was given time to file a response to that affidavit. Morse filed his response on June 9, 2005 (Docket No. 48, Def. Atty. Aff. of June 7, 2005).

BACKGROUND

  Plaintiff claims attorneys' fees in conducting the deposition and the subsequent motion practice of $4,436.00, and costs related to that deposition of $531.30, for a total of $4,967.30 (Docket No. 47, Pl. Atty. Aff. ¶¶ 5, 3).

  Defense counsel responds that the attorneys' fee sought is not reasonable expense because plaintiff itself argued that the conduct was "plainly improper" and the situation was a "textbook case" (Docket No. 48, Def. Atty. Aff. ¶ 5, citing Docket No. 33, Pl. Memo. at 2, 16). He requests that the Court make an independent determination of the reasonable expenses incurred here (id. ¶ 10).

  DISCUSSION

  Reasonable Expenses

  I. No Duty to Mitigate Discovery Sanction

  Defense counsel objects to the full amount sought by plaintiff as its reasonable costs for this motion. Morse contends in his cover letter to his affidavit submitted to chambers (letter of June 7, 2005), that under Rule 11 sanctions, plaintiff-movant has a duty to mitigate its damages, citing Napier v. Thirty or More Unidentified Federal Agents, 855 F.2d 1080, 1092 (3d Cir. 1988), and that plaintiff should have a similar duty under Rule 30. But Rule 11 by its own terms does not apply to discovery disputes that are subject to Rules 26 through 37, Fed.R.Civ.P. 11(d), and defense counsel does not cite authority applying a duty to mitigate the damage in a discovery context. Further, how could plaintiff mitigated its damages from the way defense counsel participated in this deposition? In the case cited by counsel, the court imposed a duty to mitigate the effects of a frivolous lawsuit (by using reasonable means to terminate the action and to avoid the costs of that suit from becoming excessive) before being awarded Rule 11 sanctions. Napier, supra, 855 F.2d at 1092. There, the defendant expended "a substantial number of hours in defense of the suit" that the appellate court found was "at least suspect," id. at 1094, requiring the district court to examine the attorneys' fee application for duplicative and excessive effort, id. at 1094, 1095. Obviously, a moving party should not turn a discovery motion to compel into full blown ancillary litigation. As discussed below (Part III, infra), the time claimed for the attorneys' fee application for this motion has been scrutinized.

  II. First Deposition Expenses as Sanction

  The Order here defined reasonable expenses to include not only those directly related to making this motion but also those incurred in conducting the deposition in question. Defense counsel apparently does not dispute the amount of the deposition costs, but argues that such expenses should not be counted as motion expenses (Docket No. 48, Def. Atty. Aff. ¶ 9). These expenses are not per se motion expenses, but constitute part of the overall sanction for the conduct involved here. Defense counsel's conduct frustrated the fair examination of defendant to the point that, had no bankruptcy petition been filed, a new examination probably would have been ordered (see Docket No. 45, Order at 12). Under Rule 30(d) and this Court's inherent power, the cost for this deposition of $531.30 plus the attorneys' fee of $435.00 for conducting that examination (or a total of $966.30) will be imposed upon defense counsel. See American Directory Serv. Agency v. Beam, 131 F.R.D. 635, 645 (D.D.C.) (Robinson, Mag. J.) (Report & Recommendation, attorney ordered to pay for opponent's costs in taking deposition as well as costs for motion to compel), adopted as modified, 131 F.R.D. 15 (D.D.C. 1990) (citing authority under 28 U.S.C. § 1927); Antonio-Garcia v. Shadrin, 208 F.R.D. 298, 300 (D. Ore. 2002) (sanctioning recalcitrant defendant the cost of motion plus attorneys' fees and costs of first deposition); Cf. Morales v. Zondo, Inc., 204 F.R.D. 50, 53-54 (S.D.N.Y. 2001) (sanction under 28 U.S.C. § 1927 and court's inherent power to include imposing deposition cost upon counsel); United States v. Kattar, 191 F.R.D. 33, 39 (D.N.H. 1999) (sanctioning attorney the government's costs in re-deposing witnesses). Since the bankruptcy petition stays a further examination of defendant, the only sanctionable costs the Court can impose due to Morse's actions is to pass along plaintiff's costs for the initial, suspect deposition.

  III. Determining Reasonable Amount of Time Plaintiff's Counsel Expended

  Defense counsel next argues that the time spent by plaintiff's counsel was excessive, noting (for example) that the offending transcript was read three times and that time is accounted for in this fee application (Docket No. 48, Def. Atty. Aff. ¶ 6) and much of the motion papers merely reproduced the transcript in question (id. ¶ 7). Note, defense counsel has not objected to the rates charged by plaintiff's counsel or the reasonableness of the rates relative the attorneys' levels of experience.

  Under Rule 30(d)(3) and like Rule 37, the movant is entitled to reasonable costs and attorneys' fees. "If the court determines to award expenses and fees, it is for the court to decide what amount is proper." 8A Charles A. Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 2288, at 666-67 (Civil 2d ed. 1994); see also Addington v. Mid-American Lines, 77 F.R.D. 750, 751 (W.D. Mo. 1978) (three hours at $50 per hour held excessive where opponent merely failed to make timely response to interrogatories, reducing time to one hour). The rate or amount an attorney bills his or her client related to discovery or a motion to compel does not make that rate or time ...


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