643 F. App'x 310
4th Cir.2016Background
- Appellants Gail Hinterberger and Catherine Gordon subpoenaed discoverable materials from the American Nurses Association (ANA) in related litigation against Catholic Health System and Kaleida Health; ANA produced materials but sought to shift certain compliance expenses to Appellants under Fed. R. Civ. P. 45.
- The magistrate judge ordered Appellants to pay various expenses incurred by ANA, including attorney’s fees for compliance-related work, attorney’s fees for ANA’s motion to shift expenses, e-discovery charges billed by BIA, and other costs (e.g., FedEx, PACER).
- ANA’s motion to shift expenses was filed after the deadline; ANA filed a notice invoking Rule 6(b) and an affidavit explaining the delay (medical issues and confusion about the due date) and asked for leave to file instanter.
- Appellants challenged (1) the timeliness of ANA’s motion, (2) whether attorney’s fees are “expenses” recoverable under Rule 45(d)(2)(B)(ii), and (3) shifting of BIA e-discovery charges where ANA allegedly failed to disclose or that Appellants altered the scope.
- The district court overruled Appellants’ objections to the magistrate judge; on appeal the Fourth Circuit affirmed in part, vacated in part, and remanded to recalculate recoverable amounts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of ANA’s motion to shift expenses | ANA’s filing was untimely | ANA argued Rule 6(b) leave and excusable neglect justified late filing | Court upheld extension under Rule 6(b); excusable neglect shown (affirmed) |
| Whether attorney’s fees are recoverable under Rule 45(d)(2)(B)(ii) | Appellants: attorney’s fees are not taxable as "expenses" | ANA: reasonable attorney’s fees necessary to comply are "expenses" recoverable | Court held attorney’s fees necessary to compliance may be shifted; fees incurred to pursue fee recovery are not recoverable (partial affirmance/vacatur) |
| Recoverability of fees incurred to litigate the fee motion | Appellants: these fees should not be shifted | ANA: such fees were part of expense posture | Court held fees for pursuing the fee motion were not necessary to compliance and must be vacated from the award (vacated) |
| Shifting of BIA e-discovery charges | Appellants: ANA failed to disclose and Appellants’ conduct did not justify charges | ANA: production entailed significant cost; Appellants delayed and changed scope increasing charges | Record lacked clear error; court affirmed shifting BIA e-discovery expenses (affirmed) |
Key Cases Cited
- Lovelace v. Lee, 472 F.3d 174 (4th Cir.) (standard of review for extending filing time)
- United States v. Henry, 673 F.3d 285 (4th Cir.) (abuse of discretion definition)
- Pioneer Inv. Serv. Co. v. Brunswick Assoc. Ltd. P’ship, 507 U.S. 380 (Supreme Court) (defining "excusable neglect")
- Payne ex rel. Estate of Calzada v. Brake, 439 F.3d 198 (4th Cir.) (de novo review of rule interpretation; abuse-of-discretion for discovery decisions)
- Carefirst of Md., Inc. v. Carefirst Pregnancy Ctr., Inc., 334 F.3d 390 (4th Cir.) (discovery-order review standard)
- Westberry v. Gislaved Gummi AB, 178 F.3d 257 (4th Cir.) (abuse of discretion where legal/factual premises erroneous)
- Legal Voice v. Stormans Inc., 738 F.3d 1178 (9th Cir.) (context on 1991 amendments to Rule 45 and enlarging protections for nonparties)