274 F.R.D. 115
S.D.N.Y.2011Background
- In July 2010, plaintiff timely served deposition notices on Valerie Jacob and Justin Spendlove, which defendants refused to honor.
- Court denied the defendants’ September 15, 2010 protective-order motion as untimely and directed plaintiff to seek reasonable expenses under Rule 37(a)(5).
- Plaintiff pursued Rule 37(d) expenses for the defendants’ failure to attend their own depositions, seeking $10,421.50 including attorney’s fees and travel costs.
- Plaintiff offered to withdraw deposition notices in exchange for a 30(b)(6) or firm-witness alternative, but defendants rejected and did not timely seek a protective order.
- Plaintiff’s affidavits claim attorney time at $585/hour for two partners (Davis and Doman) and $184 in travel; retainer agreement later confirms $585 hourly rates.
- Court considered whether the defendants’ reasons for not appearing were substantially justified and whether travel fees are recoverable while denying unrecoverable attorney-fee hours due to untimely submissions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether failure to appear entitles expenses under Rule 37(d) | Davis/Doman failures trigger expenses; timely notices ignored. | Failure substantially justified due to dispute over deposing firm executives. | Yes, reasonable travel expenses awarded; attorney hours denied as untimely. |
| Whether failure was substantially justified | Defendants refused deposition despite plaintiff’s offer to adjust approach. | Reasonable lawyers could disagree on deposing firm executives; objections were substantial. | Not substantially justified; objections not valid excuses. |
| Whether circumstances make an award unjust | Plaintiff was prejudiced by delays and spent effort in discovery. | Discovery failures by plaintiff caused expenses; no clear prejudice to defendants. | Award not unjust under circumstances; not improper to require expenses. |
| Reasonableness of attorney’s fees | Contemporaneous time records show work performed at $585/hour. | Affidavits untimely; insufficient record of hours; fees should be denied. | Fees denied due to untimely affidavits; travel expenses still awarded. |
| Procedural compliance with fee application timelines | Court ordered affidavits and records; extension granted. | Late filing should be rejected as untimely. | Affidavits filed March 23, 2011 deemed untimely; only travel expenses awarded. |
Key Cases Cited
- Novak v. Wolpoff & Abramson LLP, 536 F.3d 175 (2d Cir.2008) (burden on disobedient party to show justification or lack of unjust award)
- Arbor Hill Concerned Citizens Neighborhood Ass’n v. County of Albany, 522 F.3d 182 (2d Cir.2008) (presumptively reasonable fee framework and Johnson factors)
- Carey v. City of New York, 711 F.2d 1136 (2d Cir.1983) (require contemporaneous time records unless unusual circumstances)
- Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974) (guides reasonableness factors for fees)
- United States v. Locke, 471 U.S. 84 (1985) (filing deadlines must be enforced; late filings not excusable)