Facts
- Lauren J. Ross sued the American Red Cross (and other defendants) in the U.S. District Court for the Southern District of Ohio.
- The case proceeded through discovery under the supervision of a magistrate judge.
- The American Red Cross sought production of Ross’s tax returns in discovery.
- Ross did not produce the requested tax returns.
- On December 15, 2011, the American Red Cross moved to compel production of the tax returns.
- Ross did not file a response to the motion to compel.
- On February 2, 2012, the magistrate judge granted the motion to compel as unopposed and authorized an award of the movant’s reasonable expenses, including attorney’s fees, under Federal Rule of Civil Procedure 37(a)(5)(A).
- The American Red Cross then moved to approve the amount of sanctions, seeking attorney’s fees for time spent investigating whether the returns had been produced, researching the basis for relief, and drafting the motion to compel and related sanctions request.
- Ross opposed the amount sought, arguing that the fee request was excessive and that she believed the tax returns had already been produced (and suggesting an evidentiary hearing would support her position).
Issues
- After granting an unopposed motion to compel, must the court award the movant its reasonable expenses, including attorney’s fees, under Rule 37(a)(5)(A) when no exception applies?
- What attorney time was reasonably “incurred in connection with” the motion to compel, and what amount should be awarded under the lodestar method?
- Was Ross entitled to an evidentiary hearing to challenge the sanction request based on her asserted belief that the tax returns had already been produced?
Decision
- The court held that Rule 37(a)(5)(A) called for an award of reasonable expenses because the motion to compel was granted and the record did not show any basis for an exception.
- The court rejected Ross’s attempt to avoid fees by claiming she believed the tax returns had already been produced, reasoning that a party with that belief should have opposed the motion to compel rather than leave it unopposed.
- The court applied the lodestar method (reasonable hours multiplied by a reasonable hourly rate) to measure a reasonable fee.
- The court treated the requested hourly rates as reasonable, noting they were not meaningfully disputed.
- The court reduced the requested amount after concluding that some of the billed time was not properly chargeable as a Rule 37 sanction.
- In particular, the court excluded time spent on general review of discovery materials because that work would have been done regardless of whether Ross produced the tax returns.
- The court granted the fee motion in part and denied it in part, awarding a reduced amount limited to work reasonably tied to preparing and pursuing the motion to compel and the associated fee request.
Legal Principles
- When a motion to compel is granted, Rule 37(a)(5)(A) directs the court to require the nonmoving party to pay the movant’s reasonable expenses, including attorney’s fees, unless: (i) the movant filed before attempting in good faith to obtain discovery without court action, (ii) the nondisclosure was substantially justified, or (iii) other circumstances make an award unjust.
- A party’s failure to respond to a motion to compel supports a finding that the nonproduction lacked a substantial justification, and it weakens later claims of misunderstanding offered only after fees are sought.
- The lodestar method is the standard starting point for calculating a reasonable fee: reasonable hours multiplied by a reasonable hourly rate, as described in Hensley v. Eckerhart and applied in Sixth Circuit decisions such as Imwalle v. Reliance Medical Prods., Inc.
- Rule 37 fee shifting is limited to expenses “incurred in connection with” the motion to compel; the court may exclude time that would have been incurred in the ordinary course of discovery even without the violation.
- The party seeking fees must provide time records sufficient to allow the court to separate compensable motion-related work from noncompensable general case work.
Conclusion
Ross v. American Red Cross concerns Rule 37 fee shifting following a granted, unopposed motion to compel production of the plaintiff’s tax returns. The court concluded that fees were required because the motion to compel was granted and no exception applied, but it reduced the requested lodestar amount by cutting time not caused by the discovery failure—especially general discovery-review work that would have occurred even if the tax returns had been produced.